author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RODERICK GRAVES, Defendant-Appellee.
    Second District
    No. 2—88—1239
    Opinion filed April 17, 1990.

      James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    G. Joseph Weller and Ingrid L. Moller, both of State Appellate Defender’s Office, of Elgin, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Roderick Graves, was charged by information in the circuit court of Du Page County with one count of unlawful possession of less than 15 grams of a substance containing cocaine (Ill. Rev. Stat. 1987, ch. 561/2, par. 1402(b)). Following a hearing, the trial court granted defendant’s motion to quash his arrest and suppress evidence. The State appeals pursuant to Supreme Court Rule 604(a) (107 Ill. 2d R. 604(a)).

The only issue on appeal is whether the trial court’s decision to quash defendant’s arrest and suppress the evidence was erroneous.

The only witness to testify at the hearing on defendant’s motion was Deputy David Sand of the Du Page County sheriff’s department. According to Deputy Sand, he was patrolling in a marked squad car and was in uniform on August 27, 1988. At about 8:50 p.m., he was patrolling a park located at the corner of Roberta and Burdette Streets in an unincorporated area near Glen Ellyn. It was dark at that time, and, according to Deputy Sand, the park closed at dusk.

Deputy Sand observed a small blue Chevrolet parked adjacent to some tennis courts in the park. Its engine was not running, and its lights were off. Deputy Sand turned on his lights and drove towards the parked car, illuminating it. There is no testimony as to what lights Sand turned on or whether he activated his emergency lights.

As Sand drove toward the vehicle, he observed two occupants in the driver’s and passenger’s seats. He further observed the driver, the defendant, bend over toward the floor and then sit back up.

Sand exited his squad car and approached defendant’s vehicle. Upon arriving at defendant’s vehicle, Sand asked defendant what he was doing in the park and explained that the park closed at dark. Defendant responded that there was a party nearby on Roberta and that he and his passenger were sitting in the park waiting to go to the party.

Sand then asked both defendant and his passenger for some identification. Defendant produced a driver’s license, and the passenger produced nothing. Sand then “ran a check” on defendant’s license which indicated there was no record on file. Sand, upon looking closer at the license, discovered that the sex status on the license indicated “F” for female. Sand asked defendant about this, and defendant responded that the Secretary of State had made a mistake. Sand “ran” defendant’s license again and the information came back as belonging to a white female. Defendant is a black male.

At that time, based on the discrepancies in defendant’s driver’s license and the passenger’s failure to produce any identification, Sand asked both persons to exit the vehicle. Sand initially testified that he observed a brown bag under the front seat and two cigarettes he believed to be marijuana cigarettes on the console as defendant exited the vehicle. On redirect, Sand admitted that his police report, which indicated that he observed the two cigarettes before he noticed the brown bag, gave the correct sequence of events.

As to his observation of the two cigarettes, Sand testified that they were “Newport” factory-type cigarettes, except that the non-filtered ends were twisted or rolled and that, based on his experience, they appeared to be marijuana cigarettes. According to Sand, he has observed marijuana cigarettes on previous occasions. He also received training at the police academy on how to recognize illegal substances.

Sand seized the two cigarettes and the brown paper bag. Upon opening the bag he observed two or three plastic bottles full of white powder, a razor blade, a scale, and several IV2- to 1-inch sealable plastic bags. Based on his training and experience, Sand assumed the items to be drug paraphernalia. Sand also unrolled the twisted ends of both cigarettes and observed a white powder mixed with the tobacco. Sand assumed the white powder was cocaine. Sand requested a backup, and after they arrived, he told defendant he was under arrest.

The trial court granted defendant’s motion to quash his arrest and suppress the evidence on the basis that there were not circumstances from which Deputy Sand could reasonably infer a crime had been committed, was being committed, or was about to be committed to justify the initial questioning of defendant pursuant to the temporary questioning without arrest authorized by section 107—14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 107—14).

The State initially contends on appeal that Deputy Sand’s conversation and request for identification do not constitute a stop under the fourth amendment. It further maintains that if the conversation and the request for identification constitutes a stop, such a stop was justified under the facts of this case. Defendant responds that a stop occurred the moment Sand asked for defendant’s driver’s license and turned to go to his squad car to run a check. Defendant further argues that the stop was unreasonable under the circumstances.

A trial court’s ruling on a motion to suppress will not be disturbed unless it is manifestly erroneous (People v. Gacho (1988), 122 Ill. 2d 221, 237, 522 N.E.2d 1146), although where, as here, neither the facts nor the credibility of the witnesses is questioned, the question is a legal one subject to consideration by this court de novo. See People v. Abney (1980), 81 Ill. 2d 159, 168, 407 N.E.2d 543; see also People v. 1946 Buick, VIN 34423520 (1989), 127 Ill. 2d 374, 378, 537 N.E.2d 748 (where facts are undisputed and decision depends only on interpretation of statute trial court’s ruling reviewed as matter of law).

Our initial inquiry is to determine when, if at all, a seizure occurred here because the fourth amendment is only implicated at the point that police conduct constitutes a seizure. (Florida v. Royer (1983), 460 U.S. 491, 497-98, 75 L. Ed. 2d 229, 236, 103 S. Ct. 1319, 1324; People v. Fenton (1988), 125 Ill. 2d 343, 347, 532 N.E.2d 228.) Not all personal intercourse between the police and a citizen constitutes a seizure, and only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen has a seizure occurred. (Michigan v. Chesternut (1988), 486 U.S. 567, 573, 100 L. Ed. 2d 565, 571, 108 S. Ct. 1975, 1979, citing Terry v. Ohio (1968), 392 U.S. 1, 19 n.16, 20 L. Ed. 2d 889, 905 n.16, 88 S. Ct. 1868, 1879 n.16; see generally 3 W. LaFave, Search & Seizure: §9.2(h), at 401 (2d ed. 1987).) The test for determining when the police have seized an individual is whether, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave. Chesternut, 486 U.S. at 573, 100 L. Ed. 2d at 572,108 S. Ct. at 1979.

Accordingly, we look to the facts present in this case. It is clear that Deputy Sand’s actions in driving up to defendant’s vehicle from the side when it was parked without its engine running did not constitute a seizure, particularly where there is no evidence that the officer activated any emergency lights or displayed any other overt signs of authority to stop or detain the already parked vehicle. Defendant does not contend otherwise. Nor was the deputy’s mere approaching the vehicle to ask defendant what he was doing in the park after dark a seizure. (See Royer, 460 U.S. at 497, 75 L. Ed. 2d at 236, 103 S. Ct. at 1324; People v. Long (1983), 99 Ill. 2d 219, 231, 457 N.E.2d 1252.) We further do not believe that Sand’s asking for identification would have caused a reasonable person to believe he was not free to leave.

Nor was the deputy’s running a driver’s license check, under these circumstances, a seizure. There is no evidence that he ordered defendant to remain in his vehicle while he checked his license (cf. People v. McVey (1989), 185 Ill. App. 3d 536, 539, 541 N.E.2d 835 (court held seizure occurred only when officer ordered defendant to have a seat in defendant’s car while he ran license check)), nor did he in any other way give defendant the impression he was not free to leave at that point. We decline to hold, as a bright-line rule, that the deputy’s mere running of a driver’s license check, without more, rose to the level of a seizure. Rather, we adhere to the traditional contextual approach and hold that in this particular case Deputy Sand’s checking on the status of defendant’s license did not amount to a seizure. See Chesternut, 486 U.S. at 572-73, 100 L. Ed. 2d at 571, 108 S. Ct. at 1979.

We believe, however, that a seizure did occur at the point that Sand returned to defendant’s vehicle and commenced questioning him about the discrepancy regarding the status of his sex on the driver’s license. At that point, under these particular circumstances, it became apparent that Deputy Sand was focusing on the status of defendant’s license or the propriety of his possessing it. We believe that a reasonable person would believe he was not free to leave once the deputy began to focus his inquiry on the individual’s driver’s license as Deputy Sand did here. As a seizure occurred at that point, we must necessarily determine whether it was reasonable under the fourth amendment.

To render a temporary detention, such as the one in this case, reasonable, there must be specific, articulable facts which, when taken together with natural inferences, make the intrusion reasonable. (People v. Smithers (1980), 83 Ill. 2d 430, 435-36, 415 N.E.2d 327.) Here, Sand testified that he observed the vehicle parked with no lights, after dark, in an area closed to the public at dusk. He further observed the driver bend over and sit back up as he drove up to the vehicle. Additionally, when he asked the occupants what they were doing there, they responded they were waiting to go to a nearby party, an uninformative response, to say the least. Further, upon asking both occupants for identification, the passenger failed to produce any identification and defendant produced a driver’s license with a discrepancy as to sex. Under these circumstances, we do not believe it was unreasonable temporarily to detain defendant for the purpose of ascertaining the true status of his driver's license and his true identity.

Once Deputy Sand ascertained that the license checked to a white female, and knowing defendant to be a black male, he was further justified in asking defendant and the passenger to exit the vehicle. Moreover, it was also reasonable for Deputy Sand to have the occupants exit the vehicle for his own safety. (See Pennsylvania v. Mimms (1977), 434 U.S. 106, 54 L. Ed. 2d 331, 98 S. Ct. 330.) Furthermore, as Deputy Sand was in a place he had a right to be when defendant exited the vehicle, there is no constitutional infirmity in his viewing the two cigarettes lying on the console of defendant’s vehicle.

Our only remaining inquiry, although not addressed by the trial court or the parties because of the court’s ruling that an impermissible stop occurred at the initial questioning by Deputy Sand, is whether Sand’s observation of the two cigarettes provided him with the probable cause necessary to search the interior of defendant’s vehicle including the closed, brown paper bag. We note that such an inquiry is necessary because the closed, brown paper bag, although in ready view from where Deputy Sand stood outside defendant’s vehicle, did not constitute, as Sand viewed it, contraband. Cf. Arizona v. Hicks (1987), 480 U.S. 321, 94 L. Ed. 2d 347, 107 S. Ct. 1149.

Sand testified, however, that he first observed two “factory type” cigarettes with filters, both of which had the nonfiltered end twisted or rolled. He further stated that he has had training in the recognition of illegal substances and has had occasion to observe marijuana cigarettes. Based on his training and experience, Sand stated that a marijuana cigarette is normally a hand-rolled cigarette with the two ends rolled or twisted. According to Sand, the two cigarettes on the console appeared to be marijuana cigarettes. Based on Sand’s observation of the two cigarettes, and in light of his training and experience, he possessed the probable cause to believe that defendant possessed marijuana in his vehicle. (See People v. Clark (1989), 185 Ill. App. 3d 231, 239, 541 N.E.2d 199; see also Gustafson v. Florida (1973), 414 U.S. 260, 266, 38 L. Ed. 2d 456, 461-62, 94 S. Ct. 488, 492 (observation of rolled cigarettes by officer with training in identification of illegal substances justified seizure of cigarettes as evidence of crime); see generally 2 W. LaFave, Search & Seizure: §3.6(b), at 40-42 (2d ed. 1987).) Such probable cause gave Deputy Sand the basis further to search defendant’s vehicle and those areas of the vehicle, including the brown paper bag, where it would be reasonable to find marijuana. (See United States v. Ross (1982), 456 U.S. 798, 825, 72 L. Ed. 2d 572, 594, 102 S. Ct. 2157, 2173; People v. Smith (1983), 95 Ill. 2d 412, 419-20, 447 N.E.2d 809; People v. Clark (1982), 92 Ill. 2d 96, 99-101, 440 N.E.2d 869.) Thus, we hold that the decision of the trial court quashing defendant’s arrest and suppressing the evidence obtained as a result of Deputy Sand’s search of defendant’s vehicle was erroneous.

The judgment of the circuit court of Du Page County is reversed, and the cause is remanded.

Reversed and remanded.

UNVERZAGT, P.J., and INGLIS, J., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    LAKE BARRINGTON SHORE CONDOMINIUM TEN HOMEOWNERS ASSOCIATION, Plaintiff-Appellant, v. LAWRENCE MAY, Defendant-Appellee.
    Second District
    No. 2—89—0595
    Opinion filed April 17, 1990.

      Mark L. Dressel and Ronald T. Slewitzke, both of Morgan, Lanoff, Denniston & Madigan, Ltd., of Chicago, and Denis J. McKeown, of Waukegan, for appellant.
    Lawrence May, of Barrington, appellee pro se.

   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, Lake Barrington Shores Condominium Ten Homeowners Association (Association), filed suit against defendant, Lawrence May, alleging that defendant, a condominium owner and Association member, had violated the terms of the condominium declaration and the Association’s bylaws and regulations by erecting a deck to the rear of his condominium. The Association sought a mandatory injunction requiring defendant to dismantle the deck. The trial court entered judgment in favor of defendant. Plaintiff appeals the judgment, contending that the trial court erred in finding (1) that the Association’s decision not to grant defendant a variance for his deck because the deck would encroach on common elements was an absurdity and (2) that the Association could not deny defendant a variance in light of its acquiescence in prior violations.

Defendant purchased his condominium in 1985. At that time, there was a 10-foot by 10-foot concrete patio at the rear of the unit. In July 1986, defendant removed the patio and began construction of a 10-foot by 18-foot wooden deck. The Association’s property manager advised defendant that there was no approved architectual variance for the deck and that he should cease construction until he received approval for the project. Defendant submitted a plan to the Association’s architectual committee, and they recommended the plan for approval. The board of directors, however, rejected the plan based on its policy of denying any variance which would encroach on the common elements of the development. The board advised defendant that it would approve a variance for a deck which was no larger than the 10-foot by 10-foot patio. Defendant went forward, however, and completed the deck despite the lack of approval. The Association brought suit seeking a mandatory injunction requiring defendant to remove the deck. Following a bench trial, the court ruled in favor of defendant and denied the request for a mandatory injunction. Plaintiff appeals.

Plaintiff contends that defendant was an Association member and was bound by the restrictions contained in the declaration, the bylaws and the regulations and that defendant violated the restrictions by altering his patio without written approval. Plaintiff relies on various sections of the declaration, bylaws and regulations.

Article 5, paragraph 4, of the declaration states:

“The use of the Common Elements and the rights of the Unit Owners with respect thereto shall be subject to and governed by the provisions of the Act [the. Condominium Property Act (Ill. Rev. Stat. 1983, ch. 30, par. 301 et seq.)], this Declaration and the By-Laws and rules and regulations of the Board of Directors of the Association.”

Article 5, paragraph 6 states:

“No alterations of any Common Elements or any additions or improvements thereto shall be made by any Unit Owner without the prior written approval of the Board.”

Article 5, paragraph 8D, states:

“A Unit Owner shall not * * * change the appearance of any *** balcony, deck or patio, in any manner contrary to such rules and regulations as may be established by the Association.”

Article 5, section 2, of the bylaws states:

“The use, maintenance and operation of the Common Elements shall not be obstructed, damaged or unreasonably interfered with by any Unit Owner.”

The board regulations state:

“The Condo X Board will not approve any variance that encroaches on common elements.”

Common elements are defined as all of the property except the units. Patios, decks and balconies are included within the description of common elements; however, they are designated as limited common elements and are reserved for the exclusive use of the unit owner whose property adjoins that patio, deck or balcony. The board rejected defendant’s request for a variance because the proposed deck would encroach on common elements.

The trial court found that the board’s reason for denying defendant’s variance was an absurdity because a deck is by definition a part of the common elements and, therefore, cannot encroach on itself.

The paramount rule for the interpretation of covenants is to expound them so as to give effect to the actual intent of the parties as determined from the whole document construed in connection with the circumstances surrounding its execution. (Amoco Realty Co. v. Montalbano (1985), 133 Ill. App. 3d 327, 331.) The rule of strict construction in favor of the free use of property will not be applied to defeat the obvious purpose of a restriction, even if not precisely expressed. Amoco, 133 Ill. App. 3d at 331.

The restrictions in the declarations, bylaws and regulations exist for the purpose of maintaining architectural and aesthetic standards and preserving the common elements for the use and enjoyment of all of the homeowners. Plaintiff contends that the Association’s intention in promulgating its policy against encroachments into common elements was to “disapprove encroachments onto the common elements that extended beyond the parameters of the limited common elements.”

Even assuming that this is a proper statement of the Association’s intention, the Association has failed to establish an impermissible encroachment. As noted above, the limited common elements are a subset of the common elements; they are those portions of the common elements, including patios and decks, that are reserved for the exclusive use of the unit owner whose property adjoins such elements. In effect, every limited common element is an encroachment on the common elements because it is reserved for the exclusive use of an individual. The declaration clearly contemplates the existence of patios, decks and balconies, however, and, therefore, contemplates that each unit owner will have some portion of the common elements reserved for his exclusive use, in effect, a permissible encroachment.

The Association’s position, that defendant’s deck is an impermissible encroachment, is premised on a belief that the 10-foot by 10-foot patio which existed when defendant moved into his unit defines that portion of the common elements which is reserved for defendant’s exclusive use. However, plaintiff has failed to present any evidence tending to establish this beyond the existence of the patio itself. Plaintiff presented no document or plat which indicates that the area reserved for defendant’s use was in any Way limited to a certain size or to the parameters of the patio which existed when the development was constructed. Having failed to establish the size of the portion of the common elements which was reserved for defendant’s exclusive use, plaintiff has, consequently, failed to establish that defendant’s deck exceeded that size.

Plaintiff contends that “[ujnder the court’s rationale, the Defendant or any unit owner could build a deck of any dimension(s) without Board approval thereby usurping the common elements for their private use.” We disagree. Unit owners are still required to submit plans and obtain approval before altering the common elements. The architectural committee makes rulings and suggestions concerning whether additions and improvements are architecturally acceptable and consistent with the other unit owners’ uses and interests. If suggested changes do not meet architectural and aesthetic standards, or will interfere with the other owners’ use and enjoyment of the property, the committee and the board may disapprove the variance. In this case, defendant’s deck was architecturally indistinguishable from the other decks in the development; there were many decks which were larger than defendant’s deck; and there was no evidence that defendant’s deck interfered with other unit owners’ interests. Further, if the Association wishes to establish a limitation on the size of decks, this can be accomplished through an amendment of the condominium documents.

The relief sought in this case is a mandatory injunction requiring defendant to remove his deck. The remedy of mandatory injunction is generally invoked by the courts to compel a landowner to remove an encroachment. (See Ariola v. Nigro (1959), 16 Ill. 2d 46, 51; Calhoon v. Communications Systems Construction, Inc. (1986), 140 Ill. App. 3d 1012, 1016-17.) In this case, certain encroachments on the common elements are permissible pursuant to the condominium documents, and plaintiff has failed to establish that the deck at issue constitutes an impermissible encroachment. Under these circumstances, plaintiff has failed to establish its right to a mandatory injunction.

The judgment of the circuit court of Lake County is affirmed.

Affirmed.

UNVERZAGT, P.J., and WOODWARD, J., concur.


author: JUSTICE WOMBACHER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PATRICK PAGE, Defendant-Appellant.
    Third District
    No. 3—89—0033
    Opinion filed March 29, 1990.
    Rehearing denied April 27, 1990.

      Verlin R. Meinz, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, State’s Attorney, of Joliet (Terry A. Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOMBACHER

delivered the opinion of the court:

Following a jury trial, the defendant, Patrick Page, was found guilty of murder, robbery, felony murder predicated on aggravated kidnapping, and aggravated kidnapping. The court sentenced the defendant to concurrent terms of imprisonment of 60 years for murder and 7 years for robbery. The defendant appeals his convictions.

The record reveals the following information. In November 1985, a hunter discovered a headless skeleton near Wilmington, Illinois. He contacted Will County law enforcement authorities, who supervised the removal of the body from the scene. The body was badly decomposed and showed evidence of charring. During an autopsy the pathologist discovered a severe stab wound on the right side of the chest. This wound, possibly inflicted by a knife, resulted in death, according to the pathologist. The remains were subsequently identified as those of Dale Andrew Devine.

On May 19, 1987, the defendant was in the custody of the Olympia Fields police department. The defendant made oral statements to the police and an assistant Cook County State’s Attorney regarding his involvement in the murder of Devine. Later that day the defendant agreed to give a court-reported statement.

The statement indicated that during the fall of 1985 Devine was residing with the defendant. Devine and Ken Cheney became involved in a drug deal in which Devine apparently “ripped off” Cheney. The defendant contacted Jerry Feinberg and told him that Devine was at his residence. Feinberg went to the defendant’s house, and the two proceeded to tie up Devine using an extension cord. The defendant then called Cheney and told him that Devine was at his residence. Cheney came over and, using a hypodermic needle, injected Devine with barbiturates. The defendant took approximately $100 currency from the pocket of Devine and gave it to Cheney.

The defendant, Feinberg and Cheney then put Devine into the defendant’s automobile, and the four then drove to the Wilmington, Illinois, area. They took Devine out of the automobile, and Cheney asked Devine how he wanted to die, either by being stabbed with a knife or by injection by hypodermic needle. Devine indicated that he wanted to die by the injection.

Devine was taken to a wooded area by the three men, and Cheney injected Devine five or six times with an empty needle. Cheney was attempting to inject an air bubble into Devine’s bloodstream. Apparently this did not have the desired effect, so Cheney took the knife and slit Devine’s throat. Cheney then directed Feinberg and the defendant to stab Devine in the chest one time apiece. Feinberg and the defendant complied, and the three left the area.

Cheney, Feinberg and the defendant travelled to Cheney’s residence, where they consumed alcoholic beverages and marijuana. Two days later Cheney and the defendant returned to the body. While the defendant waited in the car, Cheney doused the body with gasoline and set it afire.

The day after giving this statement to the police, the defendant was charged by complaint with murder, felony murder predicated on aggravated kidnapping, felony murder predicated on armed robbery, aggravated kidnapping and armed robbery. The grand jury returned indictments on all charges.

The defendant’s first trial ended in a mistrial. The State filed an information in the cause, substantially repeating the charges in the indictment, but substituting a charge of robbery for that of armed robbery. The defense filed a motion to dismiss based on improper venue, but the motion was denied.

The State’s case included testimony of one who knew Devine, the person who discovered Devine’s body, and medical and law enforcement officials who investigated Devine’s murder. The defendant’s statement was read to the jury. The State rested, and the defendant moved for a directed verdict, arguing, inter alia, that any robbery in the cause had occurred in Park Forest in Cook County, rather than Will County. This motion was denied.

The defense called three witnesses. The heart of the defense was the defendant’s own testimony. The defendant testified that he did not kill, rob or kidnap Devine and insisted that Cheney had killed Devine. The defendant further testified that Cheney forced him and Feinberg to assist in the disposal of Devine’s body and that Cheney had threatened them to remain silent. Several days later he and Cheney returned to the body and Cheney tried to burn it. •

The defendant was found guilty of murder, robbery, felony murder predicated on aggravated kidnapping and aggravated kidnapping. The defendant was found not guilty of felony murder predicated on robbery. The court vacated the felony murder verdict and the aggravated kidnapping verdict. It then sentenced the defendant to concurrent terms of imprisonment of 60 years for murder and 7 years for robbery. The defendant filed this timely appeal, raising three issues for our consideration.

The defendant first contends that the trial court committed reversible error during the voir dire of the jury. The defendant alleges two significant defects in the manner prospective jurors were questioned. First, the trial court refused to ask the prospective jurors all of the questions offered by the defendant, and second, all prospective jurors were not thoroughly questioned during voir dire.

Prior to trial the defendant submitted a list of 47 questions he wanted the trial judge to ask prospective jurors during voir dire. Many of these questions had subparts, making the actual number of proffered questions substantially higher in number than 47. During the pretrial hearing the judge agreed to ask some of the questions as offered, ask some that were offered in another form and determined that others were repetitive and thus would not be asked.

A trial judge has the power to reasonably regulate the manner in which jurors are selected. (People v. DeSavieu (1983), 120 Ill. App. 3d 420, 426-27, 458 N.E.2d 504.) The decision of whether to permit supplemental questions in a voir dire examination is left to the discretion of the trial judge, and the standard for determining whether the trial judge abused that discretion is whether the means employed to test impartiality have created a reasonable assurance that prejudice would be discovered if present. People v. Bunch (1987), 159 Ill. App. 3d 494, 510, 512 N.E.2d 748.

The exception to these general rules was discussed in People v. Zehr (1984), 103 Ill. 2d 472, 469 N.E.2d 1062. In Zehr the court held that a trial judge abuses his discretion if he fails to ask defense tendered questions during voir dire to determine if prospective jurors would have any hesitancy in returning a not guilty verdict if the People failed to sustain their burden of proof, to determine whether the jurors would hold it against the defendant if he does not testify at trial and to determine whether the jurors understand that the defendant is presumed innocent and does not have to offer evidence at trial. The court in Zehr held that there is no precise form which must be used to question the jurors concerning these principles of law.

In People v. Emerson (1987), 122 Ill. 2d 411, 522 N.E.2d 1109, cert. denied (1988), 488 U.S. 900, 102 L. Ed. 2d 235, 109 S. Ct. 246, the court held that the requirements of Zehr were satisfied if the trial judge covered those areas in general admonishments made to the jury and the trial judge asked if the jury would follow the law.

With these cases in mind, we turn now to the record. It is important to note that, since this was potentially a death penalty case, the trial judge conducted the voir dire by calling groups of jurors and questioning them generally and then allowing questioning of each potential juror individually by himself and counsel. A review of the record reveals that all of the jurors were generally admonished by the judge as to the law. Additionally, each juror, when questioned individually by the judge and the attorneys, was personally informed of the applicable legal doctrines outlined in Zehr and agreed to follow the law. It is also important to note that during voir dire the defense counsel never contended that the trial judge was violating the requirements of Zehr or was not asking sufficient questions to permit him to make proper use of his peremptory challenges. Instead, he argued only that the judge wasn’t asking all of his proffered questions.

We are of the opinion that the general admonishments made by the judge as to the law, combined with the individual admonishments and questioning by both the judge and counsel, satisfied the guidelines set forth in Zehr and Emerson. We therefore find no error in the voir dire.

The second issue raised by the defendant contends that the trial judge abused his discretion in refusing to permit the defendant to back-strike a prospective juror.

One of the prospective jurors, William Shepherd, answered during voir dire questioning that he had a friend, Mr. Bazzani, who worked as a jailer at the Will County jail. Shepherd indicated that he and Bazzani occasionally discussed Bazzani’s work, although Bazzani never mentioned names. The defense accepted and tendered Shepherd as a juror. This took place on a Friday.

The following Monday the defense indicated that during the weekend the defendant became aware that Bazzani was the jailer with whom he had had a “run in” at the jail. The defense counsel, stating his awareness of the judge’s policy against back-striking, nonetheless moved to back-strike Shepherd. The trial court initially deferred ruling on the motion. The judge then allowed further questioning of Shepherd. During this questioning Shepherd indicated that the last time he had contact with Bazzani was at the beginning of the prior week. This was prior to Shepherd becoming a potential juror in the case. Shepherd stated that during that conversation the two did not discuss anything with regard to Bazzani’s work or any inmate. At the close of the questioning, the defendant again moved to back-strike Shepherd, which the trial court denied.

The defendant contends that the trial court committed reversible error by refusing the defendant’s request to use a peremptory challenge against Shepherd. On appeal, the defendant seems to imply that the trial judge was not aware that he could exercise discretion and allow back-striking. Apparently this is based on the fact that although the judge didn’t allow the back-striking, he did allow further questioning of Shepherd. In any event, the defendant contends that the judge abused whatever discretion he exercised.

The Illinois Supreme Court reviewed the rules on back-striking in People v. Moss (1985), 108 Ill. 2d 270, 483 N.E.2d 1252. In Moss, the court held that under Supreme Court Rule 434(a) (107 Ill. 2d R. 434(a)) a judge has discretion to alter the traditional manner of selecting a jury as long as both sides know how the selection process will operate and that the method chosen doesn’t unduly restrict the use of challenges. The defense counsel was aware of the judge’s employment of a system other than the traditional method. The defense counsel tried to back-strike Shepherd, which went against the judge’s system, and now claims that this was an abuse of discretion.

We are of the opinion that the reason the judge did not immediately deny the defendant’s request to back-strike was because the judge wanted to ascertain whether Shepherd should have been dismissed for cause, rather than peremptorily. When the judge was satisfied, after questioning of Shepherd was completed, that Shepherd could not be excused for cause, he exercised his discretion to deny the defendant’s request to back-strike Shepherd. This seems to be a more plausible explanation than that the judge was confused about whether he could exercise discretion in this matter.

The defendant has cited People v. Scheidt (1983), 113 Ill. App. 3d 632, 447 N.E.2d 536. In Scheldt our court held that a trial judge has the power to allow a party to back-strike a juror after that juror has been tendered by the party. That power is discretionary and cannot be viewed as a right of the party requesting the motion. Simply because the court in Scheldt affirmed the trial court’s power in that case to allow a back-strike does not warrant a finding by this court that the judge’s act here, by not allowing a back-strike, was an abuse of discretion.

In sum, the trial judge had discretion to alter the means by which the jury was selected. The defense counsel was aware of the manner selected by the judge. The denial of the defendant’s motion to back-strike a juror was not an abuse of discretion.

The third issue raised by the defendant is whether he was proven guilty of robbery beyond a reasonable doubt. The defendant contends that his robbery conviction must be reversed for two reasons. First, the State’s evidence, namely the defendant’s statement, did not show the commission of the offense in Will County as alleged, and second, the State’s evidence was totally uncorroborated by independent proof of the corpus delicti.

The State’s evidence regarding the defendant’s involvement in the robbery of Devine consisted of the defendant’s statement. In the statement the defendant admitted that he had taken money from the pocket of Devine after Devine had been tied up at the defendant’s house. The defendant’s house was located at 475 Dogwood in Park Forest, Illinois. The defendant contends that this address is located in Cook, rather than Will, County, and therefore the State did not establish venue for the crime.

In criminal prosecutions, the defendant shall have the right to trial by an impartial jury of the county in which the offense is alleged to have been committed. (Ill. Const. 1970, art. I, §8.) Venue is a material element of the crime and must be proved beyond a reasonable doubt. People v. Toellen (1978), 66 Ill. App. 3d 967, 970, 384 N.E.2d 480, citing People v. Piehl (1972), 6 Ill. App. 3d 296, 285 N.E.2d 612.

We agree with the defendant that the State failed to prove beyond a reasonable doubt that the robbery took place in Will County. Accordingly, we reverse the defendant’s conviction for robbery.

The State argues that even if it didn’t prove beyond a reasonable doubt that the offense occurred in Will County, anytime a defendant is properly tried for felony murder in a county, that county also has jurisdiction to try the underlying felony. The State cites no authority for this proposition, and we believe it is an incorrect statement of the law.

In the instant case, the State properly brought the felony murder predicated on robbery charge in Will County, as that was the county in which the body was discovered. (Ill. Rev. Stat. 1987, ch. 38, par. 1— 6(c).) As the State was permitted to bring the felony murder charge in Will County, the State was not required to prove that the underlying felony (robbery) took place in Will County. As long as the State proved that a robbery was committed and that during the course of that robbery the victim was killed and the body disposed of in Will County, a conviction for felony murder could be had.

As to the underlying felony, however, the defendant has a right to be tried in the county in which the offense allegedly occurred. The defendant did not waive this right. The alleged robbery took place in Cook County, rather than Will County. It was in Cook County where this offense should have been charged.

In regard to the State’s argument regarding double jeopardy concerns, the defendant’s reply brief correctly indicates that a defendant’s request to have one crime in a “spree” tried in one county and another crime in the “spree” tried in another county does not bar the State from trying the offenses in separate prosecutions. People v. McClellan (1977), 46 Ill. App. 3d 584, 360 N.E.2d 1225; People v. Ruiz (1967), 82 Ill. App. 2d 184, 226 N.E.2d 438.

In the instant case, the complaint charged the defendant with the offense of robbery, alleging that it occurred in Will County when, in fact, it occurred in Cook County. The evidence was insufficient to warrant a finding of this charge and, thus, should be reversed. As indicated above, the State properly brought the felony murder predicated on robbery charge in Will County, as that was the county in which the body was discovered.

For the reasons listed above, the decision of the circuit court of Will County is affirmed as to the felony murder charge and reversed as to the underlying robbery charge.

Affirmed in part and reversed in part.

BARRY and STOUDER, JJ., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellant, v. RICHARD URAN, Petitioner-Appellee.
    Third District
    No. 3-89-0273
    Opinion filed March 29, 1990.
    Edward Burmila, State's Attorney, of Joliet (Terry A. Mertel, of State's Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Stephen Omolecki, of State Appellate Defender’s Office, of Ottawa, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The petitioner, Richard Uran, filed a petition for post-conviction relief alleging that he was entitled to sentencing credit. The trial court granted the petition. The State appeals.

The record shows that on April 18, 1986, the petitioner was convicted of two counts of felony theft (Ill. Rev. Stat. 1983, ch. 38, par. 16—1) and four counts of “an offense relating to motor vehicles” (see Ill. Rev. Stat. 1983, ch. 951/2, par. 4—103). The trial court sentenced him to two concurrent five-year terms for the theft convictions and four concurrent three-year terms for the motor vehicle convictions.

While the petitioner was released on appellate bond, he was charged with two more counts of an offense relating to motor vehicíes. He posted bond and was released from custody. The State later charged him with a third count of an offense relating to motor vehicles. On August 24, 1987, the petitioner began serving his sentence on his six prior convictions. On September 11, 1987, his bond was returned to him.

On April 20, 1988, the petitioner appeared in court with counsel. The prosecutor informed the court that in return for a guilty plea, the State would recommend that the petitioner receive a three-year sentence consecutive to the sentence he was already serving. While defense counsel contended that the petitioner should receive credit for his time spent in custody since August 24, 1987, the prosecutor expressly stated that he had not agreed to this. The court thereafter accepted the guilty plea and entered a three-year sentence consecutive to the sentence on the prior convictions.

The petitioner later filed a post-conviction petition alleging that he was simultaneously in custody on all nine offenses from August 24, 1987, to April 20, 1988. He argued that he was therefore entitled to credit for that period against his sentence on the three later convictions (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—7(b)). At a hearing on the petition, he changed his request for credit to the time spent in custody from September 11, 1987, to April 20, 1988. The trial court granted his request.

On appeal, the State first argues that the court erred in granting ■ the petition because it did not present a substantial denial of the petitioner’s constitutional rights. The petitioner replies that the improper denial of credit violated both the due process and equal protection clauses of the United States Constitution (U.S. Const., amends. V, XIV).

For the trial court to obtain jurisdiction over a post-conviction petition, the petitioner must allege a substantial denial of his constitutional rights. (People v. Ward (1971), 48 Ill. 2d 117, 268 N.E.2d 692.) The question of whether the petitioner received proper sentencing credit is a matter of statutory construction and does not rise to the level of a constitutional violation. (People v. Bates (1989), 179 Ill. App. 3d 705, 534 N.E.2d 1019.) Accordingly, we find that the petition should have been dismissed for failure to present a substantial denial of the petitioner’s constitutional rights.

Additionally, in People v. Hughes (1988), 167 Ill. App. 3d 265, 521 N.E.2d 240, we stated that a defendant should not receive credit against his sentence for time served prior to trial when he was also imprisoned for an unrelated conviction. Since the petitioner was imprisoned for his six prior convictions from September 11, 1987, to April 20, 1988, he was not entitled to credit for that time against his sentence on the three later convictions.

Our resolution of these issues renders moot the remaining issues. We therefore shall not address them.

The judgment of the circuit court of Will County granting the petitioner 221 days of credit against his sentence is reversed.

Reversed.

BARRY and SCOTT, JJ., concur.


author: PRESIDING JUSTICE HEIPLE

text:
    FARMERS STATE BANK OF SHERRARD, Plaintiff-Appellee, v. KENNETH J. HANSEN et al., Defendants-Appellants.
    Third District
    No. 3—89—0345
    Opinion filed March 27, 1990.

      Winstein, Kavensky, Wallace & Doughty, of Rock Island (Franklin S. Wallace, of counsel), for appellants.
    Snyder & Schwarz, P.C., of Rock Island (Candy K. Pastrnak, of counsel), for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

On May 10, 1989, the circuit court of Mercer County entered an order allowing the revival of a judgment lien against the defendants, Kenneth J. Hansen and Nancy C. Hansen. The defendants appeal that order.

The plaintiff, Farmers State Bank of Sherrard, filed suit against the defendants on May 10, 1982. The suit was by confession on a judgment note, and judgment was entered on May 10, 1982, in favor of the plaintiff for the amount of $48,672.72. After the judgment was obtained against the defendants, the defendants filed a chapter 7 proceeding in bankruptcy. The bankruptcy proceedings were closed as of September 2, 1986, with legal ownership of all real estate previously held by the defendants/debtors, having been abandoned by the bankruptcy trustee, reverting back to the defendants/debtors’ ownership subject to existing liens. Ultimately, Farmers State Bank of Sherrard assigned all of its interest in the May 10, 1982, judgment lien to Frye Lake Association, Inc. (hereinafter Frye Lake), which was recorded on February 8, 1989. On March 9, 1989, Frye Lake filed a petition to revive the judgment lien. The defendants filed a motion to dismiss, asserting that their March 5, 1984, discharge in bankruptcy precluded revival. Following a hearing on April 27, 1989, the trial court entered an oral ruling holding that the judgment lien would be revived in rem, subject to the limitation that it would only be enforceable against real estate owned by the defendants at the time of bankruptcy. The trial court then entered its written order on May 10,1989.

On appeal, the defendants contend that the trial court erred in reviving the judgment lien since they have been discharged in bankruptcy and because the judgment lien was no longer valid. We find the defendants’ arguments meritless and accordingly affirm.

Two statutory provisions are relevant to this dispute. Section 12 — 101 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 12—101) provides:

“A Judgment is not a lien on real estate for longer than 7 years from the time it is entered or reviewed.”

Section 12 — 108 (Ill. Rev. Stat. 1987, ch. 110, par. 12— 108) provides:

“[N]o Judgment shall be enforced after the expiration of 7 years from the time the same is rendered, except upon the revival of the same ***.” (Emphasis added.)

In the instant case judgment was originally entered against the defendants on May 10, 1982. Subsequently, the trial court entered its order reviving the judgment lien on May 10, 1989. Thus, pursuant to section 12 — 108, the judgment lien was revived within seven years and was valid.

Additionally, a discharge in bankruptcy, being personal to the bankrupt, does not act as a release of liens or security interests in property owned by him. (Rochelle State Bank v. Gavic (1979), 70 Ill. App. 3d 42.) Thus, a valid, prefiled lien is not extinguished by the discharge of debtors. Furthermore, a revival of a judgment is not the creation of a new judgment, but merely a continuation of the judgment revived. (J.D. Court, Inc. v. Investors Unlimited, Inc. (1980), 81 Ill. App. 3d 131.) Consequently, contrary to the defendants’ assertion, a new judgment is not required to effectuate the revival of a lien. Therefore, the trial court order reviving the judgment lien in favor of Frye Lake was correct.

For all the foregoing reasons, the judgment of the circuit court of Mercer County is affirmed.

Affirmed.

SCOTT and WOMBACHER, JJ., concur.


author: JUSTICE WOMBACHER PRESIDING JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY WAYNE HARRISON, Defendant-Appellant.
    Third District
    No. 3—88—0650
    Opinion filed March 27, 1990.
    HEIPLE, P.J., dissenting.
    Dan W. Evers, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Raymond Kimbell III, State’s Attorney, of Galesburg (Nancy Rink Carter, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOMBACHER

delivered the opinion of the court:

The defendant, Jeffrey Wayne Harrison, entered a plea of guilty to the offenses of murder and home invasion (Ill. Rev. Stat. 1987, ch. 38, pars. 9—1(a)(1), 12—11). The trial court sentenced him to a term of natural life imprisonment for murder and a concurrent extended term of 40 years’ imprisonment for home invasion. The defendant appeals the length of his sentences.

The evidence presented to the defendant’s sentencing hearing established that during the early hours of November 28, 1987, a man (Chasek) approached the defendant about committing a burglary to obtain money. The defendant agreed to participate. Chasek told the defendant that they were going to “break into an old lady’s house, and that if she was home, she probably wouldn’t hear,” as she was “hard of hearing.” The defendant and Chasek went to the victim’s house. The defendant broke a window in the garage, and Chasek gained entry into the house.

The victim, 87-year-old Helen Fey, lived alone. Apparently Mrs. Fey heard the noise in the garage. After the two men entered the house, they encountered Mrs. Fey, who was standing between the kitchen and the living room. Chasek grabbed the victim and took her into the bedroom. He threw her on the bed and held her there. For approximately five minutes the defendant searched the victim’s house for money while Chasek restrained the victim.

The defendant failed to locate any money and returned to the bedroom. The defendant then restrained the victim for approximately 10 minutes while Chasek searched the house. While the defendant was restraining the victim, he placed a pillow over her face for about 10 seconds to quiet her. After Chasek failed to locate any money, he returned to the bedroom. The defendant released the victim, and she started to get up off the bed. Chasek then shoved the victim to the bed and began striking her on the head with his fist. After Chasek hit the victim several times, the defendant indicted that Chasek had done enough and they should leave. The two left the victim in the bedroom and searched the house for another 10 minutes. The two then exited the house.

The autopsy report of the coroner’s physician, Dr. John G. Dietrich, was admitted into evidence. The report stated that the cause of the victim’s death was multiple head injuries. In addition, the report revealed that the victim had received multiple contusions on her forearm, hand, shoulder, and leg. The report further indicated that it was possible the forcible restraint of the victim had contributed to her death. However, the parties stipulated that Dr. Dietrich would testify that he could not state with a reasonable degree of medical or pathological certainty that forcible restraint had contributed to the victim’s death.

On appeal, the defendant first argues that the trial court erred in sentencing him to natural life imprisonment. He contends that not one of the aggravating factors under section 9—1(b) of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(b)) was present.

Section 5 — 8—1(a)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(1)) provides that a defendant may be sentenced to natural life imprisonment if the court finds present any of the aggravating factors listed in section 9 — 1(b) of the Code. Section 9 — 1(b)(6) lists as an aggravating factor:

“6. [T]he murdered individual was killed in the course of another felony if:
(a) the murdered individual:
(i) was actually killed by the defendant, or
(ii) received physical injuries personally inflicted by the defendant substantially contemporaneously with physical injuries caused by one or more persons for whose conduct the defendant is legally accountable under Section 5 — 2 of this Code, and the physical injuries inflicted by either the defendant or the other person or persons for whose conduct he is legally accountable caused the death of the murdered individual; and
(b) in performing the acts which caused the death of the murdered individual or which resulted in physical injuries personally inflicted by the defendant on the murdered individual under the circumstances of subdivision (ii) of subparagraph (a) of paragraph (6) of subsection (b) of this Section, the defendant acted with the intent to kill the murdered individual or with the knowledge that his acts created a strong probability of death or great bodily harm to the murdered individual or another; and
(c) the other felony was *** home invasion ***.” (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(b)(6).)
Section 9—1(f) (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(f)) further provides:
“Proof.
The burden of proof of establishing the existence of any of the factors set forth in subsection (b) is on the State and shall not be satisfied unless established beyond a reasonable doubt.”

We are of the opinion that the State met its burden of proof in regard to the elements of sections 9 — l(b)(6)(a)(ii) and 9 — 1(b)(6)(c) (Ill. Rev. Stat. 1987, ch. 38, pars. 9—1(b)(6)(a)(ii), 9—1(b)(6)(c)).

In regard to section 9 — 1(b)(6)(b) (Ill. Rev. Stat. 1987, ch. 38, par. 9\—1(b)(6)(b)), the State was required to prove beyond a reasonable doubt that “in performing the acts which *** resulted in physical injuries personally inflicted by the defendant on the murdered individual, *** the defendant acted with the intent to kill the murdered individual or with the knowledge that his acts created a strong probability of death or great bodily harm to the murdered individual.”

The focus is on the defendant’s state of mind at the time he was inflicting the physical injuries upon the victim. The inquiry is whether the defendant, at the time he was inflicting physical injuries on the victim, had the intent to either kill the victim or with the knowledge that his acts created a strong probability of death or great bodily harm to the victim.

In the instant case, it is uncontested that the only physical contact the defendant had with the victim was when he restrained her for approximately 10 minutes. During this time, the defendant also held a pillow over the victim’s mouth for 10 seconds to quiet her. We do not believe that these actions evinced either an intent by the defendant to kill the victim or that the defendant acted with the knowledge that his actions created a strong probability of death or great bodily harm to the victim.

Accordingly, we reverse the trial court’s finding that an aggravating factor existed and vacate the sentences of natural life imprisonment for the murder conviction and the concurrent extended term of 40 years’ imprisonment for the home invasion conviction. The cause is remanded to the trial court for resentencing in accordance with this opinion.

We are of the opinion that because the issue may arise in the cause as remanded, we will address the defendant’s second issue.

The defendant’s second argument is that the trial court improperly considered the victim impact statements of the victim’s children. The State responds that the defendant has waived this argument, because of his failure to object to the State’s motion to take judicial notice of the statements and his failure to raise the issue in his motion to withdraw his guilty plea.

We agree with the State that the defendant’s failure to fulfill those procedural prerequisites constituted a waiver of the defendant’s right to raise this issue on appeal. (See People v. Gardner (1988), 172 Ill. App. 3d 763, 527 N.E.2d 155; People v. Favelli (1988), 176 Ill. App. 3d 618, 531 N.E.2d 386.) Nevertheless, we also find that the trial court did not err in taking judicial notice of the children’s victim impact statements. (See People v. Cissna (1988), 170 Ill. App. 3d 398, 524 N.E.2d 268.) Accordingly, the defendant’s argument that his trial counsel was ineffective in not objecting to the statements is without merit.

For the reasons listed above, the judgment of the circuit court of Knox County is affirmed in part and vacated in part; and the cause remanded for resentencing.

Affirmed in part; vacated in part and cause remanded for re-sentencing.

SCOTT, J., concurs.

PRESIDING JUSTICE HEIPLE,

dissenting:

In an English court, a man named Home was tried for slander in having accused a neighbor of murder. His exact words were: “Sir Thomas Holt hath taken a cleaver and stricken his cook upon the head, so that one side of the head fell upon one shoulder and the other side upon the other shoulder.” The defendant was acquitted by instruction of the court, the learned judges holding that the words did not charge murder, for they did not affirm the death of the cook, that being only an inference. Thus, wrote Ambrose Bierce in illustrating the meaning of a legal technicality. A. Bierce, The Devil’s Dictionary, 190 (1957).

This case involves the brutal murder of an 87-year-old handicapped woman during the course of a home invasion by two young thugs. Jeffrey Wayne Harrison, the defendant in this appeal, entered a plea of guilty to the offenses of home invasion and murder. Thereupon, the trial judge sentenced him to concurrent terms of 40 years’ imprisonment for home invasion and to natural life imprisonment for murder.

A majority of this court chooses to reverse the sentences because they believe that the necessary aggravating factors detailed in the sentencing statute were not proven. I dissent.

First of all, the facts of the case. The handicapped victim, Helen Fey, aged 87, lived alone. She suffered from both visual and hearing impairment. In the early morning hours of November 28, 1987, the defendant Harrison and his friend Chasek, left a party and broke into Helen Fey’s home in Abingdon, Illinois, with the intent to steal money. At the time of the crime, the defendant knew that Mrs. Fey was an elderly woman who was physically impaired in both vision and hearing.

Once inside the home, the two men encountered Mrs. Fey standing in a doorway. Chasek grabbed the victim, took her into the bedroom and threw her on the bed, physically restraining her for a time while the defendant searched the home for money. The defendant then went to the bedroom and forcibly restrained the victim while Chasek searched the home. The victim struggled with the defendant as he was holding her, so he placed a pillow over her face to quiet her. Thereafter, Chasek returned to the bedroom and the defendant let go of Mrs. Fey. At that time, Chasek, who was standing right next to the defendant, shoved Mrs. Fey back down on the bed and began hitting her in the head with his fist. After Chasek hit Mrs. Fey several times, the defendant told Chasek he had done enough and suggested they go. The two men then looked around the victim’s living room for approximately 10 minutes before finally leaving the house. Mrs. Fey died from her injuries. The cause of her death was multiple head injuries. Additionally, she had received multiple contusions of the forearm, right hand, right shoulder, and right leg. The autopsy report stated that, “It is possible that the forcible restraint of the decedent could also have contributed to her death.” It was stipulated, however, that the coroner’s physician, Dr. Dietrich, would testify that he could not state with a reasonable degree of medical certainty that forcible restraint had contributed to the victim’s death. The defendant entered guilty pleas to both home invasion and murder.

The sentence. After a sentencing hearing, the judge sentenced the defendant to a term of natural life imprisonment for murder and a concurrent extended term of 40 years’ imprisonment for home invasion. On appeal, the defendant claims that the sentence of natural life imprisonment was contrary to law since the statutory aggravating factors under the Criminal Code were not present. A majority of this court agrees with the defendant. They find that the facts do not prove that the defendant acted either with the intent to kill the victim or with the knowledge that his acts created a strong probability of death or great bodily harm to the murdered individual.

The law. The penalty for first degree murder is a term of not less than 20 years and not more than 60 years unless certain other criteria are met. That is to say, unless the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty in the first instance. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(1).) Or, in the second instance, certain enumerated aggravating circumstances were present. Ill. Rev. Stat. 1987, ch. 38, par. 9—1(b).

Without even addressing the second category of statutory aggravating factors, it is apparent to me that the defendant’s conduct in this case constituted exceptionally brutal behavior and was wanton cruelty. That is enough to affirm the life sentence. It is correct, of course, that the trial judge did not refer to the defendant’s conduct as constituting exceptionally brutal behavior and being wantonly cruel. The trial judge made no comment on that aspect of the case but instead commented on the other aggravating factors. Since, however, the defendant’s conduct met the exceptionally brutal and wantonly cruel criteria, it is of no consequence that the trial judge did not point that out. It is well established that a reviewing court is not bound to accept the reasons given by the trial court for its judgment and may sustain it on other grounds. Material Services Corp. v. Department of Revenue (1983), 98 Ill. 2d 382; Luster v. Jones (1979), 70 Ill. App. 3d 1019.

Beyond that, however, section 9 — 1(b)(6) of the Criminal Code provides for a life sentence for murder in the presence of aggravating factors, as follows:

“6. The murdered individual was killed in the course of another felony if:
(a) the murdered individual:
(i) was actually killed by the defendant, or
(ii) received physical injuries personally inflicted by the defendant substantially contemporaneously with physical injuries caused by one or more persons for whose conduct the defendant is legally accountable under Section 5 — 2 of this Code, and the physical injuries inflicted by either the defendant or the other person or persons for whose conduct he is legally accountable caused the death of the murdered individual; and
(b) in performing the acts which caused the death of the murdered individual or which resulted in physical injuries personally inflicted by the defendant on the murdered individual under the circumstances of subdivision (ii) of subparagraph (a) of paragraph (6) of subsection (b) of this Section, the defendant acted with the intent to kill the murdered individual or with the knowledge that his acts created a strong probability of death or great bodily harm to the murdered individual or another; and
(c) the other felony was one of the following: *** home invasion ***.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 38, par. 9—1(b)(6).

Unquestionably, the evidence produced at trial reveals that the trial court was well within its discretion to find that the factors listed in section 9 — 1(b)(6) were present and to impose a sentence of natural life imprisonment on the defendant. It is clear from the record that the defendant forcibly restrained the 87-year-old victim for over 10 minutes and smothered her face with a pillow during the assault. The trial court could have properly inferred from these facts that the defendant’s restraint caused the contusions to Mrs. Fey’s forearms, right hand, shoulder, and leg. As the autopsy report stated, it is possible that the defendant’s forcible restraint of the victim contributed to her death. It is also apparent from the record that these injuries were inflicted by the defendant substantially contemporaneously with the injuries the victim received at the hands of Chasek, for whose conduct the defendant is legally accountable. Immediately after the defendant released Mrs. Fey from his forcible restraint, the victim was hit repeatedly in the face by Chasek while the defendant stood looking on. Furthermore, it can be reasonably inferred from the facts that the defendant acted with the knowledge that his acts created a strong probability of great bodily harm to the frail 87-year-old woman. The defendant knew prior to the home invasion that Mrs. Fey was an elderly woman who was handicapped in both her vision and her hearing. Defendant’s responsibility, accountability and control are also evinced by the fact that he stood idly by while Chasek beat the victim in the head, that when the defendant decided that Chasek had hit the defendant enough times, he told Chasek to stop and Chasek did stop, that when the defendant decided that Chasek had hit the defendant enough times, he told Chasek to stop and Chasek did stop, that when the defendant decided that he and Chasek should leave, he said so and they did leave. The entire home invasion and murder was a joint venture of equal culpability between Chasek and the defendant.

Thus, under a reading of section 9 — 1(b)(6), the trial court concluded that all of the factors listed in the statute were present. The trial court did not abuse its discretion in finding the factors set forth in that section and in imposing a sentence of natural life imprisonment.

Our supreme court has consistently held that it is not the function of the reviewing court to serve as a sentencing court. (People v. Cox (1980), 82 Ill. 2d 268.) It is the duty of the trial court to take into account all factors, both in aggravation and mitigation and to balance those factors against each other. (People v. Powell (1987), 159 Ill. App. 3d 1005.) Thereafter, it is within the trial court’s discretion to determine the appropriate sentence. Neither, I would point out, is it the function of the reviewing court to usurp the executive function of the Governor, who has the sole right under the law to invoke executive clemency and to commute a proper sentence to something less. Ill. Const. 1970, art. V, §12.

In the instant case, the defendant entered into a negotiated plea which resulted in the dismissal of four of the charges being brought against him. The trial judge then carefully considered all of the available evidence presented at the sentencing hearing. In aggravation, the trial judge found that the factors listed above were present. In accordance with his findings, the trial judge then determined that the defendant should be sentenced to natural life imprisonment for first degree murder. This was a just result.

For the reasons stated, I strongly dissent from the decisions of my colleagues that the sentence must be set aside and the cause remanded for resentencing. I point out to the trial judge who will reconsider the matter of an appropriate sentence in this case that the defendant is eligible for a life sentence under a finding of exceptionally brutal behavior and wanton cruelty even if a majority of this court will not support such a sentence on the second category of itemized aggravated circumstances.


text:
    LAWRENCE C. HAMMER et al., Plaintiffs-Appellants, v. THE CITY OF PEORIA BOARD OF FIRE AND POLICE COMMISSIONERS, Defendant-Appellee.
    Third District
    No. 3—89—0381
    Opinion filed March 27, 1990.

      Robert D. Gaubas, of Robert D. Gaubas, Ltd., of Peoria, for appellants.
    J. Reed Roesler and Leonard W. Sachs, both of Keck, Mahin & Cate, of Peoria, for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

The defendant Board of Fire and Police Commissioners of the City of Peoria (Board) denied the plaintiffs’ request for promotion to the rank of lieutenant. The circuit court affirmed the Board’s decision. The plaintiffs, Lawrence C. Hammer and Sandra S. Johnston, appeal.

The record shows that on July 7, 1982, a promotional register for the rank of lieutenant became effective for the Peoria police department. On July 3, 1985, the Board struck the names of all the remaining candidates appearing on the 1982 register. At the time, the plaintiffs held the top two positions on the register.

After the plaintiffs discovered that the Board had stricken the 1982 list, they requested that it reconsider its decision. At a hearing held on October 7, 1987, the plaintiffs argued that if any vacancies existed for the rank of lieutenant on July 3, 1985, the Board was required by law to fill those vacancies from the 1982 list before striking it. The plaintiffs further argued that a vacancy did in fact exist at the time the 1982 list was stricken.

The Board denied the plaintiffs’ request, finding that the city-manager had not certified that a vacancy existed. The plaintiffs appealed the Board’s decision to the circuit court, reiterating their claim that a vacancy had existed on July 3, 1985, which the Board was required to fill from the 1982 list.

The Board attached to its answer the affidavit of Peoria Police Superintendent Allen H. Andrews, which revealed that on April 24, 1985, Richard J. Scovil was temporarily promoted from the rank of lieutenant to captain. However, prior to that appointment, City Manager James B. Daken told Andrews that if Scovil’s appointment to captain became permanent, he would not approve the filling of Scovil’s former position and that it was his intention to reduce the number of lieutenants from 11 to 10. Andrews further attested that on the day the Board struck the 1982 register, there were 10 police officers who held the rank of lieutenant.

The plaintiffs introduced into evidence in the circuit court a memo dated December 13, 1985, from Superintendent Andrews to City Manager Daken. In his memo, Andrews noted that there was no current promotional list and requested that Sergeant Robert Krueger be temporarily appointed a lieutenant for 60 days to fill the vacancy created by Scovil’s promotion to captain. The plaintiffs also introduced into evidence a memo dated February 5, 1986, in which Superintendent Andrews requested the appointment of Krueger to lieutenant for an additional 60 days.

On appeal, the plaintiffs initially contend that the circuit court improperly considered additional evidence that was not before the Board. Specifically, the plaintiffs contend that the court erroneously accepted, among other items, Superintendent Andrews’ affidavit, which was not before the Board.

We note that a circuit court should not consider any matters not before an administrative board. (Jackson v. Department of Labor (1988), 168 Ill. App. 3d 494, 523 N.E.2d 5.) However, we also note that issues not raised and preserved in the lower court are deemed waived on appeal. Alexander v. Director, Department of Agriculture (1983), 111 Ill. App. 3d 927, 444 N.E.2d 811.

In the instant case, the record indicates that both the plaintiffs and the defendant were allowed to present matters that apparently were not before the Board. Moreover, we note that the plaintiffs did not object in the circuit court to the questioned evidence. Since this is a civil case and no objection was raised in the lower court, we find that the plaintiffs have waived the issue on appeal.

The plaintiffs’ main contention on appeal is that section 10 — 2.1— 15 of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 10—2.1—15) requires the Board to consider whether a vacancy exists before striking the names of candidates for promotion. The plaintiffs further contend that a vacancy did exist and that the Board failed to consider this before striking the register.

The defendant responds that the Peoria City Code establishes when a vacancy exists. It further contends that since no vacancy was certified in accordance with the code, it properly struck the 1982 promotional list.

Section 10 — 2.1—15 provides in relevant part that “[t]he board shall strike off the names of candidates for promotional appointment ***, provided there is no vacancy existing which can be filled from the promotional register.” (Ill. Rev. Stat. 1987, ch. 24, par. 10—2.1—15.) The question thus becomes when does a vacancy exist “which can be filled from the promotional register”?

We agree with the defendant that section 28 — 4 of the Peoria City Code (Peoria City Code §28 — 4 (1975)) answers that question. Section 28 — 4 provides in relevant part that “the board *** shall not fill any vacancies *** or make any promotions within the department of police until requested in writing by the superintendent of police with the approval of the city manager to fill such vacancies or make such promotions.” (Emphasis added.) (Peoria City Code §28 — 4 (1975).) Accordingly, we find that for a vacancy to have existed, a written request must have been made by the superintendent of police and it must have been certified by the city manager.

The instant record indicates that at the time the Board struck the 1982 promotional register, the city manager not only declined to authorize the promotion of any candidate, but had expressed his intention to reduce the number of lieutenants in the police department. Consequently, the Board never received a written request from Superintendent Andrews to promote a lieutenant from the 1982 register. Thus, we find that no vacancy existed when the Board struck the 1982 register.

The judgment of the circuit court of Peoria County is affirmed.

Affirmed.

BARRY and WOMBACHER, JJ., concur.


author: PRESIDING JUSTICE HEIPLE JUSTICE WOMBACHER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. WALLY URBAN, Defendant-Appellee.
    Third District
    No. 3—89—0334
    Opinion filed March 27, 1990.

      WOMBACHER, J., dissenting.
    Gordon L. Lustfeldt, State’s Attorney, of Watseka (Elizabeth A. Klug, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Verlin R. Heinz, of State Appellate Defender’s Office, of Ottawa, for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

A grand jury charged the defendant, Wally Urban, with unlawful possession of cannabis and with conspiracy to unlawfully deliver cannabis (hereinafter count II) (Ill. Rev. Stat. 1987, ch. 561/2, par. 704(d); Ill. Rev. Stat. 1987, ch. 38, par. 8—2(a)). The defendant filed a motion to dismiss count II and a motion to suppress his confession. The trial court granted both motions. The State appeals.

According to the record, count II alleged that between February 1 and June 23, 1987, the defendant violated section 8 — 2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 8—2(a)) by agreeing with two other men to effect a delivery of cannabis, in violation of section 5(d) of the Cannabis Control Act (Ill. Rev. Stat. 1987, ch. 561/2, par. 705(d)). The indictment also stated that he performed an act in furtherance of the agreement by purchasing cannabis from the men. The defendant moved to dismiss count II on the ground that it did not state an offense. The trial court granted the motion, finding that the defendant could not conspire to deliver cannabis to himself and that the conspiracy provision of the Cannabis Control Act (Ill. Rev. Stat. 1987, ch. 561/2, par. 709) preempted the general conspiracy provision of the Criminal Code.

At the hearing on the motion to suppress, Officer Donald King testified that on July 14, 1987, he and Officer David Burmeister went to the defendant’s home. When the defendant came to the door, King told him that he had a grand jury subpoena for him. However, he did not give the defendant the subpoena at that time. Instead, he told him that there was a major narcotics investigation being conducted in the area and advised him to come to the police station.

According to Officer King, about 30 minutes after the officers left, the defendant arrived at the station. After he was fingerprinted, photographed, and asked to give a personal history, the officers requested that he come into the police chiefs office. King testified that he gave the defendant the subpoena, but told him that he was not under arrest and that he was free to leave at any time. Neither he nor Officer Burmeister gave the defendant Miranda warnings. King then told the defendant that his name had come up in a narcotics investigation but reiterated that he was not under arrest and was free to leave. However, if the defendant chose to cooperate, King said that he would inform the State’s Attorney of his cooperation. The defendant then told the officers about some narcotics purchases he had made from two persons in the Watseka area. During the conversation, the defendant never asked if he could leave. After about one hour, the questioning ended and the defendant was allowed to leave.

Officer Burmeister’s testimony was in general agreement with Officer King’s. Following arguments, the trial court found that the police should have given Miranda warnings prior to questioning. Accordingly, the court granted the motion to suppress the confession.

The State first argues on appeal that the trial court erred in dismissing count II. It contends that the plain meaning of section 8 — 2 of the Criminal Code allows the defendant to be charged with conspiracy to deliver cannabis to himself. Additionally, it contends that the Cannabis Control Act does not preempt section 8 — 2. The defendant replies that the charge was barred by Wharton’s Rule and, alternatively, that the Cannabis Control Act preempts section 8 — 2.

We shall first address the Wharton’s Rule issue. The rule states that a person may not be prosecuted for conspiracy to commit an offense when the underlying substantive offense requires more than one actor for its commission. (See Iannelli v. United States (1975), 420 U.S. 770, 43 L. Ed. 2d 616, 95 S. Ct. 1284.) Thus, the rule would bar a conspiracy prosecution involving a buyer and seller of contraband, because the purchase of contraband necessarily involves at least two actors.

Here, the defendant was charged with conspiring to violate section 5(d) of the Cannabis Control Act (Ill. Rev. Stat. 1987, ch. 561/2, par. 705(d)) by agreeing to a delivery of cannabis with two other persons. The essential act alleged was his purchase of cannabis from them. Since a cannabis purchase always requires at least two actors, we find that count II was barred by Wharton’s Rule. The trial court therefore properly dismissed it.

Although we have already found count II improper, we will address the preemption issue since it may arise in the future. We first note that as a general rule a specific statute should control a general one. (People v. Taylor (1974), 18 Ill. App. 3d 480, 309 N.E.2d 595.) The Cannabis Control Act prohibits conspiracies to deliver cannabis where the following factors are present: (1) the transaction involves more than 30 grams of a substance containing cannabis; (2) the defendant conspires with two or more other persons; and (3) the defendant either obtains something of value greater than $500 from the conspiracy, or he organizes, directs, or finances it. (Ill. Rev. Stat. 1987, ch. 561/2, par. 709(b).) Consequently, it has been held that where the defendant has been charged with conspiracy to deliver more than 30 grams but no more than 500 grams of a substance containing cannabis, the Cannabis Control Act preempts section 8—2. People v. Caryl (1977), 54 Ill. App. 3d 537, 369 N.E.2d 926; Taylor, 18 Ill. App. 3d at 481-82, 309 N.E.2d at 596-97.

The instant defendant was charged with conspiracy to deliver more than 30 grams but not more than 500 grams of a substance containing cannabis. (Ill. Rev. Stat. 1987, ch. 561/2, par. 705(d).) The facts pled in count II therefore constitute a conspiracy under section 9 of the Act. Since we agree with the Caryl and Taylor courts that in cases such as this preemption should apply, we find that count II did not state an offense. Accordingly, the trial court properly dismissed the charge on preemption grounds.

The State also argues that the trial court erred in suppressing the defendant’s confession. The State contends that the officers were not required to give Miranda warnings because the defendant was not in custody at the time of his questioning.

Statements made in the course of custodial interrogation must be preceded by Miranda warnings. (People v. Romano (1985), 139 Ill. App. 3d 999, 487 N.E.2d 785.) In determining whether custody exists, the ultimate inquiry is whether there was a formal arrest or a significant restraint on the person’s freedom of movement. (Oregon v. Mathiason (1977), 429 U.S. 492, 50 L. Ed. 2d 714, 97 S. Ct. 711.) Miranda warnings are not required simply because the questioning took place at the police station or because the questioned person is a police suspect. (Mathiason, 429 U.S. at 495, 50 L. Ed. 2d at 719, 97 S. Ct. at 714.) The trial court’s decision on a suppression motion will not be overturned unless it was manifestly erroneous. See People v. Hagar (1987), 160 Ill. App. 3d 370, 513 N.E.2d 628.

Applying the foregoing principles to this case, we find that the suppression order was manifestly erroneous. Although the defendant was apparently a suspect at the time of questioning, that fact alone is not determinative. Since the officers’ unrebutted testimony established that the defendant was free to leave at any time, he was not subject to a formal arrest or a significant restraint on his freedom of movement. Consequently, Miranda warnings were not required. We therefore reverse the suppression order and remand the cause for further proceedings consistent with this opinion.

The judgment of the circuit court of Iroquois County dismissing count II is affirmed. The judgment suppressing the confession is reversed, and the cause is remanded for further proceedings.

Affirmed in part; reversed in part and remanded.

SCOTT, J., concurs.

JUSTICE WOMBACHER,

dissenting:

I agree that count II of the complaint was barred by Wharton’s Rule, I do not agree, however, that the trial court erred in suppressing the defendant’s confession. Accordingly, I dissent from that portion of the opinion.

The crucial issue is whether the defendant was in custody at the time of his interrogation by the police. Simply put, the rule of Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, requires the suppression of statements made by a defendant in response to custodial police interrogation unless preceded by a statement of basic constitutional rights and a waiver of those rights. In the instant case, the experienced trial judge resolved this issue in favor of the defendant, criticized the police conduct as a deliberate attempt to evade Miranda and ordered the suppression of the fruits of that interrogation. In order for this court to overturn the trial court’s decision, this court must find the decision to be manifest error. People v. Hagar (1987), 160 Ill. App. 3d 370, 513 N.E.2d 628.

The majority opinion states, “[i]n determining whether custody exists, the ultimate inquiry is whether there was a formal arrest or a significant restraint on the person’s freedom of movement” (196 Ill. App. 3d at 313, citing Oregon v. Mathiason (1977), 429 U.S. 492, 50 L. Ed. 2d 714, 97 S. Ct. 711). The majority, again citing Mathiason, then indicates that simply because an individual is a police suspect or is interrogated at a police station does not necessarily mean that the individual is in custody. Without any more analysis, the majority cavalierly finds that the trial judge’s order was manifestly erroneous.

Research on the issue reveals that the question of whether an individual is “in custody” is not nearly as facile as the majority would have us believe. Instead of focusing on one or two factors, a “totality of the circumstances” analysis should be employed and an objective evaluation made to determine whether a reasonable innocent person would have believed that he was free to leave. (People v. Smith (1986), 150 Ill. App. 3d 524, 501 N.E.2d 1010.) The relevant factors listed by the court in Smith include the place of interrogation, any statements or nonverbal conduct indicating the accused is not free to leave, the extent of the knowledge of the police officers and the focus of their investigation and the intentions of the officers. Smith, 150 Ill. App. 3d at 528.

Applying these factors to the case at bar, two police officers went to the defendant’s residence, supposedly to deliver a subpoena. However, instead of merely serving the subpoena on the defendant, the officers “advised” him to come to the police station to pick it up. Therefore, the defendant’s appearance at the police station was not totally voluntary as that was the location at which he was told to come to receive his subpoena. It is interesting to note that the police could have both served the subpoena and questioned the defendant at his residence, but elected to have the defendant come to the station instead.

Once the defendant arrived at the station, he was immediately fingerprinted, photographed and had a personal history taken. This is the identical procedure used following the arrest of an individual. Thus, while the police officers verbally told the defendant that he was not in custody, the circumstances clearly negated the officers' statements. See, e.g., People v. Berry (1984), 123 Ill. App. 3d 1042, 463 N.E.2d 1044.

As to the focus of the investigation and the knowledge and intent of the police, it is apparent that the defendant was the focus of the investigation. The police officers were serving him with a grand jury subpoena. Had the officers believed that the defendant was one who would merely provide testimony as to another’s activities, they would have left the subpoena with the defendant. If they had questions, they could have questioned him at his residence rather than compelled him to come to the police station. It is apparent that the police suspected the defendant and wanted to get him into an environment more conducive to eliciting incriminating information.

When the objective elements are viewed with the reasonable inferences of an innocent person, it is apparent that the defendant was in custody when he was interrogated. The defendant was coerced into appearing at the police station. After his arrival at the police station, he underwent the same treatment an arrested individual would receive. He then was questioned for nearly one hour by two police officers. The room where he was questioned is located on the second floor of the police station. The door was closed during his interrogation. In sum, it is my opinion that the defendant was in custody at the time of the interrogation and therefore should have been afforded Miranda warnings. I would affirm the trial court’s decision.


author: JUSTICE SCOTT PRESIDING JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROLANDO MARINEZ, Defendant-Appellant.
    Third District
    No. 3—89—0035
    Opinion filed March 30, 1990.
    HEIPLE, P.J., dissenting.
    Shari D. Goggin-Ward, of State Appellate Defender’s Office, of Ottawa, for appellant.

      Edward Burmila, State’s Attorney, of Joliet (William P. Gibbs, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

The defendant spent a goodly portion of December 12, 1986, and a portion of the early hours of the following day consuming beer. By the defendant’s own admission, from 5 p.m. on December 12 and for a number of hours thereafter, he with three cousins consumed a case of Old Style beer. When the case was empty, the group proceeded to drink all the beer in the refrigerator.

The defendant and his cousins next visited the home of some friends, where he and his party each consumed four or five beers. Suffering from an unquenchable thirst, the defendant and cousins decided to go to the Galaxy Bowling Alley because it apparently appealed to their frugality. At the Galaxy, it was “Double Bubble” night, two drinks for the price of one. I’m sure that when you are attempting to drink the brewery dry it pays to shop around.

At the Galaxy, the defendant drank six to eight beers in addition to finishing off several bottles, which had not been entirely consumed by his companions.

Because of the defendant’s consumption of the spirits, he became entangled in the “throes of the demon rum.” He became stoned, gassed and inebriated. He could not walk straight; he slurred his speech. In short, he was completely intoxicated.

In such a drunken state, the defendant cut Donna Chisenall across the throat with a switchblade knife.

The defendant was charged with the offenses of attempted murder, armed violence and aggravated battery. After trial by jury, the defendant was found guilty of aggravated battery, two counts of armed violence, but not guilty of attempted murder. The trial court at the time of sentencing vacated one of the defendant’s convictions for armed violence and merged the other armed violence conviction and the aggravated battery conviction. The court then imposed upon the defendant a 10-year sentence of imprisonment for armed violence.

The defense during the trial was the defense of intoxication.

The defendant tendered as his instruction No. 10, Illinois Pattern Jury Instructions, Criminal, No. 24—25.02 (2d ed. 1981) (IPI Criminal 2d), which states:

“An intoxicated person is criminally responsible for his conduct unless his intoxication renders him incapable of acting knowingly.”

No objection was made by the State, and the instruction was given to the jury. The State did not tender an instruction on the voluntary intoxication defense, but did, over the objection of the defendant, receive permission from the trial court to argue that for voluntary intoxication to be a legal defense, the level of intoxication must be so extreme as to entirely suspend the power of reason. A portion for the State’s argument to the jury concerning the defense of intoxication is as follows:

“So what is incapable. It means that the condition is so extreme as to suspend all reason and make impossible the existence of a mental state, which is an element of the crime. It just doesn’t mean intoxicated because you can be intoxicated and do something. It can [sic] be so extreme you can’t reason and intend to do what you are doing.”

The remarks of the prosecutor misstated the law which was applicable at the time of the defendant’s trial. The prosecutor’s remarks served to confuse the jury. Instruction No. 24—25.02, as given by the defendant, correctly and simply states the law. No embellishment, explanation or further definitions of the instructions were necessary.

The situation in the instant case is similar to that presented in People v. Haywood (1980), 82 Ill. 2d 540, 413 N.E.2d 410: The case of Haywood presents almost the identical situation as presented in the instant case, and our supreme court reversed a conviction and remanded for a new trial.

The State also argues that the defendant waived any error concerning the People’s closing argument because there were no specific objections made at trial. The error of the State was not harmless but one of plain error, which this court should consider. See People v. Haywood (1980), 82 Ill. 2d 540, 413 N.E. 2d 410.

We are cognizant of the fact that, in the case of Haywood, two conflicting instructions were given to the jury. One instruction was tendered by the State, the other by the defendant. In the instant case, we have a different situation in that the defendant tendered an instruction. The State did not tender an instruction but, with the court’s permission, presented an argument to the jury which did not correctly state the elements of the defense of intoxication. Regardless of the method or vehicle used, the jury could only be confused by the inaccurate interpretation of IPI Criminal 2d No. 24—25.02 given by the defendant.

The argument presented by the State may well now be acceptable because the instructions concerning the definition of voluntary intoxication were rewritten in 1989; however, the committee reports concerning the new provision specifically state that the new provision cannot be applied retroactively. The crime allegedly committed by the defendant occurred in 1986.

Having concluded that the defendant is entitled to a new trial, we need not consider other assignments of error raised in this appeal.

For the reason set forth, the conviction of the defendant is reversed and this case is remanded for a new trial.

Reversed and remanded.

STOUDER, J., concurs.

PRESIDING JUSTICE HEIPLE,

dissenting:

The defendant, Rolando Marinez, was charged with attempted murder, aggravated battery and two counts of armed violence. The charges against the defendant arose from an incident at a bowling alley in December 1986. The prosecution alleged that the complainant, Donna Chisenall, was returning from the rest room when she turned a corner and came face to face with defendant. Defendant then allegedly slashed Chisenall’s neck with a switchblade. Following a jury trial, defendant was found guilty of two counts of armed violence and aggravated battery. The trial court sentenced defendant to a 10-year term of imprisonment.

On appeal, defendant raises an issue as to whether the trial court committed reversible error in allowing the prosecutor’s remarks during closing argument regarding the defendant’s intoxication defense. The majority concludes that the prosecutor’s rebuttal comments constituted a misstatement of the law, entitling defendant to a new trial. I respectfully dissent.

During the trial, defendant promoted his intoxication as a defense. In conference regarding jury instructions, defendant tendered Illinois Pattern Jury Instructions, Criminal, No. 24—25.02 (2d ed. 1981), which states:

“An intoxicated person is criminally responsible for his conduct unless his intoxication renders him incapable of acting knowingly.”

This instruction was allowed by the trial court. Defendant’s closing argument referred to the instruction, again pointing out defendant’s intoxication defense. Finally, in rebuttal, the prosecutor reminded the jury of the instruction on intoxication, and continued, clarifying the meaning of the word “incapable,” as used in the instruction:

“So what is incapable? It means that the condition is so extreme as to suspend all reason and make impossible the existence of a mental state, which is an element of the crime. It just doesn’t mean intoxicated because you can be intoxicated and do something. I can [sic] be so extreme you can’t reason and intend to do what you are doing.”

The majority terms these remarks an “inaccurate interpretation” of the IPI instruction tendered by defendant, and finds they constitute plain error. (196 Ill. App. 3d 318.) I disagree.

The majority’s reliance on an analogy to People v. Haywood (1980), 82 Ill. 2d 540, is flawed. Haywood dealt with two conflicting instructions on intoxication, both given to the jury. The first instruction presented in Haywood was very similar to the instruction given to the jury in the instant case. The second Haywood instruction, however, stated:

“While intoxication may be used to nagative [sic] the element of intent when it is extreme, merely being drunk or intoxicated is not a sufficient defense. Only if the Defendant’s intoxication is so extreme as to suspend entirely his power of reason, rendering him incapable of any mental action, is that intoxication a defense to the offense of Murder.” (82 Ill. 2d at 544.)

The problem in Haywood centered on the ambiguous attempt by the second instruction to redefine the clear statement of the intoxication defense presented in the first instruction. The supreme court was particularly concerned with' the possibility that the second instruction could be construed as requiring a state of unconsciousness for an intoxication defense. (82 Ill. 2d at 545-46.) No such problem exists in the instant case.

The prosecutor’s rebuttal arguments did not present a conflicting instruction; they merely emphasized the requirement that defendant be rendered unable to form the “mental state which is an element of the crime.” This does not constitute confusing or ambiguous language, nor is it a misstatement of Illinois law. The prosecution is afforded significant latitude in closing argument. (People v. Belton (1982), 105 Ill. App. 3d 10.) Furthermore, the substance and style of closing argument is within the discretion of the trial court, and its decisions will not be disturbed absent extreme error. (People v. Cruz (1983), 119 Ill. App. 3d 868.) The decision of the majority represents an unwarranted encroachment on the trial court’s discretion. I dissent.