text:
    JUDITH PALMER McCLELLAND, Petitioner-Appellant, v. DONALD K. McCLELLAND, Respondent-Appellee.
    First District (1st Division)
    No. 1—90—0489
    Opinion filed June 8, 1992.

      Craig B. Hammond, of Chicago, for appellant.
    Mel Sloan, of Chicago, for appellee.
   JUSTICE MANNING

delivered the opinion of the court:

Petitioner, Judith Palmer McClelland (hereafter Judith), appeals from an adverse order granting the petition of respondent, Donald K. McClelland (hereafter Donald), changing sole physical custody of their son, Marc, to him. The issues raised on appeal are:

(1) Whether the trial court’s custody modification order entered pursuant to section 610 of the Illinois Marriage and Dissolution of Marriage Act (hereafter Act) (Ill. Rev. Stat. 1987, ch. 40, par. 610) was proper;
(2) Whether the trial court’s evidentiary rulings and other complained-of conduct of the trial judge deprived Judith of a fair trial; and
(3) Whether the trial court properly apportioned the fees for the guardian ad litem for Marc pursuant to the statutory requirements of sections 506 and 508 of the Act. Ill. Rev. Stat. 1987, ch. 40, pars. 506, 508.

Background

Judith and Donald were married on August 26, 1977, and their only child, Marc, was born on September 22, 1981. The marriage was dissolved on March 7, 1986, and pursuant to the marital settlement agreement incorporated therein, the parties agreed to legal joint custody of Marc, with Judith having physical custody and Donald having liberal visitation rights.

On April 29, 1986, Judith filed an emergency petition for modification of custody and visitation and for other relief, alleging that Marc had been sexually abused by his father. Donald retained legal counsel, who immediately filed a response to Judith’s petition and an emergency petition on Donald’s behalf for an order of visitation. Counsel also advised Donald to contact Dr. Nahman Greenberg about conducting an examination of Marc. Meanwhile, Judith placed Marc in the Mt. Sinai Pediatric Ecology Unit for a five-day sexual abuse evaluation. However, that same day, when Donald learned about Marc’s hospitalization, he contacted his attorney and Dr. Greenberg and arranged to have Marc discharged on May 6, 1986, prior to the completion of the medical evaluation.

On May 9, 1986, Judith appeared in court on an emergency motion requesting Marc’s readmittance to Mt. Sinai to complete the evaluation, and without prejudice to Donald’s rights to a hearing, the court temporarily terminated his visitation rights. At the suggestion of counsel, the trial court also ordered the parties to contact Dr. Greenberg regarding an in-patient evaluation of Marc.

Dr. Greenberg was appointed pursuant to section 604 of the Act to conduct an independent evaluation of Marc relative to sexual abuse. He conducted a mental examination and in his report of September 30, 1986, finding no evidence of sexual abuse, thereby recommended that Marc have access to both parties. Dr. Greenberg commenced treating Marc as a private patient sometime during the late summer or the fall of 1986.

On July 15, 1986, Judge Aaron Jaffe granted Judith’s motion appointing Dr. Elva Poznanski, chief of child psychiatry at Rush-Presbyterian Hospital, to do a mental evaluation of Marc. In her report, Dr. Poznanski concluded the child had been abused by his father. Also, on July 15, 1986, the trial court appointed David Stein as attorney for Marc.

In the interim, discovery was conducted and several pleadings were filed, which included petitions by Donald for visitation and a petition seeking the selection of a therapist for Marc. The trial court ordered therapy for Marc in July 1986 and appointed Dr. Robert Bussell as his therapist.

Sometime in July 1987 Judith reported to Dr. Bussell and Marc’s treating physician, Dr. Alan Ravitz, that Marc had become suicidal. As a consequence, Marc was hospitalized at Chicago Lake Shore Hospital from July 1987 through April 1988.

Dr. Ravitz diagnosed Marc as having post-traumatic stress disorders of an uncertain origin. He was unable to determine if Marc had been sexually abused but found that Marc was fearful of his father for unspecified reasons, that Marc exhibited very strange behavior during hospitalization, and that Marc definitely had dissociative tendencies.

Judith’s April 29, 1986, petition to terminate joint custody and restrict visitation rights finally was set to proceed to trial on May 9, 1988. However, on that date, the matter was continued. An agreed order was presented to the court on June 17, 1988. The parties agreed, in part: (1) to terminate the joint custody provision; (2) that Judith was granted sole custody; and (3) that Marc was to be allowed visitation, supervised or unsupervised, as determined by Dr. Ravitz; and (4) that Marc would enter treatment with psychologist Perry Meyers.

Thereafter, Donald sought to modify the agreed order by filing a petition on October 13, 1988, to establish visitation and supplemental and amended petitions in 1989 for modification of restricted visitation and transfer of custody. In preparation for the modification proceeding, Donald retained Dr. Ner Littner as an expert pursuant to Supreme Court Rule 215(a) (134 Ill. 2d R. 215(a)). Dr. Littner, who was allowed to conduct mental examinations of Judith and Marc, filed an affidavit in support of Donald’s petition for modification, stating that Judith suffered from paranoid schizophrenia and delusion. He further averred that Judith’s psychotic disturbance was a direct cause of Marc’s psychiatric hospitalization at Lake Shore Hospital.

The hearing on modification of custody commenced on October 12, 1989. In the following weeks, after hearing from several doctors, hospitals, agencies, the parties themselves, and conducting two in camera interviews of Marc, the trial court proceeded to award custody to Donald. Thereafter, on January 19, 1990, the trial court entered its “corrected order” which consisted of a 40-page opinion of summary of facts, findings of fact, and conclusions. On January 23, 1990, Judith’s motion for reconsideration was heard and denied. David Stein, the guardian ad litem who represented Marc, filed a petition for attorney fees, which was heard on March 12, 1990. The trial court ordered Judith to pay two-thirds of $17,422 in fees and Donald the remaining one-third.

Judith contends that modification of custody by the trial court is against the manifest weight of the evidence and that Donald failed to meet the “endangerment” requirement of section 610(a). We disagree.

Section 610 in its entirety provides:

“Unless by stipulation of the parties, no motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously his physical, mental, moral or emotional health.
(b) The court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of the entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian, or in the case of a joint custody arrangement that a change has occurred in the circumstances of the child or either or both parties having custody, and that modification is necessary to serve the best interest of the child. In the case of joint custody, if the parties agree to a termination of a joint custody arrangement, the court shall so terminate the joint custody and make any modification which is in the child’s best interest. The court shall state in its decision specific findings of fact in support of its modification or termination of joint custody if either parent opposes the modification or termination.” Ill. Rev. Stat. 1989, ch. 40, par. 610.

As previously stated, commencing in October 1988 through the early part of 1989, Donald filed several petitions and supplemental petitions to modify the June 17, 1988, custody order. Following discovery and court-ordered examinations of the parties involved, the hearing on Donald’s petition for modification began in October 1989. Since Donald filed the petition for modification less than two years after the date of the entry of the prior custody judgment (see Ill. Rev. Stat. 1989, ch. 40, par. 610(a)), and the hearing was held prior to the expiration of the two-year period (see In re Custody of Dykhuis (1985), 131 Ill. App. 3d 371, 373, 475 N.E.2d 1107), he was required to meet the “endangerment” section of subsection (a). Additionally, the standards of subsection (b) must be met. Ill. Rev. Stat. 1989, ch. 40, par. 610(b); In re Custody of Carter (1985), 137 Ill. App. 3d 439, 484 N.E.2d 1175.

After reviewing section 610 and the applicable decisional law, we agree with Judith that the burden of proof was upon Donald. The trial court could only modify the June 17, 1988, custody judgment if it found that Donald by clear and convincing evidence established that there is reason to believe that Marc’s “present environment may endanger seriously his physical, mental, moral or emotional health” (Ill. Rev. Stat. 1989, ch. 40, par. 610(a)) and further established that “facts *** have arisen since [entry of] the prior judgment or *** were unknown to the court at the time of [the] entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian *** and that the modification is necessary to serve the best interest of the child” (Ill. Rev. Stat. 1989, ch. 40, par. 610(b)). Having reviewed the record, we find that Donald sustained his burden of proof and that the trial court properly modified the prior custody order under the applicable statutory guidelines.

The following testimony and evidence was presented during the hearing. Judith, then 36 years old and a self-employed psychiatric social worker, testified that after reading a book on sexual abuse, by the fall of 1987, she was convinced that her son Marc was being ritualistically abused by a cult and sexually abused by Donald. She also suspected that her mother once was in the cult and that the baby-sitter, realtor, dentist, a neighbor and his wife, and members of the hospital staff where she was hospitalized in October of 1988 were cult members. She believed that Donald was a member of the cult, that he murdered people or caused them to be murdered and that he went to rituals and drank the blood of children. Judith also stated that conduct relating to Donald’s abuse of Marc occurred as early as October 1985; however, she acknowledged that this conduct occurred prior to the divorce and her agreement to joint custody.

In her own professional practice, Judith commenced treating dissociative disorders in January 1987 and believed that Donald and Marc both had a dissociative disorder. She stated that Marc did well in school although he “switched” personalities, got out of control, became unmanageable, bit, kicked and pushed, and in five separate incidents, rubbed feces on the bathroom walls and toilet. She also related that Marc engaged in erotic or sexualized behavior toward her and tried to touch and pinch her breasts and that Marc said “Daddy kisses my penis and I kissed his penis” in an effort to get her to touch his (Marc’s) penis. Marc cried whenever he had to go visit Donald and pleaded with her to stay home. Marc also told her that he wanted to kill himself and when Judith told Dr. Bussell of Marc’s suicidal incidents, he referred her to Dr. Ravitz. Dr. Ravitz then hospitalized Marc at Lake Shore Hospital.

Judith further stated that Dr. Myers, who was appointed by the court to treat Marc, was not qualified and that his treatment as such was dangerous for Marc. She also believed Dr. Greenberg was unprofessional and that his approach was dangerous and, for that reason, she sought out and selected Dr. Poznanski to do a second evaluation. At first, Judith denied having threatened to ruin Donald, but acknowledged having made such threats on a telephone tape when the tape was played in court. Judith indicated that she was currently being treated by Dr. Jean Goodwin, a psychiatrist in Milwaukee, and had been taking a drug called Tegretol since early 1988. She had been hospitalized twice at Rush-Presbyterian Hospital by Dr. Bennett Braun in late 1988 and her final diagnosis was major depressive disorder with mood incongruent psychotic features.

Judith also testified that she had contacted the FBI, had been in contact with Jean Goodman, an authority on sex abuse, and Gloria “Stiemen [sic]” of NOW, and that she would go to the press and appeal to the media. It was also discerned that prior to each evaluation of Marc by an expert, Judith presented him or her a detailed written report explaining the grounds for her allegations of sexual abuse. She also admitted giving Marc prescription drugs on several occasions and was unsure who prescribed them. She believed that she had been sexually abused by her father as a small girl.

Donald received his B.A. from Midland Lutheran College in 1969 and was a minister at Ebeneezer Lutheran Church from 1973 to 1979. At the time of the trial, he was 42 yeas of age, had a doctorate in clinical psychology and was engaged in private practice. Donald stated that after Marc was born, both parents shared in the parenting. He reflected that he and Judith took turns bathing Marc, dressing him and taking him to preschool or the baby-sitter. Until his visitation was cut off, he enjoyed an excellent relationship with Marc; they went fishing, to crafts and played on the swings.

When the couple began experiencing marital difficulties, Donald commenced to abuse alcohol; however, after the couple separated in May 1985, Donald stopped drinking. He received the petition to terminate visitation in April 1986 and shortly thereafter, his visitation rights were almost completely cut off. He saw Marc on one occasion in Dr. Greenberg’s office in August 1986 but did not see him again until his once weekly visits when Marc was hospitalized at Lake Shore Hospital. No visitation arrangements were made when Marc was released from the hospital in March 1988 and Donald did not see his son again until September 1989 when visits in the office of Dr. Meyers began in compliance with the court’s order of therapy for Marc. With respect to the allegations of sexual abuse, Donald revealed that Marc had three rectal examinations and that an investigator from the Department of Children and Family Services (DCFS) had made two reports and two findings.

Donald testified that the agreed order of June 17, 1988, allowed Dr. Ravitz to decide whether Marc’s visits with his father were to be supervised or not. Donald stated that he only agreed to the order so that he could see Marc. He felt that he had no other alternative but to sign the order because his attorney told him that it was the only way Donald would see his child. He did not feel that his signing the order was the final resolution of the matter.

Donald claimed during the hearing that at the time he signed the order, he didn’t know about Judith’s hospitalizations and no one had seen her records. Judith, convinced that Marc had been sexually abused by his father and subjected to ritual abuse, was herself hospitalized at Rush-Presbyterian for five days at the beginning of October 1987 and again from October 22, 1987, to December 30, 1987. As previously stated, Dr. Ravitz released Marc from the hospital in April 1988. He released Marc to Judith upon the condition that he review Judith’s mental condition with the doctors at Rush-Presbyterian and, based upon this consultation and on his own observations, found her to be delusional. Dr. Ravitz also recommended increased supervised visitation between Donald and Marc. Thus, pursuant to the agreed order and Dr. Ravitz’s instructions, Donald was able to see Marc again. Almost three years had passed since he had unsupervised visitation with Marc.

Donald further testified that he now believed it would be better if Marc was with him because Judith was mentally ill and her delusions were destroying Marc’s personality. Donald stated that if given custody of Marc, he planned to live in Palatine, Illinois, keep Marc in the same school and continue Marc’s therapy with Dr. Myers. With respect to Marc’s repeated evaluations and hospitalizations, Donald responded that he initially believed them to be more harmful to the child and had Marc released from Mt. Sinai and disagreed with the stay at Lake Shore. However, after reconsideration, Donald stated that he now believed that hospitalization at Lake Shore had some advantages because it kept Marc away from Judith and allowed Donald to have supervised visitation one day a week.

Dr. Greenberg, who had 30 years’ experience in the field of sexual abuse, testified that he was appointed by the court to conduct an examination of Marc soon after Judith filed her petition to terminate Donald’s visitation rights. His report of September 30, 1986, was admitted into evidence. Specifically, in that report, Dr. Greenberg concluded that although it was difficult to determine if a young boy in the range of four years old had been molested, in the absence of hard medical evidence, there was no evidence of sexual abuse. Judith had no information to support her contention, Judith suffered from a fixed idea, and it was unnecessary to hospitalize Marc, except that it validated Judith’s contentions. Dr. Greenberg stated that both parents made accusations about the other. Judith accused Donald of engaging in a variety of activities including kissing the son’s penis. Donald related that both parents bathed together with Marc and that each parent had bathed with Marc individually. He stated that Marc had been exposed to all kinds of stimulation by both parents.

After the evaluation, Dr. Greenberg offered both parents his help in resolving the issue. He thereafter met with Donald for seven or eight sessions, but he was not Donald’s therapist and Donald was not his patient. Although Dr. Greenberg’s report was complete the year prior to Marc’s hospitalization, three years later, he was still of the belief that there was nothing so severe as to warrant Marc’s hospitalization. Dr. Greenberg made tapes of Marc and himself, Marc and Donald, and Marc and Judith. The tapes were played in court and explained by the doctor. The doctor stated that Marc appeared normal and relaxed and showed no fear. He saw a “clinical quality” type of relationship between Marc and Judith and that Marc wanted to play longer with his father. Dr. Greenberg further testified that Judith wanted him to validate her accusations against Donald; that the absence of contact with Donald had a long-term adverse effect on Marc; and that Marc was not suicidal and should not be diagnosed as having a dissociative disorder.

Child psychiatrist Dr. Ravitz was called as an expert and testified that he hospitalized Marc in Lake Shore Hospital based on Judith’s statements that Marc' was suicidal although Dr. Bussell, who was treating Marc prior to the hospitalization, had never indicated that the child was suicidal or sexually abused. Originally, Dr. Ravitz believed that Donald had sexually abused Marc; however, he later concluded that he was unable to determine if sexual abuse occurred. He stated that Marc’s language that Donald “abused me sexually, physically, emotionally and in every was possible” was not four-year-old language, but was adult language and thought. He diagnosed Marc as having a post-traumatic stress disorder, but made no determination of the source. He also believed that Judith was the center of her own delusions and that her psychosis could be progressive. Donald was at the center of Judith’s delusional system and if she had been sexually abused as a child, she might see sexual abuse everywhere. Dr. Ravitz admitted that he never evaluated Judith. Dr. Ravitz did not believe that Marc had a multiple personality disorder, as Judith had said, but believed that such a belief on Judith’s part would affect her parenting.

He further testified that a child should see his father as being good as a necessary part of normal development. Lack of contact places a child at risk and may manifest itself at a later stage. Marc also stated to him that all of the things he had said to the doctor were not true. At a meeting between the attorneys, Dr. Ravitz suggested supervised visitation between Mare and Donald for one year because their relationship had been destroyed and Marc was originally fearful of his father.

Next, Dr. Elva Poznanski testified on behalf of Judith. She stated that she had no formal training in sex abuse but had helped develop training in sex abuse. Marc was referred to her by Dr. Sacks in July, August, or September 1986 and she saw him 12 times and indicated that she used leading questions, but not in all sessions. She spoke to Judith, who gave her typewritten notes. She used play therapy and anatomically correct dolls in Marc’s evaluation and concluded that Marc was disturbed by his parents’ divorce, that he could not face calling a “penis” by name, and that he was openly seductive. She sent Marc to Dr. Anderson for testing on a personality profile. She did not recall if Marc had a medical examination and did not request one herself. Dr. Poznanski opined at the conclusion of the evaluation that Marc had been sexually abused and that Dr. Anderson also found the child to be possibly sexually abused. However, at the time of the trial, Dr. Pozanski was a little less certain of her original opinion about sex abuse. She now stated that she failed to clinically evaluate the parents and it would have been helpful to have them tested.

Dr. Perry Myers was the director of child and adolescent psychology at the University of Illinois and treated Marc after his discharge from Chicago Lake Shore Hospital. His initial contact was with Judith, who suggested that he contact other persons about cults. He stated that he was trained to make a diagnosis of dissociative disorder and never saw any indication that Marc suffered from such condition. He had weekly sessions with Marc and arranged one hour weekly visits between Marc and Donald, in his presence. At first, there was a wariness between Marc and Donald; however, as time passed, Marc appeared more at ease with Donald. Marc had some problems but was attempting to set some boundaries. The problems could have a long-term effect on Marc.

Dr. Myers further stated that Marc faced two realities and was uncertain about things that could have happened. Contact with numerous professionals had an effect on Marc’s uncertainty. Dr. Myers also believed that normalization of a relationship outside of his office would insure to Marc’s benefit.

Dr. Leonard Elkun was Donald’s therapist from June 1986 through November 1987 and over the course of the therapy, he interviewed Donald in 130 sessions. He did not believe that Donald had abused his son and thought that Donald was sensitive and sympathetic to Marc. Donald’s alcohol abuse was reactive and associated with the stress of a deteriorating marriage. Donald’s problems were in response to being separated from Marc. On cross-examination when questioned about sex abuse, Dr. Elkun talked about incest by a parent versus some third party and was evasive about impulsive versus compulsive behavior. He diagnosed Donald as having anxiety neurosis; one who struggles with undue anxiety symptoms, cannot sleep, and has other difficulties and diminution in the ability to work. He admitted that he was not an expert in sex abuse.

Dr. Bennett Braun, a psychiatrist, was the director of dissociative disorders at Rush-Presbyterian Hospital and Judith’s treating physician. He hospitalized her twice and his initial diagnosis was acute paranoid reaction. Upon the first discharge, his diagnosis was adjustment disorder with anxious mood and he treated Judith for anxiety and not depression. However, he changed his diagnosis and on the second hospitalization, found Judith had a major depressive disorder with psychosis. Without therapy, her prognosis was poor. Dr. Leavitt, his psychologist, tested Judith, but was unable to support Dr. Braun’s diagnosis and found no depression. Judith was preoccupied with the cult. Dr. Bran’s final diagnosis was major depression with mood incongruent psychotic features and that Judith was delusional. Specifically, he determined that Judith had an encapsulated delusion centering around the belief that Donald was a cult member and had involved Marc in cult activities. Upon discharge, Dr. Braun prescribed medication for Judith and referred her for ongoing therapy.

Dr. Ner Littner, a psychiatrist and Supreme Court Rule 215 expert (see 134 Ill. 2d R. 215), evaluated Judith, Donald and Marc and had psychological tests conducted on Donald and Judith to corroborate his own findings. He concluded that the main difference between Judith and Donald was that Judith was severely mentally ill, that Marc was central to her delusional system and that she was concerned about his being harmed by the cult. So much of Judith’s illness focused around Marc that there was no physical connection between the two and thus the damage done to Marc by his mother’s illness outweighed the separation trauma he would experience in being separated from her. He believed that Marc’s hospitalization was a sign of how harmed he was by being with Judith and that there was no evidence that Judith was capable of restoring Marc’s relationship with Donald. Dr. Litter reached his conclusions by reviewing various records: psychiatric interviews, available records, psychological tests of everyone except Marc and in talking to Marc’s therapist. Judith failed to make available to him hospital records or tests taken during that time.

Following the close of the evidence, the trial judge conducted a second in camera interview of Marc. The court had conducted an earlier interview; however, the first in camera interview of Marc is not a part of the record on appeal, although it is referred to in Donald’s brief and presumably was taken into consideration by the court. During the second interview, Marc told the judge that his father had pushed his (Marc’s) face into the pillow and started peeing in his ear. Marc told of another incident where Donald videotaped Marc and another child dancing in the nude. He also told the judge of an incident where Donald shot a number of rabbits and threatened to do the same to Marc and Judith.

Based on the reports, evidence and testimony of record, the trial court stated that it was “confident that the court would not have signed, nor would the child’s attorney and McClelland’s attorney have agreed to the order (June 17, 1988) if the present evidence had been available.” We agree. Although, Judith has represented to this court on appeal that the trial court was aware of her condition and prior hospitalization based upon the representations of counsel and the court’s own information gathered from the pretrial proceedings, we find the record filed on appeal to be devoid of such evidence. To the contrary, based on the record before us, the facts known to the court at the time it entered the order of June 17, 1988, do not encompass the evidence presented during the custody modification hearing about Judith’s illnesses; her satanic beliefs; the effect her delusions have had upon Marc, his prior hospitalizations, or his future welfare. Furthermore, there was little, if any, substantiating evidence regarding Judith’s allegations of sexual abuse against Donald. To the contrary, the expert testimony revealed that these allegations were the result of Judith’s illness, rather than any factual occurrences.

The trial court ordered, inter alia, that the agreed order of June 17, 1988, was vacated; that Judith’s petition to restrict visitation was denied; that it was in the best interest of the child that Donald’s petition for custody be allowed and that Donald was to take physical custody of Marc immediately; that Judith was to have visitation with Marc every Wednesday and alternate weekends; that Judith was to engage in a program of psychotherapy within 30 days and continue until further order of the court; and that all parties were to engage in family counseling until further order of the court.

Accordingly, we affirm the trial court’s finding that it is in the best interest of Marc that Donald’s petition for custody be allowed, that physical custody be granted to Donald and visitation to Judith.

Moreover, we find no merit in Judith’s contention that the trial court erred in vacating the parties’ perfectly valid agreed order of June 17, 1988, where Donald had made no motion to vacate nor had requested such relief in his petition before the court. Inherent in Donald’s petition to change custody from Judith to himself is the request that the earlier court order be vacated or modified. Furthermore, the testimony given by Donald during the hearing supports the trial court's conclusion that the June 1988 order was “ill-advised” and that Donald “did not fully comprehend the order and it’s significance.”

Judith next argues that the trial court committed reversible evidentiary errors and evidenced bias against her. Although some of the remarks made by the trial judge were inappropriate and better left unsaid, such as the remarks concerning cults, the cumulative effect of such remarks neither deprived Judith of a fair trial nor constituted reversible error. In addition, many of the complained-of statements of the trial court were made in response to the evidence presented and are not indicative of bias, or personal beliefs or actual prejudice on the part of the court so as to prevent it from making a fair determination of the case. See In re Marriage of Tiscko/Stewart (1987), 161 Ill. App. 3d 302, 514 N.E.2d 523.

Further, it is well settled that erroneous rulings and improper comments only result in denial of a fair trial if they affect the outcome of the trial. (Babock v. Chesapeake & Ohio Ry. Co. (1979), 83 Ill. App. 3d 919, 404 N.E.2d 265.) Here, the trial court did allow into evidence an audio tape from an answering machine, in which Judith made threatening remarks to Donald. However, no objections were made to the admission of the tape, and even assuming error in its admission, such does not amount to reversible error where the tape was merely corroborative of Donald’s testimony that Judith had threatened him and that she was motivated by vindictiveness. See In re Marriage of Padiak (1981), 101 Ill. App. 3d 306, 427 N.E.2d 1372; Riley v. Johnson (1981), 98 Ill. App. 3d 688, 424 N.E.2d 842.

Accordingly, we find no reversible error committed by the trial court and decline to remand the matter.

Finally, Judith contends that the trial court improperly apportioned attorney fees. As stated, pursuant to the statutory authority of section 506 of the Act, the court appointed David Stein as guardian ad litem and attorney for Marc.

Section 506 provides:

“The court may appoint an attorney to represent the interests of a minor or dependent child with respect to his support, custody and visitation. The court may also appoint an attorney as the guardian-ad-litem for the child. The court shall enter an order for costs, fees and disbursements in favor of the child’s attorney and guardian-ad-litem, as the case may be. The order shall be made against either or both parents, or against the child’s separate estate.” (Ill. Rev. Stat. 1989, ch. 40, par. 506.)

Thus, pursuant to section 506 and section 508(a)(5), which governs the court’s authority to order payment of attorney’s fees (Ill. Rev. Stat. 1989, ch. 40, par. 508(aX5)), the court below directed Judith to pay $11,615 and Donald the remaining $5,807 to Marc’s attorney.

The standard of review in determining the propriety of the trial court’s attorney fee award is abuse of discretion. When considering whether the trial court has abused its discretion, the reviewing court will look to certain factors under section 506. In the case of In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 421 N.E.2d 1308, this court held that an order for fees and costs in favor of the children’s attorney is to be made against either or both parents or the child’s separate estate and that the amount to be assessed is necessarily determined by the facts and circumstances of each case. When determining the proper allocation, the court is to consider the total circumstances of the mother as well as the father (In re Marriage of Soraparu (1986), 147 Ill. App. 3d 857, 498 N.E.2d 565), which includes consideration of the parents’ financial resources and relative ability to pay. In re Marriage of Kennedy (1981), 94 Ill. App. 3d 537, 418 N.E.2d 947.

Further, our court has found that the factors which affect the amount of attorney fee awards under section 508(a) also apply to fee awards under section 506. (See In re Marriage of Soraparu, 147 Ill. App. 3d 857.) The section 508 factors to consider in a given case include skill and standing of the attorney, the nature of the case, the novelty and difficulty of questions in issue, the amount and importance of the subject matter, the degree of responsibility, the usual and customary charges, and the benefits resulting to the client. In re Marriage of Armstrong (1980), 107 Ill. App. 3d 217, 437 N.E.2d 761.

In the present case, the parties waived a formal hearing on the question of fees to be paid to the minor’s attorney. Thus, no questions are in issue concerning the amount of the fee award. Based upon the representations of the attorneys, Judith’s income was approximately $16,000, 50% less than the previous year, as a result of the impact of the litigation. However, the amount did not include the $6,000 received in child support from Donald. Donald’s income was reported at $25,000 to $30,000, less the $6,000 for an approximate net of $19,000 to $24,000. Thus, the parties’ relative ability to pay the fees was about equal.

We also reviewed the pleadings involved and the nature of the responses filed by Marc’s attorney in his behalf. Based on that review, we cannot conclude that no reasonable person would take the view taken by the trial court. (In re Marriage of DeBat (1984), 127 Ill. App. 3d 463, 468 N.E.2d 134.) Judith caused a substantial portion of the post-decree custody litigation. She attempted to restrict and nullify Donald’s visitations. (See In re Marriage of Lewis (1989), 188 Ill. App. 3d 142, 544 N.E.2d 24.) And even more egregious, Judith brought charges of sexual abuse and Satanic cult practice against Donald without presenting evidence to substantiate the charges. As a result of Judith’s actions and pleadings, Donald had to incur significant attorney fees and costs to defend himself and Marc’s attorney likewise expended a great amount of time in defending Marc’s welfare in these actions.

Accordingly, based upon the record as a whole, we find no abuse of discretion on the part of the trial court in apportioning the attorney fee award.

For the foregoing reasons, the decision of the trial court is affirmed.

Affirmed.

BUCKLEY, P.J., and O’CONNOR, J., concur.

      The two DCFS reports are referred to by the trial judge in his written opinion and order and are referenced at other times in the record; however, the reports themselves are not a part of the record on appeal.


source: Caselaw Access Project

author: JUSTICE CERDA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM DeBUSK et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 1—87—3699, 1—88—0312 cons.
    Opinion filed June 10, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Barbara McClure, Assistant Public Defender, of counsel), for appellant William DeBusk.
    Alan D. Goldberg and David Goldwin, both of State Appellate Defender’s Office, of Chicago, for appellant Edward Shriner.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Joseph Brent, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

After a joint jury trial, codefendants, William DeBusk and Edward Shriner, were convicted of home invasion (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 11) and armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 2). DeBusk was sentenced to 25 years’ imprisonment, and Shriner was sentenced as an habitual offender to a term of natural life in prison. On appeal, Shriner asserts that (1) the trial court erred in not granting defense counsel’s request that another attorney be appointed to represent him due to a conflict of interest; (2) he was denied his sixth amendment right to self-representation when the trial court refused to allow him to proceed pro se during the hearing on the pretrial motions; (3) he was denied a fair trial due to numerous implications of prior criminal conduct; (4) his conviction must be reversed because the jury instructions for armed robbery omitted a mental state, which is an essential element of the crime; (5) he was improperly sentenced to natural life imprisonment because the Federal bank robbery statute used as a predicate offense requires proof of only an attempted armed robbery and is therefore not equivalent to an Illinois Class X offense; (6) he was denied his right to counsel at the habitual offender hearing because there was no valid waiver of counsel; (7) the finding of habitual criminality against him must be reversed because the State failed to prove that the second predicate offense was committed after his first conviction; (8) the habitual criminal statute is unconstitutional because it violates the United States Constitution’s due process clause, eighth amendment, and separation of powers doctrine; and (9) the habitual criminal statute is unconstitutional because it violates the Illinois and United States Constitutions’ prohibitions of ex post facto laws and double jeopardy.

Codefendant DeBusk asserts on appeal that he was denied a fair trial because (1) the jury instructions for armed robbery omitted a mental state, which is an essential element of the crime; (2) there were numerous implications of prior criminal conduct; (3) codefendant Shriner used prejudicial pro se tactics; and (4) codefendant Shriner’s persistent questions about the presence of a third intruder equaled an admission of his own and DeBusk’s guilt. DeBusk also asserts that his trial was so prejudiced that it constituted plain error when codefendant Shriner’s questions on cross-examination elicited details of the emotional trauma suffered by the victims. DeBusk later adopted Shriner’s argument that the trial court erred in not granting defense counsel’s request that another attorney be appointed to represent Shriner due to a conflict of interest.

Defendants were arrested on April 2, 1986, and jointly indicted for home invasion, two counts of armed robbery, residential burglary, two counts of armed violence, and unlawful restraint. Additionally, DeBusk was charged with unlawful use of a weapon. The State nolprossed all the charges except home invasion and two counts of armed robbery before the trial began. After trial, a jury found both defendants guilty of home invasion and armed robbery. We affirm in part and reverse in part.

Prior to trial, defendants were jointly represented by assistant public defender Vincent Lufrano. On December 8, 1986, Lufrano informed the trial court that Shriner wanted to move for appointment of counsel other than the public defender. The trial court did not allow the motion to be made at that time. On January 22, 1987, and again on June 15, 1987, several months before the November 1987 trial, Lufrano requested that the public defender conflicts division be appointed to represent Shriner. Lufrano alleged that there was a conflict between defendants’ defenses, that Shriner was exercising undue influence over DeBusk, that Shriner had made pretrial statements implicating DeBusk, and that there was evidence that was admissible against Shriner but not against DeBusk. Because both Shriner and DeBusk stated that they wanted the same attorney, the trial judge refused to appoint the conflicts division. Lufrano then made an oral motion requesting leave to withdraw, but the trial judge did not rule on the motion. Without elaboration, Lufrano represented to the trial judge that there were inconsistent and conflicting defenses for DeBusk.

On June 23, 1987, Lufrano again requested that the public defender conflicts division be assigned to Shriner because of his statement implicating DeBusk. After both Shriner and DeBusk objected to a severance, the State represented that Shriner’s statement would not be used against DeBusk. Lufrano then stated that the sole basis of his motion concerned evidence that was admissible against Shriner that was not admissible against DeBusk.

At that time, Shriner requested a new attorney because of a conflict between him and Lufrano. When Lufrano represented that he would file a written motion for severance based on Shriner’s influence over DeBusk, DeBusk stated that he understood his waiver and that he did not want a severance. Consequently, the trial court found that there were no substantial grounds presented for a new attorney.

Lufrano filed a motion for severance on July 7, 1987, alleging that Shriner exerted extreme and harmful influence over DeBusk, that Shriner had made statements implicating DeBusk, that there was evidence admissible against Shriner but not admissible against DeBusk, and that DeBusk could not raise the defense of compulsion. DeBusk stated that he did not want a severance and did not feel that his relationship with Shriner would deprive him of a fair trial. The trial judge denied the motion. Lufrano again requested that the conflicts division be appointed and the trial judge denied the request.

In a letter prior to September 21, 1987, Shriner informed the trial court that he intended to discharge his attorney. During his September 21, 1987, court appearance, Shriner requested to proceed pro se. After the court’s admonishments, Shriner persisted in his request, but wanted co-counsel to assist him. Shriner then told the trial judge that he preferred an attorney other than the public defender. The trial court stated that his request was too late and ruled that Lufrano would represent both Shriner and DeBusk at the pretrial motions to quash arrest, suppress evidence, and suppress statements. The trial judge indicated that he would rule on Shriner’s pro se motion after the pretrial motions had been determined. Lufrano again made an oral motion for severance, which the trial judge denied because neither Shriner nor DeBusk wanted it.

Shriner filed a pro se motion to quash arrest and suppress evidence. He requested that the trial court proceed on his motion instead of Lufrano’s motion. After examining both motions, the trial court concluded that they were identical and then proceeded on Lufrano’s motion.

At Lufrano’s motion to quash arrest, Detective Michael R. Prunty of the Du Page County sheriff’s department testified that on April 1, 1986, he and two other officers spoke to Dr. Salvador Berakus and his wife, Darlene, about a recent home invasion. The Berakuses gave Prunty a description of the two men as well as the license plate number and description of their getaway car. A check of the license plate’s registration indicated that the car was registered to Terrence Maloney. When Prunty went to Maloney’s residence, Maloney gave him both defendants’ names and address, stating that he loaned the car to them.

Pranty and two other detectives set up a surveillance of defendants’ residence at 4 a.m. on April 2, 1986. An assistant State’s Attorney approved arrest warrants for Shriner and DeBusk, and a Du Page County circuit court judge signed the warrants at 1:20 p.m.

Police officer Roland Libby testified that he received a phone message at 7:30 a.m. on April 2, 1986, which included a description of Shriner, DeBusk, and their car. At approximately 1:30 p.m. on April 2, 1986, Officer Tom Gurgle informed Libby that he was following defendants’ car. At the intersection of 135th Street and Western Avenue, defendants were stopped by seven police cars. Libby testified that when he approached the stopped car, he saw three people in it, Shriner, DeBusk, and James Wedlaki. As Libby approached the car, he saw a blue athletic bag through the back hatchback window. The bag was open, and Libby saw the butt of a handgun protruding from the bag. After placing the three men under arrest, Libby seized the bag and recovered two guns.

Finding probable cause for the warrantless arrest, the trial court denied the motion to quash arrest. He also denied the motion to suppress evidence, finding that the search of the bag was lawful because it followed a lawful arrest. The subsequent motion to suppress Shriner’s statements was granted. The trial court concluded that Shriner’s statement was obtained after he requested an attorney.

Shriner then refiled his pro se motion to quash arrest and suppress evidence. Lufrano indicated that Shriner would stipulate to the evidence already heard by the court. Shriner’s motion was similar to the one filed by Lufrano, except that it sought to suppress any evidence taken following Shriner’s signing a consent to search form. The trial court denied Shriner’s pro se motion to quash arrest and suppress evidence incident to that arrest, ruling that it already determined the same issues in Lufrano’s motion. Because the State represented that it did not intend to introduce any evidence seized as a result of the consent to search form, the trial court concluded that it did not need to determine whether the seizure of the evidence was constitutional.

The trial court then admonished Shriner of his right to self-representation. Shriner requested that the court appoint a different assistant public defender to represent him. After the trial court denied his motion, Shriner elected to proceed pro se. Finding that Shriner was competent to represent himself, the trial court allowed Shriner to proceed pro se at trial, with assistant public defender Adrienne McFall as stand-by counsel.

Immediately prior to trial, Lufrano made an oral motion in limine to bar any reference to a DuPage County case that was pending against Shriner and DeBusk. A discussion followed where the assistant State’s Attorney indicated that he did not intend to introduce evidence of the Du Page arrest or any other offenses. The trial court did not make a formal ruling on the motion.

At trial, Dwayne Rolando testified that at 7:45 p.m. on February 21, 1986, he was home with his wife, Celaine, and their granddaughter when he heard a loud knock on the side door of his Orland Park home. Leaving his wife and granddaughter in the study, he went to investigate. He saw an older man, whom he identified as Shriner, looking through the window, asking to buy gasoline. A mid-sized Ford was parked in the driveway.

When Rolando unlocked the interior door, Shriner opened the storm door. A younger man, whom Rolando identified as DeBusk, entered and pointed a shotgun in his face. Rolando testified that he backed up into the hallway and Shriner pointed a chrome-plated handgun at him. All the lights were on in that area of the house, and he could see both men. Nothing covered the men’s faces and both wore gloves. At that time, Mrs. Rolando and their granddaughter entered the area. Shriner told them that no one would be hurt if they cooperated. Shriner ordered the Rolandos to face the wall. Initially, Rolando testified that four to six minutes passed from the time Shriner and DeBusk entered the house until he faced the wall, during which time he had a clear view of both men. Later, Rolando testified that it was only about two minutes.

Rolando further stated that Shriner demanded the Rolandos’ wallets while DeBusk ran through the house. When DeBusk returned, Rolando told Shriner that there was $400 to $500 in an envelope on his desk in the study. DeBusk left and soon returned with the cash. Rolando testified that Shriner told them that times were hard and he “had to do this for a living.”

Rolando further testified that the two men ordered them into the basement. As he turned away from the wall, Rolando saw both men’s faces. Rolando estimated that they were in the kitchen for a total of about 15 minutes. Holding their weapons, Shriner and DeBusk took the Rolandos into the basement’s back area, where one of the intruders tied up Mr. Rolando. Mrs. Rolando and their granddaughter were not tied up. As Shriner was leaving the basement, he told the Rolandos not to come upstairs for 20 to 25 minutes and he would kill them if they did. Defendants turned off the light and went upstairs. Throughout the entire incident, Shriner had done all the talking.

From the basement window, Rolando saw DeBusk go in and out of the house to the Ford while carrying garbage bags. The driveway area was lit by the house and garage lights. After about 20 minutes, Rolando heard the car start. Shriner came to the basement door and told the Rolandos not to come up for 20 minutes. One or two minutes later, Rolando saw Shriner sneak out past the basement window. Rolando then ran to the barn to call the police. In response to Shriner’s cross-examination, Rolando stated that no one was physically hurt, but there was mental anguish and suffering by all three victims, especially his granddaughter. In response to questions by Shriner, Rolando testified that there were only two intruders.

Missing after the incident were several hundred dollars in cash, a phone, two typewriters, a tape recorder, two attache cases, two cameras, a VCR remote control, a Sony television, a Magnavox VCR, three video tapes, a mink coat, silver and gold certificates, two pair of men’s gloves, a corporate seal, miscellaneous jewelry, and rare coins. The Rolandos eventually recovered from police the VCR, the remote control, the television, the phone, the video tapes, the corporate seal, and the mink coat.

Shortly after defendants’ arrests, Rolando testified, he viewed two lineups at a police station in Wheaton. At those lineups, Rolando positively identified Shriner and DeBusk. He also identified both defendants in court.

Lufrano then made a motion for a mistrial based on the testimony that the lineup was in Wheaton. The trial court denied the motion because there was no testimony indicating that any other charges were pending against either defendant.

Celaine Rolando’s testimony was substantially the same as her husband’s. She stated that the lighting was good and she could see both Shriner and DeBusk very well. She viewed them for four to five minutes before facing the wall.

Mrs. Rolando further testified that she viewed two lineups. On March 27, 1986, she viewed a lineup in Orland, where neither Shriner nor DeBusk was present. She did not identify anyone in that lineup. On April 3, 1986, she viewed a lineup in DuPage County. At that time, she identified both Shriner and DeBusk. She also identified them in court. Further, Mrs. Rolando testified that she identified her mink coat at the police station.

During cross-examination, Mrs. Rolando testified that she was emotionally injured although not physically injured. Mrs. Rolando also stated that there were only two intruders, not three, as Shriner suggested.

Lufrano made a second motion for a mistrial due to the Rolandos’ mention of the Du Page County lineups. The trial court denied both motions because there was no reference to any other arrests or crimes for which either defendant was charged.

Blue Island police officer Roland Libby testified that he arrested Shriner, DeBusk, and James Wedlaki in a blue Ford Escort at 1:30 p.m. on April 2, 1986. He also stated that he found a chrome handgun in a blue athletic bag in the rear of the car.

James Wedlaki testified that about a month prior to his arrest with defendants on April 2, 1986, Shriner gave him a mink coat with a name embroidered inside. Wedlaki took the embroidery out of the coat and hung the coat in his mother’s closet.

Donald Smith testified that Shriner rented a room from him. Detective James Jordan testified that on April 2, 1986, Smith signed a consent to search his residence. When Smith indicated Shriner’s room, Jordan sealed the bedroom without entering it. From the front room, he recovered a Sony television, whose serial number matched the serial number in the police report. He also recovered a Magnavox VCR, phone, and three VHS tapes from the front room. He later returned those items to the Rolandos.

Later that evening, Jordan spoke with Wedlaki in the Blue Island police station. After Wedlaki spoke to Shriner, Wedlaki took Jordan to his mother’s house, where he gave Jordan a mink coat. Jordan was able to read Celaine Rolando’s name on the inside of the coat where the stitching had been ripped out. During cross-examination, Jordan referred to the lineup that was held at another police facility.

The State then rested. Lufrano made a motion for a directed finding on behalf of DeBusk, and the trial court denied the motion. After a jury instruction conference, both Shriner and DeBusk rested. Closing arguments were heard and the jury was instructed. Following deliberations, the jury found both Shriner and DeBusk guilty of home invasion and two counts of armed robbery.

On November 30, 1987, the trial judge admonished Shriner as to his right to be represented by an attorney in the post-trial proceedings, and Shriner requested an attorney other than a public defender. The trial court stated that he would have to show a substantial reason why counsel other than the public defender should be appointed. Shriner also filed pro se motions for a continuance of the sentencing hearing and extension for filing post-trial motions. The trial court granted those motions.

On December 7, 1987, Shriner stated that he wanted to represent himself after the trial judge asked him if he was representing himself or wanted the assistant public defender as his attorney. After arguments, the trial court denied Shriner’s post-trial motion. The State then filed a verified motion to sentence Shriner as an habitual criminal. (Ill. Rev. Stat. 1987, ch. 38, par. 33B(1).) The State reminded the trial court that Shriner was to be admonished regarding his right to counsel at an habitual criminal hearing. The trial court, however, did not make such an admonishment. Shriner did not admit the prior convictions, and the trial court granted the State’s motion for a continuance for the sentencing hearing.

On January 14, 1988, Shriner filed pro se motions for decree of nisi and a new trial, which were denied. The sentencing hearings were then held. The trial court sentenced Shriner to a term of natural life imprisonment and DeBusk to 25 years’ imprisonment.

On appeal, defendant Shriner asserts that the trial court erred in denying his attorney’s motion that another attorney be appointed to represent him, thus depriving him of his sixth amendment right to conflict-free counsel. The State argues that Shriner waived this issue since he failed to raise it in his post-trial motion. Although Shriner did not include this issue in his pro se motion for a new trial, he asserted the issue in the trial court when his defense counsel moved four times for appointment of the public defender’s conflicts division prior to the trial and when Shriner specifically requested counsel other than the public defender three times.

When the defendant fails to file a post-trial motion, the reviewing court will consider constitutional issues that have properly been raised at trial. (People v. Enoch (1988), 122 Ill. 2d 176, 190.) Moreover, if a claimed error potentially threatens a substantial right of the defendant, it can be considered under the plain error doctrine. (People v. Moore (1984), 128 Ill. App. 3d 505, 515.) Consequently, the issue is properly reviewed by this court.

Although requiring an attorney to represent codefendants with conflicting defenses denies the defendants their sixth amendment right to conflict-free counsel, it is not per se violative. (Holloway v. Arkansas (1978), 435 U.S. 475, 481-82, 55 L. Ed. 2d 426, 432-33, 98 S. Ct. 1173, 1177-78; People v. Spreitzer (1988), 123 Ill. 2d 1, 17.) Recently, the Illinois Supreme Court in Spreitzer explained that there are two different analyses depending on whether the trial court was ever apprised of the possible or potential conflict. (123 Ill. 2d at 17-18.) If counsel raises the potential conflict to the trial court’s attention at an early stage, the trial court has a duty to either appoint separate counsel or to take adequate steps to ascertain whether the risk of conflict was too remote to warrant separate counsel. (Holloway, 435 U.S. at 484, 55 L. Ed. 2d at 434, 98 S. Ct. at 1178, Spreitzer, 123 Ill. 2d at 18.) Reversal of a conviction under this rule does not require a showing that the attorney’s actual performance was in any way affected by the purported conflict. (Spreitzer, 123 Ill. 2d at 18.) Prejudice is presumed regardless of whether it was independently shown. Holloway, 435 U.S. at 489, 55 L. Ed. 2d at 437, 98 S. Ct. at 1181.

In Holloway, the United States Supreme Court reversed the convictions because the trial court did not take adequate steps in response to counsel’s repeated motions, objections, and representations of a probable conflict of interest, where no dilatory practices were present to justify that failure. (Holloway, 435 U.S. at 487, 55 L. Ed. 2d at 436, 98 S. Ct. at 1180.) Instead of taking adequate steps to ascertain whether the risk of a probable conflict was too great, the trial court cut off any opportunity of defense counsel to do more than make conclusory representations and did not even ask counsel to disclose the basis for his representations as to a conflict of interests. Holloway, 435 U.S. at 484 n.7, 55 L. Ed. 2d at 434 n.7, 98 S. Ct. at 1178 n.7.

Similarly, Shriner contends that the trial court refused to give any credence to his counsel’s assertions that the possibility of conflicting defenses demonstrated a conflict of interest. Furthermore, Shriner argues that he would have suffered from the joint representation because he did not have his attorney’s loyalty and would be represented by an attorney who was hostile to his interests.

We agree. Lufrano raised the issue of a potential conflict of interest at least four times several months before the trial. Although the trial court superficially inquired into Lufrano’s reasons, no hearing was held concerning any possible conflicts. Based on objections by both Shriner and DeBusk, the trial court found that no actual conflict existed. That superficial inquiry was not adequate to determine whether there was a possible risk of a conflict. In addition, Shriner timely requested another attorney because of a conflict with Lufrano. Furthermore, asking DeBusk whether his relationship with Shriner would interfere with his getting a fair trial was futile given Lufrano’s assertion that Shriner was exerting extreme and harmful influence over DeBusk.

The trial court’s failure to appoint separate counsel or to take adequate steps to ascertain whether the risk was too remote to warrant separate counsel was reversible error. (Holloway, 435 U.S. at 484, 55 L. Ed. 2d at 434, 98 S. Ct. at 1178-79.) The Holloway court stated:

“[A]n attorney’s request for the appointment of separate counsel, based on his representations as an officer of the court regarding a conflict of interests, should be granted. *** An ‘attorney representing two defendants in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.’ [Citation.] *** [D]efense attorneys have the obligation, upon discovering a conflict of interests, to advise the court at once of the problem.” 435 U.S. at 485-86, 55 L. Ed. 2d at 435, 98 S. Ct. at 1179.

Shriner’s convictions are reversed and a new trial is ordered. Based on this decision, it is not necessary to comment on Shriner’s argument that he was denied his sixth amendment right to self-representation when the trial court refused to allow him to proceed pro se during the hearing on the pretrial motions.

After the oral arguments, this court allowed DeBusk to adopt Shriner’s argument that the trial court erred in denying Assistant Public Defender Lufrano’s motion that another attorney be appointed to represent Shriner. In that argument, Shriner states that Lufrano made it clear that he favored DeBusk over Shriner, thus prejudicing Shriner. During the trial, after the pretrial motions were decided, Lufrano represented only DeBusk. There was nothing stopping Lufrano from zealously defending DeBusk at the trial. He could have raised the compulsion defense or any other defense.

There are no allegations of a conflict between Lufrano and DeBusk or of ineffective assistance of counsel. Although it would have been preferable for the trial court to have appointed another attorney to represent Shriner when the potential conflict was first raised, the failure to do so was not error as it related to DeBusk. Shriner was forced to proceed pro se, but DeBusk was represented by his own conflict-free attorney.

Shriner and DeBusk also assert that the jury instructions for armed robbery were improper because they omitted a mental state, which is an essential element of the crime. Defendants contend that, even though the armed robbery statute does not expressly include a mental state, section 4 — 3(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 4 — 3(a)) provides that a mental state is required. Because armed robbery is not an absolute liability offense, defendants argue, the mental state cannot be implied or presumed.

The issue was waived since there was no objection at trial nor alternative instructions tendered. During the jury instruction conference, the State tendered, and the court accepted, Illinois Pattern Jury Instructions, Criminal, Nos. 14.03 and 14.04 (2d ed. 1981) (hereinafter IPI Criminal 2d). Failure to object or tender an alternative jury instruction at trial results in a waiver of that issue on appeal. People v. Reddick (1988), 123 Ill. 2d 184, 198.

Even if the alleged error had not been waived, the jury instructions were not improper. This court has previously ruled that IPI Criminal 2d Nos. 14.03 and 14.04 correctly instruct the jury on the essential elements of robbery under Illinois law. See People v. Coleman (1990), 203 Ill. App. 3d 83, 97-98; People v. Johnson (1990), 199 Ill. App. 3d 577, 584-85; People v. Childrous (1990), 196 Ill. App. 3d 38, 54-55; People v. Avant (1989), 178 Ill. App. 3d 139, 146-49; People v. Talley (1988), 177 Ill. App. 3d 170; People v. Anderson (1981), 93 Ill. App. 3d 646.

Armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2) is a general intent crime. (People v. Banks (1979), 75 Ill. 2d 383, 391.) General intent exists when the prohibited result may reasonably be expected to follow from the offender’s voluntary act even without any specific intent by the offender. (Talley, 177 Ill. App. 3d at 173.) When the offense is a general intent crime and the mental state is necessarily implied by the circumstances of the crime, it is not error to omit the implied mental state from the issue instructions. Talley, 177 Ill. App. 3d at 173-74.

Defendants cite People v. Grant (1981), 101 Ill. App. 3d 43, 47, where his court ruled that the jury instructions relating to assault and criminal trespass to land were incorrect because they did not include one of the mental states included in section 4 — 3(a) of the Criminal Code of 1961. (Ill. Rev. Stat. 1979, ch. 38, par. 4 — 3(a).) Grant is distinguishable because assault and criminal trespass to land are specific intent crimes, thus making the mental state an essential element of those crimes. Talley, 177 Ill. App. 3d at 172.

Defendants’ reliance on People v. Gean (1991), 143 Ill. 2d 281 is also misplaced. They suggest that the ruling in Gean indicated that whenever a mental state is omitted from the criminal statute, but is supplied by operation of section 4 — 3, it must be proven by the State. That was not the ruling. The Illinois Supreme Court ruled that section 4 — 104(b)(1) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 4 — 104(b)(1)) was unconstitutional because sections 4 — 104(a)(1) and 4 — 104(a)(2) (Ill. Rev. Stat. 1987, ch. 95½, pars. 4 — 104(a)(1), (a)(2)) were not absolute liability offenses, making knowledge the appropriate mental element. (Gean, 143 Ill. 2d at 287-88.) Because the purpose of sections 4 — 104(a)(1) and 4— 104(a)(2) was to prevent chop shop activities, the court concluded, it was appropriate that the State prove that the defendant possessed the certificates of title and salvage certificates knowing that he did not have authority or knowing it was without complete assignment. (Gean, 143 Ill. 2d at 289.) Thus, the court ruled that those offenses were specific intent crimes, not general intent crimes, such as armed robbery.

Shriner and DeBusk then argue that they were denied a fair trial due to numerous implications of prior criminal conduct from witnesses. They contend that (1) the Rolandos’ testimony regarding two lineups, one in Wheaton, implied other criminal involvement in Du Page County; and (2) Mr. Rolando’s testimony that Shriner told him that times were hard and people like him “had to do things like this” was improper evidence of other crimes. Further, DeBusk claims that Shriner’s cross-examination of Wedlaki elicited testimony that Wedlaki gave the police items belonging to someone else, thus indicating the existence of other crimes. Those issues are waived because there were no objections made to the comments at trial and they are not plain error.

Based on the foregoing, William DeBusk’s convictions are affirmed. Edward Shriner’s convictions are reversed and remanded for a new trial.

Affirmed in part; reversed and remanded in part.

GREIMAN, P.J., and RIZZI, J., concur.


author: JUSTICE TULLY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CALVIN OLLINS, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—0955
    Opinion filed June 24, 1992, withdrawn.
    New opinion filed October 28, 1992.

      Thomas J. Royce, of Chicago (Ronald D. Menaker and Kent R. Carlson, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Inge Fryklund and Kenneth T. McCurry, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE TULLY

delivered the opinion of the court:

This is an appeal by Calvin Ollins, who was found guilty by a jury of murder, aggravated criminal sexual assault, and aggravated kidnapping. He was sentenced to natural life for murder with concurrent sentences of 30 years for sexual assault and 15 years for aggravated kidnapping. The defendant argues on appeal: (1) he did not receive a legally adequate transfer hearing pursuant to section 5 — 4(3) of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 805— 4(3)); (2) the trial court did not properly consider the factors of (a) probable cause, (b) exigent circumstances, and (c) consent when it denied his motion to quash his arrest and suppress the evidence; and (3) the trial court erred when it denied his motion to suppress statements.

Ollins, a 14-year-old, was taken into custody on January 28, 1987, by the Chicago police and charged with the murder and sexual assault of Lori Roscetti. Ms. Roscetti had been a medical student at Rush Medical College. On January 29, 1987, a petition for adjudication of wardship stating the murder and sexual offense charges was filed in juvenile court. The State moved for the defendant to be tried as an adult under the Illinois criminal code. The State duly requested a transfer hearing pursuant to section 5 — 4(3) of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 805 — 4(3)). A transfer hearing was conducted on March 27, 1987, granting the State’s motion to try the defendant as an adult under the criminal code.

The defendant was indicted by a grand jury along with three other men.' The defendant’s counsel made motions to quash the arrest and suppress the statements. Those motions were denied.

The defendant was then tried by a jury and found guilty of murder, aggravated criminal sexual assault, and aggravated kidnapping. On March 10, 1988, the defendant was sentenced to imprisonment for his natural life without parole for the offense of murder. He was further sentenced to 30 years for the offense of sexual assault and 15 years for aggravated kidnapping. The sexual assault and the kidnapping charge sentences were to run concurrently with the murder sentence.

The defendant filed a notice of appeal from the orders of the juvenile court and the criminal court, the sentences, and the denial of certain post-trial motions.

On October 18, 1986, Lori Roscetti and a fellow medical student were studying for mid-term examinations on campus. At approximately 1 a.m., they left the campus in Roscetti’s beige, four-door Subaru. Roscetti dropped off the other student at his apartment and began to drive to her apartment. Both apartments were located in the vicinity of the medical campus.

On October 18, 1986, a police officer of the Chicago and North Western railroad, on a routine patrol at approximately 4 a.m., discovered a beige four-door Subaru on railroad property near 16th and Loomis. A female body was lying on the ground near the car. No keys to the car were found. At approximately 5:15 a.m., Detective James Capesius of the Chicago police arrived on the scene. He testified later that he saw a partially dressed female in a blue jogging suit lying on the ground. The woman appeared to have been severely beaten. The cause of death was later established by the coroner’s office as multiple blunt trauma injury.

Pursuant to intensive police investigation of the crime, Ollins became a suspect. He was subsequently arrested on January 28, 1987, in the early morning hours at his home. After the defendant was read his Miranda rights, the police searched the defendant’s belongings. At some point during this search the police allege that the defendant made a statement to the effect that “he didn’t have any keys.” The defendant later denied making this statement. At the time of the arrest, a person in the defendant’s apartment signed a consent to search form for the police.

After police custodial processing, the defendant was interviewed by Detective Mercurio and Officer McHugh of the Chicago police department and Assistant State’s Attorney Susan Sussman. The defendant was told there was a possibility he would be prosecuted as an adult. The defendant told Sussman that he had been treated fairly by the police officers. During the interview with Sussman, the defendant said he wished to make a statement. The defendant then made the statement, the statement was read to him, and corrections were made by the defendant and initialed as necessary.

The State made a motion to transfer the defendant from the juvenile court to allow prosecution under the criminal laws which was granted on March 27, 1987. The defendant then moved to (1) quash his arrest, (2) suppress the evidence gathered pursuant to the arrest, and (3) suppress statements. The trial court began hearing evidence on these matters on January 13, 1988. The trial court first considered the evidence as to probable cause for the arrest of the defendant. The court found sufficient evidence to warrant probable cause. The court also found that exigent circumstances were present incident to the arrest of the defendant. Therefore, the defendant’s motion to quash the arrest and to suppress was denied.

The defendant filed a pretrial motion to suppress statements in which he alleged that he was not given his Miranda rights. The defendant said he made certain statements because the police promised him he could go home if he cooperated. Therefore, the statements were not voluntarily given. The trial court found that the State had sustained its burden of proof to establish the voluntariness of the statements made by the defendant.

The first issue the defendant raises on review questions the legal adequacy of the transfer hearing which waived the jurisdiction of the juvenile court. The defendant maintains that the trial judge abused his discretion in interpreting the criteria defined by section 5 — 4 of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 805— 4(3)(a)).

The trial court is bound to consider the criteria enunciated in the Juvenile Court Act. (People v. Clark (1987), 119 Ill. 2d 1, 12, 518 N.E.2d 138.) The Juvenile Court Act lists six specific factors the trial court must consider in making its evaluation whether or not to transfer a juvenile to the criminal court’s jurisdiction. (Ill. Rev. Stat. 1987, ch. 37, par. 805 — 4(3Xa).) Those factors are:

“In making its determination on a motion to permit prosecution under the criminal laws, the court shall consider among other matters: (1) whether there is sufficient evidence upon which a grand jury may be expected to return an indictment; (2) whether there is evidence that the alleged offense was committed in an aggressive and premeditated manner; (3) the age of the minor; (4) the previous history of the minor; (5) whether there are facilities particularly available to the Juvenile Court for the treatment and rehabilitation of the minor; and (6) whether the best interest of the minor and the security of the public may require that the minor continue in custody or under supervision for a period extending beyond his minority.” Ill. Rev. Stat. 1987, ch. 37, par. 805 — 4(3Xa).

The discretion of the trial court in evaluating an individual for transfer from the juvenile court system to the criminal court system does not mandate the trial judge to enunciate individual considerations of the statutory factors. Rather, the trial court must weigh and balance carefully all the statutory and nonstatutory factors presented. In Clark (Clark, 119 Ill. 2d at 12, 518 N.E.2d at 143), the court said, it is necessary “to balance the best interests of the alleged juvenile offender, particularly as these interests relate to his or her potential rehabilitation, against society’s legitimate interest in being protected from criminal victimization perpetrated by minors.” In People v. Kraman (1981), 96 Ill. App. 3d 390, 404, 421 N.E.2d 346, the court also commented that there is no precise formula for evaluating statutory and nonstatutory criteria in making the transfer determination. People v. Green (1980), 86 Ill. App. 3d 852, 856, 408 N.E.2d 479, specifically notes: “all of the relevant statutory factors need not be resolved against the defendant in order to justify the waiver of jurisdiction.” The court in Clark (Clark, 119 Ill. 2d at 12, 518 N.E.2d at 143) said that a judicial decision based on such reasoning is a “product of sound judicial discretion which will not be disturbed on review.”

The State has the burden to present adequate evidence at the transfer hearing to support the juvenile judge’s decision to grant the motion to transfer. To sustain this burden, the State presented several witnesses as well as clinical and social investigation reports of Ollins. Chicago police detectives Capesius and Mercurio testified as to the initial crime scene investigation. The crime was described by the trial court judge as “heinous and serious.” The detectives further testified to the events surrounding the statements of codefendant Marcellius Bradford on January 28, 1987. Dr. Joann Richmond, of the office of the medical examiner of Cook County, testified to the results of the autopsy that she had performed on the victim, Lori Roscetti. The results indicated that Ms. Roscetti had died as a result of multiple severe blunt trauma to her body. Robert Meyer, of the Department of Corrections, is a probation officer who testified as to the structure and function of the juvenile division of the Department. His testimony outlined for the court the possible course of incarceration within the juvenile system as well as the procedures of transfer and subsequent incarceration within the criminal courts system should the defendant be treated as an adult.

The defense for Ollins presented Ms. Jacqueline Wallace, a juvenile probation officer, who was responsible for compiling the social history investigation of the defendant. She interviewed the defendant’s family, teachers, and school reports. At the transfer hearing, she stated that the defendant should not be transferred to the criminal courts or be incarcerated beyond his 21st birthday. She based this opinion on the fact that Ollins had made some academic progress during his placement at the Carpenter School. However, it is difficult, if not impossible, to equate this mitigating factor with the brutal and heinous nature of the crime the defendant committed.

In rendering his decision, the judge referred to the moral, emotional, and mental welfare of the minor. He then proceeded to outline his decision in light of the specific statutory factors listed in section 5 — 4(3)(a) of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 805 — 4(3)(a)). First, he felt that a grand jury would return an indictment in the case; that evidence of culpability beyond minimal involvement had been established. Second, the court felt that the evidence presented established the crime to have been committed in an extremely aggressive and premeditated manner. Third, the age of the minor was 14 years and 4 months at the time of the incident. The court noted that this would place the defendant only eight months short of an automatic transfer. Further, the Juvenile Court Act states that below age 13 an individual cannot be committed except in rare circumstances; at age 17 an individual is deemed an adult. Therefore, Ollins fell in the middle range of the two ends of incarceration scale. Fourth, Calvin Ollins had no prior history of delinquency. The court noted this was an extremely mitigating factor in reaching the decision to transfer or not. Fifth, the statute mandates that consideration be given to the type of facilities available for the treatment and rehabilitation of the minor. The court held that nothing would be foreclosed from the defendant as a consequence of a transfer decision. Finally, the court reiterated its primary goal: balancing the best interests of the minor against the security of the public.

The court reasoned that in viewing the evidence presented, both statutory and nonstatutory, the defendant required incarceration beyond the age of minority. The court stated that the facilities necessary to meet the needs of the defendant during his incarceration were available. The court emphatically stated: “[T]he court has considered all six elements of the act, and I want the record to reveal that I have considered them.”

The Illinois Supreme Court has said: “According to our interpretation of the Illinois transfer statute, the role of the appellate court is to determine whether, in evaluating the evidence in light of the statutory criteria, the juvenile judge has abused his discretion.” People v. Taylor (1979), 76 Ill. 2d 289, 300-01, 391 N.E.2d 366, citing People v. Underwood (1977), 50 Ill. App. 3d 908.

In light of the careful consideration of both statutory and non-statutory factors in reaching the decision to transfer the defendant to the criminal courts, we find no abuse of discretion by the trial court.

The defendant additionally argues that the juvenile judge committed error in transferring the defendant to the criminal courts because he did not consider the potential sentence of life imprisonment without parole. The defense relies on Clark (Clark, 119 Ill. 2d 1, 518 N.E.2d 138) to support this argument. Clark, however, is distinguishable from the situation of Ollins. In Clark, the court had only two equally extreme alternatives in deciding whether or not to transfer the juvenile to the criminal court system to be tried as an adult. Because of the nature of the defendant’s alleged crime (a juvenile was charged in the juvenile petition with the murders of two victims during the robbery of their home), the court deciding the transfer would also become the sentencing court. The transferring court was faced with the choice of either allowing the juvenile to be incarcerated only to the age of 21 under the juvenile jurisdiction or, if transferred to the criminal courts, to be tried as an adult, and the juvenile would receive a sentence of mandatory life imprisonment. Further, the court in Clark did not receive any information in compliance with the statutory dictates of the Juvenile Court Act, section 5 — 4(3)(a) in making the transfer decision. The court in Ollins’ case heard and evaluated extensive testimony before making the transfer decision.

We find the defendant’s claim that the transfer court did not consider the possibility of a mandatory life imprisonment sentence rises to the level of simple conjecture. The State cites People v. Gutierrez (1982), 105 Ill. App. 3d 1059, 433 N.E.2d 361, in support of a basic tenet of jurisprudence: the court is presumed to know the law. The defendant has not demonstrated ignorance of this tenet by the trial court. Therefore, no abuse of discretion in transferring Ollins to the criminal court system has occurred.

The second issue the defendant raises is that the trial court erred in denying Ollins’ motion to quash his warrantless arrest and suppress the evidence. The defendant alleges that no probable cause, exigent circumstances, or consent issued incident to the warrantless arrest. The State asserts that not only did probable cause exist for the warrantless arrest of Ollins, but that exigent circumstances were present. The State further maintained that the police officers were given consent to search the apartment by a person with authority on the premises.

The defendant constructs his argument on a constitutional foundation of case precedent. The ruling in Mapp v. Ohio (1961), 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, refers to the content of the fourth amendment to the United States Constitution, made applicable to the States by the fourteenth amendment to the Constitution of the United States. The fourth amendment outlines the security afforded to citizens to be free from unreasonable searches and seizures to their persons, houses, papers, and effects. The defendant cites Payton v. New York (1980), 445 U.S. 573, 589-90, 63 L. Ed. 2d 639, 653, 100 S. Ct. 1371, 1382, to reinforce his argument. Payton enunciates a basic principle of constitutional fourth amendment law: “At the very [core of the fourth amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” (445 U.S. at 589-90, 63 L. Ed. 2d at 653, 100 S. Ct. at 1382.) Ollins was arrested at home, without a warrant. Therefore, the defense argues, the arrest of Ollins was presumptively unreasonable because his fourth amendment rights were violated.

However, the defendant’s argument is deficient because it fails to consider that there are two judicially created exceptions to the fourth amendment’s prohibition against a warrantless arrest of a person in his own home. Those exceptions combine probable cause to arrest with either exigent circumstances incident to the arrest, or consent to enter the abode. People v. Abney (1980), 81 Ill. 2d 159, 407 N.E.2d 543; People v. Stamps (1982), 108 Ill. App. 3d 280, 438 N.E.2d 1282.

The “totality of the facts and circumstances,” as known to the arresting officer at the time of the arrest, is the test of whether or not probable cause was present to justify the belief of a reasonable man that an offense has been committed and that the person arrested has committed that offense. (People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147; People v. Rimmer (1985), 132 Ill. App. 3d 107, 113, 476 N.E.2d 1278.) The State argues that the dimensions of probable cause are not governed by precise technicalities, but rather by the commonsense decisions made upon viewing the totality of facts and circumstances presented to the arresting officers. (Tisler, 103 Ill. 2d at 236, 469 N.E.2d at 152.) The Court in Illinois v. Gates (1983), 462 U.S. 213, 231, 76 L. Ed. 2d 527, 544, 103 S. Ct. 2317, 2328, comments that the core concept of a “practical, nontechnical conception” is the basic premise in decisions assessing probable cause.

The State, with acknowledgment of the aforementioned constitutional principles, bases a finding of probable cause to arrest the defendant upon the statement of codefendant Marcellius Bradford. Prior to the statement of Bradford, Ollins had not been implicated in the attack on Lori Roscetti.

People v. James (1987), 118 Ill. 2d 214, 514 N.E.2d 998, established that the statement of an accomplice to a crime, implicating another, made while in police custody, may establish probable cause for the arrest of the individual so implicated if a determination of reliability can be established. The test of such reliability is an evaluation of the totality of the facts and circumstances known to the police at the time of the arrest. James, 118 Ill. 2d 214, 514 N.E.2d 998.

Three specific factors were established in James (118 Ill. 2d 214, 514 N.E.2d 998): (1) whether the accomplice’s statement made while in custody contains statements against penal interests; (2) whether there are promises of leniency or other inducements to make the statement; and (3) whether there is independent verification of substantial parts of the statement. People v. Carpenter (1981), 95 Ill. App. 3d 722, 725, 420 N.E.2d 640, held not even a “controversy [can exist] when a participant in a crime identifies his accomplices, and the informer’s identity is disclosed.” This is precisely what occurred when Bradford gave his in-custody statement to the police regarding Ollins.

Bradford admitted his involvement in the attack on Lori Roscetti. Bradford acknowledged in his written statement to the police that no promises, threats, or inducements of any kind were made in connection with his statement. Detective Mercurio testified at the hearing to determine probable cause as to the high degree of correlation between the statement of Bradford and facts already known to the police through independent investigation. These facts place Bradford’s statement within the four corners of the criteria set forth in James (118 Ill. 2d 214, 514 N.E.2d 998).

The decision of the trial court must rise to the level of being manifestly erroneous before the court of review will disturb the decision of the lower court. (People v. Bell (1981), 96 Ill. App. 3d 857, 869, 421 N.E.2d 1351.) We find the decision of the trial court cannot be said to be against the manifest weight of the evidence.

The defendant next argues that no exigent circumstances were present incident to the arrest of Ollins. Even assuming probable cause did exist, the defense argues, it could not have existed until Bradford’s statement implicating Ollins at approximately 11 p.m. Since Ollins was not arrested until 2 a.m., there was still a window of time in which the police could have gotten a warrant or attempted to have a warrant issued.

The determination of whether exigent circumstances existed or not should be guided by the “reasonableness of the officers’ ” actions in light of the facts known to them at the time they acted. (People v. Hoddenbach (1988), 169 Ill. App. 3d 499, 525 N.E.2d 888.) The court in People v. Abney (1980), 81 Ill. 2d 159, 407 N.E.2d 543, defines the following factors in determining whether or not a nonconsensual entry into a home was justifiable under the circumstances: (1) the need for prompt police action in view of the immediacy of the crime; (2) the lack of deliberate or unjustifiable delay during which a warrant could have been obtained; (3) a reasonable belief that the suspect was armed; (4) the presence of a grave offense, especially a crime of violence; (5) a clear showing of probable cause based on reasonable trustworthy information; (6) a clear identification of the defendant as the offender; (7) a strong belief that the defendant was on the premises entered; (8) a peaceable entry by the police; and (9) the likelihood that the suspect will escape if not swiftly apprehended. Each and every one of the above enumerated factors need not be present in order to justify a finding of exigent circumstances. The defendant has the burden of proving that an overall consideration of the factors would be indicative of unreasonable police action. People v. Sakalas (1980), 85 Ill. App. 3d 59, 405 N.E.2d 1121.

It is undisputed that Lori Roscetti was the victim of a heinous, senseless, and brutal attack. The police had been conducting an intensive investigation for approximately three months. Bradford had only been in custody since 9 a.m. on the day in which he made a statement implicating Ollins in the murder. However, the defendant’s argument that probable cause, if it existed at all, existed only after Bradford made his in-custody statement implicating Ollins at 11 p.m. is diffused by the holding in People v. Johnson (1984), 121 Ill. App. 3d 358, 459 N.E.2d 1000. In Johnson, the court held that the defendant may have had an incentive to flee since the police had arrested his accomplice three hours earlier. The possibility existed that the defendant, upon learning of his accomplice being apprehended, might flee. The police did not know whether or not Ollins was aware that Bradford was in custody. The police did not know whether or not Ollins would flee if he had this knowledge. The police did not know whether or not Ollins was armed and dangerous. If Ollins did find out that Bradford was in custody, the possibility existed that evidence could be destroyed.

Because the State has met the criteria of several of the factors established in Abney (81 Ill. 2d 159, 407 N.E.2d 543), we find that the defendant has failed to establish that the decision of the lower court was manifestly erroneous.

As to the issue of consent, the defendant argues that (1) there was no consent or (2) if consent was given, it was given by a person without the authority to do so. Thomas Smith signed the consent form for the arresting officers. Smith was in the apartment with the approval of the defendant’s mother, Phyllis Ollins. Mrs. 01-lins had left the apartment to go to a community center. Before she left, her instructions to Smith were to watch over her son, Calvin Ollins. Therefore, Mrs. Ollins gave Smith specific, delegated authority and control over her apartment in her absence.

The defendant has the burden of establishing that the entry by the police onto the premises was accomplished without consent. (Sakalas, 85 Ill. App. 3d at 65.) Consent may be given by one who controls the premises, not necessarily the arrestee. (People v. Walker (1988), 177 Ill. App. 3d 743, 745, 532 N.E.2d 447.) Consent need not be given by the arrestee; it may be obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. (United States v. Matlock (1974), 415 U.S. 164, 39 L. Ed. 2d 242, 94 S. Ct. 988.) Determination of the existence of consent is a factual matter to be determined by the trial court; if the issue is in conflict, the finding of the trial court will prevail unless clearly unreasonable. (People v. Taylor (1975), 31 Ill. App. 3d 576, 578, 333 N.E.2d 41.) Smith permitted the police officers to enter the apartment. Smith made no attempt to prevent the police officers from entering the apartment. In fact, Smith directed the officers to the room in which Calvin Ollins was sleeping. There can be no finding of a nonconsensual entry to the Ollins apartment in light of the facts.

The final issue the defendant raises on appeal is that the trial court erred when it denied Ollins’ motion to suppress statements. The State’s position is that the statements made by Ollins were so made with full awareness and understanding of his rights.

The test for determining the voluntariness of a statement is the “totality of the circumstances” surrounding the statement. If the evaluation of the circumstances requires the resolution of conflicts in the evidence or findings on the credibility of witnesses, the trial court has “the duty *** to resolve conflicts in evidence and determine the credibility of witnesses.” (People v. Clements (1985), 135 Ill. App. 3d 1001, 1008, 482 N.E.2d 675.) The findings of the trial court “will not be disturbed unless it is contrary to the manifest weight of the evidence.” People v. Mays (1988), 176 Ill. App. 3d 1027, 1033, 532 N.E.2d 843.

The evidence at the hearing for the defendant’s motion to suppress established that the defendant was given his rights on five separate occasions on January 28, 1987. The defendant was repeatedly asked by Sussman if he understood his rights. The defendant replied that he did understand what was being said to him.

The linchpin of the defendant’s argument is that because his intelligence was assessed as being in the educable mentally handicapped range, he was incapable of fully understanding his rights. However, at the suppression hearing, Dr. Bussell, the director of the clinical services for the juvenile court, testified to the contrary. The trial judge concurred.

In People v. Racanelli (1985), 132 Ill. App. 3d 124, 132, 476 N.E.2d 1179, the court held that the inquiry of the trial court should be based on the “characteristics of the accused and the details of the interrogation.” In People v. Henderson (1988), 175 Ill. App. 3d 483, 489, 529 N.E.2d 372, this court said: “evidence of limited intellectual capacity alone does not indicate that a defendant is incapable of waiving his constitutional rights and making a voluntary confession.”

Dr. Bussell, a psychiatrist, opined that after a careful review of evaluative reports from different agencies and a personal interview with the defendant, he felt that the defendant would be able to understand the words and phrases used to inform him of his rights. The trial judge addressed the demeanor of the defendant during the course of his testimony. The trial judge expressed surprise that in view of the concern for the defendant’s alleged mental deficiencies, the defendant testified “as well as any 14 year old could be expected to testify.” The defendant recalled with accuracy the details of his arrest, his written statement, and the subsequent correction he made to his statement.

Thus, the trial court evaluated the defendant’s statement by considering the totality of the circumstances including the mental capacity, chronological age, and emotional complexion of the defendant. Therefore, we find no abuse of discretion by the lower court on this issue.

We find an overview of the evidence reveals that the trial court properly considered the constitutional rights of the defendant relative to the police action taken in his arrest and subsequent investigation.

Affirmed.

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