author: JUSTICE LUND

text:
      In re MARRIAGE OF CINDY K. CLARK, now Cindy K. Davis, Petitioner-Appellant, and KEITH ALLEN CLARK, Respondent-Appellee.
    Fourth District
    No. 4 — 92—0908
    Opinion filed June 29, 1993.
    Michael G. Carroll, of Lemna, Moore & Carroll, of Tuscola, for appellant.
    Brian L. Bower and Kristin L. Wilson, both of Brainard, Bower & Kramer, of Charleston, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Petitioner appeals an order of the circuit court of Douglas County denying a petition for leave to remove a child from the State of Illinois, pursuant to section 609 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1991, ch. 40, par. 609). At the close of petitioner’s case, respondent moved for judgment under section 2 — 1110 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1110). This motion was allowed, and the petition to remove the child was dismissed. Petitioner contends the trial court’s decision was contrary to the manifest weight of the evidence. We affirm.

The parties were divorced in January 1988, and petitioner was awarded custody of the minor child, Chelsea (born May 7, 1984). She remarried in March 1990 and, until recently, lived in Sullivan, Illinois, with her new husband, Chelsea, and Amanda, a 13-year-old daughter by a prior marriage. Petitioner testified she became symptomatic of chronic respiratory disease in 1987. Currently, she suffers from chronic asthma, bronchitis, and allergies. She sought medical attention and listed a number of daily medications her physician had prescribed for her. The medication has so far failed to relieve her symptoms, which include shortness of breath, chronic coughing, and a burning sensation that radiates throughout her mid-chest. In addition to the medication, she uses an aerator for immediate bronchial dilation. Petitioner testified she smokes cigarettes.

In August 1991, petitioner vacationed in Tennessee and immediately noticed that her breathing problems disappeared. This vacation lasted eight days. The following year, in May 1992, they decided to vacation in Tennessee again and discovered that once again her respiratory problems disappeared. This second visit lasted six days. When she returned to Illinois, the scratchy throat and burning in her chest reappeared. According to her own personal observation, the atmosphere in Tennessee has less pollen, maintains less humidity, and the temperature is more stable. No evidence was presented to substantiate these observations.

A letter from her physician was admitted into evidence for the limited purpose of showing petitioner’s state of mind, i.e., she believes that she suffers from chronic respiratory ailments. The letter consists of a single sentence stating she suffers from chronic respiratory disease and that she should move from central Illinois. The letter gives no indication why a different State would be better, nor is there any suggestion as to where petitioner should move.

Petitioner’s new husband, Bert Davis, applied for work during the second vacation in Tennessee in May 1992. Afterward, in July 1992, petitioner was present during a conversation between Davis and his supervisor at Quantum Chemical Company (Quantum) in Tuscola, Illinois. The gist of the conversation was admitted solely for the purpose of showing petitioner’s state of mind regarding her new husband’s employment prospects with Quantum. Petitioner testified this conversation gave her the impression that her husband’s unit would be phased out and he was ninth from the bottom if Quantum decided to lay off workers. Davis did not seek employment anywhere else in Illinois but, sometime later in July 1992, he was offered a job in Tennessee. Once he was assured of the new job, he took early retirement from Quantum.

On July 31, 1992, a petition for removal was filed and, on August 4 or 5, 1992, petitioner moved her family to Whitwell, Tennessee — a distance of 463 miles from respondent’s residence. Petitioner attempted to get a hearing scheduled as soon as possible, but the earliest date available was August 28, 1992. She testified she meant no disrespect to the court by moving prior to the date of the hearing. She explained her husband needed to start work immediately and, if the petition was allowed, she wanted Chelsea enrolled in her new school right away. She testified she understood that if her petition was denied, she would be required to relocate back to Illinois.

In removal cases, the paramount question is whether the move is in the best interest of the child. The burden of proof is on the custodial parent. (Ill. Rev. Stat. 1991, ch. 40, par. 609(a).) Each case must be judged on its own unique set of facts. (In re Marriage of Davis (1992), 229 Ill. App. 3d 653, 660, 594 N.E.2d 734, 739.) Our supreme court identified five factors to consider in determining whether removal is in the child’s best interest: (1) the likelihood of enhancing the general quality of life for both the custodial parent and the children; (2) the motives of the custodial parent in seeking the move; (3) the motives of the noncustodial parent in resisting the move; (4) the visitation rights of the noncustodial parent; and (5) whether a realistic and reasonable visitation schedule can be reached if the move is allowed. (In re Marriage of Eckert (1988), 119 Ill. 2d 316, 326-27, 518 N.E.2d 1041, 1045-46.) In addition, the court should be guided by the policy of the Act, as expressed in section 102(7), to “secure the maximum involvement and cooperation of both parents regarding the physical, mental, moral and emotional well-being of the children during and after the litigation.” Ill. Rev. Stat. 1991, ch. 40, par. 102(7).

First, we consider the likelihood that the proposed move will enhance the general quality of life for the custodial parent. We have no doubt that petitioner suffers from respiratory illness. However, the severity of this illness and the likelihood that a move to Tennessee will offer long-term relief from her symptoms are unknown. No medical testimony was presented on the question of her health, and the letter from her physician was admitted for the sole purpose of establishing her own state of mind. Even were we to accept this letter as proof of her medical condition, the letter offers no proof that a move to Tennessee would be beneficial. On this issue, the trial court was asked to rely on the mere opinion of petitioner that her physical condition will improve in Tennessee. No competent evidence was presented that would tend to establish a difference between the atmosphere and vegetation of central Illinois and the State of Tennessee.

There is also no evidence that petitioner’s standard of living will improve. Petitioner offered no proof of her husband’s salary at his new job, nor did she indicate that it would pay better than any job available in Illinois. It is significant to note that her husband applied for the job in Tennessee prior to being told of a possible layoff in Illinois. We also note the fact that he never sought other employment in Illinois.

Next, we address the most significant issue before the court — the benefit to the child. Petitioner testified that Chelsea appeared to have symptoms of a chronic sinus condition. Her eyes were oftentimes red and puffy, and she would become puffy across her nose and cheekbones as well. She also complains of headaches. All these symptoms seem to disappear in Tennessee. The record gives no indication that she has sought medical attention for these symptoms, and no medical testimony was offered to prove the severity of her illness or the likelihood that a move to Tennessee would provide long-term benefits.

Evidence of the benefits accruing to the child is severely lacking. No evidence was offered regarding the schools she would attend, the house she would occupy, or the neighborhood in which she would live. Chelsea did not testify on her own behalf, so we have no indication of her personal feelings regarding the move. When asked how she expects Chelsea to feel about moving away from her father and her extended family, petitioner replied that Chelsea will miss them and feel a void.

Overall, evidence of any benefit to Chelsea is overwhelmingly insufficient to support a petition for removal out of State. The benefits of the move accruing to the custodial parent are unsubstantiated. The benefits to the child, which appear to be nothing more than relief from a mild allergy, are not only unsubstantiated, but insignificant as well.

In contrast, we have ample evidence of significant harm to the child. Respondent enjoys a close relationship with his daughter, to the extent that he has exercised visitation with her beyond the terms provided in the judgment for dissolution of marriage. Moreover, Chelsea enjoys a close relationship with her extended family in Illinois, does well in school, and gets along well with the children in Sullivan, Illinois.

In regard to the other factors cited in Eckert, we find nothing in the record to cause us to suspect the motives of either parent. Evidence on the issue of developing a reasonable visitation schedule is lacking, but it seems clear that respondent’s visitation with his daughter, which now takes place on alternate weekends, would be severely curtailed. Even if a plan was submitted that preserved the actual number of visitation days, we cannot ignore the fact that the interval between these visits would be drastically changed. Our supreme court has stated that when a parent has assiduously exercised his or her visitation rights, a court should be loath to interfere by permitting removal of the child for frivolous, unpersuasive, or inadequate reasons. (Eckert, 119 Ill. 2d at 327, 518 N.E.2d at 1046.) We find the reasons offered in support of removal are both inadequate and unpersuasive.

In nonjury cases, section 2 — 1110 of the Code allows defendant, at the close of plaintiff’s case in chief, to move for a finding or judgment in his favor. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1110.) The court must consider all the evidence, including that favorable to defendant, and it is to pass on the credibility of witnesses, draw reasonable inferences from the testimony, and generally consider the weight and quality of the evidence. The court is not to view the evidence in the light most favorable to plaintiff. On appeal, the decision of the trial court should not be reversed unless it is contrary to the manifest weight of the evidence. (Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154, 407 N.E.2d 43, 44-45.) We find no error in the trial court’s dismissal of the petition to remove a child from Illinois.

Affirmed.

McCULLOUGH and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
      In re D.B., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Joey Lynn Bilyeu, a/k/a Joey Lynn Abu-Hashish, Respondent-Appellant).
    Fourth District
    No. 4-92-0723
    Opinion filed June 29, 1993.

      Gregory A. Scott, of Scott & Scott, P.C., of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Norbert J. Goetten, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    William A. Pryor, of Springfield, guardian ad litem.

   JUSTICE McCULLOUGH

delivered the opinion of the court:

This is an appeal by respondent Joey Lynn Bilyeu, a/k/a Joey Lynn Abu-Hashish, from an order of the circuit court of Sangamon County terminating her parental rights to D.B., a minor. In this appeal, respondent mother raises three issues, to wit: (1) whether the trial court properly struck a portion of her answer to the petition to terminate parental rights and the defenses alleged therein; (2) whether respondent was prejudiced by the conflict of interest of her attorney who had previously served as the minor’s guardian ad litem (GAL); and (3) whether respondent is entitled to a new hearing due to the ineffective assistance of counsel. We affirm.

On June 27, 1988, the State filed a petition to adjudicate D.B., born January 18, 1987, a neglected minor in that the minor’s mother had failed to provide adequate supervision of the infant (count I) and his environment was injurious to his health (count II). On the same day, a shelter-care order was entered in which the minor’s temporary custody and guardianship was placed in the Illinois Department of Children and Family Services (DCFS). Michael Vonnahamen was shown to be the minor’s appointed GAL.

On September 22, 1988, after accepting the respondent mother’s admission as to count I and dismissing count II on motion of the State, the trial court entered an order adjudicating D.B. a neglected minor and placing custody and guardianship in DCFS pending further proceedings. A dispositional order was entered on November 17, 1988, finding that the minor’s parents, guardian, or legal custodian was unable or unwilling for some reason other than financial circumstances alone to care for, protect, train, or discipline the minor; appropriate services aimed at family preservation and reunification had been unavailable or unsuccessful in rectifying the conditions which led to the finding of inability of the parents, guardian, or legal custodian to care for the child; and the best interests of the minor and the public required that the minor be made a ward of the court and custody be taken from his parents, guardian, or legal custodian. Custody and guardianship was continued in DCFS. As a condition to visitation, respondent mother was ordered to cooperate with the agency, have an alcohol-drug assessment, complete parenting classes, sign releases, keep DCFS informed of her address, and have a psychological evaluation and cooperate with any recommended treatment. In all proceedings through November 17, 1988, Vonnahamen served as GAL for the minor.

The client-service plans filed by DCFS indicated that on June 14, 1989, respondent mother signed a surrender of her parental rights to D.B. On October 10, 1989, the putative father, Michael Long, signed a denial of paternity of D.B. On November 20, 1989, the case was “transferred to adoption.” Since June 23, 1988, D.B. has been living in the home of his maternal grandparents to whom D.B. had bonded, and who showed a great deal of concern for D.B.’s well-being. On August 27, 1990, the State filed a supplemental petition seeking that (1) DCFS be appointed to represent the minor’s rights, (2) DCFS continue to act as guardian of D.B. “without the power to consent to adoption,” and (3) requesting a court review. Notice was sent to Vonnahamen as GAL. By order of the court dated September 20, 1990, DCFS was ordered to continue as D.B.’s guardian without power to consent to adoption.

On July 1, 1991, the State filed a petition to terminate parental rights. With regard to respondent mother, the petition alleged that she had irrevocably and permanently surrendered all her parental rights and given up custody of D.B. to DCFS. The complaint stated that there was attached to it a copy of the final and irrevocable surrender to an agency for purposes of adoption of a born child signed by respondent mother on June 14, 1989. Although the copy was not attached, respondent mother did not object to the attaching of the document at the first hearing on the petition. The executed surrender for adoption met the requirements of section 10 of the Adoption Act (Act) (Ill. Rev. Stat. 1987, ch. 40, pars. 1512(C), (I), (J)), and it showed respondent to be 21 years of age at the time of its execution.

On July 18, 1991, respondent mother filed a motion for appointment of an attorney, which motion was denied on August 15, 1991. The order of August 15, 1991, however, indicated that William Pryor was acting as GAL for the minor. On August 16, 1991, Vonnahamen entered his appearance for respondent mother.

On September 11, 1991, respondent mother filed an answer to the petition for termination of parental rights admitting she signed the waiver of parental rights, but alleging that (1) she was told by the child’s grandmother that she would be able to see the minor and, eventually, to get custody; (2) respondent mother was planning on leaving the State of Illinois at the time and wanted to make sure she could still see the minor and get custody; (3) subsequent to signing the document, the child's grandmother refused to allow respondent mother to see the child; (4) she did not know she could revoke her consent until she had contacted an attorney after receiving the petition to terminate parental rights; (5) if she had known she had the right to revoke the document, she would have done so shortly after signing it; and (6) she would not have signed the document “except for the fraudulent statements made to her by her mother, and for the duress of the minor child through adoption.”

The State responded by filing a motion to strike the portions of the answer which raised the affirmative defenses. It was the State’s position that the validity of an irrevocable surrender for adoption based upon a claim of fraud and duress could not be made more than 12 months after the signing of the document. (Ill. Rev. Stat. 1987, ch. 40, par. 1513.) Citing Kathy O. v. Counseling & Family Services (1982), 107 Ill. App. 3d 920, 438 N.E.2d 695, the State further contended that the failure of the respondent mother to allege that the fraud and duress was committed by agents of DCFS defeated respondent mother’s alleged affirmative defenses since fraud and duress by a person other than the person before whom the surrender for adoption was acknowledged did not affect the validity of the document. On October 29, 1991, the trial court entered an order striking all paragraphs of respondent mother’s answer except the paragraph in which she admitted signing the surrender for adoption.

On April 9, 1992, the hearing was conducted at which respondent mother testified that she signed the surrender for adoption and that June 13, 1989, was “most likely” the date on which she signed it, although she could not remember. The surrender for adoption form was admitted as an exhibit. Also admitted into evidence without objection was a “Parental Affidavit” signed by respondent mother on June 14, 1989, indicating she had read and understood the surrender for adoption form, signed it of her own free will, understood her decision was final and she could never regain rights to her child, no one had threatened her or made promises to her to encourage the surrender of the child, and all of her questions were answered to her satisfaction. Another exhibit admitted into evidence without objection was the affidavit of Jacqueline I. Wert, the child-welfare specialist who took the surrender for adoption. Wert’s affidavit stated that respondent signed the surrender for adoption of her own free will, did not appear to be under the influence of drugs or alcohol, and spoke the English language. The affidavit further stated that Wert explained to respondent her rights before respondent signed the surrender for adoption. According to the affidavit, Wert explained to respondent mother that she was signing the surrender for adoption form of her own free will, not being under duress or coercion and no one having promised or threatened her to sign the document, intending and desiring to release the child for adoption, and understanding the surrender for adoption was final and irrevocable and she could not change her mind.

Respondent mother was represented by Vonnahamen at this hearing. Counsel did not cross-examine witnesses, and no evidence was presented on behalf of respondent mother. Counsel stated the only argument he had was that respondent mother signed the surrender for adoption form under duress, an argument which had already been rejected by the order on the motion to strike. A different judge presided over this hearing than the judge who granted the motion to strike. When this judge asked if he was bound by the prior ruling, Vonnahamen stated, “If the court feels that that isn’t a final order, then we certainly would renew our argument that *** it was signed under duress and she would like to revoke it.” The assistant State’s Attorney disagreed, arguing that the answer before the court was simply the admission to the surrender for adoption. The trial court stated, “Well, if I’m bound by Judge Keith’s ruling, it would appear to me that the Irrevocable Surrender to an Agency for Purposes of Adoption of a Born Child is in proper form.”

On May 6, 1992, an order was entered finding respondent mother had permanently surrendered all her parental rights and had given up control of D.B. and that the surrender for adoption form was valid and in proper legal form. As a result, respondent mother’s parental rights were ordered terminated, and DCFS was appointed legal guardian and custodian of D.B. with the power to consent to adoption.

On June 5, 1992, respondent mother, represented by new counsel, filed a motion for reconsideration. At the hearing on the motion for reconsideration conducted on July 23, 1992, respondent mother’s new counsel argued a conflict of interest on the part of Vonnahamen and his ineffective assistance to respondent mother. The surrender for adoption was also attacked as being invalid because it was not signed in open court. It was suggested that there might be some type of estoppel argument about which respondent mother ought to be allowed to present evidence. At the hearing, respondent mother testified that Vonnahamen had told her he had represented her son, but he said there was no conflict of interest. That conversation took place near the beginning of Vonnahamen’s representation of her. She testified, “He told me that in the beginning he represented my son and that there should be no conflict of interest now because we’re not arguing neglect, we are arguing consent.” She felt Vonnahamen inadequately represented her as a result of the conflict of interest “because I don’t think he represented me like he would anybody else.” Vonnahamen never gave her a form to sign by which she would waive any potential conflict of interest.

On July 28, 1992, the motion for reconsideration was denied. The trial court’s order found that Street v. Hubert (1986), 141 Ill. App. 3d 871, 491 N.E.2d 2d 29, was controlling and, although the conflict allegation presented a problem, the court failed to see any prejudice.

At the time the respondent mother signed the surrender for adoption form, section 11 of the Act provided in relevant part as follows:

“[A] surrender of a child by a parent, including a minor, to an agency for the purpose of adoption shall be irrevocable unless it shall have been obtained by fraud or duress on the part of the person before whom such consent, surrender, or other document equivalent to a surrender is acknowledged pursuant to the provisions of Section 10 of this Act or on the part of the adopting parents or their agents and a court of competent jurisdiction shall so find. No action to void or revoke a consent to or surrender for adoption, including an action based on fraud or duress, may be commenced after 12 months from the date the consent or surrender was executed.” Ill. Rev. Stat. 1987, ch. 40, par. 1513.

We first address the statute and its 12-month limitations period, which is dispositive as to respondent’s contentions of fraud or duress. Significant to the case at bar is the requirement that an action for fraud or duress to invalidate the surrender for adoption must be initiated within 12 months of the date the document was signed. Respondent mother attacks that part of the statute with two contentions. The first contention does not directly attack the statute, but challenges the State’s reliance on Street as support for the proposition that the 12-month period should be construed to bar the defense raised here.

Although respondent acknowledges that section 11 of the Act reflects a legislatively recognized public policy which favors the finality and stability of adoptions (In re Nolan (1981), 94 Ill. App. 3d 1081, 1085, 419 N.E.2d 550, 554), she attempts to distinguish Street because Street involved an attempt to upset an adoption order almost six years after the order was entered, whereas in the case at bar no adoption order had yet been entered. There is a factual distinction between challenging the validity of the surrender for adoption and challenging a final order of adoption. (See In re Adoption of Baby Girls Mandell (1991), 213 Ill. App. 3d 670, 674, 572 N.E.2d 359, 361-62.) However, the statute in the case at bar is addressed to the subject of challenges to the validity of the surrender for adoption, without any reference to whether an order of adoption has been entered. The statute specifically bars a challenge to the validity of the surrender for adoption made later than 12 months after the date on .which the document was signed. Also distinguishable is In re Adoption of Kindgren (1989), 184 Ill. App. 3d 661, 666-67, 540 N.E.2d 485, 488-89, which respondent cites, wherein a challenge to the validity of a consent to adoption was involved but. no issue was raised concerning the timeliness of the challenge to the consent for adoption. It would appear that in Kindgren the challenge to the consent to adoption was timely raised. See Mandell, 213 Ill. App. 3d at 674, 572 N.E.2d at 362.

Respondent mother contends that section 11 of the Act ought to be construed to incorporate the discovery rule.

“[T]he discovery rule *** provides that the relevant statute of limitations begins to run when a person knows or reasonably should have known of his.injury, and also knows or reasonably should have known that it was wrongfully caused. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976.)” Santa Claus Industries, Inc. v. First National Bank (1991), 216 Ill. App. 3d 231, 236, 576 N.E.2d 326, 329.

“In interpreting a statute, the primary rule, to which all other rules are subordinate, is to ascertain and give effect to the true intent and meaning of the legislature.” (Kraft, Inc. v. Edgar (1990), 138 Ill. 2d 178, 189, 561 N.E.2d 656, 661.) The primary source for determining the legislative intent is the language used in a statute. (Business & Professional People for the Public Interest v. Illinois Commerce Comm’n (1991), 146 Ill. 2d 175, 207, 585 N.E.2d 1032, 1044.) The language of a statute is to be given its plain and ordinary meaning. People v. Steppan (1985), 105 Ill. 2d 310, 317, 473 N.E.2d 1300, 1303-04.

In Street, the court rejected the applicability of the discovery rule to this type of case because its application would undermine the purpose of the statute of limitations contained in section 11 of the Act, which is to promote stable family relationships free from unnecessary intrusion by cutting off the prolonged ability of natural parents to set aside an adoption decree. (Street, 141 Ill. App. 3d at 874, 491 N.E.2d at 31.) As noted in Street, the legislature shortened the time period from five years to one year, and to apply the discovery rule would be inconsistent with the purpose of the amendment to the Act.

We agree that the discovery rule does not apply to the case at bar and that respondent mother could not raise an affirmative defense of fraud and duress more than 12 months after the signing of the surrender of adoption. The trial court properly granted the State’s motion to strike those portions of respondent mother’s answer.

The next question is whether respondent mother was prejudiced by a conflict of interest on the part of Vonnahamen. The question of whether a per se conflict of interest exists has been raised in civil cases (Harris v. Harris (1990), 196 Ill. App. 3d 815, 826, 555 N.E.2d 10, 18; Schlenz v. Castle (1985), 132 Ill. App. 3d 993, 1000-01, 477 N.E.2d 697, 703-04), although the issue most often arises in criminal cases. The per se conflict of interest rule provides that allegations and proof of prejudice are unnecessary if counsel, without the knowledgeable assent of the client, might be restrained from fully representing the client’s interests because of a commitment to another. (People v. Enoch (1992), 146 Ill. 2d 44, 52, 585 N.E.2d 115, 119.) In order for a per se conflict of interest to exist, the attorney must have a contemporaneous relationship with the third party which prevents counsel from devoting an undivided loyalty to the complaining party. (People v. Flores (1989), 128 Ill. 2d 66, 83, 538 N.E.2d 481, 486.) Where a per se conflict of interest is not established, the complaining party has the burden of showing an actual conflict of interest and demonstrating prejudice. Flores, 128 Ill. 2d at 84, 538 N.E.2d at 487.

In the case at bar, Vonnahamen did not simultaneously represent the minor and respondent mother. At the time he represented respondent mother, the minor was not his client. Furthermore, respondent mother admitted Vonnahamen disclosed his prior representation of the minor and stated he did not believe there would be a conflict of interest. This discussion occurred at the time of or shortly after respondent mother retained Vonnahamen to represent her. Nevertheless, she continued to have Vonnahamen represent her and only raised the conflict of interest issue when she got an unsatisfactory result.

There is no per se conflict of interest in this case, and respondent mother has not demonstrated any prejudice. In light of this court’s determination that the surrender for adoption was irrevocable and the challenge to the validity of the document based on allegations of fraud and duress was untimely, respondent mother was not prejudiced by any alleged conflict of interest on the part of Vonnahamen. •

Respondent mother also contends she was denied the effective assistance of counsel. We reject this argument for two reasons. First, the presence of a valid, irrevocable surrender for adoption removes any possibility of prejudice to respondent mother. Second, the standards relating to the doctrine of ineffective assistance of counsel announced in Strickland v. Washington (1984), 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068, are based on the right to counsel guaranteed to criminal defendants under the sixth amendment to the United States Constitution. (People v. Clark (1991), 207 Ill. App. 3d 439, 449, 565 N.E.2d 1373, 1380.) Since this is a civil matter, respondent mother is an adult and is not under any legal disability, and she retained counsel to represent her, we decline to extend the doctrine of ineffective assistance of counsel to this case.

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

Affirmed.

STEIGMANN, P.J., and GREEN, J., concur.


author: JUSTICE KNECHT

text:
    ESTATE OF THOMAS W. BARNEY, Deceased, et al., Plaintiffs-Appellants, v. ALICE BERRY, d/b/a Silver Dollar Saloon, Defendant (Steve Brookshier, d/b/a Bull Pen Lounge, et al., Defendants-Appellees).
    Fourth District
    No. 4 — 92—0656
    Opinion filed June 30, 1993.
    David A. Tuggle, of Doyle & Tuggle, of Danville, for appellants.
    David R. Moore, of Follmer Law Offices, of Urbana, for appellee Steve Brookshier.

      Robert A. Hoffman, of Thomas, Mamer & Haughey, of Champaign, for other appellees.
   JUSTICE KNECHT

delivered the opinion of the court:

The estate of Thomas W. Barney, and Terry Barney, father of the deceased, appeal from the Vermilion County circuit court judge’s grant of summary judgment in favor of defendants, Alice Berry, Steve Brookshier, Patty Bryant, and their respective drinking establishments. Plaintiffs contend the trial judge wrongly concluded as a matter of law decedent had not sustained personal injury which was compensable under the Illinois Dramshop Act (Act) (Ill. Rev. Stat. 1991, ch. 43, par. 135). We disagree and affirm.

I. Introduction

On May 11, 1990, Doug Reffett was driving a vehicle in which Thomas Barney and Todd Piatt were passengers. An accident occurred which caused Thomas’ death. Reffett was allegedly intoxicated as a result of consuming alcoholic beverages at various saloons, including the Silver Dollar Saloon and the Sportsman Inn, both located in the Village of Westville in Vermilion County, and the Bull Pen Lounge, located in the Village of Georgetown in Vermilion County. Plaintiffs filed an eight-count complaint seeking recovery pursuant to the Act. All of the aforementioned .establishments and their owners were named as defendants. Only counts III, V, and VII of the amended complaint representing the estate of Thomas Barney against the Bull Pen Lounge.and- Sportsman Inn are at issue in this appeal. In these counts, the estate of decedent seeks recovery under the Act for injuries to the person suffered by the decedent.

Summary judgment is a drastic means of disposing of litigation and should be granted only when the right of the moving party is clear and free from doubt. It is appropriate only when the pleadings, depositions and admissions, on file, together with the affidavits, show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Shull v. Harristown Township (1992), 223 Ill. App. 3d 819, 823, 585 N.E.2d 1164, 1167.

The Act states, “[ejvery person who is injured *** in person or property, by any intoxicated person has- a right of action.” (Ill. Rev. Stat. 1991, ch. 43, par. 135(a).) Plaintiff argues there was a genuine issue of material fact about whether the decedent suffered damages compensable under the Act. The damages which the estate sought were decedent’s funeral expenses and his pain and suffering.

II. Funeral Expenses

Plaintiffs argue there was a genuine issue of material fact about whether the estate of the decedent was liable for decedent’s funeral expenses, and should have been compensated for them. However, at the trial level, decedent’s father sought compensation for the funeral expenses, arguing he had paid them. No evidence or argument was presented intimating the estate paid these expenses or was seeking compensation for them. Plaintiffs cannot now raise this argument for the first time. Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147, 324 N.E.2d 417, 420.

Even on the merits, plaintiffs’ claim would fail. Although an estate is under a legal obligation to pay an adult’s medical and funeral expenses, when these expenses are paid by the decedent’s parents, the decedent’s estate has suffered no injury. Maras v. Bertholdt (1984), 126 Ill. App. 3d 876, 882-83, 467 N.E.2d 599, 604; see Rinkenberger v. Cook (1989), 191 Ill. App. 3d 508, 513, 548 N.E.2d 133, 136.

The estate in this case suffered no injury to its property to enable it to seek compensation under the Act. Count IV of plaintiffs’ amended complaint alleged the decedent’s parents paid the funeral bills. This destroys any claim the estate may have had to seek compensation for decedent’s funeral expenses. There was no issue of fact about whether the decedent’s estate was liable for or should be compensated for decedent’s funeral expenses. The trial judge properly granted defendants summary judgment on this issue.

III. Pain And Suffering

In defining “injury to the person” for which compensation can be sought under the Act, courts have concluded compensation cannot be sought when an individual dies instantaneously as a result of an intoxicated person’s wrongful conduct. (Messenger v. Vogler (1990), 195 Ill. App. 3d 866, 868, 553 N.E.2d 61, 62; see also Moore v. Swoboda (1991), 213 Ill. App. 3d 217, 234-35, 571 N.E.2d 1056, 1068.) Plaintiffs argue there was a genuine issue of material fact about whether the decedent survived the vehicular accident and suffered pain before he died.

Plaintiffs rely on the second district ruling in Maras (126 Ill. App. 3d at 890, 467 N.E.2d at 609), in which the court concluded the trial judge erred by granting defendant’s motion to dismiss because there were facts which could be proved to entitle plaintiff to recover for decedent’s pain and suffering.

However, the circumstances before the court in Maras are distinguishable in that plaintiff there had not been provided time to produce evidence to prove the decedent sustained pain and suffering before she died. The decedent had been found unconscious 20 minutes after the accident. She remained unconscious until her death. The Maras court noted plaintiff might be able to recover for the pain incurred during the 20-minute span if plaintiff could establish the decedent sustained pain and suffering during the 20 minutes before she was found. Maras, 126 Ill. App. 3d at 890, 467 N.E.2d at 609.

In the present case, the trial judge granted a summary-judgment and not a motion to dismiss. Plaintiffs were specifically provided additional time to develop evidence the decedent survived the accident, if only briefly, so as to enable plaintiffs to prove decedent sustained pain and suffering before his death. The hearing on the motions for summary judgment was initially scheduled for September 27, 1991. The hearing on the motions related to counts III, V, and VII was continued by the trial judge to enable plaintiffs to produce such evidence. The second hearing did not occur until 10 months later, on July 21, 1992.

Plaintiffs were provided ample opportunity to adduce evidence to enable them to proceed on the claims based on decedent’s alleged pain and suffering before his death. Plaintiffs failed to do so and did not seek an additional continuance of the hearing.

Moreover, at the summary judgment hearing, plaintiffs’ counsel conceded he had no evidence related to the decedent’s pain and suffering after the accident. He further stated Reffett was the only person at the scene who remained conscious after the accident and Reffett was unwilling to cooperate with plaintiffs’ counsel.

According to the coroner’s inquest report, the police officer who investigated the accident, Scott Wright, received a call that the accident had occurred at approximately 10:04 p.m. Upon arriving at the scene, Wright was directed to the decedent’s body by someone who arrived earlier to provide assistance. The decedent’s body was found a distance from the vehicle. The decedent was declared dead at 10:12 p.m. The report also stated there was never any sign of life observed in the decedent after the accident and decedent died of massive head injuries.

The decedent and Reffett had been thrown from the vehicle. The second passenger, Todd Piatt, was trapped in the vehicle. Plaintiffs attached an affidavit of Piatt to their response to defendants’ motions for summary judgment. Piatt sustained a concussion in the accident. His affidavit stated he had no direct recollection of the accident and his recollection had been refreshed by family members, particularly his mother, who told him about statements he made while he was in the hospital and shortly after leaving the hospital.

Piatt’s affidavit depicted that he and decedent were taken against their will at a very high rate of speed and knew before the impact the car would crash. Piatt reportedly told the decedent to brace himself. Plaintiffs contend a jury should have been permitted to consider Piatt’s testimony. However, Piatt’s affidavit represents a clear example of “double hearsay,” which was not admissible. Piatt could not independently recall any of the events he represents in his affidavit. What a nonparty witness said outside of court is hearsay and is incompetent as evidence. Kubisz v. Johnson (1975), 29 Ill. App. 3d 381, 383-84, 329 N.E.2d 815, 817.

Nor could Piatt’s statements have been admitted under the “excited utterance” exception to the hearsay rule. To be admitted as such, the event must have been startling enough to produce a spontaneous and unreflected statement. There must be an absence of time to fabricate and the statement must relate to the circumstances of the occurrence. People v. House (1990), 141 Ill. 2d 323, 381, 566 N.E.2d 259, 285.

Piatt’s affidavit states he allegedly made the reported statements to family members during an extended period of time after the accident. Plaintiffs made no claim Piatt’s statements were made in a state of excitement. Plaintiffs made no claim Piatt lacked time to fabricate, and the span of time in which he apparently made the remarks suggests such a claim could not be made. The only requirement Piatt’s statements meets is that his statements relate to the circumstances surrounding the occurrence. However, this is insufficient to permit admission of his statements.

Plaintiffs finally argue because Reffett and Piatt survived the accident, it was reasonable to infer the decedent also suffered, albeit for a short time. However, no evidence was presented in support of this argument. The only reasonable conclusion the trial judge could draw from the lack of evidence was decedent did not survive the accident, but died instantaneously. The defendants were entitled to summary judgment as a matter of law where plaintiffs failed to make a sufficient showing on this essential element of their case for which they had the burden of proof. Swisher v. Janes (1992), 239 Ill. App. 3d 786, 794, 606 N.E.2d 798, 801-02.

IV. Conclusion

Plaintiffs presented no evidence decedent survived the crash and suffered pain before he died. In the absence of such evidence, the trial judge properly granted summary judgment in favor of defendants.

Affirmed.

COOK and LUND, JJ., concur.


text:
    ROCKFORD MUTUAL INSURANCE COMPANY, Plaintiff-Appellant, v. PHILIP H. BLAASE et al., Defendants (International Surplus Lines Insurance Company et al., Defendants-Appellees).
    Fourth District
    No. 4 — 92—0849
    Argued June 17, 1993.
    Opinion filed June 29, 1993.
    Gregory C. Ray (argued) and R. Kevin Belt, both of Craig & Craig, of Mattoon, for appellant.

      D. Kendall Griffith (argued), Kevin R. Sido, and Robert C. Heist, all of Hinshaw & Culbertson, of Chicago, for appellees International Surplus Lines Insurance Company and International Insurance Company.
    Hugh C. Griffin and Diane I. Jennings, both of Lord, Bissell & Brook, of Chicago, for appellee Evanston Insurance Company.
    Edward E Ruberry, Jeffrey A. Goldwater, George J. Manos, and Kelly A. Giampa, all of Bollinger, Ruberry & Garvey, of Chicago, for Philip H. Blaase.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff Rockford Mutual Insurance Company appeals orders of the circuit court of Douglas County dismissing the causes against defendants International Surplus Lines Insurance Company and International Insurance Company and granting summary judgment to defendant Evanston Insurance Company. Plaintiff also appealed the dismissal as to defendant Philip H. Blaase, based on the failure to file the action within the applicable statute of limitations, but plaintiff and Blaase have now settled and issues relating to that order no longer pend in this court. Defendants Shand Moraban and Company, Inc., and Crum & Forster Managers Corporation, as successor corporation of L.W. Biegler, Inc., were dismissed from this lawsuit and are not parties to this appeal.

The issue raised on appeal is whether the filing of this action in the circuit court of Douglas County was not proper under section 13 — 217 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 13-217). We affirm.

Blaase, an insurance broker, sold a Rockford Mutual public liability insurance policy to Lindsey Daugherty. The policy had a $100,000 limit. Also sold to Daugherty was a $1 million umbrella liability policy. These policies were to provide Daugherty with indemnification for damages for which he was responsible as a result of tort liability to third persons. However, the umbrella policy required underlying coverage of $500,000, thereby leaving a $400,000 “coverage gap.” The public liability policy was issued to Daugherty on July 10, 1979. The umbrella policy was issued on June 29, 1980.

On April 22, 1982, during the period of coverage, an automobile driven by Rose M. Smith was involved in a collision with a tractor operated by Daugherty’s employee, Richard Hostetler. Smith sued to recover damages for her personal injuries. The settlement agreement between Smith and Daugherty provided for an up-front lump-sum payment of $310,000, with periodic payments of $3,000 (adjusted annually) for the life of Smith. As a result, the settlement exceeded plaintiff’s $100,000 limit and invaded the coverage gap.

Daugherty assigned to plaintiff his professional negligence claim against Blaase and suit was brought in the circuit court of Douglas County (Douglas County case No. 84 — L—141). Although the trial court in that case invalidated the assignment of the lawsuit, this court, in an opinion filed December 14, 1989, reversed the trial court’s decision and remanded the cause for further proceedings. Daugherty v. Blaase (1989), 191 Ill. App. 3d 496, 548 N.E.2d 130.

In a separate action filed on December 4, 1985, in Douglas County (Douglas County case No. 85 — L—39) plaintiff sued the defendants involved in this case. Blaase was sued in a breach of contract action and the other defendants were sued with regard to their breach of duty to plaintiff. International Insurance provided director and officer (D&O) coverage to plaintiff from June 25, 1979, through June 25, 1982. International Surplus Lines provided errors and omissions (E&O) coverage to plaintiff from July 23, 1981, through July 23, 1984. Evanston Insurance provided plaintiff with E&O and D&O coverages in a combined policy with a term which ran from June 25,1982, through June 25, 1985.

On February 20, 1986, and October 21, 1988, orders were entered in the circuit court of Douglas County based on plaintiff’s voluntary dismissal of all counts in case No. 85 — L—39 pursuant to section 2 — 1009 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1009). The statute of limitations not having expired, plaintiff refiled the case in the circuit court of Cook County on February 27, 1990 (Cook County case No. 89 — CH— 6753). However, on the motion of Blaase, the circuit court of Cook County dismissed the entire action pursuant to section 2 — 619(a)(3) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(3)). This order was entered on May 8, 1990, and stated that the dismissal was “without prejudice.”

Section 2 — 619(a)(3) of the Code provides that a cause of action may be involuntarily dismissed if “there is another action pending between the same parties for the same cause.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(3).) Since Douglas County case No. 84 — L—141 was still pending, the trial court dismissed Cook County case No. 89 — CH—6753. The record does not disclose that an appeal was ever taken from the dismissal of case No. 89 — CH—6753. Indeed, the determination that the cases involved the same parties and the same cause is not challenged in this appeal.

On May 6, 1991, plaintiff filed the instant lawsuit in the circuit court of Douglas County (Douglas County case No. 91 — L—11). Plaintiff claims that this case was a refiling of Douglas County case No. 85 — L— 39 and Cook County case No. 89 — CH—6753. As to the insurance company defendants in this case, the trial court dismissed International Surplus Lines and International Insurance and granted summary judgment to Evanston Insurance, ruling that the filing of Douglas County case No. 91 — L—11 was an impermissible second filing pursuant to section 13 — 217 of the Code under the rationale of Flesner v. Youngs Development Co. (1991), 145 Ill. 2d 252, 255, 582 N.E.2d 720, 721. Flesner held that a case cannot be reinstated a second time pursuant to section 13— 217 of the Code even though the statute of limitations had not yet expired.

The issue raised in this court concerns the propriety of a trial court’s reasoning with regard to the appropriateness of plaintiff filing Douglas County case No. 91 — L—11. Plaintiff argues that a dismissal pursuant to section 2 — 619(a)(3) of the Code is not a ground listed in section 13 — 217, and therefore this case does not involve an impermissible double filing under the Flesner rationale. We disagree with plaintiff. Flesner directs that a plaintiff has only one opportunity to refile. If the refiled case is involuntarily dismissed by the trial court, plaintiff is not entitled to a second opportunity to refile the action.

Plaintiff’s argument that the fact that the order of dismissal in Cook County case No. 89 — CH—6753 was “without prejudice” permits the filing of Douglas County case No. 91 — L—11 is illogical. The question to be answered is, “Without prejudice to do what?” Since Cook County case No. 89 — CH—6753 was dismissed because another action was already pending, the order cannot logically be construed as authorizing the filing of yet another separate action between the same parties for the same cause.

Had plaintiff taken a direct appeal from the order of the circuit court of Cook County, plaintiff could argue that the court should not have dismissed as to all the defendants or that the proper ruling was to transfer Cook County case No. 89 — CH—6753 to the circuit court of Douglas County for consolidation with Douglas County case No. 84 — L— 141. However, no direct appeal was taken and the propriety of the ruling of the circuit court of Cook County is not at issue in this appeal.

Accordingly, the judgment of the circuit court of Douglas County in case No. 91 — L—11 is affirmed.

Affirmed.

STEIGMANN, P.J., and GREEN, J., concur.


author: JUSTICE QUETSCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MANUEL V. CONTRERAS, Defendant-Appellant.
    Second District
    No. 2 — 91—1135
    Opinion filed June 28, 1993.

      G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, and Theodore G. Gailan, of Wheaton, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers, Stephen E. Norris, and Rebecca Sanders, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE QUETSCH

delivered the opinion of the court;

After a jury trial, defendant, Manuel V. Contreras, was convicted of two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 14(a)(5)), and one count each of aggravated battery (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 4(b)(10)), home invasion (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 11(a)), residential burglary (Ill. Rev. Stat. 1991, ch. 38, par. 19 — 3(a)) and robbery (Ill. Rev. Stat. 1991, ch. 38, par. 18 — 1(a)). The trial court sentenced him to 120 years’ imprisonment. Defendant raises two issues on appeal. First, defendant contends he should be granted a new trial because the statistical analysis of the State’s serology expert was flawed. Second, defendant argues he should be granted a new trial because the trial court improperly admitted evidence of other crimes which caused substantial prejudice to defendant’s case. We affirm.

Defendant was initially charged by a 15-count indictment alleging multiple counts of aggravated criminal sexual assault, home invasion, residential burglary, aggravated battery and robbery. Seven counts arose from an incident involving complainants, E.A. and H.A., occurring on July 3, 1988. The remaining eight counts involved another incident, again involving complainants, E.A. and H.A., occurring on July 20,1988.

Prior to trial, defendant filed a motion to sever for purposes of trial the charges arising out of the July 3, 1988, incident from those arising out of the July 20, 1988, incident. The trial court granted defendant’s motion to sever. The State elected to try the charges arising out of the July 3, 1988, incident first. The trial court granted the State’s request to present evidence involving the incident on July 20, 1988, for the purpose of identification of defendant, provided the State lay a proper foundation.

Defendant also filed a motion in limine to bar all prosecution testimony relating to statistical probabilities generated by Analytical Genetic Testing Center (AGTC) personnel arguing the statistical probability calculations generated by AGTC personnel were irrelevant and highly prejudicial to defendant. The trial court denied the motion subject to the State laying the proper foundation for the admission of the statistical evidence.

Immediately prior to trial, defendant requested the State make an offer of proof regarding the evidence it proposed to present arising out of the July 20, 1988, incident. The State responded that it intended to present evidence of “other crimes” for the limited purpose of identifying defendant as the perpetrator of the July 3, 1988, offenses. The State noted that the two incidents were almost identical except for the point of entry into the home of the complainants. On July 3, 1988, the perpetrator entered through a side window. On July 20,1988, the perpetrator entered through the front door of the house.

In addition, the State claimed E.A. would testify that during the July 20, 1988, incident defendant berated her for calling the police after the July 3, 1988, incident, establishing defendant committed both offenses. The State also claimed that both E.A. and H.A. would testify that they recognized the voice of the offender on July 20, 1988, as the same voice they heard during the attack on July 3,1988.

Also, the State claimed it would present forensic testimony that the semen stain on E.A.’s bed sheets from July 20, 1988, had the same rare genetic variant as did the semen stain found on E.A.’s sheets after the July 3, 1988, attack. In addition, a hair was collected from the vaginal vault of E.A. during the course of medical treatment after the July 20, 1988, attack. That hair was compared to defendant’s pubic hair standards and found to be microscopically similar. Lastly, the State claimed defendant’s former sister-in-law, Diane Contreras, would testify that defendant asked her to provide him with an alibi for July 20,1988.

The trial court found, considering all the evidence together, it was permissible to present evidence from the other offense for the limited purpose of identification only. The cause proceeded to trial. The testimony was as follows.

Both E.A. and H.A. testified they were married and resided in a home in Downers Grove, Illinois. At the time of the offenses, E.A. was 74 years old and H.A. was in his eighties. On the night of July 2, 1988, E.A. slept in a bedroom, and H.A. slept on a couch in the living room. Sometime during the early morning hours, E.A. was awakened by a noise and discovered defendant in the house. H.A. awakened shortly thereafter by the sound of voices coming from the bedroom. As he entered the bedroom, he was grabbed by defendant and thrown to the floor.

Defendant told the complainants to take off their clothes and they complied. Defendant then told H.A. to get into the bed and face the wall. While E.A.’s husband lay next to her in bed, defendant raped E.A. and had her perform oral sex. After she started choking, he removed his penis from her mouth. Neither E.A. nor H.A. got a good look at defendant because most of the time he held a pillow over E.A.’s face and, but for a fleeting moment, did not give H.A. the opportunity to view. him. Defendant told them if they called the police he would kill them. H.A. stated that although defendant spoke English, he had a Mexican accent. Before defendant left; he demanded money. He took approximately $1,000 from E.A.’s pocketbook. Complainants called the police and were eventually taken to the hospital.

Complainants did not return to their home for a couple of weeks. Upon their return, they and their sons installed an alarm system which could be operated from the bedroom, bolted down the windows, installed an air conditioner and put a timer on an outside light.

In the early morning hours of July 20, 1988, E.A. was again asleep in the bedroom while her husband, H.A., slept in the living room when defendant kicked in their front door and entered their home. He grabbed H.A. by the throat and began strangling him. H.A. stated it was the “same guy” that entered their home on July 3, 1988. The two men began struggling. H.A. bit defendant on the finger. Defendant blackened H.A.’s eyes, knocked out his teeth and bit his finger.

Defendant went into the bedroom where E.A. had triggered the alarm and shut it off. Defendant ordered complainants to get into the bed. Again, H.A. was ordered to face the wall while defendant raped E.A. H.A. recalled defendant making the statement, “You MF’s didn’t think I would come back again.” Although E.A. could not recall much of what happened that second time, H.A. stated it was a “repeat of the first time,” except defendant did not have oral sex with E.A. Before leaving, defendant dumped the contents of E.A.’s pocketbook on the bed and took approximately $20. E.A. stated that although she did not get a good look at him, it was definitely the same man that had attacked her previously. Again, after calling the police, the complainants went to the hospital. At trial, H.A. stated he and his wife had lived in that house for 53 years, but because they did not want to go through that again, they sold the house and now live in a secured apartment.

Good Samaritan Hospital emergency room nurse Frannie Whitlock testified that she assisted Dr. John Dymowski in attending E.A. when E.A. arrived at the hospital on July 3, 1988. The parties stipulated that, if called to testify, Dr. Dymowski would state that he collected blood, vaginal swabs, vaginal smears and head and pubic hairs from E.A. and that he observed vaginal bleeding and rectal tenderness.

Ms. Whitlock was also working in the emergency room on July 20, 1988, when E.A. was brought in. E.A. told Ms. Whitlock that she had been raped, vaginally, orally and rectally, and that the perpetrator struck her on her arms with his fists. Ms. Whitlock noticed an abrasion on her right arm. Ms. Whitlock assisted attending physician Dr. John Nowak. The parties stipulated that if Dr. Nowak were called to testify, he would state that on July 20, 1988, he collected blood, vaginal swabs, vaginal smears, and head and pubic hairs from E.A. In addition, he would testify that he observed vaginal bleeding, rectal tenderness and redness in the hymen area and that he removed a black hair from E.A.’s vaginal vault and placed it into an evidence vial.

Deputy Sheriff Ronald Kerstein and Detective Michael Panacchia of the Du Page County sheriff’s office testified that they determined on July 3, 1988, the house was entered via a west rear window. Detective Panacchia also stated that he lifted a latent palm print from the sill of the window used for entry. At the time of the offenses, Stephen Dahl was employed as a deputy sheriff’s patrolman with the Du Page County sheriff’s office. He testified that on July 3, 1988, he photographed the scene and collected the sheets off of the bed for use as evidence. Detective Gregory Figiel of the Du Page County sheriff’s office testified that he was involved in the investigation of the incident on July 20, 1988. He removed the bed sheets that were on the bed at the time of the attack and placed them into evidence.

Latent fingerprint examiner Detective Raymond Wojcik, of the Du Page County sheriff’s office, testified that he compared the latent palm print lifted from the window sill at the point of entry into complainants’ home with a standard print from defendant. He found 16 points of similarity between the two prints. He stated that, in his opinion, the palm print lifted from the window sill was that of the defendant.

Alfred Luckas, a forensic chemist employed by the Du Page County crime lab, testified that he compared the hair recovered from the vagina of E.A. on July 20, 1988, with the standards taken from the defendant. He concluded defendant’s hair standards were microscopically similar to the hair recovered from E.A. and that he believed that hair could have come from defendant. No hair standards were obtained from H.A. for comparison.

Christine Sahs, a forensic chemist for the Du Page County sheriff’s office crime lab, testified that she conducted testing on the bed sheets recovered from complainants' home on July 3, 1988, and July 20, 1988. The sheets tested positive for semen. Ms. Sahs conducted tests on H.A. and concluded he was not the source of the semen. The vaginal and rectal smears obtained from E.A. tested positive for spermatazoa and red blood cells. Ms. Sahs sent samples of defendant’s blood and E.A.’s blood along with samples of the semen stains obtained from the complainants’ sheets after both incidents to Thomas Wahl.

A hearing was held outside the presence of the jury prior to the State’s presentation of the testimony of Thomas Wahl, a forensic geneticist employed by Analytical Genetic Testing Center in Denver, Colorado, to determine whether the State could lay a sufficient foundation for Mr. Wahl’s testimony regarding the results of his statistical analysis of the genetic marker testing conducted in connection with this case. Mr. Wahl testified that he has been employed as a forensic geneticist for approximately 10 years. He holds a bachelor’s degree in medical technology with a minor in chemistry from the University of Wisconsin.

He described his job duties as receiving evidence of a biological nature, screening and analyzing evidence to determine if any biological fluids are present on the evidence, conducting biochemical testing to prove the identity of the biological fluids, performing genetic marker typing analysis on the biological evidence for the purpose of determining genetic markers in evidence, and issuing findings and conclusions in written reports. He has been qualified in the area of forensic genetics in courts in Wisconsin, Florida, Massachusetts, California, Ohio, Colorado and Pennsylvania. He has rendered opinions in his work and in courts regarding population statistics and the probabilities of certain genetic markers occurring at random in approximately 300 to 400 cases, some of which included statistics generated by him.

On cross-examination, Mr. Wahl admitted that he did not have a degree in genetics or statistics, and in the early párt of his professional experience he worked as a serologist. He has taken master’s level courses in genetics and statistics. In addition, he has attended 10 to 12 workshops pertaining to forensic genetics. He also teaches workshops pertaining to forensic serology. He stated that the statistical principles or formulas that he applies are well recognized within the field of forensic genetics. His work is supervised by Dr. Moses Schanfield, the director of the lab, who has a Ph.D. in population genetics and anthropology. Dr. Schanfield reviews all of Mr. Wahl’s statistics, including those he applied in this case. The trial court recognized Mr. Wahl as an expert in the field of forensic genetics and serology.

After conducting an electrophoresis test on standards taken from defendant, Mr. Wahl discovered defendant had a phosphoglucomutase or PGM phenotype with a rare variant. PGM is a genetic marker involving differences between individuals that exist at the DNA level. He detected the same rare variant when he tested the semen specimens taken from the sheets removed from E.A.’s home following both the July 3 and July 20, 1988, attacks. Wahl then used population statistics to determine the frequency with which that variant occurs in the male Mexican-American population, of which defendant is a part.

Wahl used a combination of population data bases as the basis for his statistics: one from a study conducted by Dale Dykes of the Minneapolis Blood Center published by the American Association of Blood Banks in 1981, and one conducted in Starr County, Texas, published in the American Journal of Human Genetics in 1986. He stated that both studies used a reliable method for accumulating a data base for generating statistical information regarding the probabilities or percentages of populations with a particular type of genetic marker. Wahl took the frequencies derived from these data bases and applied the “Hardy-Weinberg” equation to determine the phenotype frequencies of defendant’s rare variant. He stated that the Hardy-Weinberg equation is universally accepted in population genetics.

After examination of Mr. Wahl, the court concluded that sufficient subject matter existed for which an expert could give an opinion and that a sufficient basis had been placed on the record for Mr. Wahl to testify. Defendant then moved to exclude the testimony because its prejudicial effect outweighed its probative value. The court denied this motion, finding no evidence of a prejudicial effect. Wahl testified at trial. His testimony at trial was essentially the same as the testimony set forth above.

Lastly, Diane Contreras, defendant’s former sister-in-law, testified that in July 1988 defendant resided with her and her family in their apartment at 1020 South Williams, Westmont, Illinois. She stated that the complainants’ street bordered one side of her apartment complex. Late in July 1988, Ms. Contreras noticed a mark on defendant’s hand. Defendant asked her to tell the police that he was with her on the night an older couple was robbed and raped if the police questioned him about the crime. She told him she could not do that. Defendant also asked her to obtain a copy of a flier with a sketch of a suspect in the crime.

The jury found defendant guilty on all seven counts. The trial court denied defendant’s motion for a new trial and sentenced defendant to a total of 120 years. Defendant timely appeals.

I. ADMISSIBILITY OF STATISTICAL PROBABILITY EVIDENCE

Defendant’s first argument on appeal is that the trial court should not have permitted the State expert’s statistical analysis of defendant’s PGM phenotype variant probability in Mexican-American populations because, he argues, the population data base information upon which the expert based his opinion was unreliable. The State argues that Wahl was qualified as an expert and that any challenge to the basis of his opinion goes to the weight of his testimony, not its admissibility.

First, we note defendant does not contend the process of electrophoresis is unreliable. In fact, our supreme court has held that electrophoresis is generally accepted by forensic scientists as a reliable method of detecting genetic markers in blood and is, therefore, admissible. (See People v. Eyler (1989), 133 Ill. 2d 173, 215, cert. denied (1990), 498 U.S. 881, 112 L. Ed. 2d 174, 111 S. Ct. 215; People v. Thomas (1990), 137 Ill. 2d 500, 517-18.) Defendant’s challenge is limited to the reliability of the statistics generated by Wahl regarding the results of the electrophoresis process.

After the completion of the electrophoresis process on the samples, Wahl determined E.A.’s PGM phenotype was 1A/2A and defendant’s PGM phenotype was 1B/W15. He described the W15 component as a rare genetic variant for all ethnic populations, occurring in less than 1% of the general population. Tests conducted on the semen stains taken from the bed sheets from both the July 3 and July 20, 1988, attacks revealed the presence of the 1B/W15 PGM phenotype. Wahl testified that, using statistics derived from two different genetic studies involving Mexican-Americans and the “Hardy-Weinberg” equation, he derived a statistical probability for the frequency with which defendant’s phenotype was likely to occur in Mexican-American males. He arrived at the conclusion that, due to the rarity of the IB/ W15 PGM phenotype, approximately only 1 in 4,500 Mexican-Americans could have been the source of the semen found on the sheets.

Defendant contends Wahl’s statistics are flawed because they were derived from unreliable population data bases. Specifically, defendant contends that the Minneapolis study conducted in 1981 and used by Wahl to determine his statistic involved 404 subjects described as “Hispanics,” not Mexican-Americans. On cross-examination, Wahl admitted the article used the term “Hispanics,” and he admitted that term can be used to refer to a broad range of Spanish-speaking people, including South Americans, Puerto Ricans, Cubans, and Spaniards. However, Wahl contended the author of that study personally communicated to him that the study involved Mexican-Americans, not the broad range of Spanish-speaking people who could be categorized as “Hispanics.” The author of the study was deceased at the time of trial. In addition, defendant contends that because all of Wahl’s knowledge regarding the Starr County, Texas, study, which involved 733 Mexican-Amerieans in South Texas, was derived from the article published in the American Journal of Human Genetics in 1986, the figures derived from this population base are unreliable as well.

The admission of expert testimony is within the trial court’s discretion and will not be reversed absent an abuse of discretion. (People v. Eyler, 133 Ill. 2d at 211; People v. Miles (1991), 217 Ill. App. 3d 393, 403.) To lay an adequate foundation for expert testimony, it must be shown that the facts or data relied upon by the expert are of a type reasonably relied upon by experts in that particular field in forming opinions or inferences. (See Wilson v. Clark (1981), 84 Ill. 2d 186.) In its discretion, it is for the trial court to determine whether the underlying facts or data upon which an expert bases an opinion are of a type reasonably relied upon by experts in the particular field, and, again, its determination will not be disturbed on review absent an abuse of discretion. City of Chicago v. Anthony (1990), 136 Ill. 2d 169, 186.

Defendant challenges the basis for Wahl’s statistics, in part, because Wahl had no independent knowledge of the procedures used by the authors of the studies upon which he relied. Defendant’s argument that Wahl’s reliance on the Minneapolis and Starr County, Texas, studies was not reasonable and, therefore, the statistics generated are unreliable is similar to the argument used by defendant in People v. Lipscomb (1991), 215 Ill. App. 3d 413.

In Lipscomb, defendant contended the State could not establish its DNA expert’s reliance on a report generated by another was reasonable and that he had no opportunity to challenge the figures or effectively cross-examine the expert because the expert had no independent knowledge of the procedures used by the author of the report. (Lipscomb, 215 Ill. App. 3d at 433.) The court in that case rejected this argument, noting the expert testified that his final report, and the measurements in it, was the type reasonably relied upon by experts in the field. The court concluded it was then defendant’s responsibility to challenge the sufficiency or reliability of the basis for the expert’s opinion during cross-examination, and the determination of the weight to be given the expert’s opinion is left to the finder of fact. Lipscomb, 215 Ill. App. 3d at 435.

• 2 Similarly, in this case, Wahl testified that the information from which he generated his statistics is the type reasonably relied upon by experts in the field of genetics and serology. The fact that Wahl’s knowledge regarding the population data bases taken from the studies was limited to what he read in the publications does not invalidate his findings. It is permissible for experts to premise their testimony on information and opinions obtained from the reading of standard publications in their fields. (People v. Lopez (1992), 228 Ill. App. 3d 1061, 1074; People v. Bradney (1988), 170 Ill. App. 3d 839, 862.) The population data bases which formed the basis for the statistics generated by Wahl were published by the American Association of Blood Banks and the American Journal of Human Genetics, recognized publications in the field.

We find, as did the court in Lipscomb, that this testimony was properly admitted and that it was defendant’s responsibility to challenge the reliability of the basis for Wahl’s statistics on cross-examination, which defendant did competently. Statistics are admissible as relevant to identification, and any challenges to their reliability go only to the weight to be given the evidence. (People v. Redmond (1985), 135 Ill. App. 3d 534, 540; People v. Lipscomb, 215 Ill. App. 3d at 435; People v. Miles, 217 Ill. App. 3d at 405; People v. Lopez, 228 Ill. App. 3d at 1075. But cf. People v. Harbold (1984), 124 Ill. App. 3d 363.) The weight to be given to Wahl’s opinion was properly left to the jury.

Defendant also challenges Wahl’s opinion because he does not have a degree in statistics. Wahl testified that all of the information upon which he based his opinion is of the type relied upon by experts in the field of forensic genetics and serology. Wahl also testified that he studied statistics as a part of his training and much of his work involves the use of statistics. It is recognized that, no less than formal training, practical experience in a field may serve to qualify a witness as an expert on a particular subject. (Schaffner v. Chicago & North Western Transportation Co. (1989), 129 Ill. 2d 1, 37.) Wahl testified that his supervisor, who holds a Ph.D. in genetics, reviewed all of his work, including his statistics. Thus, we conclude the trial court did not abuse its discretion in permitting Wahl's testimony regarding the statistics generated by him.

II. ADMISSIBILITY OF EVIDENCE OF “OTHER CRIMES”

Defendant next asserts the trial court erred in admitting evidence of defendant’s “other crimes” in the form of what he terms “the entirety” of the State’s case regarding the July 20, 1988, incident because the incident did not prove his identity as the offender and caused substantial prejudice to his case. Defendant argues that the trial court acknowledged the prejudice such evidence would cause when it granted defendant’s motion to sever the trial of the July 3, 1988, incident from the trial of the July 20, 1988, incident. We disagree.

It is well established that evidence of crimes for which a defendant is not on trial is inadmissible if relevant merely to establish his propensity to commit a crime. (People v. Thingvold (1991), 145 Ill. 2d 441, 452; see also People v. Lucas (1989), 132 Ill. 2d 399; People v. Richardson (1988), 123 Ill. 2d 322; People v. Bartall (1983), 98 Ill. 2d 294; People v. McKibbons (1983), 96 Ill. 2d 176.) Evidence of the commission of other crimes is admissible, however, when such evidence is relevant to prove any purpose other than propensity to commit crime, such as modus operandi, intent, identity, motive, or absence of mistake. (Thingvold, 145 Ill. 2d at 452; People v. Waldron (1991), 219 Ill. App. 3d 1017, 1030.) It is within the sound discretion of the trial court to determine whether evidence of other crimes is relevant to a material issue and whether the probative value of such evidence outweighs its prejudicial impact. (Waldron, 219 Ill. App. 3d at 1030.) The court’s ruling as to the admissibility of such evidence will not be reversed absent a clear showing of abuse. Thingvold, 145 Ill. 2d at 452.

After the State outlined the evidence it intended to present pertaining to the July 20, 1988, incident, the trial court found that it was relevant to show identity and that its probative value outweighed any possible prejudice. The court admonished the jury a number of times during trial and gave a written instruction that the evidence pertaining to the July 20, 1988, incident was offered for the limited purpose of proving the identity of the offender.

Defendant’s argument on appeal is essentially twofold. First, defendant argues the evidence pertaining to the July 20, 1988, incident was not relevant to prove identity, but, rather, it was only relevant to show the same person committed both offenses. Second, defendant argues that the evidence pertaining to the July 20, 1988, incident was presented in such detail that its probative value was outweighed by its prejudicial effect. Both of these arguments are unfounded.

First, the evidence pertaining to the July 20, 1988, offense was relevant to prove that not only did the same person commit both offenses, but that defendant was that person. Because the incident occurred in the darkness of early morning hours, neither E.A. nor H.A. got a good look at the offender’s face. However, they did recognize the voice of the offender on July 20, 1988, as being the same voice they heard July 3, 1988. In addition, on July 20, 1988, the police recovered a hair and additional semen specimens which matched defendant’s samples and the semen specimens recovered on July 3, 1988. Moreover, H.A. testified that on July 20, 1988, the offender stated something similar to, “You MF’s didn’t think I’d come back again.” Lastly, defendant’s former sister-in-law testified that defendant asked her to provide him with an alibi for July 20, 1988. This evidence, taken as a whole and combined with the evidence pertaining to the July 3, 1988, incident, provides evidence of defendant’s identity as the perpetrator of the first offense.

Second, although it is true that evidence of other offenses admissible on the question of identity should be confined to such details as show the opportunity for identification and not the details of the crime (Richardson, 123 Ill. 2d at 341), no more details of the July 20, 1988, incident were presented at trial than necessary to show defendant’s identity. Modus operandi, or “method of working,” is nothing more than circumstantial evidence of identity, the rationale being that crimes committed in a similar manner suggest a common “author.” (People v. Watson (1981), 98 Ill. App. 3d 296, 298.) In this case, there were no eyewitnesses to identify defendant’s face. Rather, the evidence relating to identity involved the similarity between the two crimes, as well as defendant’s statement on July 20, 1988, regarding his participation in the first crime and the statement of his former sister-in-law regarding his request for an alibi, in addition to the physical evidence linking defendant to both crimes. Thus, because the probative value of the evidence far outweighed its prejudicial effect, we conclude the trial court did not abuse its discretion in admitting the evidence for the purpose of showing identity. However, even if we were to conclude that some of the detail was not essential, the detailed evidence clearly did not constitute prejudicial and reversible error. See Richardson, 123 Ill. 2d at 341-42; McKibbons, 96 Ill. 2d at 186-87.

Accordingly, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

GEIGER and DOYLE, JJ., concur.


author: JUSTICE WELCH JUSTICE RARICK,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. LEAMON R. CAVITT, JR., Defendant-Appellee.
    Fifth District
    No. 5 — 92—0107
    Opinion filed July 9, 1993.
    Rehearing denied August 9, 1993.

      RARICK, J., dissenting.
    Robert Haida, State’s Attorney, of Belleville (Norbert J. Goetten, Stephen E. Norris, and Scott A. Manuel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel M. Kirwan and Michelle A. Zalisko, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

This case involves the interpretation and application of the speedy trial statute, and particularly subparagraph (e) thereof, which provides:

“If a person is simultaneously in custody upon more than one charge pending against him in the same county, or simultaneously demands trial upon more than one charge pending against him in the same county, he shall be tried, or adjudged guilty after waiver of trial, upon at least one such charge before expiration relative to any of such pending charges of the period prescribed by subsections (a) and (b) of this Section. Such person shall be tried upon all of the remaining charges thus pending within 160 days from the date on which judgment relative to the first charge thus prosecuted is rendered ***; if either such period of 160 days expires without the commencement of trial of, or adjudication of guilt after waiver of trial of, any of such remaining charges thus pending, such charge or charges shall be dismissed and barred for want of prosecution unless delay is occasioned by the defendant ***.” (Ill. Rev. Stat. 1989, ch. 38, par. 103-5(e).)

Subsection (a) of the statute provides that every person in custody shall be tried within 120 days from the date of being taken into custody. (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(a).) Subsection (b) provides that every person on bail or recognizance shall be tried within 160 days from the date he or she demands trial. Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(b).

This appeal is brought by the People of the State of Illinois (hereinafter the State) from an order of the circuit court of St. Clair County, dated January 22, 1992, dismissing a charge of first-degree murder against the defendant, Leamon R. Cavitt, Jr., for violation of his right to a speedy trial. The State argues that, pursuant to subparagraph (e) of the speedy trial statute, it had additional time in which to try defendant because he was in simultaneous custody on the murder charge and an unrelated drug charge or, alternatively, he had made simultaneous demands for trial on both the murder and drug charges. The State argues that it had 160 days from the date judgment was rendered on the drug charge in which to try defendant on the murder charge. Because we agree with the State, we reverse the order of the circuit court of St. Clair County dismissing with prejudice the first-degree murder charge against defendant, and we remand this cause for further proceedings thereon.

On March 16, 1990, a “Criminal Complaint” was filed in the circuit court of St. Clair County charging defendant with first-degree murder. Defendant was taken into custody on that date and was held without bond. On April 6, 1990, a bill of indictment was returned charging defendant with first-degree murder and superseding the criminal complaint previously filed. On May 7, 1990, defendant posted bond on the murder charge and was released from jail.

On June 3, 1991, defendant filed a written demand for a speedy trial on the murder charge. Subsequently, the State filed several motions for continuances because of its inability to locate a material and crucial witness. These motions were granted.

On November 6, 1991, 156 days after defendant’s demand for speedy trial, the State filed a motion to continue the case for 60 days pursuant to section 103 — 5(c) of the Code of Criminal Procedure of 1963. That section of the speedy trial statute allows the State to apply for a 60-day continuance of the speedy trial period where it has unsuccessfully exercised due diligence to obtain material evidence and there are reasonable grounds to believe that the evidence may be obtained at a later date. (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(c).) The State’s motion for continuance alleges that on May 25, 1991, defendant had been arrested for an unrelated drug offense and that he had remained in custody on that charge since that date. The motion argues that after defendant was taken into custody on the drug charge, he was simultaneously demanding trial on both the murder and the drug charges, and that having tried the defendant within 120 days of his having been taken into custody on the drug charge, the State had an additional 160 days from the date of judgment in the drug case to try defendant for murder. The motion sought a continuance of 60 days because of the State’s inability to locate a material and crucial eyewitness to the murder.

On November 7, 1991, defendant moved for dismissal of the murder charge for the reason that the State had denied him his right to a speedy trial. On that same date, the State’s motion for a continuance of 60 days was granted to allow the State additional time to locate the material witness.

On January 22, 1992, defendant filed a motion to dismiss the murder charge for violation of his right to a speedy trial. The motion argues that defendant has never been in simultaneous custody upon more than one charge in that he has been free on bond on the murder charge. The motion notes that at no time had the State sought to place defendant in simultaneous custody on the murder and drug charges by moving to revoke defendant’s bond on the murder charge.

On January 22, 1992, a hearing was held on defendant’s motion to dismiss. The State indicated that it had been unable to locate a material witness. The State argued that upon being placed in custody on the drug charge, defendant was demanding a speedy trial simultaneously with his demand for speedy trial on the murder charge. Defendant had been tried on the drug charge within 120 days of having been taken into custody and had been sentenced on that charge on November 25, 1991. Thus, the State had 160 days from November 25, 1991, to try defendant on the murder charge.

Defendant pointed out that he had never demanded a speedy trial on the drug charge and that, in fact, defendant had repeatedly sought continuances of that trial. Thus, defendant argued, there was no simultaneous demand for a speedy trial. The State responded that as long as defendant is in custody he is implicitly demanding trial. The court acknowledged that defendant had not demanded trial on the drug charge and had in fact wished to have the murder charge tried first. Defendant also argued that the State could have placed defendant in simultaneous custody by moving to revoke his bond on the murder charge, but the State had failed to do so. The court granted defendant’s motion to dismiss. The State filed its notice of appeal on February 14,1992.

Before addressing the State’s argument that defendant was in simultaneous custody or, alternatively, that he made simultaneous demands for speedy trial on the murder and drug charges, there is a preliminary matter which we must address. Defendant argues that this court is without jurisdiction to hear the State’s appeal because the State failed to file a motion asking the trial court to reconsider its decision. Defendant relies on People v. Macke (1992), 224 Ill. App. 3d 815, 587 N.E.2d 1113, in which this court held that defendant’s failure to file a motion to reduce his sentence as required by section 5— 8 — 1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(c)) precludes defendant’s appeal of his sentence. Defendant argues that because the State in the instant case did not file a motion to have the trial court reconsider its decision, the State did not comply with the dictates of Macke, and this court is without jurisdiction to hear the State’s appeal.

We find no merit in the defendant’s argument. We point out that the “dictates of Macke” are simply that a defendant comply with a statute which requires the filing in the trial court of a motion to reduce sentence prior to defendant appealing that sentence. Macke simply requires compliance with the statute. In any event, Macke cannot be read to require the State to file a motion to reconsider prior to appealing an order of the trial court dismissing a criminal charge for violation of the speedy trial statute, nor does defendant direct us to any statute or case law which requires the filing of such a motion prior to appeal. Finally, we note that in those cases in which a defendant is required to file what we will call a post-judgment motion in the trial court prior to appeal, that requirement is set by statute. We are aware of no statute requiring the filing of such a motion by the State prior to appeal, and we are not prepared to establish such a requirement in this case.

We turn now to the substance of the State’s appeal. Because it was the argument raised before the trial court, we will address first the State’s argument that there were two simultaneous demands for speedy trial here in that, pursuant to section 103 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 103— 5(a)), a demand for speedy trial was automatically made for defendant upon his being taken into and held in custody on the drug charge. Defendant was held in custody on the drug charge, and the State argues that a demand for speedy trial on this charge was made automatically for defendant by virtue of section 103 — 5(a). Defendant was released on bond on the murder charge but made a formal written demand for speedy trial on that charge pursuant to section 103 — 5(b) of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(b).) Thus, the State argues, there were simultaneous demands for speedy trial upon the two charges and, pursuant to section 103 — 5(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(e)), the State had an extended time period in which to bring defendant to trial on the second charge prosecuted.

Pursuant to section 103 — 5(a), a defendant in custody is not statutorily required to make a demand for speedy trial. (People v. Thomas (1986), 149 Ill. App. 3d 1, 7, 500 N.E.2d 652, 656.) The 120-day speedy trial period applies and begins to run automatically. (People v. Cornwell (1973), 9 Ill. App. 3d 799, 800, 293 N.E.2d 139, 140.) The accused in custody has no duty to demand trial; instead, the State has the duty to bring the defendant to trial within the statutory period. (People v. Grant (1982), 104 Ill. App. 3d 183, 188, 432 N.E.2d 1129, 1132.) Thus, a demand for speedy trial is made automatically on behalf of the defendant by virtue of section 103 — 5(a). Indeed, in People v. Byrn (1971), 3 Ill. App. 3d 362, 363, 274 N.E.2d 186, 187, this court held that a demand for speedy trial by a defendant in custody is “superfluous” because under section 103 — 5(a) there is no duty to demand trial. In that case we stated:

“[Defendant's demand made while he was in custody was superfluous to start the 120 day period provided for speedy trial by section 103 — 5(a). It becomes operative as soon as one charged is taken into custody and remains in effect throughout the period a defendant is in custody. Section 103 — 5(b) does not become operative unless a demand for trial is made by a ‘person on bail’ and upon such demand being made, a defendant is entitled to be tried within 160 days from the time of the demand made by such ‘person on bail.’ ” (Byrn, 3 Ill. App. 3d at 364, 274 N.E.2d at 188.)

Thus, we conclude that a demand for speedy trial is automatically made for a defendant who is in custody by virtue of section 103 — 5(a), unlike a defendant who is released on bail or recognizance and must make a formal demand for speedy trial.

In People v. Garrett (1990), 136 Ill. 2d 318, 555 N.E.2d 353, our supreme court pointed out that the 120-day speedy trial period established in section 103 — 5(a) begins to run automatically when the accused is taken into custody, and no demand for trial is necessary. The supreme court held:

“The evident purpose of [the requirement of a formal demand in subsection (b)] is to notify the prosecution of the out-of-custody defendant’s interest in obtaining an expeditious resolution of the charges pending against him. For those in custody, however, such an interest is assumed by the statute. Thus, the speedy-trial period specified by section 103 — 5(a), applicable to persons in custody, begins to run automatically, and no demand for trial is required under that provision. In contrast, the speedy-trial period specified by section 103 — 5(b), available to those released on bail or recognizance, does not begin running until a demand for trial is made.” Garrett, 136 Ill. 2d at 329, 555 N.E.2d at 358.

We conclude that this makes clear that a demand for speedy trial by a defendant held in custody is “assumed by the statute” as it is made automatically for the defendant by virtue of section 103 — 5(a). Accordingly, we find that there were in the instant case simultaneous demands for speedy trial on the murder and drug charges and that the State had an additional 160 days from the date judgment was rendered on the drug charge in which to try defendant on the murder charge.

We also conclude that our holding squares with the legislative intent behind section 103 — 5(e), which is “to preserve a defendant’s right to a speedy trial and at the same time to mitigate the State’s burden of preparing more than one charge for trial against a single incarcerated defendant.” People v. Wilson (1974), 19 Ill. App. 3d 466, 468, 311 N.E.2d 759, 761.

Defendant argues that our construction of the statute is not necessary because the State may, by revoking a defendant’s bond on one charge when he is in custody on another, ensure that the defendant is in simultaneous custody on more than one charge, satisfying the requirements of subparagraph (e) of the speedy trial statute. We find the defendant's proposed solution unsatisfactory. The State does not have the power to revoke a bond on its own. The State may only petition the court to revoke the defendant’s bond, and in the case where that petition is denied, the State is left in the same position of having to prepare two separate cases against the same defendant simultaneously. We will not ignore the reality of the difficulty faced by a prosecutor who must prepare more than one case for trial against a single defendant who, by being held in custody on one charge and having filed a demand for speedy trial on another charge for which he is released on bond, seeks to force the prosecutor to prepare both those cases within a very short time. It is our opinion that subparagraph (e) of the speedy trial statute was designed to mitigate this heavy burden on the prosecutor.

The State also argues in the alternative that defendant was in simultaneous custody on the two charges within the meaning of section 103 — 5(e). In light of our disposition of this cause in favor of the State and because this argument was not raised before the trial court, we decline to discuss this alternative argument of the State.

In conclusion, we find that pursuant to subparagraph (e) of the speedy trial statute (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(e)), the State had 160 days from November 25, 1991, the date judgment was rendered on the drug charge, in which to try defendant on the murder charge. The trial court erred in dismissing the murder indictment on January 22, 1992, for violation of defendant’s right to a speedy trial.

For the forgoing reasons, the judgment of the circuit court of St. Clair County dismissing with prejudice the charge of first-degree murder against defendant is reversed, and this cause is remanded for further proceedings.

Reversed and remanded.

CHAPMAN, P.J., concurs.

JUSTICE RARICK,

dissenting:

I dissent. In my view, defendant did not make simultaneous demands for trial, and the trial court correctly granted defendant’s motion to dismiss on the basis that the speedy trial term had run. The majority’s conclusion that a demand for speedy trial is automatically made by section 103 — 5(a) is premised on the fact that, under section 103 — 5(a), a defendant is not required to make a demand for speedy trial in order to initiate the running of the 120-day speedy trial term. This conclusion, in my view, does not logically flow from the premise.

The majority expresses concern for the difficulty faced by a prosecutor who must prepare more than one case for trial against a defendant who, by being held in custody on one charge and having filed a demand for speedy trial on another charge for which he is released on bond, seeks to force the prosecutor to prepare both cases within a short time. It is clear to me that there is a statutory solution to this situation. The prosecutor can simply move to revoke the defendant’s bond, a procedure which the prosecution inexplicably overlooked in this case. One of the statutory conditions of defendant’s bond was that he not violate any criminal statute of any jurisdiction. (Ill. Rev. Stat. 1991, ch. 38, par. 110 — 10(a)(4).) His arrest on the new unrelated drug charge was clearly a violation of this condition, and the prosecution was free to petition the court for revocation of defendant’s bail. Defendant was charged with unlawful possession with intent to deliver a controlled substance, 6.7 grams of crack cocaine (Ill. Rev. Stat. 1989, ch. 561/2, par. 1401(c)(2)), a Class 2 felony. Under the provisions of section 110 — 6(f) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 110 — 6(f)), the trial court was required to revoke defendant’s bail. A revocation would have brought the case clearly within the simultaneous-custody provision of section 103 — 5(e), thus avoiding the situation of having the prosecutor simultaneously preparing two separate cases for trial. The State concedes that the facts of this case do not fall squarely within the language of section 103 — 5(e). Consequently, I believe the majority’s strained construction and unnecessary expansion of section 103— 5(e) is unwarranted when a statutory remedy already exists.

I also believe the majority opinion violates the often-stated rule that the speedy trial statute is to be liberally construed so as to give effect to the constitutional right to a speedy trial. (See People v. Brown (1982), 92 Ill. 2d 248, 259, 442 N.E.2d 136, 140.) In the instant case defendant was initially charged with first-degree murder on March 16, 1990, and released on bail on May 9, 1990. Over defendant’s objections, the case was continued upon motion of the State five times. Defendant was arrested on the unrelated drug charge on May 25, 1991, and, being unable to post bail on that charge, remained in custody. On November 8, 1991, the trial court again granted the State’s motion for another 60-day continuance, alleging that after the exercise of due diligence the State was unable to find a material witness. On January 22, 1992, some 20 months after the initial murder charge was filed, defendant filed his motion to dismiss alleging violation of his speedy trial rights. Given this sequence of events, I believe the majority’s interpretation of section 103 — 5(e) also conflicts with well-established principle that a criminal statute is to be strictly construed in favor of the accused, and nothing is to be taken by intendment or implication against the accused beyond the obvious or literal meaning of the statute. People v. Fosdick (1967), 36 Ill. 2d 524, 224 N.E.2d 242; see also People v. Arnhold (1987), 115 Ill. 2d 379, 383, 504 N.E.2d 100, 101-02.