author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL McCLEARY, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—0203
    Opinion filed December 28, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Karen E. Tietz, Assistant Public Defender, of counsel), for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Gael M. O’Brien, and Adam D. Grosch, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a jury trial, defendant was found guilty but mentally ill of murdering two men, Tony King and Ivory Barrett. The trial court sentenced defendant to mandatory life imprisonment. On appeal, defendant contends: (1) that the jury was incorrectly instructed on the guilty but mentally ill verdict; (2) that the voluntary manslaughter instructions were improper; (3) that the State failed to prove beyond a reasonable doubt that defendant was not legally insane at the time of the crime; (4) that the trial court erred in denying defendant’s motion to quash arrest and suppress all the evidence; (5) that the trial court erred in determining that defendant’s statements were voluntary; (6) that the trial court improperly admitted evidence that defendant requested Miranda warnings where defendant raised an insanity defense; (7) that he was denied effective assistance of counsel; (8) that the trial court erred in failing to inquire into the prospective jurors’ bias toward the State’s burden of proof; (9) that the trial court’s imposition of a natural life sentence without considering mitigating factors violated the eighth and fourteenth amendments to the United States Constitution; and (10) that the trial court improperly sentenced defendant under the mandatory natural life statute.

Because defendant does not challenge the jury’s finding that he committed the crimes, we will summarize the evidence. On May 14, 1986, defendant beat the two victims to death with a metal rod in the vicinity of 730 W. Wayman Court in Chicago, a railyard area with abandoned warehouses and loading docks, under which defendant lived in a cubbyhole.

At trial, the State presented physical and forensic evidence which connected defendant to the crime scene. It also offered evidence detailing the discovery of the bodies; the appearance of the crime scene; defendant’s actions following the murders; and defendant’s confession.

In his confession, defendant stated that after he purchased a bot-tie of liquor at a bar, a male approached and asked him to share the bottle. Defendant refused and left the bar, walking towards his “home” on Wayman Court under a loading dock. When defendant arrived at his cubicle, the man who followed him was joined by a second man. The men asked that defendant share his bottle, and after defendant refused, the men began throwing sticks and stones at defendant. Defendant picked up a metal bar and began hitting the men. Defendant dragged both men to' a point east of the cubbyhole, placed the iron bar inside his cubbyhole and then started a fire in front of his cubbyhole. Defendant later stated that he did not drag the victims but rather ordered them to walk and then kneel down on the ground, and then hit them with the metal bar.

Dr. Robert A. Reifman, a psychiatrist and clinical director of the Psychiatric Institute of the circuit court of Cook County, testified for the defense. In his opinion, on May 14, 1986, defendant lacked the substantial capacity to appreciate the criminality of his acts and to conform his conduct to the requirements of the law.

Dr. Reifman examined defendant in 1975 to determine his state of mind in connection with a different criminal charge. At that time Dr. Reifman diagnosed defendant as “schizophrenia paranoid type.” Dr. Reifman examined defendant five times, twice in 1975, twice in 1976 and once in 1977, each examination lasting approximately 45 minutes. According to Dr. Reifman, defendant has “been consistently schizophrenic more or less” from 1973 to the present. In fact, according to Dr. Reifman, all six psychiatrists who examined defendant over the years diagnosed him as paranoid schizophrenic. Dr. Reifman testified that defendant was hospitalized twice for several days in 1977 and 1982 and once in 1977 for 2xk months.

In December 1986, Dr. Reifman examined defendant twice in connection with this case. He reviewed his records from the previous examinations of defendant, the records of the Psychiatric Institute, records from defendant’s hospitalizations, bureau of identification records, the police reports, the photos taken for this case and a social history given by defendant’s aunt. Defendant denied hearing voices at the time. In his report, Dr. Reifman stated that defendant was legally insane and unable to conform his conduct to the requirements of the law at the time of the crimes. Although not reflected in his report, the doctor concluded that defendant was not able to appreciate the criminality of his conduct based upon defendant’s belief that he was acting in self-defense.

Dr. Reifman testified further that defendant suffered from paranoid delusions of persecution for the past 25 years. As such, defendant constantly feels he is under attack or in danger of being attacked, whether actual or not, and often misinterprets the degree of any real or imagined attack and quickly overreacts to anything he interprets as negative. According to Dr. Reifman, these paranoid delusions account for the many fights that defendant, whom the doctor described as “explosive,” has been in over the years. Dr. Reifman further testified that defendant does not think logically or coherently or focus on relevant material. He is suspicious and guarded. According to Dr. Reifman, under stress defendant becomes more disorganized and less able to perceive and understand his environment. Dr. Reifman denied that defendant was feigning mental illness. Rather, he testified that defendant did not want to be known as a crazy person and, in fact was “malingering sanity.” Further, he stated that defendant was upset that mental illness was an issue in this case.

Dr. Karen Smith, a psychologist, also testified for the defense. On December 19, 1986, she conducted a clinical interview and administered three projective tests to defendant during a one- to two-hour period. These tests, the Rorschach Ink Blot Test, the House, Tree, Person Test and the Thematic Apperception Test, are designed to evaluate emotional adjustment, interpersonal relations and character style. She generally relies principally upon the Rorschach to determine the degree of psychosis. She found that defendant’s test scores differed significantly from the norm and that each test indicated signs of psychosis. She found that defendant’s thinking was “grossly disturbed” and consistent with that of a paranoid schizophrenic. According to Dr. Smith, as of December 19, 1986, defendant was a paranoid schizophrenic who if attacked or believed he was attacked would not conform his conduct to the law because of his delusion.

In Dr. Smith’s opinion, on May 14, 1986, the degree of defendant’s delusional thinking rendered him unable to conform his conduct to the requirements of the law. She did not, however, have an opinion as to whether defendant appreciated the criminality of his conduct. The doctor based her conclusion in part on the fact that she found defendant at the highest level of psychological functioning in his life when she examined him in December 1986. Dr. Smith also observed a June 1986 staffing on defendant at the Psychiatric Institute at which Drs. Reifman and Grossman, but not Dr. Stipes, attended. At this staffing, Dr. Smith heard defendant state that even though the men were not moving and were covered with blood, he thought that they were alive, laughing and talking. Dr. Smith explained that defendant had grandiose and persecutory delusions and that his beliefs do not conform to reality. Further, she explained that defendant becomes less able to perceive reality and act accordingly when confronted with other people, especially men. According to Dr. Smith, the December 1986 meeting with defendant was the sole basis for her diagnosis and she did not consider the opinions and tests of other psychiatrists.

The State offered the rebuttal testimony of Dr. Albert Henry Stipes, a staff psychiatrist at the Psychiatric Institute. He opined that on May 14, 1986, defendant was able to appreciate the criminality of his conduct and to conform his conduct with the requirements of the law. However, he testified that in his opinion, defendant was mentally ill at the time of the crimes.

Dr. Stipes examined the defendant three times, in September 1986, November 1986 and April 1987. At the September 1986 examination, the doctor was unable to form an opinion as to defendant’s sanity at the time of the offenses because defendant was “grossly psychotic” and uncooperative, giving false and conflicting information. Dr. Stipes testified that he next examined defendant on November 3, 1986. After this 40-minute interview, he concluded that on May 14, 1986, defendant was able to appreciate the criminality of his conduct and able to conform his conduct to the requirements of the law. At this interview, the doctor found defendant cooperative and coherent and did not find any evidence of delusional thinking or hallucinations. Previously, he received the police reports, a psychology summary and reevaluation prepared by psychologist Dr. Lisa Grossman, psychiatric evaluation by Dr. Matthew Markus and psychiatric records from the Illinois Department of Mental Health. After making his report, the doctor reviewed the reports of Drs. Reifman and Smith, reviewed Dr. Stem’s reports on the victims’ deaths and again examined defendant in April 1987. His opinion as to defendant’s sanity at the time of the crime, however, did not change.

Dr. Stipes found it significant in reaching his conclusion of sanity that defendant acted reasonably on the day of the crimes. Specifically, he noted that defendant moved the bodies away from his dwelling and that a metal bar was “found underneath something” in his cubicle. According to Dr. Stipes, these two factors evidence defendant’s awareness of his guilt. On cross-examination, however, he conceded that neither of these factors taken alone indicated sanity, but rather when taken with other factors tend to show that defendant acted rationally. Dr. Stipes acknowledged that defendant did not tell him that he “hid” the alleged weapon, but rather he read it in a police report. Further, he agreed that a paranoid schizophrenic typically hides things because of his fear that people will take things from him. The doctor found no evidence that defendant ever tried to fake his mental illness over the years and, in fact, he often denied his symptoms. Dr. Stipes identified this as an important sign of a person who is deeply disturbed.

During its case in chief, the State also offered the testimony of Officers Harrington, Duran and Ziegler regarding defendant’s sanity. All three officers testified that they noticed nothing unusual about defendant’s behavior. Ziegler described defendant’s demeanor as calm and polite. Harrington and Duran believed that defendant was able to conform his conduct to the law and appreciate the criminality of his actions.

Defendant initially contends that the jury received an improper instruction which requires reversal of his conviction of guilty but mentally ill (GBMI). He argues that the trial court mistakenly instructed the jury that the preponderance of the evidence standard, rather than the reasonable doubt standard, applied in determining his sanity.

The statute which authorizes the GBMI verdict sets forth the elements and burden of proof required. It provides as follows: “[The GBMI verdict] requires a unanimous finding by the jury beyond a reasonable doubt that the defendant committed the acts charged and that the defendant was not legally insane at the time of the commission of those acts but that he was mentally ill at such time.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 40.) Thus, a GBMI verdict requires that the State prove three elements beyond a reasonable doubt: that the defendant committed the act; that the defendant was not insane; and that the defendant was mentally ill. People v. Fierer (1988), 124 Ill. 2d 176, 529 N.E.2d 972.

In this case, however, the trial court instructed the jury that it could find defendant guilty but mentally ill if it found:

“First: Beyond a reasonable doubt, *** that the defendant has committed the offense charged.
Second: By a preponderance of the evidence, *** that the defendant was sane at the time of the commission of the offense.
Third: That the defendant was mentally ill at the time of the commission of the offense.” (Emphasis added.)

This instruction incorrectly informed the jury that to return a GBMI verdict, they need only find defendant sane by a preponderance of the evidence. The State concedes that the instruction misstated the burden of proof, but argues that the error was harmless because defendant would have been found guilty but mentally ill even with the proper instructions. We do not agree.

In order to conclude that an error in jury instructions was harmless, it must be shown that the result of the trial would have been the same if the jury had been properly instructed. (People v. Fierer, 124 Ill. 2d 176, 529 N.E.2d 972.) Further, the standard of review for an error which affects the Federal constitutional right to a fair trial is whether there is a reasonable possibility that the error contributed to the defendant’s conviction. (People v. Fields (1988), 170 Ill. App. 3d 1, 13, 523 N.E.2d 1196; People v. Merideth (1987), 152 Ill. App. 3d 304, 319, 503 N.E.2d 1132, appeal denied (1987), 114 Ill. 2d 553, 508 N.E.2d 733.) Under either standard, we cannot conclude that the error in the GBMI instructions was harmless.

We find the holding of People v. Fierer to be dispositive of whether the instruction was erroneously given and whether it was harmless error. In Fierer, defendant’s defense at trial was based on insanity and the jury was instructed on both the GBMI and the insanity verdicts. The statutes in effect at that time required defendant to prove insanity by a preponderance in order to get a not guilty by reason of insanity verdict, while the State bore the burden of proving sanity beyond a reasonable doubt for the GBMI verdict. (See Ill. Rev. Stat. 1985, ch. 38, pars. 3 — 2(b), 6 — 2(c), 115 — 4(j).) The trial judge found the two provisions “irreconcilable” and erroneously instructed the jury that it could return a GBMI verdict if it found by a preponderance of the evidence that the defendant was sane, in addition to proving the other two elements beyond a reasonable doubt.

Our supreme court reversed the defendant’s conviction and remanded based upon this error, which it concluded was not harmless. The court wrote:

“The modification of the burden of proof from ‘not insane beyond a reasonable doubt’ to ‘sane by a preponderance of the evidence’ had the undeniable effect of making the GBMI verdict easier to attain and more likely to result. If the jury, properly instructed, had been unable to conclude that the defendant was sane beyond a reasonable doubt, it would have faced a more difficult choice between guilty or not guilty. We need not speculate as to the outcome of the decisionmaking process. It is enough to say that the altered GBMI instruction might have affected that outcome. Therefore, the alleged error cannot be viewed as harmless.” Fierer, 124 Ill. 2d at 187-88, 529 N.E.2d at 976.

The Fierer court’s analysis requires us to conclude that this error was not harmless. In this case, the jury received the same inaccurate instruction as did the jury in Fierer. This instruction indisputably lessened the State’s burden and made it easier for the jury to return a GBMI verdict, because the instruction only required proof of sanity by a preponderance of the evidence. It appears from the record that testimony as to defendant’s sanity was sharply divided. Two expert witnesses testified for the defense that defendant was insane, while the State offered the testimony of Dr. Stipes and three police officers that defendant was sane. The giving of the instruction could not be considered harmless error, and it mandates a remandment for a new trial.

Defendant also complains that the jury instructions on voluntary manslaughter erroneously stated the prosecutor’s burden under Reddick. (People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141.) Since we are remanding the case on the basis of the burden of proof instruction, it is unnecessary to address the Reddick issue because on remand the jury will receive the proper voluntary manslaughter instruction. For the same reason, it is unnecessary to consider defendant’s contention that he received ineffective assistance of counsel.

Since this case will be retried, we shall consider other contentions which may arise.

We reject defendant’s contention that the trial court improperly denied defendant’s motion to suppress his statements. On appeal, defendant argues that his statements were involuntary, and thus inadmissible, for two reasons: defendant was incapable of waiving his Miranda rights; and defendant’s will was overborne by improper police activity when the police questioned defendant without first giving him the opportunity to finish his meal. We conclude, however, that the circumstances surrounding defendant’s statements in this case are sufficient to sustain the trial court’s finding of voluntariness.

The test of whether a statement is admissible at trial is whether it has been made freely, voluntarily and without compulsion or inducement or whether the defendant’s will was overcome at the time he confessed. (People v. Maldonado (1988), 193 Ill. App. 3d 1062, 1067, 550 N.E.2d 1011.) Moreover, wrongful or coercive police conduct is a necessary precursor to finding that a confession is involuntary. (Colorado v. Connelly (1986), 479 U.S. 157, 93 L. Ed. 2d 473, 107 S. Ct. 515.) The trial court need only be convinced by a preponderance that the confession was voluntary. (People v. Reed (1984), 123 Ill. App. 3d 52, 59, 462 N.E.2d 512.) Further, the trial court determines voluntariness from the totality of the circumstances, and its determination will not be disturbed on review unless it is against the manifest weight of the evidence. People v. Mays (1989), 176 Ill. App. 3d 1027, 1033, 532 N.E.2d 843.

We reject defendant’s argument for several reasons. Defendant claims that his statement was involuntary because he was incapable of waiving his Miranda rights. However, Miranda protects against government coercion that leads defendant to confess, not against “moral and psychological pressures to confess [which] emanate] from sources other than official coercion.” (Colorado v. Connelly, 479 U.S. at 170, 93 L. Ed. 2d at 486, 107 S. Ct. at 523-24.) Defendant submits that the police acted improperly by questioning him before he ate his meal. Defendant stresses that the police knew that he, a street person, insisted on eating his food and appeared hungry and hyper. Indeed, Officer Ziegler told defendant to put his food down while they spoke. As such, defendant concludes, the police acted wrongfully by questioning defendant, and his statements were involuntary.

We do not believe that by questioning defendant before he finished his meal, the officers’ conduct rose to the level of improper or coercive police activity protected by the fifth amendment. At defendant’s request, Officer Sanchez read the Miranda rights on the way to the county morgue to identify the victims, but did not then question defendant. Rather, during the car ride, defendant continued to eat. At the morgue, Officers Duran and Sanchez went into the building, leaving defendant in the car, presumably still eating. When the officer came out to the car, he again read defendant his Miranda rights and asked him whether he understood them, to which defendant responded affirmatively. When asked whether he wanted to talk about the crimes, defendant said, “Sure, what do you want to know?” Although the officer asked defendant to put his food down while they spoke, the officer said that defendant was coherent, cooperative and calm. These circumstances do not suggest any wrongful police conduct, but rather demonstrate that defendant confessed voluntarily. Without the requisite showing of police misconduct, we agree with the trial court that admitting defendant’s statements did not violate his constitutional rights.

Defendant next contends that the trial court erred in denying his pretrial motion to quash arrest and suppress all the evidence because the statements resulted from an illegal arrest. We agree with defendant that the trial court’s finding that defendant’s arrest did not occur until he was taken to the morgue after the police picked him up was erroneous. However, this is of no consequence because we conclude that the police had probable cause when he was picked up.

Probable cause exists when the police possess enough evidence to lead a reasonable man to believe that a crime has been committed and that the defendant committed it. (People v. Neal (1985), 111 Ill. 2d 180, 193, 489 N.E.2d 845.) Further, the totality of the facts and circumstances known to the police officers must be considered. (People v. Montgomery (1984), 112 Ill. 2d 517, 525, 494 N.E.2d 475.) In determining probable cause, police may consider as relevant the closeness in geographic location and time between crime and arrest. (People v. Stachelek (1986), 145 Ill. App. 3d 391, 399-400, 495 N.E.2d 984.) The police may also properly rely on information from a private citizen without first verifying the citizen’s reliability. (People v. Sain (1984), 122 Ill. App. 3d 646, 650-51, 461 N.E.2d 1043.) Finally, a reviewing court must not disturb the trial court’s findings on probable cause unless they are manifestly erroneous. People v. Reynolds (1983), 94 Ill. 2d 160, 165, 445 N.E.2d 766.

Applying these principles, we conclude that the police had sufficient information to arrest defendant. When the police officers picked up defendant on the street, they knew the following: that two men were murdered on Wayman Court, in Chicago; that the victims were severely beaten in the head and face and other parts of the body; that a metal pipe which appeared to be stained with blood was found in a cubbyhole under a loading dock approximately 5 to 10 yards from where police found the victims; that a witness saw “Crazy Man” with a metal pipe near the crime scene approximately 24 hours before police began to investigate at the scene; that “Crazy Man” was a black man with a bad right eye wearing a French beret; that “Crazy Man” lived in a cubbyhole under a loading dock about 5 to 10 yards from the victims; that police saw a man about five blocks from the crime scene who had a bad right eye and a French beret; and that this man identified himself to police, as “Crazy Man.” Based upon these facts known to police at the time they picked up defendant, probable cause existed to believe the crime was committed and that defendant committed the crime. Therefore, the arrest was legal and the trial court properly denied defendant’s motion to quash arrest.

We also reject defendant’s contention that the State failed to prove beyond a reasonable doubt that defendant was not insane at the time of the crime.

A defendant’s sanity at the time of the crime is a question of fact, and a finding on this issue will not be disturbed unless so improbable as to raise a reasonable doubt as to defendant’s sanity. (People v. Eckhardt (1987), 156 Ill. App. 3d 1077, 1090, 509 N.E.2d 1361.) Further, the trier of fact, in deciding the question of sanity, may accept one expert’s opinion in its entirety and reject .another’s (People v. Taylor (1982), 110 Ill. App. 3d 112, 118, 441 N.E.2d 1231), reject all expert testimony, relying entirely on lay testimony (People v. Palmer (1985), 139 Ill. App. 3d 966, 974, 487 N.E.2d 1154), or accept part and reject part of each expert’s testimony (People v. Grice (1984), 121 Ill. App. 3d 567, 569, 459 N.E.2d 1122). The weight given to expert testimony depends upon the facts and reasoning used to support the opinion. (People v. Williams (1990), 201 Ill. App. 3d 207, 216, 558 N.E.2d 1248.) Further, lay witnesses’ opinions on defendant’s sanity may be used if those opinions are based upon personal observations of or conversations with defendant. People v. Tylkowski (1988), 171 Ill. App. 3d 93, 99, 524 N.E.2d 1112.

The jury here could easily have afforded the State’s witnesses’ testimony more weight than defendant suggests. Although defendant presented testimony of two experts who found him insane, these experts focused primarily on defendant’s mental health history and on evaluations done six or seven months after the crime. Indeed, Dr. Smith did not even read the police reports prior to drawing her conclusion, but rather based her opinion solely on the psychological testing performed a substantial time after the incident. By contrast, Dr. Stipes, the State’s expert, based his opinion of sanity primarily upon defendant’s words and actions around the time of the murders. Additionally, Officers Duran and Harrington spent more time with defendant than did the doctors. Further, the opinions of Duran and Harrington as to defendant’s mental state at the time of the crime were based upon their contact with defendant within 24 hours of the crime as compared to the opinions of defendant’s experts, who evaluated defendant six or seven months after the crime. The jury could have reasonably found that the officers’ observations supported Dr. Stipes’ opinion.

Based upon the above evidence, the jury could reasonably have determined that the opinions of the State’s witnesses warranted more weight than those of the defendant. Therefore, we do not find the jury’s finding of sanity so improbable or unsatisfactory as to raise a reasonable doubt.

Defendant also contends that the testimony of Officer Duran and the stipulation of Officer Sanchez regarding defendant’s request to be read his Miranda rights as evidence of his sanity was improper. Although we recognize that defendant may have waived this issue by failing to raise it at trial or in his post-trial motion, we consider it for purposes of retrial. Defendant relies on cases which hold that the State may not constitutionally use the following as evidence of defendant’s sanity: defendant’s post-Miranda silence (Wainright v. Greenfield (1986), 474 U.S. 284, 88 L. Ed. 2d 623, 106 S. Ct. 634); defendant’s post Miranda statements of intent to remain silent (People v. Stack (1986), 112 Ill. 2d 301, 493 N.E.2d 339); and defendant’s post-Miranda request for counsel (People v. Vanda (1982), 111 Ill. App. 3d 551, 444 N.E.2d 609). Here, the testimony and stipulation of the officers merely show that immediately after arrest, defendant stated that he wanted his rights. During closing argument, the State did not argue that defendant’s request to be read his rights evidenced his sanity, nor did the State even mention the utterance. (Cf. Wainright v. Greenfield, 474 U.S. 284, 88 L. Ed. 2d 623, 106 S. Ct. 634 (comments in closing argument, over defendant’s objections); People v. Ahmad (1990), 206 Ill. App. 3d 921 (comments in closing arguments); People v. Vanda, 111 Ill. App. 3d 551, 444 N.E.2d 609 (comments in closing arguments).) If any error occurred, it was harmless.

We comment briefly on defendant’s contention that the trial court erred in failing to ask jurors either individually or as a group whether they would hesitate returning a not guilty verdict if the State failed to meet its burden, or a guilty verdict if the State proved its case beyond a reasonable doubt. (People v. Zehr (1984), 103 Ill. 2d 472, 469 N.E.2d 1062.) Our review of the voir dire proceedings reveals that the trial court met the Zehr requirements by remarks made at the voir dire proceedings.

Finally, we are compelled to comment on defendant’s two arguments regarding his sentencing. The jury found defendant guilty on two counts of murder. After defendant waived the jury for sentencing, the court found him ineligible for the death penalty and sentenced him to natural life imprisonment pursuant to statute. Section 5 — 8—1 of the Unified Code of Corrections provides:

“(a) *** A sentence of imprisonment for a felony shall be a determinate sentence set by the court under this Section, according to the following limitations:
(1) for murder, *** (b) if the court finds that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty or that any of the aggravating factors listed in subsection (b) of Section 9 — 1 of the Criminal Code of 1961 are present, the court may sentence the defendant to a term of natural life imprisonment, or (c) if the defendant has previously been convicted of murder under any state or federal law or is found guilty of murdering more than one victim, the court shall sentence the defendant to a term of natural life imprisonment.” (Ill. Rev. Stat. 1985, ch. 38, pars. 1005 — 8— 1(a)(1)(b), (a)(1)(c).)

Defendant first argues that imposing a natural life sentence without considering mitigating factors violates the eighth and fourteenth amendments to the Federal Constitution.

Defendant’s position is without authority and has been specifically rejected by our supreme court in People ex rel. Daley v. Strayhorn (1988), 119 Ill. 2d 331, 518 N.E.2d 1047, and People v. Taylor (1984), 102 Ill. 2d 201, 464 N.E.2d 1059.

The Strayhorn court found that after exercising his discretion to reject the death penalty, the trial judge had no farther discretion because “the statute unequivocally mandates natural life imprisonment for the murder of two or more persons.” (Strayhorn, 119 Ill. 2d at 336, 518 N.E.2d at 1050.) Moreover, in People v. Taylor, the supreme court stated that the legislature may properly fix mandatory minimum penalties when it “determine[s] that no set of mitigating circumstances could allow a proper penalty of less than natural life for the crimes of two or more murders” and specifically held that this statute does not violate article I, section 11, of the Illinois Constitution. Taylor, 102 Ill. 2d at 206, 464 N.E.2d at 1062.

We also reject defendant’s argument that the trial court should have sentenced defendant under the discretionary natural life sentence provision, instead of under the mandatory life imprisonment provision, which allows the judge no discretion. Ill. Rev. Stat. 1985, ch. 38, pars. 1005-8-1(a)(1)(b), (a)(1)(c).

Defendant contends that because these provisions furnish no basis to distinguish which defendants should be sentenced under which provision, but rather give “standardless discretion” to the judge, the statutory scheme violates the due process and equal protection clauses of the Illinois and United States Constitutions and article I, section 11, of the Illinois Constitution. The State responds that the trial judge properly sentenced defendant under the mandatory life imprisonment provision of section 5 — 8—1(a)(1). We agree with the State.

In People v. Winchel (1987), 159 Ill. App. 3d 892, 512 N.E.2d 1298, this court decided this precise issue. In Winchel, defendant was convicted of murdering two people and sentenced to natural life imprisonment. Defendant argued, as does defendant in the instant case, that section 5 — 8—1 provides no basis upon which to distinguish defendants to be sentenced under one or the other subsection, thus allowing the trial court to unconstitutionally impose different sentences for the same kind of offense.

This court rejected defendant’s claim, relying on People v. Taylor (102 Ill. 2d 201, 464 N.E.2d 1059). The court wrote:

“[T]he legislature intended to make a mandatory natural life sentence the controlling sentencing provision for those convicted of, inter alia, multiple murder. That is, under subsection (a)(1)(c), multiple murderers are required to be sentenced to a natural life term where a death sentence is not imposed. That this provision precludes the trial court’s exercise of any sentencing discretion does not vitiate its validity.” Winchel, 159 Ill. App. 3d at 921, 512 N.E.2d at 1316.

We thus find no merit in defendant’s argument that the trial court unconstitutionally sentenced him to a mandatory life sentence.

Accordingly, the judgment of the circuit court is reversed and the cause is remanded for a new trial consistent with this opinion.

Reversed and remanded.

LaPORTA, P.J., and EGAN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KERRY LASTER, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—3662
    Opinion filed December 28, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Greg Koster, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

After a bench trial, defendant, Kerry Laster, was found guilty of burglary. The trial court subsequently sentenced him to a term of three years, and fined him $90 in costs and $20 for victim compensation. Prior to conviction, defendant had served 15 days in jail on this bailable offense, and the trial court credited that time against his term of imprisonment. On appeal, defendant’s sole contention is that he is entitled to a credit of $75 on his fine, as he was imprisoned for 15 days on a bailable offense.

Section 110 — 14 of the Code of Criminal Procedure of 1963 provides in pertinent part that “[a]ny person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for each day so incarcerated upon application of the defendant. The clerk of the court shall notify the defendant in writing of this provision of the Act at the time he is convicted.” Ill. Rev. Stat. 1987, ch. 38, par. 110 — 14.

We initially reject the State’s assertion that defendant has waived the issue. Defendant’s failure to apply for the credit in the trial court does not bar such application on appeal where as here the record fails to indicate that the clerk of the court notified the defendant in writing of the statutory provision. People v. Young (1981), 96 Ill. App. 3d 634, 421 N.E.2d 968.

The precise issue before us, whether a defendant is entitled to a credit of $5 a day on a fine imposed for time served prior to conviction, where the trial court has credited the time against his prison term, has been before the appellate court several times.

In People v. Smith (1985), 133 Ill. App. 3d 613, 479 N.E.2d 328, People v. Stevens (1984), 125 Ill. App. 3d 516, 466 N.E.2d 296, and People v. Young, the courts held that where a defendant was sentenced to imprisonment and a fine for an offense, the fact that he had been given credit for time spent in jail did not preclude a defendant from receiving $5 credit for each day spent in jail prior to conviction and sentencing. These courts reasoned that there was nothing in the language of the statute to justify creating an exception for defendants who have received credit in the form of reduced sentences of imprisonment. See People v. Young, 96 Ill. App. 3d at 636-37.

However, in People v. Love (1986), 140 Ill. App. 3d 651, 489 N.E.2d 393, the court expressly rejected the foregoing holdings. The court held that since the jail sentence was credited with time served in jail, the defendant improperly requested double credit.

We believe the holdings in Smith, Stevens and Young express the better view. The statute in question allowing $5 daily credit does not exclude defendants who also have received credit against a term of imprisonment, and we will not do so. We therefore grant defendant a credit of $75 against the fine imposed for the days he served prior to conviction and sentencing.

Accordingly, the judgment of the circuit court of Cook County is affirmed as modified.

Affirmed as modified.

LaPORTA, P.J., and RAKOWSKI, J., concur.


author: PRESIDING JUSTICE LaPORTA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CHARLES LLOYD et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—89—0297
    Opinion filed December 28, 1990.

      Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Janet C. Mahoney, Assistant State’s Attorneys, of counsel), for the People.
    Sam Adam, of Chicago, for appellees.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

The subject of this appeal is an order granting defendants, Charles and Mario Lloyd, relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.) based upon the trial court’s finding that defendants had been deprived of the right to a fair trial. The court concluded that defendants’ attorney was faced with a conflict of interest because he also represented two other codefendants whose defenses were antagonistic to that of defendants. The State has appealed, contending that the court erred in granting defendants a new trial because defendants have failed to show that an actual conflict of interest was manifested at trial and that their attorney’s representation was adversely affected as a result. We reverse the decision of the trial court.

Defendants, Charles and Mario Lloyd, and codefendants, Johnny Beard and Lionel Bell, were charged by indictment with calculated criminal cannabis conspiracy (Ill. Rev. Stat. 1983, ch. 561/2, par. 709) and with possession of cannabis with the intent to deliver (Ill. Rev. Stat. 1983, ch. 561/2, par. 705). The indictment specifically alleged that these offenses were committed on October 22, 1983. At trial, all four defendants were represented by the same assistant public defender, and all four waived their rights to trial by jury. Following the joint bench trial, Beard was acquitted of all of the charges set out in the indictment, and Bell was acquitted of the cannabis conspiracy charge but was convicted of possession of cannabis with the intent to deliver. Charles and Mario Lloyd were convicted of both offenses, and each received a term of six years for possession with intent to deliver and a concurrent term of five years for the calculated criminal cannabis conspiracy charge.

Represented by the public defender, defendants filed a direct appeal of their convictions. Thereafter, the public defender withdrew from the case, and defendants retained private counsel who brought a petition for post-conviction relief (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.), asserting that defendants had been deprived of their constitutional rights to a fair trial and to effective assistance of counsel. The direct appeal of defendants’ convictions was stayed pending resolution of the post-conviction proceedings.

Review of the trial record reveals that the State presented the testimony of several police officers establishing that at approximately 5:30 p.m. on October 22, 1983, Bell was observed motioning to cars as they drove past the building located at 5624 South Damen Avenue in Chicago, Illinois. When the cars stopped, Bell approached them and gestured toward the alley at either end of the block. The cars were then driven toward either end of the block and entered the alley. These events were repeated five or six times. While this occurred, defendant Mario Lloyd came to the front of the building several times, spoke to Bell, and then entered the gangway leading to the rear of the building.

The officers’ testimony established further that as automobiles or pedestrians entered the alley and neared the garage behind 5624 South Damen Avenue, they were approached by Mario or Charles Lloyd, who then went into the garage and returned with small manila envelopes. The small envelopes were subsequently handed to the pedestrian or automobile occupant in exchange for money. On one occasion, Charles Lloyd was observed in the garage holding a white bag from which he retrieved an envelope which he handed to Mario. Mario then gave the envelope to a person seated in an automobile.

After the officers observed several of these transactions, they arrested defendants, Bell, and a woman who was also on the scene. The arresting officers recovered $2,967 from Mario Lloyd and $765 from Charles Lloyd. In the garage behind 5624 South Damen Avenue, the officers recovered a white plastic bag which contained a large brown bag. Inside the brown bag were 135 manila envelopes, each containing a substance which was later tested and found to be cannabis, weighing a total of 545.80 grams.

Although Beard was not observed on the scene and was not arrested with the other three defendants on October 22, 1983, the State presented the testimony of Officer Mary Hodge, who stated that while working undercover, she purchased cannabis from Beard on several occasions during September, October, and November 1983. During one such transaction, Bell was also present. Hodge testified that she made similar purchases of cannabis from Bell and Mario Lloyd during September and October 1983.

Officer Claude Posilovich testified that he commenced the investigation into the defendants’ activities in late August 1983. In September 1983, Posilovich and Beard became friendly by speaking Italian to each other. Beard subsequently offered Posilovich money in exchange for police protection of the cannabis operation and for police harassment of a competing operation located nearby. After meeting with his brothers, Mario and Charles Lloyd, Beard offered Posilovich $200 per week for police protection. Posilovich also received $300 from Beard as payment for advance warning that a search warrant for Beard’s residence would be executed.

Posilovich met with Beard, Charles Lloyd, and Mario Lloyd on September 22, 1983. On September 28, 1983, Posilovich met with Beard, Bell, and Charles Lloyd. After this meeting, Posilovich communicated with Beard and the Lloyds through telephone conversations which were recorded, but he had no contact with them between October 14, 1983, and November 3, 1983. On November 3, 1983, Posilovich met with Bell and Beard, who told him that he no longer trusted Posilovich and that he did not want Posilovich to protect his business any longer. Beard stated further that he was still the boss and that the police were too stupid to get him personally.

Assistant State’s Attorney Joseph McNerney testified that on December 6, 1983, he met with Lionel Bell. McNerney indicated that after Bell was advised of his Miranda rights, Bell stated that he had been working with Beard, Mario Lloyd, and Charles Lloyd for several years. Bell stated further that he regularly accompanied Charles Lloyd when he purchased between three and five pounds of cannabis for eventual sale to the public. Bell also indicated that the cannabis sales operation grossed approximately $4,000 per day, with a profit of about $1,000 which Beard split with his girlfriend.

Defense counsel twice objected to the introduction of McNerney’s testimony repeating Bell’s statements. The trial court held that McNerney’s testimony regarding Bell’s statements was admissible but would be considered only as evidence against Bell and would not be considered against the other defendants.

The parties stipulated that if called as a witness, Assistant State’s Attorney Edward Petrucha would testify that on December 2, 1983, he met with Mario Lloyd. Petrucha would testify further that after Mario Lloyd was advised of his Miranda rights, he stated that he and his brothers, Charles Lloyd and Johnny Beard, had been involved in cannabis sales since the latter part of 1981. Petrucha would state that Mario Lloyd identified Bell as one of his workers and stated that the cannabis found in the garage by the police belonged to him and to his brothers.

After the State rested its case, defense counsel moved that all charges against both Johnny Beard and Lionel Bell be dismissed, arguing that the State had failed to present any evidence that Bell directed or organized the cannabis operation and that Beard’s conduct on other occasions prior or subsequent to October 22, 1983, had nothing to do with the acts charged in the indictment. The trial court granted the motion on behalf of Lionel Bell for a finding of not guilty on the calculated criminal cannabis conspiracy charge, but denied defense counsel’s motion on behalf of Johnny Beard. The defense then rested its case as to all defendants without presenting any evidence.

After closing arguments, the court found Lionel Bell, Mario Lloyd, and Charles Lloyd guilty of possession of cannabis with the intent to deliver. After additional argument, the court found Charles and Mario Lloyd guilty of calculated criminal cannabis conspiracy based upon the evidence establishing that they organized and controlled the sale of cannabis on October 22, 1983, in conjunction with Lionel Bell.

The trial court also found that although Lionel Bell was clearly a participant in the continuing sale of cannabis with the other defendants, he did not direct, organize, or control the conspiracy. Accordingly, Bell was acquitted of the calculated criminal cannabis conspiracy charge. As to Johnny Beard, the court found that although there was ample evidence indicating that he was involved in a conspiracy to sell cannabis, there was no showing that he had any knowledge, control or direction for the sale of cannabis on October 22, 1983. Consequently, the court found defendant Beard not guilty of either possession with intent to deliver or of calculated criminal cannabis conspiracy.

The post-conviction petition filed by defendants Mario and Charles Lloyd alleged that they were deprived of their constitutional rights to a fair trial and to effective assistance of counsel. The petition claimed that defense counsel faced a conflict of interest because in addition to defendants Mario and Charles Lloyd, he also represented Beard and Bell, whose interests were antagonistic to those of the Lloyds. The petition asserted that as to the cannabis conspiracy charge, Bell and Beard had an interest in establishing that they were merely workers and that the Lloyds organized, directed, and controlled the cannabis operation. Specifically, the petition alleged that defense counsel’s arguments and cross-examination of the State’s witnesses were predominately focused on exculpating Beard and Bell, rather than providing effective and loyal representation for the Lloyds.

The State moved to dismiss the post-conviction petition, asserting that defendants had failed to establish that an actual conflict of interest was manifested at trial and that defense counsel’s representation was adversely affected as a result. At the hearing on the post-conviction petition, the trial judge stated that Beard and Bell had been acquitted on the cannabis conspiracy charge because they were not the directors of the operation. Upon review of the transcript of the joint bench trial over which he had presided, the trial judge held that there was an actual conflict in the multiple representation of the Lloyds in addition to Bell and Beard. Accordingly, the court granted defendants a new trial.

The State has appealed, contending that the trial court erred in granting the Lloyds a new trial where the court’s decision was based upon unsupported and speculative allegations of a conflict of interest. We agree.

It is well established that a petitioner seeking post-conviction relief bears the burden of setting forth in what respect his constitutional rights were violated and providing support for his allegations with affidavits, references in the record, or other evidence. (People v. Newberry (1973), 55 Ill. 2d 74, 302 N.E.2d 34; People v. Ford (1981), 99 Ill. App. 3d 973, 426 N.E.2d 340.) Thus, a petitioner who seeks relief from his conviction in such a proceeding must allege facts which, if proven, would show that his constitutional rights were violated. See People v. Reed (1980), 84 Ill. App. 3d 1030, 405 N.E.2d 1065; People v. Hoffman (1974), 25 Ill. App. 3d 261, 322 N.E.2d 865.

Although defendants asserted and the trial court stated that the conflicting interests of the defendants precluded defense counsel from adequately representing the Lloyds as well as Beard and Bell, no facts have been presented which would show in what way the trial was unfair.

An accused is entitled to the undivided loyalty of his counsel, and an attorney is precluded from representing conflicting interests or undertaking the discharge of inconsistent obligations (People v. Washington (1984), 101 Ill. 2d 104, 110, 461 N.E.2d 393, 396), and an attorney’s representation of multiple defendants with conflicting interests constitutes a denial of the fundamental right to effective assistance of counsel (Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708; Glasser v. United States (1942), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457). A defendant must show with some specificity that an actual conflict of interest manifested at trial and that his counsel’s representation was adversely affected as a result. People v. Spreitzer (1988), 123 Ill. 2d 1, 18, 525 N.E.2d 30, 36-37; People v. Jones (1988), 121 Ill. 2d 21, 28, 520 N.E.2d 325, 328.

The Lloyds claim that as to the cannabis conspiracy charge, their defenses were antagonistic to those of Bell and Beard. They argue that Bell and Beard had an interest in establishing that they were merely workers and that the Lloyds organized, directed, and controlled the cannabis operation. The Lloyds assert further that Bell and Beard could concede that a conspiracy existed and still escape conviction of the conspiracy charge as long as they established that they were only workers or that the Lloyds were in positions of management.

We note, however, that Bell and Beard did not concede that a conspiracy existed, nor did the attorney representing them, and they presented no evidence at trial which implicated the Lloyds. Thus, what they could concede or might have conceded is immaterial and does not establish an actual conflict of interest which adversely affected the representation by defense counsel.

The Lloyds also allege that defense counsel’s arguments and cross-examination of the State’s witnesses were predominately focused on exculpating Beard and Bell, rather than providing effective and loyal representation for the Lloyds.

The fact that the evidence against one defendant is stronger than the evidence against another defendant is not of itself sufficient ground for a severance. (United States v. Hendrix (7th Cir. 1985), 752 F.2d 1226, 1232.) Just as this circumstance would not establish a ground for severance, it is insufficient to establish a conflict of interest among the defendants. In granting the Lloyds a new trial, the trial court specifically referred to the “irreconcilable defenses raised” by the defendants. We cannot agree with the trial court’s conclusion that “irreconcilable defenses” were raised where none of the defendants testified or presented any evidence at trial.

The trial court specifically held that McNerney’s testimony regarding Bell’s statements was admissible but would be considered only as evidence against Bell and would not be considered against the other defendants. In addition, Mario Lloyd’s own statement to Petrucha indicated that he and his brothers, Charles Lloyd and Johnny Beard, had been involved in cannabis sales since the latter part of 1981. Mario Lloyd identified Bell as one of his workers and stated that the cannabis found in the garage by the police belonged to him and to his brothers.

There is nothing in the record to indicate that the court in this case relied upon Bell’s post-arrest statement to convict the Lloyds. The court specifically stated that it would consider the statement only against Bell and not against the other defendants. We must presume that the trial court considered only competent evidence unless the contrary affirmatively appears in the record. (People v. Schmitt (1989), 131 Ill. 2d 128, 138-39, 545 N.E.2d 665, 669.) Under these circumstances, we do not believe that the Lloyds have established that an actual conflict of interest manifested at trial or that their attorney’s representation was adversely affected as a result.

Moreover, we find no basis in the record for the trial court’s decision to grant the Lloyds a new trial on the charge of possession of cannabis with the intent to deliver.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed.

Reversed.

McNAMARA and EGAN, JJ., concur.


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    PHILIP WADYCKI, Plaintiff-Appellant, v. VANEE FOODS COMPANY et al., Defendants-Appellees (Vanee Foods Company et al., Counterplaintiffs; R & L Recycling Corporation, Counterdefendant).
    First District (6th Division)
    No. 1—90—0135
    Opinion filed December 28, 1990.

      Bleiman & Zenner, of Chicago (Leo M. Bleiman and Laura Monahan-Jarvis, of counsel), for appellant.
    Orner & Wasserman, of Chicago (Norton Wasserman and Mary A. Mazurek, of counsel), for appellees Vanee Foods Company and Vanee Builders Corporation.
    Kiesler & Berman, of Chicago (R. Howard Jump and Patti M. Deuel, of counsel), for appellee R & L Recycling Corporation.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Berkeley police officer Philip Wadycki was injured while on duty May 4, 1986, when he went on to private property to restack cardboard debris that had fallen from an open truck trailer. As he stepped into the trailer to close one door, he slipped on loose cardboard and fell out of the trailer, injuring .his wrist and shoulder. He sued the landowners and the owner of the trailer alleging that their negligence was the direct and proximate cause of his injuries. The landowners, Vanee Foods Company and Vanee Builders Corporation, and the trailer owner, R & L Recycling Corporation, moved for summary judgment. The trial court granted defendants’ motions for summary judgment and plaintiff appeals.

The facts in the case are not in dispute. In his deposition, Wadycki testified that he was on duty May 4, 1986, and was assigned to patrol an industrial park including the property owned by defendants Vanee Foods Company and Vanee Builders Corporation (Vanee). While there, he noticed a trailer on the property used by Vanee for storage of recycled cardboard. The trailer, owned by R & L Recycling Corporation (R & L) had cardboard spilling out of its opened rear, doors. Wadycki picked up cardboard on the ground nearby and placed it inside the trailer. When he attempted to close the trailer doors, one would not close because of some flat cardboard pieces protruding out the bottom. Wadycki climbed a freestanding ladder nearby and put one foot into the trailer in an effort to close the doors. As he put his foot down on some loose cardboard, he slipped and fell to the ground, severely injuring his right wrist and shoulder.

The trailer, owned by R & L, was located on Vanee’s property as part of an oral contract between the companies. R & L would deliver a trailer to Vanee and when Vanee filled the trailer, R & L would return and haul it away, replacing it with an empty trailer.

On January 28, 1988, Wadycki sued Vanee and R & L, charging that their negligent acts and omissions were the proximate cause of his injuries. On May 18, 1988, Vanee filed a counterclaim, seeking contribution from R & L. On June 16, 1988, the trial court entered an agreed order striking the complaint and giving the plaintiff 28 days to file an amended complaint. On January 12, 1989, plaintiff filed an amended complaint naming the same defendants.

Wadycki alleged that each defendant “failed to adequately inspect the trailer, failed to place steps, ramps or other devices to gain access to the trailer, improperly loaded and unloaded the trailer in such a manner that the contents thereof were allowed to be discharged and failed to provide a safe means of ingress and egress from the trailer when they knew or in the exercise of ordinary care, should have known that such means of entry and exit were necessary for persons to gain access to the trailer.” Wadycki charged that Vanee “failed to secure the doors of the trailer to prevent the discharge of materials” and that R & L “failed to place adequate locks or devices on the doors of the trailer to prevent the discharge of materials.”

The defendants moved for summary judgment. On January 2, 1990, the trial court granted the defendants’ summary judgment motions. The court found that the case against Vanee was governed by Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 328 N.E.2d 538, which held that the possessor of land has a duty to protect police officers and fire fighters against known dangerous conditions on their land only if the danger is an unreasonable risk of harm not inherent to their occupation and the possessor of the land expects the invitee will not discover or realize the danger or will fail to protect himself against the danger.

The court in Fancil refused to permit a cause of action by the widow of a police officer after the officer was murdered by burglars while he was on patrol in a poorly lit grocery store lot. The action, brought under a theory of common law negligence, alleged that the grocer disconnected a mercury light that had been used for exterior illumination and would have revealed the burglars’ presence. The officer’s widow alleged that this act breached the grocer’s duty to protect invitees from foreseeable criminal acts committed by a third party.

In its decision, the supreme court adopted the position in the Restatement (Second) of Torts, section 345(2), which states that liability to an officer or fire fighter falls under the same rule stated in section 343, which provides: “A possessor of land is subject to liability for physical harm caused to his invitees by a condition of the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.” Restatement (Second) of Torts §343, at 215-16 (1965).

The trial court here, before granting the defendants’ motion for summary judgment, commented that picking up garbage and closing truck trailer doors “is just not considered unreasonably dangerous.” The court questioned plaintiff’s view that the landowner would know the officer was unaware of the condition. The trial court found that since Vanee owed no duty to plaintiff, the bailor, R & L, also owed no duty to plaintiff.

The Fancil court held that no duty, other than one of ordinary care, existed because the fact that the property was not illuminated was obvious to all. In addition, the court held that defendant was protected by a defense afforded those who own land on which a police officer suffers an injury. The court found that the danger of being ambushed by criminals was an “inherent risk” of an officer’s occupation and therefore plaintiff was not liable for an injury incurred in such a manner. This “inherent risk” principle has been relied on as a defense by plaintiffs in other cases and relied on by the courts.

Though the trial court relied on Fancil’s inherent risk defense, we can affirm its decision based on wholly different grounds (Village of Schaumburg v. Franberg (1981), 99 Ill. App. 3d 1, 424 N.E.2d 1239) and do so here because we hold that defendants owed no duty to plaintiff other than a duty of ordinary care.

A motion for summary judgment should be granted where there is no genuine issue as to any material fact based on the affidavits, depositions, admissions, exhibits and pleading in the case. (Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 380, 313 N.E.2d 457, 459.) Even though a complaint and answer may purport to raise issues of material fact, if such issues are not further supported by evidentiary facts through affidavits or such, summary judgment is then appropriate. Carruthers, 57 Ill. 2d at 380.

To recover damages for common law negligence, plaintiff must prove a breach of a duty owed to him (Barnes v. Washington (1973), 56 Ill. 2d 22, 26, 305 N.E.2d 535, 538) and plaintiff must show that the breach was the direct and proximate cause of his injuries. (Pitts v. Basile (1966), 35 Ill. 2d 49, 54, 219 N.E.2d 472, 475.) Whether a duty exists between two parties is a question of law to be determined by the courts. Barnes, 56 Ill. 2d 22.

On appeal, Vanee relies on Fancil and Murphy v. Ambassador East (1977), 54 Ill. App. 3d 980, 984, 370 N.E.2d 124. The court in Murphy upheld the dismissal of a negligence suit brought by a police officer who injured his hand in an elevator door after he responded to the hotel’s request for an officer to remove a dead person from a hotel room. The officer was injured while trying to open a stuck elevator door. The court, relying on Fancil, held that a freight elevator door was not an unreasonable risk of harm inherent to his occupation. The court also said that the police officer should have realized the risk that existed and protected himself. Murphy, 54 Ill. App. 3d at 985.

Defendants argue here that Wadycki was at the accident scene as part of his regular patrol duties and that he knowingly stepped on a piece of flattened cardboard before he fell. Defendants argue that the cardboard was not an unreasonable risk of harm and, even if it were, it was clearly one plaintiff could have been expected to discover. Wadycki testified that the cardboard he stepped on was on an angle, already beginning to slide out of the trailer, and that as soon as he firmly planted his foot on it, it slid further and he “went with it.” In his deposition, he testified that nothing other than the piece of cardboard caused the fall and that nothing about the trailer itself caused the fall.

Plaintiff, however, contends the trial court was in error to apply Fancil’s inherent risk principle because it is a defense that only bars an action where a police officer is exposed to a risk of harm inherent to his or her duty and training. Plaintiff argues that police officers are not trained or assigned to pick up garbage. Instead, plaintiff contends that the trial court should have applied basic land occupier liability principles.

The Premises Liability Act states: “The distinction under the common law between invitees and licensees as to the duty owed by an owner or occupier of any premises to such entrants is abolished. The duty owed to such entrants is that of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them.” (Ill. Rev. Stat. 1985, ch. 80, par. 302.) Plaintiff reasons that since he was lawfully on the premises of Vanee, he was owed a duty of reasonable care and the trial court was in error to find, as a matter of law, that no duty existed.

Plaintiff argues further that the trial court was in error to decide factual questions, including whether Wadycki was exposed to a danger, whether the danger was open and obvious, whether the ladder was in a dangerous condition and whether Vanee’s handling of its cardboard trash was unreasonably dangerous.

Plaintiff’s reliance on the Premises Liability Act is in error. The Premises Liability Act did not significantly alter the common law duty by an owner or occupier of premises to invitees such as Wadycki. Instead, the Act retracted special but limited immunity from tort liability enjoyed by owners and occupiers of land with respect to licensees. Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223.

In addition, we need not apply Fancil’s defense of the inherent risk principle because we find that defendants owed no duty to plaintiff under the test enunciated in Ward, which applies section 343 of the Restatement (Second) of Torts. In Ward, plaintiff sought recovery for injuries suffered when he ran into a post located a few feet outside the exit door of a K mart store. The court held that K mart’s duty of reasonable care encompassed the risk that one of its customers, while carrying a large, bulky item, would collide with the post upon exiting the store. (Ward, 136 Ill. 2d at 157.) The court found that even though some conditions may be “known” or “obvious,” a defendant’s duty may still extend to situations where the defendant can anticipate that a plaintiff may, whether from distraction or forgetfulness, fail to avoid the risk posed. Ward, 136 Ill. 2d at 156.

We find defendants could not have anticipated plaintiff’s injuries here though the risk of injury was obvious to plaintiff. Wadycki’s deposition testimony was dispositive of the issue of whether he was aware of the risk, unreasonable or otherwise as defined under section 343. Wadycki testified that he saw the cardboard on an incline and knew that it was falling out of the truck when he stepped down onto a piece of cardboard that slid from beneath his foot. We agree with the trial court that plaintiff was not exposed to an unreasonable risk, but even if an unreasonable risk existed, surely it was a risk known to the officer at the time of the accident.

As an additional argument, plaintiff urged this court to follow New Jersey law and make a distinction between negligent acts encountered at the scene and negligent acts that bring an officer to the scene. However, since we find the defendants owed no duty to plaintiff as a matter of law, we need not explore the distinction between an unreasonable risk that brings the officer into a given situation and an unreasonable risk that exists after the officer has arrived.

On appeal plaintiff argues also that R & L can be liable as a bailor as an exception to the general rule that a bailor is not liable to a third party for negligent use by the bailee of his bailed property. (Moreno v. Beckwith (1967), 77 Ill. App. 2d 443, 222 N.E.2d 918.) An exception to the general rule is spelled out in Huckabee v. Bell & Howell, Inc. (1968), 102 Ill. App. 2d 429, 243 N.E.2d 317, where the court said: “[A] bailor is liable to a third party for an injury if (1) he supplied the chattel in question; (2) the chattel was defective at the time it was supplied; (3) the defect could have been discovered by reasonable inspection; and (4) the defect was the proximate cause of the injury.” Huckabee, 102 Ill. App. 2d at 439; see also Galluccio v. Hertz Corp. (1971), 1 Ill. App. 3d 272, 274 N.E.2d 178 (overruling Huckabee to the extent that it expanded a bailor’s liability to strict liability where the object of the bailment went into the stream of commerce).

Plaintiff argues that the trailer supplied by R & L was defective chattel because it was unsuitable for the storage of debris, was not provided with adequate trailer door locks and had no safe means to enter and exit. Plaintiff argues further that this defective chattel proximately caused plaintiff’s injuries.

Defendant R & L argues that plaintiff has failed to plead any specific defect in the trailer, contending summarily that the trailer was “unsuitable” for its current use. Defendant R & L argues that plaintiff also failed to plead how any defect in the trailer was the proximate cause of his injury. Defendant notes that Wadycki testified at his deposition that nothing about the trailer caused his fall and that his slip on the cardboard was the sole reason he was injured.

We agree with defendant R & L that plaintiff has not met his burden to support his reliance on the exception in Huckabee. Nothing in plaintiff’s complaint, deposition or other documents alleges any R & L action which proximately caused plaintiff’s injuries. In his deposition testimony, Wadycki testified that nothing was wrong with the trailer. He made no reference to bent ladder legs or a lack of a handrail and neither does the complaint itself contain such allegations of defects. These are mentioned for the first time in plaintiff’s brief on appeal.

The trial court found that since Vanee owed no special duty to plaintiff, R & L owed no similar duty. We find that plaintiff failed to show in what way R & L, as bailor, came within the exceptions of Huckabee and that therefore no duty existed. The trial court properly granted R & L’s motion for summary judgment.

We affirm the trial court order. We hold that, as a matter of law, defendants owed no duty to Wadycki because the cardboard and trailer were not an unreasonable risk and any risk that might have existed was an open and obvious one. The trial court properly granted defendants’ motions for summary judgment.

Judgment affirmed.

McNAMARA and RAKOWSKI, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. FREDERICK R. STOTHOFF, Defendant-Appellee (Jim Edgar, Secretary of State, Appellant).
    First District (6th Division)
    No. 1—90—0592
    Opinion filed December 28, 1990.

      Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Deborah L. Ahlstrand, Assistant Attorney General, of Chicago, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

The Secretary of State appeals from an order of the circuit court of Cook County directing him to issue a judicial driving permit (JDP) to defendant Frederick Stothoff. The Secretary maintains that since defendant was not a “first offender” within the meaning of section 11 — 500 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 500), he was ineligible for a JDP, and that the court erred in granting it to him. Defendant has not filed a brief in response to the Secretary’s contention, and we therefore consider the merits of the appeal under the guidelines of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The record shows that on April 2, 1989, defendant was arrested and charged with driving under the influence of alcohol. (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501(a)(2).) Shortly thereafter, the Secretary served him with notice of the summary suspension of his driving privileges (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.1) effective May 18, 1989, for one year. This time period indicated that defendant was not a first offender. Ill. Rev. Stat. 1987, ch. 95V2, par. 6 — 208.1(a)(3).

On October 3, 1989, defendant entered a plea of guilty to the underlying charge of driving under the influence of alcohol for which he was placed on two years’ supervision and fined $750. In the same proceeding, the trial court granted defendant’s petition for issuance of a JDP in order to alleviate the undue hardship which would result in his employment situation. On October 17, 1989, the Secretary requested the court to reassess its decision in this matter, pointing out that defendant’s driving record showed that he was a second offender and therefore ineligible for such a permit. The abstract of.defendant’s driving record reflects a prior implied-consent suspension from December 18, 1982, through June 18, 1983. The court, however, refused the Secretary’s request, and on January 12, 1990, reaffirmed its prior order granting the JDP to defendant. The Secretary was then granted leave to file a late notice of appeal from this judgment and here contends that the order of the circuit court directing that the issuance of a JDP to defendant was erroneous because defendant was not a “first offender” within the meaning of the Code.

The Illinois policy concerning the removal of impaired drivers from the roads is set forth in section 6 — 206.1 of the Code. (Ill. Rev. Stat. 1987, ch. 95½, par. 6 — 206.1.) This section also sets forth certain limited circumstances in which a JDP may issue to persons whose licenses have been suspended in order to relieve undue hardship (People v. Kerr (1991), 196 Ill. App. 3d 207, 552 N.E.2d 1329); however, this accommodation is limited to “first offenders” as defined in section 11 — 500 of the Code. At the time of defendant’s arrest for driving under the influence in the instant case, “first offender” was defined as follows:

“For the purposes of interpreting Sections 6 — 206.1 and 6— 208.1 of this Code, ‘first offender’ shall mean any person who has not had a previous conviction or a court assigned supervision for violating Section 11 — 501, or a similar provision of a local ordinance, or a conviction in any other state for a violation of driving while under the influence or a similar offense where the cause of action is the same or substantially similar to this Code, within the last 5 years; or any person who has not had a driver’s license suspension for Section 11 — 501.1 after January 1, 1982, or a previous statutory summary suspension as provided in this Code, except in cases where the driver submitted to chemical testing resulting in an alcohol concentration of 0.10 or more and was subsequently found not guilty of violating Section 11 — 501, or a similar provision of a local ordinance.” Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 500.

This section was amended by Public Act 86 — 929, which became effective September 21, 1989. In the amended version the phrase “within the last 5 years” following “similar to this Code” was deleted, and “within 5 years prior to the date of the current offense” was substituted for “after January 1, 1982, or a previous statutory summary suspension, as provided in this Code.” Ill. Rev. Stat. 1989, ch. 95½, par. 11-500.

In this case, defendant’s arrest took place prior to the effective date of Public Act 86 — 929, yet he was granted a JDP under the amendment which was in effect when the trial court entered judgment. The Secretary ascribes error to that decision, maintaining that the amended statute should not have been given retroactive application and that defendant’s request for a JDP should have been denied under the definition of “first offender” which was in effect at the time of his arrest and rendered him ineligible as a repeat offender. In support of that position, the Secretary points out that the date of arrest is the operative event in many of the summary suspension and JDP procedures under the Code, and he urges that it determine the outcome here.

Our research reveals that reviewing courts which have ruled on the propriety of the issuance of JDPs under the five-year provision of the Code generally agree that the period commences on the date of disposition of the charges stemming from the prior DUI arrest, and that it closes on the date of the underlying DUI arrest at bar which gave rise to the statutory summary suspension of defendant’s driving privileges. (See People v. Kerr, 196 Ill. App. 3d 207, 552 N.E.2d 1329 (and cases cited therein).) We have also examined the cases cited by the Secretary which were filed after the effective date of the amended statute, but where the preamendment definition of “first offender” was used by the reviewing court to determine the propriety of the JDPs issued. (See, e.g., People v. Moffat (1989), 192 Ill. App. 3d 326, 548 N.E.2d 757; People v. Kazik (1989), 189 Ill. App. 3d 930, 545 N.E.2d 1040.) In those cases, however, unlike the situation in this case, all of the operative events occurred prior to the effective date of the amendment. Thus, the amended provisions of the section were inapplicable and had no bearing on the outcome. See People v. Kerr, 196 Ill. App. 3d at 210.

Here, the JDP was granted under the amended version of the statute which limited ineligibility to five years. The violation which gave rise to the suspension took place under the former codification, which excluded persons whose licenses had been suspended for violations under section 11 — 501.1 after January 1, 1982. Defendant’s prior suspension made him ineligible for a JDP under that provision, but since that occurred more than five years prior to the present offense, he qualified as a “first offender” under the amendment. Thus, the propriety of the court’s decision appears to hinge on whether the amendment was to be given prospective or retroactive application.

Generally, prospective application of a statute is preferred to retroactive application (Orlicki v. McCarthy (1954), 4 Ill. 2d 342, 122 N.E.2d 513); and, in Illinois, an amendatory act will be so construed. However, this presumption may be rebutted by the express language of the statute or by the necessary implication of the act itself (Rivard v. Chicago Fire Fighters Union (1988), 122 Ill. 2d 303, 522 N.E.2d 1195), and where the amendment only changes procedures, it will be construed as retroactive so long as that is what the legislature intended. Glaves v. Glaves (1990), 193 Ill. App. 3d 651, 550 N.E.2d 52.

Moreover, a right which did not exist in common law but is purely a creation of statute may be abrogated by retroactive application of the repealing legislation (Cruz v. Puerto Rican Society (1987), 154 Ill. App. 3d 72, 506 N.E.2d 667), and in the absence of legislative intent to the contrary, a court is to apply the law in effect at the time of decision unless doing so results in manifest injustice. (General Telephone Co. v. Johnson (1984), 103 Ill. 2d 363, 469 N.E.2d 1067; Bank of Illmo v. Simmons (1986), 142 Ill. App. 3d 741, 492 N.E.2d 207.) Finally, we bear in mind that under the rules of statutory construction in this State, “ ‘if words used in a prior statute to express a certain meaning are omitted [from a later statute], it will be presumed that a change of meaning was intended.’ ” Lingwald v. Honer (1985), 108 Ill. 2d 206, 212, 483 N.E.2d 512, quoting 2A N. Singer, Sutherland on Statutory Construction, §51.02 at 454 (Sands 4th ed. 1972).

Applying these principles to the case at bar we observe first that the Code has as its avowed purpose to make the Illinois highways safer for its citizens. (Koss v. Slater (1987), 116 Ill. 2d 389, 507 N.E.2d 826.) The Code also sets forth provisions which accord driving privileges to the populace, as well as the suspension and termination of those privileges.

Under the enactment in effect at the time of defendant’s arrest, a judicial driving permit was granted to those who qualified as “first offenders,” including those who had not violated the drunken driving laws after January 1, 1982. When that act was amended in 1989, the phrase pertaining to that class of individuals was deleted and the time of ineligibility limited to five years. In a further amendment to that section, Public Act 86 — 1019, which became effective July 1, 1990, the time limitations of the amended version were maintained.

From these successive enactments we find evident the legislative intent to restrict the period of ineligibility for issuance of a JDP to five years from the prior suspension, and that in order to effectuate that intent, the 1989 amendment was to be given retroactive application to pending cases. Accordingly, we conclude that the amended version, which was in effect on the day the trial court rendered judgment in this case, was controlling, and was, therefore, properly invoked by the trial court in directing that defendant be issued a JDP as a “first offender” under the Code.

The judgment of the circuit court is therefore affirmed.

Judgment affirmed.

LaPORTA, P.J., and EGAN, J., concur.


text:
    DEBORAH E. BJORN, Plaintiff-Appellant, v. ASSOCIATED REGIONAL AND UNIVERSITY PATHOLOGISTS, INC., Defendant-Appellee.
    First District (6th Division)
    No. 1—90—1247
    Opinion filed December 28, 1990.

      Goldman & Marcus, of Chicago (Arthur R. Ehrlich and Gerald A. Goldman, of counsel), for appellant.
    Peterson, Ross, Schloerb & Seidel, of Chicago (M. Patricia Chapin, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Deborah E. Bjorn, filed an action for breach of an employment contract against defendant, Associated Regional and University Pathologists, Inc. (ARUP). On March 29, 1990, the trial court granted defendant’s motion to dismiss the complaint pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). On appeal, plaintiff contends that defendant violated her employment contractual rights by discharging her without just cause and not allowing her to contest the discharge through defendant’s grievance procedure.

In March 1988, plaintiff began full-time employment for defendant as an account representative. After commencing employment, defendant provided plaintiff with a document entitled “Policies and Benefits Summary” (Summary), which set forth defendant’s employment practices pertaining to matters such as vacation time, holidays, and leave of absence. In addition, the Summary explained defendant’s employee policies, including a probationary status for new employees, grievance policy for the resolution of work-related problems, and disciplinary sanctions.

In April 1989, defendant notified plaintiff that her work performance was not satisfactory and sought her resignation. After plaintiff refused to resign, defendant discharged her on May 15,1989.

The trial court found that under the sanctions provision of the Summary, “ARUP reserves the right to discipline and/or dismiss an employee for any, but not limited to, the following job-related reasons: Negligence, incompetence, *** [and] unsuitability to job requirements,” and granted defendant’s motion to dismiss.

Plaintiff relies on Duldulao v. St. Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314, to support her contention that an employment contract existed. In that case, the court held that an employee handbook or policy statement creates enforceable contractual rights provided that the following requirements are met: (1) the language of the policy statement must contain a promise clear enough that an employee would reasonably believe an offer had been made; (2) the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer; and (3) the employee must accept the offer by continuing to work after learning of the policy statement. When these factors are present, the employee’s continued work constitutes consideration for the promises contained in the policy manual, and under traditional principles a valid contract is formed. Duldulao, 115 Ill. 2d at 490.

Plaintiff contends that the language in defendant’s Summary was sufficiently clear for her to reasonably believe that defendant had made an offer for employment. The Summary provides, in relevant part:

“Probation Status: Employees are evaluated for satisfactory performance and behavior during the first 6 months of employment and are considered to be on a probationary status for this period of time. An employee may be terminated during this period with or without cause, and without prior notice. Any decisions to terminate an employee should first be cleared with Personnel.
Employee Relations: Employees are encouraged to discuss work-related problems with their supervisors. *** ARUP also provides a grievance policy for the orderly resolution of work-related problems.”

Plaintiff asserts that these two provisions, read together, coupled with the absence of any disclaimer on the part of defendant, constitute an offer for employment as required by the first element of Duldulao. Plaintiff further contends that the other elements of Duldulao were met when defendant provided plaintiff with the Summary that she reasonably believed to be an offer for employment, and that her continued employment after receipt of the Summary constituted consideration for the employment contract. After completing six months of employment, plaintiff argues that she was no longer a probationary employee that defendant could discharge with or without “cause.”

We find, however, that the facts in this case do not resemble those in Duldulao. In that case, the introduction to the handbook set forth that the policies in the handbook “are designed to clarify your rights and duties as employees.” Also, permanent employees could only be terminated with proper notice and investigation; specifically, three warning notices were required before an employee could be dismissed, except in the case of extremely serious offenses. In addition, the amendments to the handbook in Duldulao stated that permanent employees are never dismissed without prior written admonitions and/or a properly documented investigation.

Under the circumstances here we find that the rationale of Tolbert v. St. Francis Extended Care Center (1989), 189 Ill. App. 3d 503, 545 N.E.2d 384, is compelling. In Tolbert, this court found that the defendant’s policy manual did not constitute a contract of employment, as the prefatory language did not rise to the level of an offer for permanent employment terminable upon just cause, and the lack of any specific procedures for dismissal or discipline. The court found that “[ajrticulated procedures are *** a fundamental and necessary part of an employment contract which provides for an employee’s discipline or dismissal only upon ‘just cause.’ ” (Tolbert, 189 Ill. App. 3d at 507.) In the absence of such specific procedures, the manual did not rise to the level of an enforceable employment contract.

In this case, plaintiff infers that because she was no longer a probationary employee, she could only be discharged for just “cause,” and that she could utilize the grievance procedure if she was going to be discharged for a work-related problem. However, plaintiff’s reliance upon such an inference is misplaced. Unlike the employee handbook involved in Duldulao, the Summary here did not contain a detailed procedure requiring formal notice, written admonitions or an investigation before an employee could be discharged. Therefore, we find that in the absence of clear, promissory language, and no description of specific disciplinary procedures (Tolbert, 189 Ill. App. 3d 503, 545 N.E.2d 384; Doe v. First National Bank (7th Cir. 1989), 865 F.2d 864), the language of the Summary- does not create enforceable employment contract rights sufficient to overcome the presumption of an employment relationship terminable at will.

In addition, as relied upon by the trial court, defendant expressly reserved the sanctions set forth above to discipline and/or dismiss employees for job-related reasons. Plaintiff here was dismissed for her unsatisfactory performance; therefore, defendant acted within its rights in discharging plaintiff for a job-related reason.

For the foregoing reasons, the judgment of the circuit court of Cook County granting defendant’s motion to dismiss is affirmed.

■ Judgment affirmed.

LaPORTA, P.J., and EGAN, J., concur.


author: JUSTICE RAKOWSKI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL WEBER, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—1113
    Opinion filed December 28, 1990.

      Frederick F. Cohn, of Chicago (Lawrence Cohen, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Michael Latz, Assistant State’s Attorneys, and Daniel M. Rabinovitz, Law Clerk, of counsel), for the People.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Following a stipulated bench trial in the circuit court of Cook County, defendant Daniel Weber was convicted of child pornography. (Ill. Rev. Stat. 1985, ch. 38, par. 11 — 20.1(a)(2).) He was sentenced to 13 months’ conditional discharge. On appeal defendant contends there was insufficient evidence to prove that he possessed the book with intent to disseminate it and that application of the statute constituted an ex post facto violation.

The stipulated facts established that on May 16, 1988, a Burbank police officer and two Illinois State Police officers went to defendant’s residence pursuant to an arrest warrant for battery. Defendant consented to a search of his residence. A book was recovered which was entitled The Ardent Fetishist. Defendant indicated that he knew the book contained photographs of children under the age of 18 years engaged in various sex acts. Defendant owned the book and had it in his possession for about eight years.

Defendant had been indicted under the amended child pornography statute which provided that it was illegal to possess child pornography. (Ill. Rev. Stat. 1985, ch. 38, par. 11 — 20.1(a)(2).) Under the former statute, possession had to be with intent to disseminate the child pornography. (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 20a(b)(1)(B).) He argued before the trial court that to apply the amended statute was a violation of ex post facto law because when he came into possession of the book, possession was not illegal. Defendant also argued that under the former statute the book must be taken as a whole to determine whether it is child pornography under the statute. (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 20a(a)(1).) However, defendant does not raise this latter argument on appeal. The trial court found that the amended statute applied and found defendant guilty.

Initially, defendant contends that it was never the intention of the legislature to make mere possession of child pornography a crime. He reviews the amendments to the child pornography statute since 1985, including the amendment effective January 1, 1990, to support his claim that the legislature inadvertently left out “intent to disseminate” in the statute under which he was convicted. Since he was only shown to have possessed the book, defendant contends there was insufficient evidence to convict him.

Under Public Act 84 — 1029, effective November 18, 1985, it became illegal to merely possess child pornography. (Ill. Rev. Stat. 1985, ch. 38, par. 11 — 20.1(a)(2).) Prior to this amendment possession required an “intent to sell or otherwise disseminate.” (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 20.1(a)(2).) The purpose of the legislature in making possession an offense is to prevent the sexual abuse and exploitation of children by “drying up” the market for child pornography (People v. Geever (1988), 122 Ill. 2d 313, 522 N.E.2d 1200), and deletion of the language about intent to sell or disseminate was certainly not an inadvertent error.

Contrary to defendant’s assertion, possession still remains a Class 4 felony under Public Act 85 — 1447, effective January 1, 1990. (Ill. Rev. Stat. 1989, ch. 38, par. 11 — 20.1(a)(6).) Subsection (a)(2) of the child pornography statute was amended to provide that possession “with intent to disseminate” is a Class 3 felony. (Ill. Rev. Stat. 1989, ch. 38, par. 11 — 20.1(a)(2).) Possession with intent to disseminate had been deleted from the statute under Public Act 84 — 1029. However, the offense of possession was not deleted under Public Act 85 — 1447, but was retained in subsection (a)(6). (Ill. Rev. Stat. 1989, ch. 38, par. 11 — 20.1(a)(6).) Therefore, defendant’s contention that the legislature did not intend to make possession an offense is without merit. There was no requirement that the State prove that defendant possessed the child pornography with intent to disseminate it.

Next, defendant argues that he came into possession of the book prior to the 1985 amendment when mere possession was not an offense. He claims that to convict him under the amended version is to apply an ex post facto law. Relying upon People v. Kimbro (1989), 182 Ill. App. 3d 572, 538 N.E.2d 826, defendant states that the “crime” occurred at the time of the original possession which was about eight years before his arrest.

Ex post facto legislation (1) makes criminal and punishable an act innocent when done; (2) aggravates a crime or makes it greater than it was when committed; (3) increases the punishment and applies the increase to crimes committed before the enactment of the law; and (4) alters legal rules of evidence so that testimony insufficient to convict of the offense when committed would be sufficient as to that specific offense and the accused person. (Stein v. Howlett (1972), 52 Ill. 2d 570, 584, 289 N.E.2d 409.) The constitutional prohibition against ex post facto laws is to ensure that persons have a right to fair warning of the conduct which will give rise to criminal penalties and of the punishment which may be imposed by the State on violators of its laws. (People v. McCrimmon (1986), 150 Ill. App. 3d 112, 116, 501 N.E.2d 334.) Two critical elements must be present for a criminal law to be ex post facto: it must apply to events occurring before its enactment and it must disadvantage the offender by it. (People v. Caruso (1987), 152 Ill. App. 3d 1074, 504 N.E.2d 1339; aff'd (1987), 119 Ill. 2d 376, 519 N.E.2d 440.) However, a law cannot be said to be ex post facto which provides for the continued maintenance of certain conditions which prior to the enactment of the statute were lawful. Caruso, 152 Ill. App. 3d at 1077; People v. Jones (1946), 329 Ill. App. 503, 69 N.E.2d 522.

In Caruso, defendant was charged with child abduction and unlawful restraint of his two children. The child-abduction offenses were alleged as occurring on December 24, 1984, although defendant removed his children from Illinois in 1977, when defendant’s actions were not an offense. The child-abduction statute was first enacted into law by Public Act 80 — 1393, and became effective on August 22, 1978, and was later amended in 1984. (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 10 — 5(b)(1).) At the time the offenses were alleged to have been committed, it was an offense for a person to intentionally violate a valid court custody order by detaining the child. The trial court dismissed the child-abduction counts as ex post facto.

The Second District Appellate Court determined that defendant was not being prosecuted for abduction or detention prior to the enactment of the statute. He was charged with detaining the children on December 24, 1984, a date after the effective date of the statute and its amendment. While detention had occurred prior to the statute, the statute was alleged to be violated by the continued detention of the children after passage of the statute. No ex post facto violation occurred. For this and other reasons, the order of dismissal was reversed.

The instant defendant was indicted, tried and convicted for possession of child pornography occurring on May 16, 1988, at which time such possession was an offense. (Ill. Rev. Stat. 1987, ch. 38, par. 11 — 20.1(a)(2).) He was not prosecuted or convicted for his possession of the child pornography prior to the amendment of the statute. Although defendant’s possession of the child pornography also occurred before the amendment, the statute was violated by the continued possession of the photographs after amendment of the statute. The ex post facto provisions of the United States and Illinois Constitutions were not violated. Caruso, 152 Ill. App. 3d at 1078.

We do not find People v. Kimbro (1989), 182 Ill. App. 3d 572, 538 N.E.2d 826, or People v. Steinmann (1978), 57 Ill. App. 3d 887, 373 N.E.2d 757, persuasive as they concern the offense of theft and the exertion of unauthorized control. Defendant herein was in possession of child pornography on the date alleged and the fact that he possessed it prior to the amendment of the statute has no bearing as he was not convicted for this prior possession. Defendant, with knowledge of the nature and content of the book, continued to possess the child pornography- knowing the children in the photographs were under 18, after such possession became an offense. This continued possession violated the statute. The statute did not require the requisite intent found in the theft statute to make possession a crime. (See Steinmann, 57 Ill. App. 3d at 894.) Illegal possession, like the detention in Caruso, could be continuing in nature.

Defendant also contends that he had no reason to believe that his possession of the book became unlawful because at the time it was unconstitutional to make mere possession a crime under Stanley v. Georgia (1969), 394 U.S. 557, 22 L. Ed. 2d 542, 89 S. Ct. 1243. He asserts that he had a right to rely on Stanley and notes that two trial judges had relied on Stanley as well. (People v. Geever (1988), 122 Ill. 2d 313, 522 N.E.2d 1200.) He points out that Geever, which found the statute in issue here to be constitutional, was decided on March 22, 1988, but rehearing was not denied until May 31, 1988.

The defendants in Geever also argued that they relied upon Stanley v. Georgia, but the supreme court found their reliance misplaced. (Geever, 122 Ill. 2d at 329-30.) The court also found that the fair-warning requirement of the due process clause was not violated because the statute provided sufficient notice as to what conduct was proscribed. A statute enjoys a presumption of constitutionality (People v. Parkins (1979), 77 Ill. 2d 253, 257, 396 N.E.2d 22), and the amended statute was in effect since November 19, 1985. Defendant cannot now claim ignorance of the law.

We note a recent United States Supreme Court opinion which upheld an Ohio statute which prohibits the possession of child pornography. (Osborne v. Ohio (1990), 495 U.S. 103, 109 L. Ed. 2d 98, 110 S. Ct. 1691.) The Court cited two significant State interests served by encouraging the destruction of child pornography by those who possess it: the continued harm to the children of such materials and the prevention of the use of such materials by pedophiles.

Lastly, defendant raises a statute of limitations issue under Kimbro, claiming that his possession occurred about seven years before he was charged. He did not raise this issue below. In any event, there is no violation of the statute of limitations as defendant was charged with possession occurring on May 16, 1988, and indicted on June 7, 1988. Kimbro is not dispositive of the issue here as addressed earlier and defendant’s previous possession was never charged as an offense.

The judgment of the circuit court is affirmed.

Affirmed.

LaPORTA, P.J., and EGAN, J., concur.