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    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANNY LABOSETTE, a/k/a Danny Ott, Defendant-Appellant.
    Fourth District
    No. 4—91—0729
    Opinion filed November 5, 1992.

      Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles Colburn, State’s Attorney, of Jacksonville (Norbert J. Goetten, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant Danny Labosette was convicted of two counts of first degree murder (Ill. Rev. Stat. 1989, ch. 38, pars. 9 — 1(a)(1), (a)(3)) of the victim John Barfield. The jury found defendant eligible for the death penalty because it found defendant committed the murder “in a cold, calculated and premeditated manner pursuant to a preconceived plan, scheme or design to take a human life by unlawful means.” (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(b)(10).) However, the jury concluded defendant was not to be sentenced to death and the trial court imposed a sentence of 50 years’ imprisonment. Defendant appeals, contending (1) he was denied the effective assistance of counsel when his trial counsel conceded his guilt without his consent; (2) the prosecutor committed reversible error in closing argument by repeatedly commenting on the trial court’s ruling that defendant was not entitled to a second degree murder instruction; (3) the aggravating factor that the murder was committed in a cold, calculated, and premeditated manner is unconstitutionally vague; and (4) the sentence of 50 years’ imprisonment was excessive. We affirm.

Patricia Hennessy testified that on Thursday, November 29, 1990, at approximately 7:55 p.m., she was in the Blue Ridge Trailer Court in Franklin, Hlinois, sitting in the victim’s car with her sister Joyce Hennessy. She stated the victim was attempting to put jumper cables on the battery of his car and her car in order to jump start his car. While she was sitting in the victim’s car, she saw defendant’s truck pull up and defendant exit the truck. Defendant exited the truck, walked around it and then shot the victim three times. Defendant did not say anything to the victim before he shot him. Patricia was approximately four feet away from defendant and the victim. She knew defendant before this night as she had previously met him at a local tavern. After defendant shot the victim, he walked back to his truck, got into the driver’s seat and drove away.

Joyce Hennessy testified the same as her sister as to the events of November 29, 1990. She testified further that defendant shot the victim twice and then, as the victim was trying to crawl under his car, he shot the victim again in the back. Defendant then got into his truck and left the scene at a high rate of speed.

Dale Ater was also in the Blue Ridge Trailer Court on Thursday, November 29, 1990, at approximately 7:55 p.m. He witnessed the last shot defendant fired at the victim. Earlier that evening he had been in his trailer with Patricia Hennessy, Joyce Hennessy, her boyfriend and her daughter, who needed a ride back out to Franklin. Ater testified the victim stated they could use his car and they went out of the trailer to try to start the car. However, the car would not start, so the victim removed a jumper battery from his car in order to jump start the car. The next thing he saw was defendant’s pickup truck pull up next to the victim’s car. Ater was inside his trailer at this time when another person in the trailer said to him, “Whose truck is that?” Ater stated he did not know and he started toward the door. When he was approximately three feet from the door, he heard two shots and, as he got onto the porch of his trailer, he saw the victim falling down. The victim attempted to scoot under his car and defendant then shot the victim in the back. Defendant then looked at Joyce Hennessy, looked at another person near the truck and then nonchalantly walked around to his truck, got into it and drove away.

Bob Morris was at the Blue Ridge Trailer Court on that day and he first heard defendant’s truck go up to a trailer owned by Terry Stout. Defendant left Terry Stout’s house, came back down the street toward the trailer park exit and then backed up a little bit because he saw the victim’s car. Defendant got out of his truck, looked at the victim, shot him three times, and then got into his truck and sped away from the scene. Morris got into his car and attempted to follow defendant to see where he was going.

Terry Stout testified that at approximately 7:30 p.m. on November 29, 1990, defendant came to his trailer in the Blue Ridge Trailer Court. Stout knew defendant because defendant dated a girl, Melissa Hare, who resided with Stout at his trailer. Defendant came to the trailer looking for the victim but was told the victim was not present in the trailer. However, defendant kept looking around to see if the victim was hiding inside the trailer. Defendant then began to leave and told Stout that he would be back. He got into his truck and headed toward the end of the trailer court. Approximately a few seconds later, after he watched defendant drive away from his trailer, Stout heard three shots. However, he did not see the shooting. He got dressed and went outside to see what had happened.

Stout testified that at 1:30 a.m. the previous day, defendant had come by his trailer looking for the victim. At that time he, his wife, his son, Melissa Hare, and her three children, the victim and another person were all at the trailer. He heard the victim and defendant arguing, although he could not clearly hear what they were arguing about. He testified he heard the victim tell defendant to come back tomorrow and they would talk when the defendant was sober. He also heard some scuffling noise in the room where they were. Stout testified defendant was very jealous about Melissa Hare and did not like it when other men talked to her.

Martha Stout, Terry Stout’s wife, testified defendant came to their trailer on the evening of November 29 at approximately 7:30 p.m. looking for the victim. After defendant had been told the victim was not present in the trailer, she saw defendant drive down to the end of the road and then back up and make a left-hand turn. The next thing she heard was three gun shots. She then left the trailer to go over and see what had happened and she saw the victim lying on the ground. She also testified that at approximately 1:30 a.m., the previous morning, defendant was at the trailer fighting with the victim. She stated they were fighting about Melissa Hare and the victim stated that Melissa was not his girlfriend and that if defendant wanted her, he could come back when he was sober and they would talk about it. She also heard a bunch of crashing around in the kitchen and then defendant left the trailer. She testified defendant had once threatened to kill anybody that got near Melissa Hare, except Melissa’s husband.

Melissa Hare testified that she knew defendant because they had dated for approximately one week; however, the relationship had ended two days before the shooting. She testified defendant came to the trailer on November 29, 1990, looking for the victim. When he found out the victim was not there, he left the trailer and the next thing she heard was three shots. The people she was in the trailer with at the time ran outside and then ran back and told her that the victim had been shot.

At 1:30 a.m. the previous morning, defendant had come by the trailer where she was sleeping and wanted to talk to her. He had stated that if it was over between them, that she should just say so, and he would leave her alone. She told him it was over but he refused to leave and, after a little while, the victim and another person came into the trailer. The victim and defendant went into the kitchen and then she heard some noises and she also heard them shoving each other. She stated the victim shoved defendant toward the door but defendant refused to leave. Finally, the victim opened the door and shoved defendant out.

Kevin Cowden testified that at approximately 8 or 8:30 p.m. on November 29, defendant showed up at his house and asked if he could hide his truck in Cowden’s garage. Defendant explained to Cowden that he had been in a fight and that there were men chasing him and he wanted to hide from them. Cowden put defendant’s truck in the garage, where it remained until the police came and took it away. Defendant left his house approximately 20 to 25 minutes after putting the truck in the garage.

Eric Scoggins testified that at about 2 a.m. on November 29, 1990, defendant came by his house. Defendant stated he had gotten into a fight with the victim and somebody else and that defendant had a black eye. Defendant sat down on the chair and said, “I’m going to kill him, I’m going to kill him.” This was in reference to the victim. Scoggins told defendant to shut up and go to sleep. Defendant stated approximately three times he was going to kill the victim. He spent the night at Scoggins’ house and woke up the next morning between 10:30 and 11 a.m. Upon waking, defendant again stated a couple of times that he was going to kill the victim and he even made up a song about it. At this point, defendant also asked Scoggins for a gun. This was the last time Scoggins ever saw defendant.

The State presented evidence, through the testimony of Dr. John Dietrich, regarding the three bullet wounds in the victim’s body. Dietrich explained that there were three bullet wounds: one in the chest, one near the arm toward the back, and a third in the back. Dr. Dietrich testified that the wound which entered on the victim’s left side toward the arm, passed through the victim’s heart, which caused a great blood loss. All of these wounds were potentially fatal, but the wound passing through the heart was the most serious.

Defendant presented evidence that he was a heavy drinker and that sometimes he drank and forgot the next day what he had done. The nurse at the Morgan County jail testified that on the Monday morning following defendant’s Friday night arrest, she examined defendant and he appeared to be going through some symptoms of alcohol and drug withdrawal. The defense also presented testimony of two clinical psychologists, Dr. Sue Moriearty and Ronald Gottschalk, regarding defendant’s alcoholism and ability to retain intense anger or emotional distress for a period longer than the average person.

Closing arguments were made by both counsel, and the parties had a jury instruction conference with the trial court. The defense tendered a jury instruction regarding second degree murder based on “a sudden and intense passion resulting from serious provocation” (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2(a)(1)), which was refused by the trial court. The court concluded the retaliation by defendant toward the victim from any physical assault the previous evening was out of proportion to any provocation created by the assault and, as a matter of law, a sufficient time had passed for him to cool down. Accordingly, the second degree murder instruction was refused. The jury was instructed on first degree murder and it took less than one hour to convict defendant on both counts.

During the first stage of the death penalty hearing, the jury concluded defendant was eligible for the death penalty because the murder was committed in “a cold, calculated and premeditated manner pursuant to a preconceived plan, scheme or design to take a human life by unlawful means.” (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(b)(10).) However, at the second stage of the death penalty hearing, the jury refused to sentence defendant to death. Accordingly, the court sentenced defendant to 50 years’ imprisonment and he now appeals.

For his first issue, defendant contends he was denied the effective assistance of counsel because his trial attorney conceded his guilt during his opening statement. Defense counsel stated:

“We do not dispute that Danny Labosette shot John Barfield, nor do we maintain that the shooting was an accident. It was in all probability an intentional act, at least within the capability of this defendant to have intended to have done anything at that point in time. However, your analysis of the facts should not stop with that finding. You must not merely decide that he did it and stop at that. Your job, once you have determined that Danny Labosette in fact murdered John Barfield, if you make that determination, will be to go on to determine whether at the time of that murder Danny Labosette was acting under a sudden and intense passion resulting from a serious provocation on the part of the victim, John Barfield. In other words, did he shoot John Barfield because he was extremely upset about something that John Barfield had done to him. *** But the answer is, I’m not talking about whether Danny Labosette is guilty or not. Nor am I talking about whether he should be excused for his actions. Danny Labosette did a terrible thing. He committed the ultimate offense against another human being, and he should pay the consequences of those actions. However, the question before you is not whether Danny Labosette is guilty of murder. The question which you as jurors must determine is what kind of murder was this. *** The question I have to present to you at this time was whether Danny Labosette is, in fact, guilty of first degree murder as he is being charged or whether he is some, guilty of some lesser offense, specifically the offense of second degree murder, which as I indicated, you will be instructed upon when you retire to consider your verdict following the close of this trial. *** We further believe the evidence will show that he subsequently found John Barfield and, in fact, shot him to death. It is our position that this final act on the part of Danny Labosette is basically the final, relevant fact of this trial, and is in reality something about which there is no disagreement. *** We do not dispute that Danny Labosette shot John Barfield. *** A murder was committed. Danny Labosette, in all probability, committed that murder.”

Defendant suggests his trial counsel’s strategy was per se ineffective pursuant to People v. Hattery (1985), 109 Ill. 2d 449, 488 N.E.2d 513. Alternatively, defendant argues his trial counsel was ineffective under the general standard announced in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.

The State responds by distinguishing Hattery based on the difference between defense counsel’s conduct in that case and the defense counsel’s conduct in the present case. Additionally, the State suggests defense counsel’s theory, i.e., to rely on second degree murder, was a matter of trial strategy which is not a basis for a claim of ineffective assistance of counsel.

In Hattery, defendant was convicted of the murders of a woman and her two children. At the death penalty hearing, the jury found the necessary aggravating factors existed and there were no mitigating circumstances sufficient to preclude the imposition of the death penalty. The trial court sentenced defendant to death and he subsequently brought an appeal. On appeal, defendant contended the trial strategy of his counsel amounted to the functional equivalent of a guilty plea without the proper procedural due process safeguards. Defendant further contended his trial counsel’s actions were totally inconsistent with his not guilty plea and thus constituted a per se denial of the right to effective assistance of counsel.

Defendant Hattery was represented by two assistant public defenders. One of his attorneys made the opening statement on his behalf, part of which was as follows:

“ ‘We are not asking you to find Charles Hattery not guilty. At the end of your deliberations, you will find him guilty of murder. We are asking you to consider the evidence that you hear today and in the next few days to explain why he did the horrible thing that he did. Once you have found him guilty, we will proceed and you will find him eligible for the death penalty. The question, and the only question facing you, will be whether to impose the death penalty on Charles Hattery for trying to save the life of his family. Thank you.’ ” (Emphasis omitted.) Hattery, 109 Ill. 2d at 458-59, 488 N.E.2d at 516.

The supreme court noted that defense counsel advanced no theory of defense during the guilt-innocence phase of the trial, nor did they present any evidence or make a closing statement. Rather, their entire theory of defense was to establish, through cross-examination of the State’s witnesses, that defendant was compelled to kill the victims by a codefendant even though compulsion was not a legal defense. Moreover, at various times during the guilt-innocence phase of the trial, the defense counsel conceded defendant was truthful when he confessed to the murders. Hattery, 109 Ill. 2d at 459-60, 488 N.E.2d at 516.

In concluding defendant was denied the effective assistance of counsel, the Hattery court first found that the actions of defense counsel did not amount to the “meaningful adversarial testing” required by the sixth amendment. (Hattery, 109 Ill. 2d at 464, 488 N.E.2d at 518.) The court further noted that defense counsel’s concessions of defendant’s guilt were unequivocal. Finally, the court concluded defense counsel’s strategy of attempting to show that defendant was guilty of murder but undeserving of the death penalty was totally at odds with his earlier plea of not guilty. In the absence of evidence that defendant consented to the trial strategy, the court refused to presume his consent. Thus, the court concluded defense counsel’s actions deprived him of the right of having his guilt or innocence presented to the jury as an adversarial issue. Hattery, 109 Ill. 2d at 464, 488 N.E.2d at 518-19.

In People v. Johnson (1989), 128 Ill. 2d 253, 538 N.E.2d 1118, the court stated that the rule in Hattery must be narrowly construed and defendant has a high burden before he can forsake the two-part Strickland test. (Johnson, 128 Ill. 2d at 269-70, 538 N.E.2d at 1125.) The court further found that it did not hold in Hattery that it is per se ineffectiveness whenever the defense attorney concedes his client’s guilt of offenses in which there is overwhelming evidence of that guilt but fails to show on-the-record consent by defendant. Johnson, 128 Ill. 2d at 269, 538 N.E.2d at 1124-25.

Defense counsel’s actions in this case indicate he did not fail to subject the prosecution’s case to a meaningful adversarial testing as did defense counsel in Hattery. First, defense counsel did not unequivocally concede defendant’s guilt. Defense counsel conceded defendant shot the victim but only in the context of hoping for a second degree murder instruction. Defense counsel did not concede defendant’s guilt to first degree murder.

The evidence was overwhelming that defendant did in fact shoot the victim. Four eyewitnesses testified they saw defendant shoot the victim. Defense counsel would have lost all credibility with the jury if he attempted to argue defendant did not shoot the victim. Furthermore, unlike in Hattery, defense counsel did present evidence on defendant’s behalf, namely a theory of second degree murder based on serious provocation. Counsel presented evidence of an altercation between defendant and the victim on the evening before the shooting as well as evidence that defendant threatened to kill the victim. Evidence was presented that defendant woke up the morning of the shooting and was still mad at the victim and still wanted to kill him. Expert testimony was presented to suggest that defendant may retain intense anger and passion longer than most people because of his alcohol abuse.

Defense counsel vigorously cross-examined the State’s witnesses and objected to improper parts of their testimony. He made a closing argument, which — after explaining to the jury the absence of a second degree murder instruction — asked it to find the defendant not guilty of first degree murder. Thus, defense counsel cannot be found to have been per se ineffective. Therefore, the two-part test of Strickland must be applied to determine whether there has been ineffective assistance of counsel.

Ordinarily, to prevail on a claim of ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness and (2) counsel’s substandard representation so prejudiced the defense as to deny him a fair trial. (People v. Horton (1991), 143 Ill. 2d 11, 23, 570 N.E.2d 320, 325.) To show actual prejudice, defendant must establish that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) A reviewing court does not have to determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. People v. McCarthy (1991), 213 Ill. App. 3d 873, 886, 572 N.E.2d 1219, 1227.

Even without deciding that counsel’s remarks during his opening statement fell below an objective standard of reasonableness, defendant cannot show he was so prejudiced by these comments that he was denied a fair trial. Four eyewitnesses testified they saw defendant drive up to the victim, get out of his truck, fire three shots, and then drive away. The evidence was so overwhelming that even without defense counsel’s statements acknowledging defendant shot the victim, the jury could still have so concluded.

Likewise, it cannot be said that counsel’s remarks fell below an objective standard of reasonableness. Allegations arising from matters of judgment or trial strategy will not support a claim of ineffective assistance of counsel. The decision to rely on one theory of defense to the exclusion of other theories is a matter of trial strategy. (People v. Clark (1991), 207 Ill. App. 3d 439, 450, 565 N.E.2d 1373, 1380.) Given the number of eyewitnesses to this murder, defense counsel’s one viable strategy was to urge a defense in an attempt to reduce the possible conviction from first degree murder to second degree murder. Defense counsel chose this defense of “sudden and intense passion resulting from serious provocation” when it became clear that the evidence would not support a defense of insanity or intoxication. Thus, since defense counsel’s remarks were part of his trial strategy, they cannot form a basis for an ineffective assistance of counsel claim.

Next, defendant alleges the prosecutor committed reversible error by commenting during closing argument on the trial court’s ruling that he was not entitled to a second degree murder instruction. The State contends defendant has waived this issue because of a failure to object to the comments at trial or raise them in a post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) The State further contends the prosecutor’s comments do not rise to the level of plain error because the evidence was not closely balanced and defendant was not denied a fair trial. People v. Whitehead (1987), 116 Ill. 2d 425, 448, 508 N.E.2d 687, 695.

Since defendant failed to object to these comments at trial and also failed to raise the issue in his post-trial motion, he has waived the resolution of the issue by this court unless the comments amount to plain error.

The prosecutor’s comments do not rise to the level of plain error. First, as previously noted, the evidence was not closely balanced. Four eyewitnesses testified to the shooting. Another witness testified that approximately 17 hours had passed between when defendant first stated he wanted to kill the victim and when he actually shot the victim. The trial court concluded defendant was not entitled to a jury instruction on second degree murder because as a matter of law there was no serious provocation and defendant had had a sufficient cooling-off period.

Likewise, defendant was not denied a fair trial by the prosecutor’s statements. The prosecutor simply explained to the jury that it would not be receiving an instruction from the trial court regarding second degree murder because the court had determined the evidence was insufficient to support such an instruction. This may have helped alleviate any confusion on the jury’s part because of comments of defense counsel during opening statement regarding this defense. The prosecutor did not misstate the law; rather, he stated that since there would be no second degree murder instruction, the jury had only two options: find defendant guilty of first degree murder or not guilty. Defense counsel invited this explanation of the absence of the second degree murder instruction because in his opening statement he made reference to this theory.

Finally, the jury was instructed that closing arguments made by counsel were not evidence and that any argument or statement made by counsel not based on the evidence should be disregarded. This instruction has been held to cure any prejudice to the defendant because of the prosecutor’s improper remarks. (People v. Lawler (1991), 142 Ill. 2d 548, 565, 568 N.E.2d 895, 903.) Thus, any error made by these statements was cured by this instruction.

Third, defendant asserts the aggravating factor set forth in section 9 — 1(b)(10) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(b)(10)) is unconstitutionally vague under the eighth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VIII, XIV). Defendant suggests the words “cold, calculated and premeditated” (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(b)(10)) are open to many interpretations and thus do not provide a principled way to distinguish a case where the factor is used to impose the death penalty from one where death is not imposed. Defendant concludes his case must be remanded for resentencing because the trial court considered an improper aggravating factor.

Section 9 — 1(b)(10) of the Code provides:

“(b) Aggravating Factors. A defendant who at the time of the commission of the offense has attained the age of 18 or more and who has been found guilty of first degree murder may be sentenced to death if:
* * *
(10) the murder was committed in a cold, calculated and premeditated manner pursuant to a preconceived plan, scheme or design to take a human life by unlawful means, and the conduct of the defendant created a reasonable expectation that the death of a human being would result therefrom.” Ill. Rev. Stat. 1989, ch. 38, par. 9-1(b)(10).

Section 5 — 8—1(a)(1)(a) of the Unified Code of Corrections provides that the sentence of imprisonment for first degree murder shall not be less than 20 years and not more than 60 years. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(1)(a).) Moreover, “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.” Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8— 1(a)(1)(b).

At the first phase of the death penalty hearing, the jury concluded defendant was eligible for the death penalty because it found “defendant was 18 years or older at the time of the murder for which he was convicted in this case and we unanimously find beyond a reasonable doubt that the statutory aggravating factor exists.” At the sentencing hearing, the trial court found defendant committed the murder in a cold and calculated manner because 17 hours had passed between the first threat to kill the victim and the actual commission of the crime. The court specifically found that since it could consider the statutory aggravating factor in section 9 — 1(b)(10) of the Code to support a term of natural life, it was rational to consider that factor when determining what sentence should be imposed in the range of 20 to 60 years. The court concluded it would consider that factor in sentencing defendant.

Defendant relies upon the United States Supreme Court decision in Maynard v. Cartwright (1988), 486 U.S. 356, 100 L. Ed. 2d 372, 108 S. Ct. 1853, as support for his proposition that this provision is unconstitutional. In Maynard, the Supreme Court found that an aggravating circumstance which made a defendant eligible for the death penalty if the murder was “ ‘especially heinous, atrocious, or cruel’ ” was unconstitutionally vague as it applied to that defendant because it failed to sufficiently guide or limit the discretion of the sentences (Maynard, 486 U.S. at 360, 100 L. Ed. 2d at 379, 108 S. Ct. at 1857, quoting Cartwright v. Maynard (10th Cir. 1987), 822 F.2d 1477, 1491.) The Supreme Court explained that “our cases have insisted that the channeling and limiting of the sentencer’s discretion in imposing the death penalty is a fundamental constitutional requirement for sufficiently minimizing the risk of wholly arbitrary and capricious action.” (Maynard, 486 U.S. at 362, 100 L. Ed. 2d at 380, 108 S. Ct. at 1858.) The Court believed the wording of the Oklahoma statute was vague because “an ordinary person could honestly believe that every unjustified, intentional taking of human life is ‘especially heinous.’ ” Maynard, 486 U.S. at 364, 100 L. Ed. 2d at 382, 108 S. Ct. at 1859.

In People v. Odle (1988), 128 Ill. 2d 111, 538 N.E.2d 428, the Illinois Supreme Court upheld as constitutional section 9 — 1(b)(7) of the Code, which made a defendant eligible for the death penalty if “the murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty.” (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(b)(7).) The court viewed this section as more specific in describing the conduct which qualifies an accused for the death penalty than the one deemed unconstitutional in Maynard. The court also found the statute was not susceptible to arbitrary application when the requirements of the statute were strictly followed. (Odle, 128 Ill. 2d at 140, 538 N.E.2d at 440.) The court concluded the provision was not facially invalid nor was it applied by the trial court in an arbitrary or capricious manner. The court noted that not only must the victim have been under the age of 12 and the conduct which brought about the death exceptionally brutal or heinous, the conduct must also be indicative of wanton cruelty. Defendant there had strangled his brother with a pajama bottom such that his neck was reduced to the size of an adult man’s wrist. The court stated this behavior “can only be described as exceptionally brutal or heinous behavior, indicative of wanton cruelty.” Odle, 128 Ill. 2d at 141, 538 N.E.2d at 441.

Likewise, the section here is not facially unconstitutional, nor was it applied by the trial court in an arbitrary or capricious manner. This section is very specific, requiring the murder to have been committed in a (1) cold, (2) calculated and (3) premeditated manner. Moreover, it must be done pursuant to a preconceived plan, scheme or design to take human life by unlawful means. A further qualifying factor is that the conduct of the defendant create a reasonable expectation that the death of the human being would result therefrom. Because this provision is so specific, it provides sufficient guidelines for the sentences

In Grayned v. City of Rockford (1972), 408 U.S. 104, 108-09, 33 L. Ed. 2d 222, 227-28, 92 S. Ct. 2294, 2298-99, the Court described the important considerations in determining whether legislation proscribing conduct is void for being vague and indefinite to be whether (1) it gives reasonable guidance to the average person, (2) it is designed in such a way as to avoid arbitrary and discriminatory enforcement, and (3) sensitive first amendment rights are involved, thus requiring a higher standard. Clearly, no first amendment rights are involved here. The totality of the words used together, requiring the murder to be done in a “cold, calculated and premeditated manner pursuant to a preconceived plan, scheme or design to take a human life by unlawful means” (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(b)(10)), gives reasonable guidance to the average person and is of a design which would tend to avoid arbitrary enforcement. (People v. Nobles (1980), 83 Ill. App. 3d 711, 716, 404 N.E.2d 330, 335.) The words “cold,” “calculated” and “premeditated” are ordinary words which must be given their ordinary meanings. This section gives guidance to the average person.

Moreover, this section was not applied by the trial court in an arbitrary or capricious manner. The trial court found the murder to have been committed in a “cold” manner because defendant had had approximately 17 hours to cool off, i.e., the time between the initial confrontation and the actual commission of the crime. The court found this act to be “calculated” and “premeditated” because defendant threatened to kill the victim the night before the shooting and then in fact did kill the victim. The evidence indicated defendant threatened to kill the victim the night before the murder, slept for some eight hours, woke up and still wanted to kill the victim. Defendant asked Scoggins for a gun. The evidence further indicated defendant showed up at Melissa Hare’s trailer, freshly washed, and calmly asked for the victim. When defendant found out the victim was not there, he left the trailer and proceeded toward the exit of the trailer park. Defendant saw the victim’s car, turned his truck around and pulled up next to the victim’s car. Defendant turned off the ignition in his truck, got out of the car, shot the victim two times and then shot the victim again when the victim tried to crawl under his car. Defendant then got into his truck, sped away, hid his truck, and then hid himself in a closet at a friend’s house. The evidence clearly established defendant committed the murder pursuant to a preconceived plan and we find this section was not arbitrarily or capriciously applied to defendant.

In Harich v. Dugger (11th Cir. 1988), 844 F.2d 1464, 1468-69, the court adopted relevant portions of the opinion in Harich v. Wainwright (11th Cir. 1987), 813 F.2d 1082, vacated (1987), 828 F.2d 1497, wherein the court had upheld a Florida provision that allowed the sentencing court to find an aggravating circumstance where the murder “was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.” (Harich, 813 F.2d at 1102; Fla. Stat. Ann. §921.141(5)(1), at 501 (West 1985).) The court found that the Florida Supreme Court had held that this section sufficiently “narrow[s] the class of defendants eligible for the death penalty because it requires a ‘heightened’ level of premeditation.” (Harich, 813 F.2d at 1102.) The Florida courts have construed this section to require a greater degree of premeditation and cold-bloodedness than is required to obtain a first degree murder conviction. This factor “places a limitation on the use of premeditation as an aggravating circumstance in the absence of some quality setting the crime apart from mere ordinary premeditated murder.” (Brown v. State (Fla. 1985), 473 So. 2d 1260, 1268, citing Combs v. State (Fla. 1981), 403 So. 2d 418, 421; see also Card v. State (Fla. 1984), 453 So. 2d 17, 23 (and cases cited therein).) The court concluded that “[gjiven this limiting construction, [this section was] a facially valid aggravating circumstance because it genuinely narrows the class of persons eligible for the death penalty.” (Harich, 813 F.2d at 1102.) Likewise, section 9 — 1(b)(10) is facially valid because it generally narrows the class of persons eligible for the death penalty within the meaning of such cases as Zant v. Stephens (1983), 462 U.S. 862, 877, 77 L. Ed. 2d 235, 249-50, 103 S. Ct. 2733, 2742 (“an aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder”). This provision is more specific than the one upheld in Harieh and in such Florida cases as Brown, and this specificity provides adequate guidelines to the sentencing court when considering it as an aggravating factor. Therefore, we hold section 9 — 1(b)(10) of the Code is not unconstitutionally vague.

As his final issue, defendant contends his sentence of 50 years’ imprisonment was excessive. Defendant points to the mitigating factors of his alcoholism, his extreme emotional distress at the time of the offense, and his troubled youth.

The sentence for first degree murder “shall be not less than 20 years and not more than 60 years, or *** 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.” (Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 8— 1(a)(1)(a), (a)(1)(b).) Because the court found an aggravating circumstance existed, defendant was eligible for a term of natural life or a term of 20 to 60 years’ imprisonment.

If mitigating factors are presented to the court, absent some contrary evidence, there is a presumption that the trial court considered them. (People v. Kyse (1991), 220 Ill. App. 3d 971, 975, 581 N.E.2d 285, 288.) A sentence within the statutory limits will not be disturbed on review absent an abuse of discretion. People v. Lucas (1991), 215 Ill. App. 3d 148, 156, 574 N.E.2d 850, 855.

There was no abuse of discretion by the trial court in sentencing defendant to 50 years’ imprisonment. At the sentencing hearing, the trial court heard testimony from the probation officer in Morgan County, who had assisted in compiling the presentence investigation report on defendant. The trial court also heard testimony from the defendant regarding his alcohol abuse problems and remorse for his actions. When making its final determination of the sentence, the trial court noted the presentence investigation, the possible range of sentences, the evidence offered at trial, and all the testimony presented at the sentencing hearing. The trial court further went through the aggravating and mitigating factors set forth in the Code as well as the mitigating factors of defendant’s alcohol abuse, drug abuse, and troubled childhood. It also noted defendant had four previous felony convictions, plus a conviction of driving while under the influence. In total, the trial court’s sentencing of defendant spanned 15 pages of the record. Given these facts, the trial court did not abuse its discretion when sentencing defendant to 50 years’ imprisonment.

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    TERENCE P. BRENNAN, Plaintiff-Appellee and Cross-Appellant, v. BRACK STANFORD, Indiv. and d/b/a Stanford and Associates, Defendants-Appellants and Cross-Appellees.
    First District (1st Division)
    No. 1—91—1125
    Opinion filed September 14, 1992.
    Martin, Craig, Chester & Sonnenschein, of Chicago (Don R. Sampen, of counsel), for appellants.

      ' Hamblet, Casey, Oremus & Vacin, of Chicago (John J. Casey, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendants Brack Stanford and Stanford and Associates appeal from an order of the circuit court confirming an arbitration award made to plaintiff, Terence R Brennan, upon which judgment was entered. Plaintiff cross-appeals from that order, challenging the circuit court’s determination of the interest rate to be charged against defendants. For reasons which follow, we affirm the circuit court’s judgment and dismiss plaintiff’s cross-appeal.

This action arises from a business transaction entered into by the parties in the spring of 1986. Plaintiff, an independent contractor, solicited and found clients who required the services of Stanford and Associates and Stanford Securities, Inc. In the spring of 1986, plaintiff learned that an employee of Scott Foresman and Company was attempting to purchase the communications division of that company, known as the Pegasus Broadcasting Company (Pegasus). The employee agreed to pay Stanford and Associates $500,000 to represent him in his attempt to purchase Pegasus. Upon execution of the purchase, defendants and plaintiff would receive $200,000 apiece. Expenses were to be paid from the remaining $100,000. If the expenses amounted to less than $100,000, defendants and plaintiff were to split the sum evenly.

On October 9, 1986, the financing of the Pegasus buyout was accomplished. Pegasus paid Stanford and Associates $500,000 by October 1987. Plaintiff, however, learned that defendants had used less than $100,000 in expenses and demanded his share in accordance with the agreement.

On October 5, 1988, plaintiff filed a complaint against defendants for breach of the contract. Plaintiff later filed a claim for arbitration against defendants with the National Association of Security Dealers (NASD). Defendants objected, claiming that the NASD lacked jurisdiction to hear the dispute. This objection initially was overruled by the NASD’s director of arbitration and later was denied by the arbitration panel which ultimately heard the matter. Following a hearing, the panel rendered its decision on October 25, 1990. Plaintiff received an award of $47,121 with interest at 5% from and after November 1, 1987.

On November 7, 1990, plaintiff moved to enroll the arbitration award as a judgment of the circuit court. Plaintiff also sought to dismiss his breach of contract action. According to plaintiff’s motion, both he and defendants were associate members of the NASD, and plaintiff was required by the NASD rules to file an arbitration claim. Defendants sought to vacate the arbitration award, renewing their contention that the parties did not have any arbitration agreement. Defendants maintained that the panel exceeded its authority because disputes between associate members of the NASD are ineligible for submission to arbitration under the NASD Code of Arbitration (NASD Code). Defendants filed an affidavit in which Brack Stanford swore that he was not a registered broker, dealer, or municipal securities broker or dealer authorized to engage in the securities business.

The circuit court eventually confirmed the plaintiff’s award, ruling that the NASD Code required arbitration under these circumstances. The court, however, denied plaintiff’s motion to increase the yearly interest rate from 5% to 9%.

I

Defendants argue that the circuit court’s order must be reversed because the arbitration panel lacked jurisdiction to arbitrate the dispute.

The record clearly reveals that no written agreement to arbitrate was ever entered into by the parties. Plaintiff argued in the circuit court that the NASD Code necessitated the arbitration hearing because both parties were associated with a member of NASD. The NASD arbitration clause is contained in the membership agreement which provides:

“This Code of Arbitration Procedure is prescribed and adopted pursuant to Article IV, Section 2(b) of the By-Laws of the National Association of Security Dealers, Inc., (the Association) for the arbitration of any dispute, claim or controversy arising out of or in connection with the business of any member of the Association, with the exception of disputes involving the insurance business of any member which is also an insurance company:
(1) between or among members;
(2) between or among members and public customers, or others; and
(3) between or among members, registered clearing agencies with which the Association has entered into an agreement to utilize the Association’s arbitration facilities and procedures and participants, pledges or other persons using the facilities of a registered clearing agency, as these terms are defined under the rules of such a registered clearing agency.” (NASD Manual par. 3701.)

In addition, paragraph eight of the NASD Code establishes that

“[a]ny dispute, claim or controversy eligible for submission under Part I of this Code between or among members and/or associated persons and/or certain others, arising in connection with the business of such member(s) or in connection with the activities of such associated person(s), shall be arbitrated under this Code, at the instance of:
(1) a member against another member
(2) a member against a person associated with a member or a person associated with a member; and
(3) a person associated with a member against a person associated with a member.” NASD Manual par. 3708.

The Federal Arbitration Act (FAA) states:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction *** shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (9 U.S.C. §2 (1982).)

Under the FAA, Federal law applies to all questions of interpretation, construction, and enforcement of arbitration agreements in contracts concerning interstate commerce. (Lippus v. Dahlgren Manufacturing Co. (E.D.N.Y. 1986), 644 F. Supp. 1473, 1482.) The NASD arbitration clause at issue here has been held to involve interstate commerce. (Austin Municipal Securities, Inc. v. National Association of Securities Dealers, Inc. (5th Cir. 1985), 757 F.2d 676.) Generally, Federal policy favors arbitration when there is any doubt as to the issue. (See Moses H. Cone Memorial Hospital v. Mercury Construction Corp. (1983), 460 U.S. 1, 24-25, 74 L. Ed. 2d 765, 785, 103 S. Ct. 927, 941; Wick v. Atlantic Marine, Inc. (5th Cir. 1979), 605 F.2d 166, 168.) In interpreting a statute or a code of arbitration, a court is obliged to give effect, if possible, to every section of the code. Reiter v. Sonotone Corp. (1979), 442 U.S. 330, 60 L. Ed. 2d 931, 99 S. Ct. 2326.

Plaintiff initially sought arbitration against Stanford individually and doing business as Stanford and Associates. In his amended claim for arbitration, he added two claims against Stanford Companies. This entity is actually known as Stanford Securities, Inc. It is undisputed that Stanford Securities, Inc., is a member of the NASD and that Brack Stanford is associated with that member entity. Plaintiff, too, was associated with the member. Accordingly, paragraph 3708 of the NASD Code, which specifically extends to disputes involving persons associated with members, is applicable to the circumstances presented here. Moreover, we note that defendants attempted to run this business transaction through an unincorporated entity. Based on the foregoing, the circuit court correctly ruled that the NASD had jurisdiction to arbitrate the parties’ dispute.

II

Plaintiff’s cross-appeal challenges the circuit court’s approval of the arbitration panel’s determination of the rate of interest to be charged on the outstanding amount owed to plaintiff. This court, however, lacks jurisdiction to hear the matter.

Supreme Court Rule 303(a)(3) (134 Ill. 2d R. 303(a)(3)) provides that notices of appeal by parties other than the original appellant must be filed “within 10 days after service upon him, or within 30 days of the entry of the order disposing of the last pending post-trial motion, whichever is later.” Here, defendants’ notice of appeal was filed April 5, 1991. Plaintiff’s notice of cross-appeal was not filed until April 24, 1991, clearly beyond 10 days of defendants’ timely filed notice of appeal and beyond 30 days of the circuit court’s final order. Although defendants filed a post-trial motion seeking an extension of time in which to file an appeal bond, which was allowed by order of the circuit court, such a motion does not attack the original judgment and is not considered an appropriate post-trial motion for purposes of this rule. (See In re Petition of the Village of Kildeer to Annex Certain Property (1987), 162 Ill. App. 3d 262, 514 N.E.2d 1020, aff’d (1988), 124 Ill. 2d 533, 530 N.E.2d 491.) Accordingly, this court lacks jurisdiction, and the cross-appeal cannot be considered. See Case International Co. v. American National Bank & Trust Co. (1974), 18 Ill. App. 3d 297, 309 N.E.2d 750.

The order of the circuit court is affirmed, and plaintiff’s cross-appeal is dismissed for lack of jurisdiction.

Affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: JUSTICE NICKELS

text:
    EDWARD A. GEICK, Plaintiff-Appellant, v. JAMES W. KAY, Indiv., and as President of the Board of Trustees of the Village of Lake Zurich, et al., Defendants-Appellees.
    Second District
    No. 2—91—1396
    Opinion filed November 5, 1992.

      Stanley H. Jakala, of Berwyn, for appellant.
    Martin G. Durkin, Jr., of Burke, Bosselman & Weaver, of Chicago (Mark E. Burkland, of counsel), and James L. DeAno, of O’Reilly, Cunningham, Norton & Mancini, of Wheaton, for appellees.
   JUSTICE NICKELS

delivered the opinion of the court:

Plaintiff, Edward A. Geick, filed a four-count complaint in the circuit court of Lake County against defendants, James W. Kay, as president of the board of trustees of the Village of Lake Zurich and individually, and the board of trustees of the Village of Lake Zurich (Board). The complaint sought damages for libel per se, libel per quod, invasion of privacy, and intentional interference with prospective economic advantage. All four counts were eventually dismissed with prejudice. A later count for breach of contract was voluntarily dismissed by plaintiff, and this appeal followed. The issues involve whether plaintiff stated a cause of action for these counts and/or whether any defenses bar recovery.

Count I of the complaint based on libel per se alleged that plaintiff served as village administrator for the Village of Lake Zurich (Lake Zurich). Due to differences arising between plaintiff and defendants, the parties agreed that plaintiff would resign on January 31, 1990, in conjunction with a “separation agreement” (separation agreement). The separation agreement provided that neither plaintiff nor Lake Zurich would make any statements to the public or media regarding plaintiff’s resignation, plaintiff’s alleged involvement in a Federal court case, or plaintiff’s previous employment as an administrator in Wisconsin. It was alleged that the separation agreement required that neither the Board president nor members would provide a negative or critical reference for plaintiff and that any prospective employer would be told that as a matter of policy no recommendation or reference, positive or negative, would be given.

It was alleged that defendant Kay implied plaintiff was not trustworthy when Kay made certain statements quoted in the Daily Herald newspaper on February 3, 1990. Kay stated:

“I think a key element in finding a village administrator is the word trust. *** I say that word because that’s how I feel. It’s very, very important. I’ll look at personality even before I look at credentials. It’s been a difficult job for me to inherit the mess this town is in. *** You must feel that you can trust your staff in a situation like this and turn to them for guidance.”

It was alleged that Kay made similar remarks regarding the need for trust in an administrator on February 8 and 9, 1990, to two other newspapers.

The complaint further alleged that in an article in the Chicago Sun-Times newspaper on February 13, 1990, Kay stated that plaintiff resigned. Kay said that a settlement agreement had been executed in a harassment suit filed by a woman. It was plaintiff’s position that all the remarks alleged in the complaint violated the separation agreement.

Plaintiff alleged that pursuant to his April 17, 1990, application for a position as director of the Lake County storm water management committee, he interviewed for the job in July 1990. Plaintiff claimed that certain allegations relating to Kay’s statements resurfaced. Plaintiff was required to respond to the allegations as being “politically motivated.” On August 3, 1990, Kay told a newspaper that the suggestion of politics was “offensive” but declined to elaborate because of the separation agreement. He said, “There was a serious sexual harassment charge. There were a lot of factors that played into it.”

It was alleged that Kay issued a press release on August 8, 1990, on Lake Zurich letterhead paper to a newspaper which implied that plaintiff was a liar. The press release addressed the resignation of plaintiff, the suggestion of “politics” in Lake Zurich’s decision-making process, the sexual harassment lawsuit and its settlement, and the involvement of Kay and not the plaintiff in the Lake County sewer system negotiations. Kay again referred to a settlement in the sexual harassment suit on August 23, 1990, to another newspaper. On August 24, 1990, Kay told a newspaper that as a resident of Lake County, he “would not be happy if Geick were to get the job.” He would vote “no, no question, no hesitancy,” if he were on the committee.

It was alleged that these remarks violated the separation agreement. The characterizations of plaintiff as untrustworthy and references to the Federal lawsuit were alleged to impute traits of disloyalty and general unfitness for employment at a supervisory level. In paragraph 22 it was alleged that defendants “maliciously and intentionally and in utter disregard to their truth or falsity, caused the publication of false statements in violation of the separation agreement.” Plaintiff sought punitive damages under count I.

Under count II for libel per quod the same allegations of count I were realleged. Plaintiff claimed he was forced to withdraw his application for director because of the violation of the separation agreement. Count III alleged an invasion of privacy by publication of a private fact. Count IV alleged tortious (intentional) interference with prospective economic advantage.

Defendants filed separate motions to dismiss the complaint under sections 2 — 615 and 2 — 619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 615, 2 — 619). Under the section 2— 615 motion, defendants claimed plaintiff failed to state a cause of action under any count. In the section 2 — 619 motion, defendants raised absolute privilege; fair comment; innocent construction; opinion; and the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1989, ch. 85, par. 1 — 101 et seq.). At a hearing the court indicated that it was granting the motions for counts I, II and III, due to a failure to state a cause of action, privilege, and innocent construction. These counts were dismissed with prejudice on June 10, 1991; however, the order does not recite the grounds. Plaintiff was allowed to replead count IV.

Plaintiff filed a first amended complaint wherein he alleged tortious (intentional) interference with prospective economic advantage (count IV) and breach of contract (count V). Plaintiff sought punitive damages under both counts. Pursuant to defendants’ section 2 — 615 motion, count IV was dismissed with prejudice on September 18, 1991. With respect to count V, all claims for damages, with the exception of nominal damages, were dismissed with prejudice and claims against defendants individually were dismissed with prejudice. Plaintiff was allowed to replead count V.

On November 13, 1991, count V was dismissed pursuant to plaintiff’s section 2 — 1009 motion of the Code. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1009.) A Rule 304(a) finding was entered with respect to the other orders and this appeal followed. 134 Ill. 2d R. 304(a).

Prior to addressing the arguments with respect to counts I, II, and III, we note that the June 10, 1990, order does not specify whether the counts were dismissed under section 2 — 615 or 2 — 619 of the Code. (Ill. Rev. Stat. 1989, ch. 110, pars. 2-615, 2-619.) Both motions are cited in the first paragraph of the order. The oral pronouncements by the court also indicate that dismissal was proper under either motion, and the parties have' argued under both sections. Despite this lack of clarity, a reviewing court may affirm a correct decision for any reason appearing in the record regardless of the basis relied upon by the trial court. Weber v. Cueto (1991), 209 Ill. App. 3d 936.

In considering a motion to dismiss under section 2 — 615, all well-pleaded facts in a complaint must be taken as true with all inferences from it to be drawn in favor of the nonmovant. (Meerbrey v. Marshall Field & Co. (1990), 139 Ill. 2d 455.) A complaint should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proved under the allegations which would entitle the party to relief. (Meerbrey, 139 Ill. 2d at 473.) This broad statement, however, should not be construed as an adoption of notice pleading. (Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 438.) The granting of a motion to dismiss is within the sound discretion of the trial court. Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407.

Like a motion brought under section 2 — 615, a motion to dismiss under section 2 — 619 admits all well-pleaded facts. (In re Marriage of Hoppe (1991), 220 Ill. App. 3d 271.) The purpose of a section 2 — 619 motion is to provide a mechanism to dispose of issues of law or easily proved issues of fact, and the cause of action should not be dismissed on the pleadings unless it is clearly apparent that no set of facts can be proved which will entitle a plaintiff to recover. (Brown v. Chicago Park District (1991), 218 Ill. App. 3d 612, 615.) Under section 2 — 619(a)(9) of the Code, an action may be dismissed on the ground that a claim asserted is barred by other affirmative matter avoiding the legal effect or defeating the claim. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(9).) “Affirmative matter” includes something in the nature of a defense that completely negates the alleged cause of action. Brown, 218 Ill. App. 3d at 616.

No affidavits were filed in support of defendant’s section 2— 619 motion. However, where the section 2 — 619 motion is made on grounds appearing on the face of the pleading attacked, the motion need not be supported by affidavit. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a); Hoppe, 220 Ill. App. 3d at 284.) Defendants’ memorandum in support of their motion included copies of pertinent provisions of the Lake Zurich village code and documents from the sexual harassment lawsuit which also sufficed to support consideration of the motion. (See Christmas v. Hughes (1989), 187 Ill. App. 3d 453.) Furthermore, plaintiff did not object below to the lack of affidavits, nor does he raise the matter on appeal. The lack of affidavits is waived. See Hays v. Louisiana Dock Co. (1983), 117 Ill. App. 3d 512.

Counts I and II sought recovery under libel per se and libel per quod. To recover under libel per se, the statements that form the basis of the action must falsely charge the plaintiff with misconduct or incapacity in words so obviously and naturally harmful that they are actionable without the proof of special damages. (Costello v. Capital Cities Communications, Inc. (1988), 125 Ill. 2d 402.) There are four categories of words that constitute libel per se. (Costello, 125 Ill. 2d at 414.) Only two of those categories are relevant here: words or statements which impute unfitness or want of integrity in performing the duties of an office and those which impute a lack of ability in a person’s business, trade or profession. (Erickson v. Aetna Life & Casualty Co. (1984), 127 Ill. App. 3d 753.) Whether the particular language used is defamatory per se is a question of law to be determined by the court. See Costello, 125 Ill. 2d at 414; Powers v. Delnor Hospital (1986), 148 Ill. App. 3d 844.

Defendants point out, and plaintiff concedes, that plaintiff is a public official who must plead and prove actual malice on the part of defendants. (See Colson v. Stieg (1982), 89 Ill. 2d 205.) Statements are made with actual malice when they are made with knowledge of their falsity or with reckless disregard of whether the statements were false. (Reed v. Northwestern Publishing Co. (1988), 124 Ill. 2d 495.) Although defendants contend that plaintiff failed to allege a cause of action under section 2 — 615 because plaintiff made only a bare allegation of actual malice, we disagree. Unlike Suchomel v. Suburban Life Newspapers, Inc. (1968), 40 Ill. 2d 32, plaintiff pled a factual allegation of “reckless disregard to their truth or falsity” in making the “false statements.” (See Coursey v. Greater Niles Township Publishing Corp. (1968), 40 Ill. 2d 257.) Plaintiff also included supporting facts, unlike Matchett v. Chicago Bar Association (1984), 125 Ill. App. 3d 1004, because plaintiff set forth the particular words alleged to be defamatory (O’Donnell v. Field Enterprises, Inc. (1986), 145 Ill. App. 3d 1032), and incorporated by reference the articles in question (Coursey, 40 Ill. 2d at 268). Although plaintiff did not make the allegation of actual malice with respect to each statement, he did refer to “false statements” in paragraph No. 22. While he could have clarified which statements he meant to include in this allegation, we find that plaintiff sufficiently pled a cause of action in libel under section 2 — 615. See Colson, 89 Ill. 2d at 215-16; Costello v. Capital Cities Media, Inc. (1982), 111 Ill. App. 3d 1009.

Plaintiff argues that the statements were libelous under the innocent construction rule; that they were not opinion; that truth is not a defense due to the separation agreement; and absolute privilege does not apply. We begin our review with absolute privilege as we find it dispositive of the issue.

The issue of privilege is an affirmative defense, and it may be raised by and determined upon a motion to dismiss under section 2— 619. (O’Donnell, 145 Ill. App. 3d 1032.) An absolutely privileged communication is one in respect of which, by reason of the occasion on which or the matter in reference to which it is made, no remedy can be had in a civil action. (Weber, 209 Ill. App. 3d 936.) An absolute privilege cannot be overcome by a showing of improper motivation or knowledge of falsity (Blair v. Walker (1976), 64 Ill. 2d 1), i.e., made with malice (Weber, 209 Ill. App. 3d at 942).

Absolute privilege is a defense in a defamation action against government officials. (Morton v. Hartigan (1986), 145 Ill. App. 3d 417.) Absolute immunity, or privilege, represents a severe restriction on the right of the individual to be secure in his reputation. (Blair, 64 Ill. 2d at 6.) The restriction is justified by the countervailing policy that officials of government should be free to exercise their duties without fear of potential civil liability. (Blair, 64 Ill. 2d at 6.) Courts have held that an official of the executive branch of the Federal, State or local governments cannot be held liable for statements made within the scope of his official duties. (Dolatowski v. Life Printing & Publishing Co. (1990), 197 Ill. App. 3d 23.) Absolute privilege regarding communications made within the scope of official duties has been extended to mayors of Blinois municipalities or chief administrators. Springer v. Harwig (1981), 94 Ill. App. 3d 281; see Loniello v. Fitzgerald (1976), 42 Ill. App. 3d 900.

Defendant Kay, as president of the Board, was also designated as the mayor. (Lake Zurich, Ill., Village Code, ch. 4, par. 1 — 4—3(A)(1) (19_); Ill. Rev. Stat. 1989, ch. 24, par. 3 — 12—2.) As an official of the executive branch of a local government, Kay cannot be held liable for statements made within the scope of his official duties. (Dolatowski, 197 Ill. App. 3d at 28.) Plaintiff does not deny that absolute privilege applies to Kay in his capacity as president of the Board/ mayor of Lake Zurich, but argues that Kay did not act within the scope of his official duties when making the statements.

First, plaintiff distinguishes Blair, Loniello and Springer on their facts. Plaintiff distinguishes Blair (64 Ill. 2d 1) on the ground that Kay’s statements were not made to any village agency over which Kay had control relative to any public interest. However, Blair involved two press releases to the public by the governor which related to the actions the governor had directed to be instituted by a State agency against the plaintiffs. It was noted by the court that the governor was frequently required to communicate to his constituency and was acting within his inherent, discretionary authority by informing the public of his actions. Plaintiff also attempts to distinguish Blair on the basis of the separation agreement, an argument we address subsequently. Additionally, plaintiff contends that Kay was not addressing a city council meeting as was the case in Loniello (42 Ill. App. 3d 900), nor was there a lawsuit pending between plaintiff and defendants at that time to which the statements related as in Springer (94 Ill. App. 3d 281). Plaintiff also argues that there was no relationship between plaintiff and Kay because plaintiff was no longer employed by Lake Zurich when the statements were made.

Absolute privilege is not limited to those factual situations set forth in Blair, Loniello and Springer. The only consideration is whether the statements made were reasonably related to Kay’s duties. (Dolatowski, 197 Ill. App. 3d at 29; Morton, 145 Ill. App. 3d 417.) In Blair the information in the press releases came within the privilege. The newspaper report in Springer related to the duties of the mayor. Oral statements in the newspaper interview made by the deputy police superintendent in DolatowsJci were reasonably related to his duties and thus covered by the privilege. Kay did not have to be addressing a board meeting to invoke the privilege as in Loniello, nor did litigation have to be pending between plaintiff and defendants at the time; and the fact plaintiff was no longer employed by the Village (Morton) did not defeat the privilege under the facts of this case.

We have examined the various statements alleged to be defamatory by plaintiff. Assuming arguendo that these statements were libelous, no liability may attach to defendants because of absolute privilege. As president of the Board, Kay had general supervision over all executive officers and employees of Lake Zurich. He had the power of appointment and removal of officers with the consent of the Board. Kay’s statements regarding “trust” as a qualification necessary in an administrator, plaintiff’s resignation, and the circumstances relating to plaintiff’s resignation such as the sexual harassment lawsuit were reasonably related to Kay’s duties. Dolatowski, 197 Ill. App. 3d at 29.

The press release explained the actions taken by defendants in settlement of the harassment suit. (See Blair, 64 Ill. 2d 1.) While that lawsuit was not between defendants and plaintiff, it did involve Lake Zurich and two former employees of Lake Zurich. Similar to Springer (94 Ill. App. 3d at 284), these statements were made within the scope of Kay’s duties as Lake Zurich’s president. The press release also explained Kay’s involvement in the sewer system negotiations as opposed to plaintiff’s. It addressed plaintiff’s resignation and the question of “politics” in Lake Zurich’s decision-making process. Kay was acting within the scope of his duties and was providing full public knowledge of the facts and conduct of Lake Zurich’s actions. (See Blair, 64 Ill. 2d at 6.) Furthermore, Kay’s later statement regarding the suggestion of politics as “offensive” in relation to plaintiff’s resignation was reasonably related to his duties as president since it involved the removal of a village officer.

Defendant Kay’s statements regarding plaintiff’s candidacy for director of the Lake County storm water management, committee were also reasonably related to Kay’s duties as chief executive officer of Lake Zurich. Lake Zurich is in Lake County and would be affected by the committee’s actions. Plaintiff claims these remarks were not privileged because they were uttered in connection with the other statements alleged in his complaint. However, we have found those other statements absolutely privileged. Plaintiff also points out that when the statement was made, the committee had already approved him. We note from memorandum by plaintiff before the trial court that plaintiff had already withdrawn his application, but Kay was unaware of this fact. In examining the newspaper articles attached as exhibits to plaintiff’s complaint, it is apparent that the screening committee for the storm water agency had approved plaintiff. However, full board approval had not been given, and a background check of plaintiff had been approved. We find plaintiff’s distinctions of little merit and conclude that the statements were reasonably related to Kay’s duties as chief executive officer of Lake Zurich.

Plaintiff claims that the August 24, 1990, statements, as well as the other statements, violate the separation agreement. Plaintiff contends that under Cohen v. Cowles Media Co. (1991), 501 U.S. 663, 115 L. Ed. 2d 586, 111 S. Ct. 2513, the defense of absolute privilege is, barred because of the separation agreement. He relies on the separation agreement throughout his brief and uses it as the distinguishing feature in this case.

In Cohen the plaintiff approached reporters and offered to provide documents relating to a candidate in an upcoming election. Cohen made it clear that he would provide the information only upon a promise of confidentiality. The reporters promised to keep Cohen’s identity anonymous and received the documents from him. The editorial staffs of the newspapers decided, however, to publish Cohen’s name as the source. Cohen was fired the same day the stories appeared. The issue before the United States Supreme Court was whether the first amendment barred a promissory estoppel action against the newspapers.

The Court noted that generally applicable laws do not offend the first amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news. Promissory estoppel was a law of general applicability. It did not target or single out the press. The first amendment did not forbid its application to the press. Therefore, Cohen could seek damages against the press based on promissory estoppel. The first amendment did not confer on the press a constitutional right to disregard promises otherwise enforceable under State law. It was noted by the Court that Cohen was not attempting to use promissory estoppel to avoid the strict requirements for a libel or defamation claim. Cohen was not seeking damages for injury to his reputation or state of mind, but for breach of a promise.

After carefully examining Cohen, we find it is not analogous to this situation and does not bar absolute privilege as a defense to the tort claims herein. Cohen allowed a cause of action under promissory estoppel to proceed against the press where the press breached a promise. Cohen did not permit the tort action of defamation to be pursued on the basis of promissory estoppel. Cohen certainly has nothing to do with absolute privilege as a defense in a libel action, but merely holds that the first amendment does not prevent a promissory estoppel action against the press. We also point out to plaintiff that the court herein did not dismiss his breach of contract count against defendants in their official capacity. The breach of contract count may have been somewhat analogous to the Cohen situation; however, plaintiff has not raised an issue with respect to that count, and it is not before us. Cohen does not bar the defense of absolute immunity in this case. Since Kay’s statements were absolutely privileged, no cause of action in defamation can be maintained against him, as president or individually, or against the Board despite the existence of the separation agreement.

Since we have determined that absolute privilege was a proper basis upon which to dismiss with prejudice the libel per se and libel per quod counts, we need not address the other defenses or arguments relating to these counts. Count III alleged the tort of invasion of a right of privacy by publication of a private fact, and count IV alleged intentional or tortious interference with prospective economic advantage. Count III was dismissed in the June 10, 1991, order where the basis of dismissal, section 2 — 615 or section 2 — 619, is not specified. Count IV was dismissed under defendants’ section 2 — 615 motion. However, that motion included absolute privilege as grounds for dismissal which is affirmative matter for a section 2 — 619 motion. (O’Donnell, 145 Ill. App. 3d at 1041.) These types of hybrid procedures which combine separate motions for joint analysis and determination have been expressly disapproved and are discouraged. (Smith v. Chemical Personnel Search, Inc. (1991), 215 Ill. App. 3d 1078.) However, in the interests of judicial economy and since plaintiff was not prejudiced by the improper combination as he responded to the privilege issue in his memorandum before the trial court and on appeal, we consider the matter on the merits. Smith, 215 Ill. App. 3d at 1081.

Absolute immunity has been applied to virtually every common-law tort, including, but not limited to, malicious prosecution, tortious interference with business, false arrest, blackmail, fraud, intimidation, and invasion of privacy claims. (Morton, 145 Ill. App. 3d at 426-27.) Assuming arguendo that counts III and IV alleged causes of actions, they are barred by the absolute privilege doctrine, which we have found applies to defendants. These counts were properly dismissed with prejudice.

In the last issue, plaintiff contends that the Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, pars. 1 — 101 et seq.) does not bar the causes of actions alleged in counts I, II, III and IV because Kay acted beyond the scope of his authority. He also argues that punitive damages are not barred under the Act because of the same reasoning. Since we have determined that Kay was acting within the scope of his duties and that all four causes of action against defendants are barred based upon absolute privilege, we need not address this remaining issue.

In passing, we note that plaintiff, as appellant, has raised no issue or argument with respect to the involuntary dismissal with prejudice of that part of the breach of contract count against Kay in his individual capacity. Plaintiff voluntarily dismissed the breach of contract count against defendants in their official capacity. Defendants, however, briefly defend the involuntary dismissal on the ground that Kay, as an individual, was not a party to the separation agreement and cannot be sued in his individual capacity for its breach, citing Wottowa Insurance Agency, Inc. v. Bock (1984), 104 Ill. 2d 311. Since plaintiff has not raised an issue with respect to the involuntary dismissal of the breach of contract count, we do not address defendants’ contentions.

Based on the foregoing reasoning, the judgment of the circuit court is affirmed.

Affirmed.

BOWMAN and DOYLE, JJ., concur.


author: JUSTICE GEIGER

text:
    PATRICIA LA PUMA, Plaintiff-Appellee, v. THE VILLAGE OF LONG GROVE, Defendant and Third-Party Plaintiff-Appellant (Louis La Puma, Third-Party Defendant-Appellee).
    Second District
    No. 2—92—0074
    Opinion filed November 4, 1992.
    Rehearing denied December 11, 1992.
    Sarah Hansen Sotos and Janella L. Barbrow, both of Knight, Hoppe, Fanning & Knight, Ltd., of Des Plaines (Patrick J. Fanning, of counsel), for appellant.
    David A. Decker, of Decker & Linn, Ltd., of Waukegan (Thomas D. Campe, Jr., of counsel), for appellees.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendant and third-party plaintiff, the Village of Long Grove (the village), appeals from the trial court’s judgment finding that it was liable in this tort case for injuries to the plaintiff wife, Patricia La Puma. The judgment also found the third-party defendant-appellee husband, Louis La Puma, liable. The village appeals, arguing that it should have been granted judgment notwithstanding the verdict. We reverse.

This case arises from an automobile accident that occurred at 10 p.m. on April 29, 1989. The wife was asleep as a passenger in the automobile driven by her husband. The automobile struck and catapulted over a berm at the end of Arlington Heights Road in Long Grove. The vehicle apparently had been traveling at least 50 miles per hour before hitting the berm.

One block before the berm there is a yellow, diamond-shaped “No Outlet” sign; a yellow, diamond-shaped “Dead End” sign; and a 25-mile-per-hour speed limit sign. The husband testified that he had not seen those signs. Two hours after the accident, the husband showed a .12 blood-alcohol content; IV2 hours after the accident, the wife showed a .16 blood-alcohol content. The husband pleaded guilty to both driving under the influence of alcohol and failing to avoid an accident.

The wife brought suit against the village, charging it with negligence in allowing the berm to exist without a barricade or signs, failing to replace the barricade and signs that existed previously; failing to replace the signs warning that the road was closed; failing to remove the berm after the village should have known it posed a danger; and failing to maintain and operate a reasonably adequate inspection system regarding the missing barricade and signs. The village pleaded that the wife was also guilty of negligence; it also brought a third-party contribution claim against the husband for his negligence.

Following trial, the jury returned a verdict finding that the wife had suffered $200,000. in damages. It found that 20% of the negligence was attributable solely to' the wife. It apportioned the remaining 80% liability between the husband and the village, finding that the husband was 85% liable and that the village was 15% liable.

. The trial court entered judgment on the jury verdict. It found the village jointly and severally liable for 80% of the wife’s medical expense damages, but entitled to 85% contribution from the husband. That translated to an $11,145.17 net, sole liability for the village. The court also found that the village was severally liable for $12,854.83 for the wife’s nonmedical damages. The village moved for judgment notwithstanding the verdict, and the court denied the motion. This appeal followed.

The village’s first argument on appeal is that the trial court erroneously denied it a judgment notwithstanding the verdict. According to the village, it owed no duty to the wife. The village argues that its duty of care in the maintenance of its property, as covered by the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (see Ill. Rev. Stat. 1991, ch. 85, par. 1 — 101 et seq.), is restricted to intended or permitted users exercising ordinary care and that the wife was not, in this case, such a user.

The wife argues that her husband’s driving speed and his intoxication were factors for the jury to consider to determine whether he was negligent, but that they do not lead to a conclusion that he and his passenger were “misusing” the road and driving “illegally.” The wife’s liability claim relies on the village’s obligation under section 3— 102(a) of the Tort Immunity Act (Ill. Rev. Stat. 1991, ch. 85, par. 3— 102(a)).

On the subject of municipal liability to provide safe roadways, section 3 — 102(a) provides that generally “a local public entity has the duty to exercise ordinary, care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner *** reasonably foreseeable that it would be used.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 85, par. 3 — 102(a).) This provision has been discussed in a number of other cases relevant to our considerations here. The village relies primarily upon two cases: Curtis v. County of Cook (1983), 98 Ill. 2d 158, and Thompson v. County of Cook (1991), 222 Ill. App. 3d 459.

In Curtis, the plaintiff was seriously injured when she was a 16-year-old passenger in an automobile. The automobile in which she was riding went out of control and struck a sign post while it was engaged in a form of drag racing called “speed clocking.” On appeal from the appellate court’s remand for trial, the supreme court reversed. It found that the appellate court had erred in finding that the governmental defendant owed a statutory property-related duty to the plaintiffs. In reviewing the language of section 3 — 102(a), the court found that the legislature intended to extend a duty of care only to those persons by whom the local government intended the property to be used. (Curtis, 98 Ill. 2d at 164-65.) According to the Curtis court’s analysis, as a passenger in a “speed-clocking” automobile, the defendant could not be said to fall within the class of motorists by whom the defendant’s highways were intended to be used. 98 Ill. 2d at 165.

Relying largely on the Curtis analysis, the Thompson court considered a factual situation directly analogous to the one now at bar. There, the widow, child, and personal representative of the decedent sought damages for the decedent’s death under section 3 — 102(a) of the Tort Immunity Act. The case arose from a one-vehicle automobile accident in Cook County. The evidence showed that the decedent and his driver had both consumed alcoholic beverages during the afternoon before the accident. A blood test performed on the decedent, when he was brought to the hospital with injuries, showed a blood-alcohol content of .207. The driver had gone off a curving road and the decedent died of resulting injuries 133 days after the accident. Shortly before the accident, a police officer observed the automobile driving near the accident site. The officer had used radar to clock the vehicle at 69 miles per hour in a 55-mile-per-hour zone. (Thompson, 222 Ill. App. 3d at 460.) He also estimated the vehicle’s speed at 80 to 85 miles per hour after it turned onto the curving road from which the accident occurred; the speed limit there was 35 miles per hour. 222 Ill. App. 3d at 461.

Following a jury trial, the trial court denied a directed verdict for the county. Based on the jury verdict, the court entered judgment against the county, reducing the amount of liability by the extent of the driver’s negligence. It also denied the county’s motion for judgment notwithstanding the verdict. 222 Ill. App. 3d at 463.

In reversing, the appellate court concluded, as the county had argued, that the county did not owe the decedent a duty. To reach that conclusion, the Thompson court relied primarily on Curtis. In one specifically applicable portion of its analysis, the court responded to the plaintiffs’ argument that the driver’s culpability could not be imputed to his passenger. It noted that the Curtis court had drawn no distinction between passengers and drivers in determining whether one was within the class of “ ‘motorists by whom defendant’s highways were intended to be used.’ ” (Emphasis in original.) 222 Ill. App. 3d at 466, quoting Curtis, 98 Ill. 2d at 165.

We find that the decision in Thompson is directly applicable to the case before us. There, as here, the underlying accident injured a passenger of an automobile being driven at an illegally excessive speed, by an intoxicated driver. In both cases, the injuries were caused when the automobile left the road. We find that this case, as Thompson, does not require close analysis of signage directly related to the accident. (See 222 Ill. App. 3d at 463.) Here, as there, the Curtis analysis leads to the conclusion that the government bore no duty, and it is controlling.

We find that the wife’s presentation is fully unresponsive to the issues at hand. Her analysis of the issue begins, essentially, with the axiom that a highway is intended for use by automobiles. (See Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 423.) From that beginning, the wife merely recounts certain facts of the case: namely, that she was a sleeping passenger in a car driven by her husband, that he was lost on an unfamiliar road while intending to go home, that he was driving on a dark road toward an unmarked berm that lacked a reflectorized barrier and warning sign, that warning signs previously had existed at the site, and that “at least nineteen” accidents had occurred at the site during the last four years. She also notes that according to the husband’s testimony, his reaction time at the time of the accident was reasonable and that he had not seen a sign reflecting a lowered speed limit at the site.

In Wojdyla, the plaintiff’s decedent was struck by an automobile when he was a pedestrian crossing a highway in the defendant city. (148 Ill. 2d at 420.) In examining the city’s duty to the pedestrian decedent, the Wojdyla court made no finding inconsistent with the Curtis and Thompson cases. It did not, for example, proceed from its acknowledgment that a highway is intended for use by automobiles to a suggestion that there is a governmental duty to all automobiles operating on a highway.

To the extent that we find Wojdyla persuasive on the issues at hand, we find that it disfavors the wife here. That case found yet another factual pattern under which a highway user was not within the group of intended and permitted users entitled to a duty by the government. See Wojdyla, 148 Ill. 2d at 427.

Albeit for different reasons than the ones used to exclude the Wojdyla decedent from the scope of governmental duty, in this case we reach the same conclusion as the one there: that there was no duty. In doing so, we find that the specific facts of the case noted by the wife go to the matter of negligence, not to the more basic question of whether there is a duty. Thus, they entirely miss the point before the court. Based on the evidence that at the time of the accident the husband was driving in an intoxicated condition and at a speed greatly in excess of the relevant legal limit, and with reliance on the analysis followed by the Curtis and Thompson courts, we conclude that here there was no duty. Thus, the village was entitled to judgment notwithstanding the verdict.

Based on the foregoing, we reverse the judgment of the circuit court of Lake County and remand the cause for proceedings necessary for the entry of a modified judgment order.

Reversed and remanded with instructions.

WOODWARD and DOYLE, JJ., concur.