author: PRESIDING JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LESTER DAVIS, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 88—2660
    Opinion filed November 8, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Elizabeth Burke and James H. Reddy, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kevin Sweeney, and Ashley Ann Romito, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

Defendant was convicted, after a bench trial, of first degree murder and armed violence. (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1(a), 33A — 2.) He appeals, contending that the second degree murder statute violates the principles of due process, equal protection, and separation of powers in the Federal and State constitutions. For the following reasons, we affirm.

Defendant was charged with first degree murder and armed violence. In a bench trial, the following testimony was presented.

Eric Johnson testified that in the morning of September 25, 1987, he was in his apartment with Tarsha Murray, which was below the apartment of the victim, Lucy Coleman. He heard a set of footsteps leaving through the front door of Coleman’s apartment and then the door closed but immediately opened again and he heard two sets of footsteps headed toward the bedroom. Coleman said, “[Pjlease don’t hurt me, *** I’ll do whatever you want.” There was a “big thump” and then Coleman screamed. Johnson left his apartment and asked a neighbor to telephone the police.

In her testimony, Tarsha Murray related an account similar to Johnson’s.

After the police and paramedics arrived, defendant and Coleman were taken to the hospital where Coleman died as a result of multiple stab wounds to the chest.

While in the hospital, after the police advised him of his Miranda rights, defendant signed a written statement which was admitted into evidence. In the statement, defendant said he and Coleman were married but living apart and he went to her apartment that morning to drop off her mail. When she told him to leave because she was leaving for work, they argued and defendant stabbed both Coleman and himself with a knife he had in his pocket. He identified a knife found at the scene as the murder weapon.

Jose Pabadillo testified that a few days before Coleman was murdered, he was talking to defendant and Tommy Holt when defendant said “if I can’t have her nobody can.”

Defendant presented three witnesses, Tommy Holt, Robert Daniel, and Verlene Smith, who testified that he had a reputation for peacefulness. Holt also testified that he did not hear defendant say “if I can’t have her nobody can.” Holt and Smith testified that defendant did not carry a knife.

Defendant testified that he went to Coleman’s apartment to drop off her mail but she told him she was in a hurry and had to leave for work. He took out a knife from his pocket and stabbed himself, and Coleman ran to the bedroom toward the telephone. Defendant pushed her down on the bed, stabbed her several times, and then stabbed himself. He testified that he did not know why he stabbed her but he did not intend to kill her.

In closing argument, defense counsel argued that the evidence supported a finding of second degree murder.

The judge found defendant guilty of first degree murder and armed violence and sentenced him to 22 years in prison. Defendant now appeals.

Opinion

The only issues defendant raises on appeal challenge the constitutionality of the second degree murder statute.

The State initially responds that defendant waived the issues because they were not raised at the trial court level; however, the supreme court has held that the constitutionality of a statute may be raised at any time, even for the first time on appeal. (People v. Bryant (1989), 128 Ill. 2d 448, 539 N.E.2d 1221.) Therefore, the issues were not waived.

On July 1, 1987, the voluntary manslaughter statute (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 2) was repealed and replaced with the second degree murder statute (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2). The offense of second degree murder has the elements of first degree murder plus one of the following mitigating factors:

“(1) At the time of the killing [defendant] is acting under a sudden and intense passion resulting from serious provocation by the individual killed or another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed; or
(2) At the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the
killing [as self defense] but his belief is unreasonable.” (Ill. Rev. Stat. 1987, eh. 38, pars. 9-2(a)(l), (a)(2).)

The second degree murder statute requires a defendant on trial for first degree murder to prove one of the mitigating factors to reduce the offense to second degree murder:

“(c) When a defendant is on trial for first degree murder and evidence of either of the mitigating factors *** has been presented, the burden of proof is on the defendant to prove either mitigating factor by a preponderance of the evidence before the defendant can be found guilty of second degree murder. However, the burden of proof remains on the State to prove beyond a reasonable doubt each of the elements of first degree murder and, when appropriately raised, the absence of circumstances at the time of the killing that would justify or exonerate the killing [as self defense].” (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(c).)

Defendant argues that paragraph (c) of the second degree murder statute violates due process, equal protection, and separation of powers.

Since the second degree murder statute was enacted, these arguments have been considered by numerous appellate courts and rejected. (E.g., People v. Newbern (1991), 219 Ill. App. 3d 333, 351-52; People v. Wright (1991), 218 Ill. App. 3d 764, 776-77; People v. Thomas (1991), 216 Ill. App. 3d 469, 576 N.E.2d 1020; People v. Doss (1991), 214 Ill. App. 3d 1051, 574 N.E.2d 806; People v. Gore (1991), 212 Ill. App. 3d 984, 571 N.E.2d 1041.) Due to the weight of authority holding that the second degree murder statute does not violate due process, equal protection, or separation of powers, a lengthy discussion of defendant’s arguments is not necessary.

Defendant first argues that requiring him to prove one of the mitigating factors to reduce the offense of first degree murder to second degree murder violates due process. Due process requires that the prosecution prove every element of an offense beyond a reasonable doubt. (In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068.) It is a denial of due process to shift the burden of proving an element of an offense to a defendant. (Mullaney v. Wilbur (1975), 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881.) However, a defendant is not denied due process when he is required to prove a mitigating factor, which is an affirmative defense rather than an element of the offense, to reduce second degree murder to manslaughter. (Patterson v. New York (1977), 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319.) Following Patterson, the second degree murder statute does not violate the due process clause of either the Federal or State constitution by requiring a defendant to prove a mitigating factor to reduce first degree murder to second degree murder. (E.g., Gore, 212 Ill. App. 3d 984, 571 N.E.2d 1041; People v. Buckner (1990), 203 Ill. App. 3d 525, 561 N.E.2d 335.) As a result, defendant’s argument that the statute violates due process must be rejected.

Defendant also argues that the statute violates equal protection because it shifts the burden of proof to defendants charged with first degree murder although defendants charged with other crimes do not bear the burden of proof. Under the equal protection clause, the State must treat similarly situated groups of persons equally but it does not require equal treatment for groups that are dissimilar. (People v. Willis (1991), 217 Ill. App. 3d 909, 577 N.E.2d 1215.) Defendants charged with first degree murder are not similarly situated with defendants charged with other offenses. (Willis, 217 Ill. App. 3d 909, 577 N.E.2d 1215.) Further, because the statute does not discriminate against a suspect class or deny a fundamental right, it must be analyzed under the rational basis test. (Wright, 218 Ill. App. 3d 764; Gore, 212 Ill. App. 3d 984, 571 N.E.2d 1041.) The State has a compelling interest in the fair, reliable, and efficient regulation of criminal activity which justifies the statute under the rational basis test. (Wright, 218 Ill. App. 3d 764; Gore, 212 Ill. App. 3d 984, 571 N.E.2d 1041.) The statute does not violate equal protection.

Lastly, defendant argues that the statute violates separation of powers because it eliminates the power of the State’s Attorney to charge defendants with second degree murder. Under the separation of powers clause, the legislative, executive, and judicial branches of the government are separate and no branch may exercise powers that belong to another branch. (Ill. Const. 1970, art. II, §1.) A party must have standing to challenge the constitutionality of a statute by showing he has sustained, or is in immediate danger of sustaining, a direct injury as a result of enforcement of the statute. (Willis, 217 Ill. App. 3d 909, 577 N.E.2d 1215.) To establish standing for an argument that the second degree murder statute usurped the power of the State’s Attorney to charge a defendant with second degree murder, there must be a showing in the record that the State was barred from charging him with second degree murder. (Willis, 217 Ill. App. 3d 909, 577 N.E.2d 1215.) Further, if standing was established, the statute does not violate separation of powers because the State’s Attorney continues to have the power to charge a defendant with second degree murder. (People v. Burks (1989), 189 Ill. App. 3d 782, 545 N.E.2d 782.) In this case, defendant does not have standing to raise this argument because the State did not attempt to charge him with second degree murder and, even if he does have standing, the statute does not usurp the power of the State’s Attorney to charge a defendant with second degree murder.

Affirmed.

GORDON and McNULTY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GORDON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ANDRE SHELBY et al., Defendants-Appellees.
    First District (5th Division)
    Nos. 1 — 88—2706, 1—88—3207 cons.
    Opinion filed November 8, 1991.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Jane E. Loeb, and William Marback, Assistant State’s Attorneys, of counsel), for the People.
    Randolph N. Stone, Public Defender, of Chicago (Hugh Stevens, Assistant Public Defender, of counsel), for appellee Michael Capíes.
    David T. Cherney, of Stein & Cherney, Ltd., of Chicago, for appellee Andre Shelby.
   JUSTICE GORDON

delivered the opinion of the court:

Defendants Andre Shelby and Michael Capíes were charged by indictment with first degree murder (Ill. Rev. Stat. 1985, ch. 38, pars. 9 — 1(a)(1), (a)(2), (a)(3)) and burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 1(a)). Prior to trial, Shelby and Capíes each filed motions to quash arrest and suppress evidence on the grounds that their arrests were illegal, and motions to suppress statements on the grounds that their statements to police were not made voluntarily. Both defendants’ motions to quash arrest and suppress evidence were sustained, while both motions to suppress statements were denied. From these orders sustaining defendants’ motions to quash arrest and suppress evidence, the State now appeals. For the reasons set forth below, we affirm the trial court’s order on Shelby’s motion and reverse its order on Capíes’ motion.

Facts

Defendants, along with Lavaitis Wilson, Levi Boykins, Gregory Johnson, Willie Broughton, Isaac Holden and Kenneth Broughton, were charged with the August 22, 1987, murder of Julio Palomo and with burglary of a truck. Defendants Shelby and Capíes were arrested in the early morning hours of August 24, 1987. On January 22, 1988, Capíes filed a motion to suppress statements he made to the police following his arrest, alleging that his statements were not made voluntarily. On February 29, 1988, Shelby filed a motion to quash arrest and suppress evidence, alleging no probable cause for his arrest, and a second motion to suppress statements on the grounds that they were not voluntarily made. In June 1988 joint hearings were held on Shelby’s two motions and Capíes’ single motion. (Capíes later filed a motion to quash his arrest and suppress evidence. That motion was considered at a separate hearing, discussed later in this opinion.) Although evidence was presented at the June hearings relating to the voluntariness of defendants’ statements, this statement of facts will focus primarily on the evidence presented pertaining to the issue of probable cause to arrest Shelby and Capíes, since it is the granting of the motions to quash arrest and suppress for lack of probable cause which are the subject of this appeal by the State.

Cozetta Fairchild, Shelby’s mother, testifying for her son, said she lived with her son at 910 W. 87th Street, a house with an enclosed front porch, a basement, first and second floors, and an attic. At approximately 3 to 4 a.m. on August 24, 1987, she was asleep in her room in the attic, when she was awakened by knocking at her front door. When she went to the door, she saw several police officers at the door to the porch. Fairchild said she opened the door but did not invite the officers in. They told her they were looking for Andre and asked if he was home, to which she replied “no.” Without her permission, the police entered the house to search for him, and she observed the officers escort her son “down from upstairs.” Shelby was handcuffed when the police led him down the stairs.

Fairchild further testified that the police told her they had seen someone in the basement, and she told them that there was not supposed to be anyone there. Several of the officers went into the basement to look for the man they claimed to have seen. Fairchild did not expressly consent to this search, nor did she expressly object. She testified that she felt she had no choice but to allow the police to search the house.

Finding no one in the basement, Fairchild then accompanied the police to the second floor, where there were four locked bedrooms. She unlocked two of the rooms, and one room was unlocked by a boarder. The police used Fairchild’s keys to unlock Andre’s room. Andre was not found in any of those rooms. Fairchild said the police then took her back down to the first floor, while several officers went to the attic, where they located Andre.

Detective George Holmes, a 16-year veteran of the Chicago police department, testified for the State. When he came on duty at 8:30 a.m. on August 22, 1987, he was assigned to the investigation of the murder earlier that day of Julio Palomo. He was told that Palomo had been beaten to death by 5 to 10 people at the corner of 59th and State Streets while trying to stop a burglary from a truck.

Holmes went to the scene of the murder shortly thereafter and was approached by John Williams. Williams told Holmes that he had seen the incident from inside a van which was parked nearby. Holmes further testified that Williams told him that one of the participants in the beating was referred to as “Big Mike” by another participant. Williams had seen “Big Mike” in the area before the murder, but had not heard his name previously. Williams described “Big Mike” as 6 feet to 6 feet 1 inch tall, weighing approximately 200 pounds.

Continuing his testimony, Holmes stated that on August 23, 1987, he had a conversation at the police station with Levi Boykins, who was previously identified by witnesses as a participant in the beating. Boykins gave Holmes names of the following additional participants: “Ali Kahn,” “Big Mike,” “Andre,” “Stinky,” “Little Gun” and “Gun.” Although Holmes said that the police attempted to get information from police department records about those whom Boykins had named, he was not asked nor did he reveal whether any such information was found.

Boykins told Holmes that “Stinky” was Lavaitas Wilson and that “Andre” was the brother of Lavaitas Wilson’s mother. According to Holmes, the police had already determined where Wilson’s mother resided. Holmes said that Boykins suggested that if “Andre” was not at Wilson’s mother’s house, they should “check on 87th Street near Vincinnes [sic] in a building that would be across from a video store and would have new sliding glass doors in the front of it.”

Detective Holmes testified that late on August 23 or early on August 24, he went to Wilson’s house but was unable to locate “Andre” or any of the other named suspects there. At approximately 4 a.m. on August 24, Holmes and three other officers proceeded to Vincennes and 87th, where they located a building, 910 W. 87th, with a new sliding glass door on the front porch. Getting no response from knocking or ringing the door bell, Holmes said he looked through an open louver in a basement window and saw a male black subject. When Holmes identified himself as police, this person disappeared from sight.

Several minutes later, after continued knocking and ringing, Cozetta Fairchild answered the door. When told that the police had seen a man in the basement, Fairchild said there were no males in the building. Holmes, however, testified that he saw a man walking down stairs from the upper floor. Fairchild then admitted that her boyfriend and a male boarder were in the house.

Holmes explained that they wanted to talk with her son Andre and asked if they could look around. According to Holmes, she consented. The police found Andre in the attic, lying on the floor halfway under the bed, with a pile of clothes around him and a child lying on top of him. He was then handcuffed and told he was under arrest.

After leaving Fairchild’s house, Shelby told the police that he would show them the house where “Big Mike” lived. Shelby directed them to 120th and Stewart, where he pointed out a house to them and identified a red Monte Carlo as “Big Mike’s” car. While the police and Shelby were standing outside looking at the Monte Carlo, a person came out of the building at 12050 Stewart, and Shelby said “That’s Big Mike.”

As they approached the person whom Shelby had identified, the police asked him if he was Mike. The suspect said nothing and turned to go back in the building. The police then went up to him and told him he was under arrest. According to Holmes, the suspect resisted, and after a struggle, he was handcuffed. The suspect was later identified as the defendant, Michael Capíes.

On cross-examination, Holmes clarified that the only information they had regarding Andre Shelby, prior to Shelby’s arrest, was from Levi Boykins, following Boykins’ arrest. Holmes said that he did not attempt to get an arrest warrant for Shelby or a search warrant before going to 910 W. 87th. He said that he was not aware of any judge from whom he could obtain a warrant in the early morning hours of August 24.

Holmes further testified that Shelby was immediately placed under arrest when they found him in the attic bedroom at his mother’s house. In the police car following his arrest, Shelby denied any knowledge of the beating.

Detective Patricia Harrison testified that she was present when Shelby was arrested. After being removed from the house, Shelby was placed in a police car and advised of his Miranda rights. According to Harrison, Shelby said he could show the police where “Big Mike” resided.

The next witness for the State was Detective Robert Utter. Utter testified that when he and two other detectives approached Capíes on the front porch of his house, he saw Capíes put something in his mouth, and then turn to go back into the house. When the police said “wait a minute, hold it,” Capíes turned back toward the police. The police then told Capíes he was under arrest, and a struggle ensued as they tried to handcuff him. The struggle lasted about a minute.

Andre Shelby testified on his own behalf. He was 20 years old when he was arrested at 4 a.m. on August 24, 1987. In the police car after his arrest, the police asked him if he knew where “Big Mike” lived. Shelby said he told them where “Big Mike” lived because the police hit him in the leg with a flashlight.

Michael Capíes testified as to his arrest. He said that he was inside the house where he lived when he heard noises outside sometime between 4 and 5 a.m. on August 24, 1987. He went to the door and looked outside, where he saw three police officers approaching him. Capíes also saw Andre Shelby standing on the sidewalk with another officer. He said that he did not try to go anywhere when the officers approached him in front of his house. When asked his name he answered that he was Michael Capíes. He did not resist arrest or the attempt to handcuff him. Nevertheless, the officers beat him on the arms and the ribs.

Following closing arguments, the court denied Capíes’ and Shelby’s motions to suppress statements on the ground of involuntariness. As to Shelby’s motion to quash his arrest and suppress evidence on the ground that the arrest was made without probable cause, the court focused on the testimony of Detective Holmes. The court said:

“Defendant was identified by Levi Boykins after Mr. Boy-kins was charged with the offense. The nature of the identification, the basis for Mr. Boykins’ information is not apparent from the State’s case, nor is there any evidence of corroboration of what might have been related to Mr. Boykins. I really don’t know what was related to Mr. Boykins.
There was also at the foundation of the motion to quash arrest the contention that the Police even if they had probable cause to arrest the Defendant did so without a warrant in violation of Payton in that his mother rather than giving permission, Mrs. Fairchild rather than giving permission for the Officers to come in, conceded to their authority when they insisted on looking in the basement and upon looking in the basement, carrying on a further full search of the house finding the Defendant in an upstairs bedroom.
After having viewed the testimony, viewed the credibility of the witness, I find first that there was lacking adequate probable cause for the arrest of Mr. Shelby at the time of his arrest, and given the circumstances of the arrest, even the testimony of the State’s Officers, I find that there was a Payton violation as well.
Accordingly, the motion to quash arrest to Andre Shelby will be allowed.”

Thereafter, on August 17, 1988, Capíes filed a motion to quash his arrest and suppress evidence. At the hearing on that motion, the parties stipulated to the testimony given at the earlier hearing on Capíes’ motion to suppress statements and Shelby’s motions to suppress statements and to quash arrest and suppress evidence. There was also a stipulation that Capíes was arrested without a warrant.

Detective Holmes was the only live witness at this hearing. Holmes said that John Williams, the eyewitness to the incident, gave him a description of “Big Mike” — about 20 years old, 6 feet to 6 feet 1 inch tall, around 200 pounds, with short hair. Williams also told Holmes that he saw “Big Mike” knock the victim to the ground and remove items from a tractor-trailer truck.

Holmes also said that Williams heard a conversation between two of the participants in which one called the other “Big Mike.” To this, “Big Mike” responded “don’t call out my name.”

As to his conversation with Levi Boykins, Holmes testified that Boykins stated that he saw the incident. Boykins also described “Big Mike” as a black male, 6 feet 1 inch tall, and just under 200 pounds. Boykins thought that “Big Mike” was from the area of 47th and Prairie. Boykins also told Holmes that he saw “Big Mike” strike the victim with some kind of pipe. Prior to the interview with Boykins, the police had recovered a trailer crank handle used in the beating.

In granting Capíes’ motion to quash his arrest and suppress evidence, the court stated:

“The issue really isn’t whether or not they had reasonable grounds to believe he was Big Mike, because Andre Shelby told them that he knew this person as Big Mike.
The issue is whether or not they had probable cause to arrest him for the homicide that he was arrested for. That’s the question.
I think they had reasonable grounds to believe he was known as Big Mike, and I think they certainly had reasonable grounds to make an investigative stop.
My question is, adding the defendant’s conduct [turning and trying to reenter the house without saying a word] to what the police already knew, was there probable cause to make an arrest? That’s the essential issue as far as I can see.
* * *
I think the police lacked probable cause to make an arrest. There’s absolutely no question in my mind that they had reasonable grounds to approach Mr. Capíes, to talk to him.”

In reaching its conclusion that probable cause was lacking, the court considered the proximity in time and space of the incident and the arrest. It noted that as the passage of time and distance from the incident increases, so does the challenge of articulating probable cause. “This contact with Big Mike on the porch, so far distant from the event itself both in time and space, just requires something more than what the state was able to identify here, produce here.”

When asked by defense counsel whether the court was attaching any significance to the finding of a Payton violation in the arrest of Shelby in its ruling on Capíes’ motion, the court answered in the negative, explaining:

“Just wanted to make clear that I was differentiating between my finding of no probable cause as to Andre Shelby and a Payton violation, because clearly if there had been an adequate report of information where the statement only barred by Payton, I think that information could be considered in forming probable cause for the purpose of determining probable cause as to Mr. Capíes.
I don’t think there would be any bar there. But there seems to be nothing significant in terms of what was reported by Mr. Shelby to add significantly enough to what the police already knew to justify the arrest of Mr. Capíes.”

The State subsequently filed a motion to reopen proofs and to reconsider Shelby’s motion to quash his arrest. The motion was denied by the trial court.

The State now appeals from the granting of Shelby’s and Capíes’ motions to quash their arrests and suppress the resultant evidence.

Opinion

The State contends that the trial court’s rulings that police lacked probable cause to arrest these defendants and that defendant Shelby was illegally arrested in his home were manifestly erroneous. They predicate this contention on the fact that both defendants were implicated by a co-offender’s (Boykins’) statements, and those statements were substantially corroborated. Moreover, the State argues that exigent circumstances were present to justify Shelby’s warrantless arrest in his home. Further, the State contends on appeal that if the arrests were improper, defendants’ inculpatory statements were sufficiently attenuated from the illegal arrests so as to purge any taint.

With respect to both defendants, probable cause to arrest exists where the facts and circumstances known to the arresting officers at the time of the arrest are sufficient to warrant a man of reasonable caution to believe that an offense had been committed and that the offense was committed by the person arrested. (People v. Lip-pert (1982), 89 Ill. 2d 171, 432 N.E.2d 605.) A determination of probable cause is governed by commonsense, practical considerations, and not by technical legal rules. (People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147.) It requires more than mere suspicion, yet does not require that the police have enough evidence to convict. (People v. Moody (1983), 94 Ill. 2d 1, 445 N.E.2d 275.) The existence of probable cause is determined by the totality of the circumstances at the time of the arrest. (Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317.) Once a trial court has made a determination as to probable cause, a reviewing court will not disturb that ruling absent manifest error. People v. Reynolds (1983), 94 Ill. 2d 160, 445 N.E.2d 766.

Because the circumstances pertaining to the arrest and subsequent inculpatory statements of each of the co-defendants were significantly different, we shall address the State’s contentions as they relate to each defendant separately.

ANDRE SHELBY

With respect to both Shelby and Capíes, there was no question that an offense had been committed. However, with respect to Shelby, the only evidence presented as to what the police knew about Shelby’s participation in that offense at the time they arrested him in his mother’s house was given in the testimony of Detective Holmes. Levi Boykins had told Holmes that a person called “Andre” was involved, and had accurately described the exterior of “Andre’s” house, as one of two places where he might be found. Although Boykins had given the police the names of others besides Shelby who were involved, and some of those names (but not Shelby’s) were corroborated by another eyewitness, Williams, there was no other information conveyed to the police officers connecting him to the murder and burglary.

The State presents several cases for the proposition that a co-offender’s statements implicating a defendant are sufficient to support a finding of probable cause. (People v. James (1987), 118 Ill. 2d 214, 514 N.E.2d 998; People v. Wright (1974), 56 Ill. 2d 523, 309 N.E.2d 537; People v. Evans (1976), 42 Ill. App. 3d 902, 356 N.E.2d 874; People v. Brooks (1976), 40 Ill. App. 3d 996, 353 N.E.2d 234.) These cases however, do not preempt the trial judge of his responsibility to assess the reliability of the informant upon whose information the arrest was carried out. In each of those cases, unlike the present case, the trial court denied the defendant’s motions to quash in the first instance, and the reviewing court was asked to affirm the trial court’s finding that probable cause did exist, a finding which upon review was left undisturbed pursuant to the applicable standard of review in such cases. Moreover, in each of those cases, the information supplied by the informant, albeit a co-offender, appeared to be more detailed and otherwise more reliable than the information in this case. See James, 118 Ill. 2d 214, 514 N.E.2d 998 (one suspect, under arrest for murder, armed robbery and home invasion, admitted his participation and described in detail defendant’s role in the crimes); Wright, 56 Ill. 2d 523, 309 N.E.2d 537 (one suspect in a robbery ring implicated the defendant and told police that the weapons used in the robberies could be found in defendant’s apartment, and also told police that if they went to defendant’s apartment before noon, they would have a chance of finding other members of the ring there as well as defendant); Evans, 42 Ill. App. 3d 902, 356 N.E.2d 874 (two suspects were interviewed by police, and both implicated a person named “Jerry,” and further police investigation determined “Jerry” to be the defendant, who was arrested when he arrived at the police station pursuant to a telephone call from the police); Brooks, 40 Ill. App. 3d 996, 353 N.E.2d 234 (two participants in a murder had supplied police with defendant’s name and address, and although the police had no description of the defendant, he identified himself by name to the police when they came to his house).

In each of those cases the court looked to the totality of the circumstances surrounding the arrest, including the information known to the police and the reliability of the informant, to determine that probable cause existed. (See Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317.) In none of those cases was it proposed or could it have been proposed that the uncorroborated statements of an arrestee will always constitute probable cause for an arrest as a matter of law. While we do not disagree with the State’s contention that a co-offender’s statements, if otherwise reliable, may provide a basis for probable cause, the test is whether the statement of the co-offender, as with any other informant, provides sufficient information and reliability that “a reasonable and prudent man, having knowledge possessed by the officer at the time of the arrest, would believe the defendant committed the offense.” (People v. Jackson (1979), 72 Ill. App. 3d 231, 235, 390 N.E.2d 47.) The question we must resolve, therefore, is whether Boykins’ statements, considered in light of the totality of the circumstances, were sufficient to establish probable cause to arrest Shelby.

Here, with respect to Shelby, Boykins had given the police only a first name of an alleged accomplice and no physical description of that person. Fairchild had told the police that her son was not at home, but had admitted that a male boarder and her boyfriend were in the house. Since they had no description of “Andre,” and the record does not indicate that Shelby identified himself to the police, there is an insufficient basis to warrant their presumption the person they found in the attic was indeed Shelby. We note that while Holmes said that the police attempted to obtain additional information about those Boykins named, there is no evidence that any further information was actually obtained. Further, the record does not indicate that Boykins had confessed to his participation in the crimes. (Compare James, 118 Ill. 2d at 224 (admission of involvement in crime enhances reliability of statement implicating co-offenders).) Nor was Boykins statement regarding “Andre’s” involvement particularly detailed. (Compare James, 118 Ill. 2d 214, 514 N.E.2d 998 (where co-offender gave police a detailed description of James’ role in the crime); Wright, 56 Ill. 2d 523, 309 N.E.2d 537 (where suspect told police weapons and other members of burglary ring would be found in defendant’s apartment).) As the trial court noted, the nature of Boykins’ identification of Shelby is not apparent.

Although an independent showing of the credibility or reliability of the co-offender and the basis of his knowledge is not required (see Illinois v. Gates, 462 U.S. at 238, 76 L. Ed. 2d at 548, 103 S. Ct. at 2332 (abandoning rigid two-pronged test of Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509, and Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584)), the various indicia of reliability are nonetheless relevant as a part of the totality of the circumstances approach towards determining probable cause. (James, 118 Ill. 2d at 223.) “The information relied upon to establish probable cause to arrest must be supported by some indicia of reliability.” (James, 118 Ill. 2d at 222.) Here, such indicia of reliability of the co-offender, such as independent verification, corroborating witnesses, admission of the crime and detailed statements, were not shown to be present.

As noted earlier, we will not overturn a trial court’s ruling on a motion to suppress unless it is against the manifest weight of the evidence. “Manifestly erroneous or ‘against the manifest weight of the evidence’ is commonly understood to mean ‘palpably erroneous and wholly unwarranted’ [citation] or ‘appears to be arbitrary, unreasonable, and not based upon the evidence.’ ” (People v. Harris (1991), 220 Ill. App. 3d 848, 860.) Applying this standard and the totality of the circumstances approach to the record in this case, considering both the relative paucity of what was related by Boy-kins to Holmes and the lack of any significant indicia of reliability of Boykins or his statements, we cannot say that the trial court’s finding that the police lacked probable cause to arrest Shelby was error.

As to the State’s argument that the trial court erred in finding a violation of Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, we agree with the trial court’s finding that the police lacked exigent circumstances to justify the arrest of Shelby in his home without a warrant.

As with a determination of whether probable cause existed, we look to the facts known to the officers at the time they acted to determine if exigent circumstances existed. The question is whether the police acted reasonably under those circumstances. (People v. Hoddenbach (1988), 169 Ill. App. 3d 499, 525 N.E.2d 888.) In People v. Abney (1980), 81 Ill. 2d 159, 407 N.E.2d 543, our supreme court identified several factors which may support a finding of exigent circumstances. These include the need for prompt action, the absence of any unjustified delay during which a warrant could have been obtained and the belief that the suspect was armed. Also to be considered are whether the police were acting on a clear showing of probable cause, whether the defendant was clearly identified as the assailant, whether the police had strong reason to believe that the defendant was on the premises, and whether the entry was peaceful. (Abney, 81 Ill. 2d at 171-72, 407 N.E.2d at 50-51.) Other factors may include the likelihood of the defendant’s escape if he is not immediately arrested, and the hours of the arrest. (People v. Yates (1983), 98 Ill. 2d 502, 456 N.E.2d 1369.) Although all of these factors need not be present to find that exigent circumstances existed which would justify a warrantless arrest of a defendant in his home, we find that too few if any of them are present here.

The State contends that the warrantless in-home arrest was reasonable here due to the fact that the police were investigating a brutal murder. They were seeking a person who had used a pipe-like object to beat the victim to death. However, the police had already recovered this pipe-like object, and the State conceded that it had no reason to believe Shelby was armed. Cf. People v. Dunagan (1983), 118 Ill. App. 3d 474, 455 N.E.2d 542 (warrantless in-home arrest justified, in part, on officer’s reasonable belief that defendant was armed and dangerous).

The State further urges that the police action was reasonable in that they acted within a few hours after they received information from Boykins which implicated Shelby. They cite several cases to support their argument that prompt action by the police after establishing probable cause may justify a warrantless in-home arrest. (People v. Dunagan (1983), 118 Ill. App. 3d 474, 455 N.E.2d 542; People v. Thompson (1981), 93 Ill. App. 3d 995, 418 N.E.2d 112; People v. Haynes (1980), 89 Ill. App. 3d 231, 411 N.E.2d 876.) In each of those cases, however, there were additional circumstances which necessitated and justified the prompt action. (Dunagan, 118 Ill. App. 3d 474, 455 N.E.2d 542 (reasonable belief that defendant was armed and dangerous); Thompson, 93 Ill. App. 3d 995, 418 N.E.2d 112 (same); Haynes, 89 Ill. App. 3d 231, 411 N.E.2d 876 (strong probable cause and consensual entry to home to arrest).) Even assuming that the police in this case had probable cause to arrest Shelby, there is nothing in the record which would indicate that there was a necessity to act before obtaining a warrant. The police had no reason to believe that Shelby was armed and dangerous. There was no evidence that they had reason to believe that he would flee. The murder had occurred two days earlier, and he had not yet fled.

The police further urge that the man they allegedly observed in the basement gave them reason to believe that Shelby was in the house. However, the record is clear that at the time they had no description of Shelby and the trial judge, upon whom we must rely as the arbiter of credibility, found the police testimony about the man in the basement to be “farfetched.”

Finally, the State argues that Mrs. Fairchild gave her consent to the entry and search of her house. However, the trial judge, upon whose credibility determinations we must rely, heard the testimony of the police and of Mrs. Fairchild and found otherwise.

Accordingly, we find no reason to disturb the trial court’s ruling that a Payton violation occurred when the police, without a warrant and without consent, arrested Shelby in his mother’s home at 4 a.m.

However, under the recent Supreme Court case of New York v. Harris (1990), 495 U.S. 14, 109 L. Ed. 2d 13, 110 S. Ct. 1640, the statements made by Shelby after he was removed from his mother’s house need not be suppressed even if the statements were made after a Payton violation, if probable cause existed for the arrest thereby making his detention lawful. (See People v. Mackey (1990), 207 Ill. App. 3d 839, 566 N.E.2d 449 (suppression of defendant’s statements made outside the home after Payton violation not required where police had probable cause to arrest).) Therefore, the Payton violation by itself would not provide sufficient basis to suppress Shelby’s statements made after he was removed from the premises. But we sustain the trial court’s conclusion that these statements must be suppressed since, as previously discussed, the finding that the police did not have probable cause to arrest Shelby was not against the manifest weight of the evidence. Therefore, the principle of New York v. Harris is not applicable here.

Finally, we address the State’s argument that even if Shelby’s arrest was illegal, his statements were sufficiently attenuated so as to be admissible. Shelby, however, points out that the issue of attenuation was not raised in the trial court and is therefore waived on appeal. We agree.

Issues not raised in the trial court may not generally be raised for the first time on appeal. (People v. O’Neal (1984), 104 Ill. 2d 399, 472 N.E.2d 441.) This principle applies equally to the State as to the defendant in a criminal case. (People v. Adams (1989), 131 Ill. 2d 387, 546 N.E.2d 561.) Although the State argued in the trial court that Shelby’s statements should be admissible, they argued on the theory that there was probable cause for his arrest. Our review of the record indicates that at no time at the hearing on Shelby’s motions did the State propose that attenuation might purge the taint of an illegal arrest. Moreover, the State filed a motion to reopen proofs and to reconsider Shelby’s motion, and there again argued only that the arrest was lawful. “The [waiver] rule is founded on some rather basic considerations, which include the following: that litigation should not be presented piecemeal; and that all parties are entitled to have matters determined as quickly as possible and at one trial ***.” (People v. O’Neal (1984), 104 Ill. 2d 399, 408, 472 N.E.2d 441.) By failing to present the theory of attenuation before the trial court, the State has waived the right to have this court consider that argument on review. See People v. Adams (1990), 131 Ill. 2d 387, 546 N.E.2d 561 (in trial court State objected to defendant’s motion to suppress evidence based on probable cause, thereby waiving right to argue on review theory of a valid Terry stop).

CABLES

Before reaching the question of probable cause for Capíes’ arrest, we must first address his contention that this court is without jurisdiction to hear this appeal. He points out that no ruling on the motion to quash arrest is recorded in the memoranda of orders included in the record on appeal, and that an appeal can be taken only from an order which is memorialized in a memoranda of orders or a written order. The State, however, has supplemented the record on appeal with copies of the half-sheets written by the trial judge on which the judge entered the order granting Capíes’ motion. Under Supreme Court Rule 272 (134 Ill. 2d R. 272), such a notation by the trial judge is sufficient. Accordingly, we reject Capíes’ argument that we are without jurisdiction over this appeal.

The only issue we need address regarding defendant Capíes is whether the police had probable cause to arrest him. We find that the trial court’s determination that they did not is against the manifest weight of the evidence. The question of attenuation, therefore, even had it not been waived, is not reached. Also, since Capíes was not arrested in his home, the question of a possible Payton violation is not applicable.

In ruling on Capíes’ motion, the court outlined the information known to the police prior to Capíes’ arrest.

“They’d been given a name and a description by two asserted eyewitnesses. The name they had been given was Big Mike. They evidently thought they had probable cause to arrest Andre Shelby, although I arrived at a different conclusion hearing the motion to quash arrest there.
And Andre Shelby, by coincidence someone is named Big Mike. And when he directed them to the place where Big Mike lived at 120th and Stewart, lo and behold, there’s someone standing there who fits the physical description, six foot, six foot one, around 200, short hair.
The police approached. No one has been arrested at this point, and Detective Holmes asks the question, are you Mike, at which point, according to the detective’s testimony, I take that to be true, the subject, the defendant, Michael Capíes, turns and tries to enter the home without saying a word. Just turns, tries to enter the home in order to evade the police officers.”

The information which the police had regarding Capíes is considerably more extensive and detailed than was their information regarding Shelby. In addition to Boykins naming “Big Mike” as a participant in the beating, Williams, an eyewitness, had also told the police that someone named “Big Mike” was involved. Also, both Boykins and Williams had described this person as 6 feet to 6 feet 1 inch tall, weighing approximately 200 pounds. Although a general description does not in itself establish probable cause to arrest one fitting that description (People v. Williams (1977), 53 Ill. App. 3d 266, 368 N.E.2d 679 (suspects described as “black teenagers”)), a more detailed description may be sufficient (People v. Williams (1979), 79 Ill. App. 3d 817, 398 N.E.2d 1099 (defendant described as “male Negro, 5’ 11”, 170 pounds”)). Moreover, here the same description was given by two people. See Williams, 79 Ill. App. 3d 817, 398 N.E.2d 1099.

In addition, Williams told the police that he had seen Capíes knock the victim to the ground, and Boykins told them that Capíes had struck the victim with a pipe-like object. Also significant is Shelby’s identification of Capíes as “Big Mike.”

Moreover, Capíes’ evasive maneuver upon seeing Shelby and the police outside his house in the early morning hours provides further support to the reasonableness of the officers’ conclusion that this was the person who had committed the crime. While flight from the police alone may be insufficient to provide probable cause, when it is coupled with reasonable suspicion to stop an individual, probable cause may exist. (People v. Beall (1976), 42 Ill. App. 3d 452, 355 N.E.2d 756.) As previously noted, the court acknowledged that the police had reasonable grounds to make an investigative stop, but in granting Capíes’ motion, held that their information fell short of probable cause necessary to make an arrest.

Moreover, we respectfully disagree with the trial court’s conclusion that the information reported by Shelby added nothing significant to what the police already knew. Shelby provided a critical nexus between the “Big Mike” described by Boykins and Williams and the defendant Michael Capíes. After Shelby identified Capíes as “Big Mike,” a reasonable conclusion could be reached that this was the “Big Mike” whom two people, wholly separate and apart from one another, had physically described and had implicated in the beating.

“A probable cause conclusion may be drawn from the gestalt which a factual situation presents; that is, such a conclusion may be deducted from the separate facts as they interrelate, even though such a conclusion could not be reached if the separate facts were evaluated on an individual basis.” (United States v. Rubio (7th Cir. 1968), 404 F.2d 678, 681.) Based on the totality of the circumstances known to the police at the time of Capíes’ arrest as shown in record before us, we find that the trial court’s ruling that the police lacked probable cause to arrest Capíes is against the manifest weight of the evidence.

The trial court, in finding a lack of probable cause, considered the fact that the arrest of Capíes took place two days and at some distance from where the murder and burglary occurred, and concluded that those facts required more evidence than was presented to establish probable cause. Although the passage of time may affect the existence of probable cause where a search warrant is involved, the same concern is not present when the issue is probable cause to arrest. (See People v. Halliday (1979), 73 Ill. App. 3d 615, 617, 392 N.E.2d 389 (“the question of the passage of time bears only upon the existence of probable cause [to search the premises]. More succinctly stated, has the passage of time made it unlikely that the object of the search is still present where the informer said it was?”).) Probable cause to arrest, unlike probable cause to search, is not linked to a particular location. Also, with the passage of time, a person, as opposed to an inanimate object subject to a search warrant, can be expected to move. We can find no support for the proposition that with the passage of time and distance, the quantum of information necessary to establish probable cause to arrest increases.

Accordingly, for all the reasons above, the order of the circuit court quashing the arrest of Michael Capíes and suppressing evidence is reversed and remanded, and the order of the circuit court quashing the arrest of Andre Shelby and suppressing evidence is affirmed.

No. 1 — 88—2706, Affirmed.

No. 1 — 88—3207, Reversed and remanded.

LORENZ, P.J., and MURRAY, J., concur.


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOANN ROBINSON, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 88—3162
    Opinion filed November 8, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Frank Madea, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Guy L. Miller IV, and Catherine A. Hufford, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a bench trial, defendant, Joann Robinson, was found guilty of aggravated criminal sexual assault and sentenced to 20 years’ imprisonment. Defendant appeals, contending that she was deprived of her right to due process because the State and defense counsel stipulated that she was fit to stand trial; that the State’s cross-examination of defendant constituted improper impeachment; and that the sentence was excessive.

The following facts were adduced at trial, which began on November 30, 1987. In November 1986, defendant was hospitalized after suffering a nervous breakdown. At that time, S.J., age four, and her three siblings were removed from defendant’s custody by the Department of Children and Family Services (DCFS). Defendant was allowed several supervised visits with S.J. over the course of the next several months. On May 7, 1987, defendant was allowed her first unsupervised visit alone with S.J.

After extensive questioning by the trial judge, S.J. was qualified to testify concerning the events that occurred on May 7, 1987. S.J. testified that defendant picked her up at a center and took her to Tubman Shelter, where defendant was residing. Defendant took S.J. to her room, closed the door, and then “bad things happened.” With the assistance of anatomically correct dolls, S.J. demonstrated that defendant made her perform vaginal and anal oral sex upon her. S.J. further testified that defendant touched her anal and vaginal areas with her hands, and that defendant also performed oral vaginal and anal sex upon her. Defendant threatened to beat S.J. with a stick if she told anyone about the incident.

S.J. described the incident to her foster mother later that evening and again the following morning. S.J. did not tell her foster mother about the incident immediately because she was afraid. S.J. stated that in addition to her mother, she had engaged in sex acts with her father, her siblings, and four cousins on other occasions prior to May 7,1987.

Bessie Robinson, S.J.’s foster mother, testified that the day of the incident was the first unsupervised visit that S.J. had with defendant. According to Robinson, S.J. cried when she was told that defendant was going to take her out for the day because she was afraid that defendant would “make her do bad things.” When defendant returned S.J. to the center after the visit, Robinson remarked that her eyes looked red, but S.J. explained that she had fallen asleep on the way home. Later that day, S.J. told Robinson that defendant made her do “bad stuff,” and then described the oral sex acts she had engaged in that day. Robinson took S.J. to the hospital after the occurrence for an examination. Robinson also stated that from the time S.J. came to her home in January 1987, the child spoke of sexual activity involving all of her family members.

Teri Frigo, a social worker at the hospital, testified that she interviewed S.J. on May 9, 1987, and learned that sexual abuse had taken place during defendant’s unsupervised visit with S.J.

On April 11, 1988, approximately midway through defendant’s trial, the Psychiatric Institute of the Circuit Court of Cook County advised the trial judge that defendant was unfit to stand trial because she was unable to cooperate with counsel in her own defense. The staff psychiatrist diagnosed defendant’s condition as schizoaffective disorder and reported:

“Today, the defendant is depressed and anxious. She has thoughts about harming herself. She was recently discharged from a psychiatric hospital. She exhibits a thought disorder in that there is a certain disorganization in her thinking. She has trouble sleeping and feels very restless. She is subject to Involuntary Admission. *** With hospital psychiatric treatment, she should be fit within one year.”

Approximately one month later, on May 15, 1988, the staff psychiatrist at the Psychiatric Institute opined that defendant was no longer in need of in-patient psychiatric care and was fit to stand trial. In that report, it was noted that defendant had a mixed personality disorder with associated depressive features, but that no evidence was found of psychotic manifestation. Defendant denied suicidal or homicidal intent or ideation, and indicated motivation for involvement in an on-going psychiatric treatment program. The staff psychiatrist recommended that defendant remain involved in out-patient individual psychotherapy with supplemental medication.

On June 6, 1988, prior to resumption of trial, a restoration hearing was held during which time the following colloquy occurred:

“THE COURT: One of the continuances, she was unfit for trial, both sides agree that if doctors were called, stipulation would include the fact that she became unfit and that later was reexamined, and with proper medication, is fit for trial.
DEFENSE COUNSEL: I would so stipulate that [Djoctor Gershin Kaplan of the Psychiatric Institute would so testify.
THE STATE: As a report, dated May 13th, 1988, Joann Robinson is fit for trial with medication.
THE COURT: Your [sic] taking your medication?
DEFENDANT: Yes, I am.
THE COURT: The Court does find that the defendant on today’s court date is fit for trial. Based on that stipulation, you may proceed.”

Barbara Burnett, a social worker at the center, testified that S.J. spoke to her about an incident of sexual abuse with her mother and another woman. Georgia Shelby, a social worker for DCFS, provided similar testimony that S.J. verbally conveyed and demonstrated with a doll that she had been sexually abused by her mother.

Defendant’s four cousins testified that they never abused S.J., nor were they aware of any allegations of sexual misconduct on the part of either of S.J.’s parents.

Defendant, age 32, testified that she had four children, ages 12, 9, 5 and 2. The father of three children, including S.J., was Enis Jackson, with whom she had lived for 10 years. Defendant stopped living with Jackson in 1986 because he abused her. After she left Jackson, defendant lived with her four children in a shelter for battered women.

Defendant further testified that she suffered a nervous breakdown in November 1986, and that she was hospitalized at the Osteopathic Hospital. Prior to her nervous breakdown, defendant learned that her oldest daughter had been sexually abused by Jackson. While she was in the hospital, DCFS took custody of her children. After defendant was discharged from the hospital, she was allowed supervised visits with her children. The first unsupervised visit with S.J. occurred on May 7, 1987.

Defendant testified that after she picked S.J. up at the center, they returned to Tubman Shelter, where she was residing. Defendant stated that sometime after lunch, she was instructed by the lady at the desk to take S.J. into her room and examine her for any kind of marks. Defendant stated that she took S.J. to her room, pulled her dress up, removed her panties, and examined her. Defendant did not find any marks on S.J. Defendant denied committing any sexual acts with S.J.

At the conclusion of trial, the judge found that despite some inconsistencies, the testimony of S.J. provided clear and convincing evidence that she was made to perform oral sex on defendant, and that defendant performed the same on her on May 7, 1987. Relying upon the specific facts as aggravation, the judge stated that he considered the offense “obnoxious and obscene *** crude and how totally devoid of any moral character, turpitude or any redeeming social value was the mother.” Defendant was sentenced to 20 years’ imprisonment.

Defendant first contends that her minimal due process rights were violated when both defense counsel and the State merely stipulated at the restoration hearing that she was fit to stand trial. Defendant argues that the trial court erred in acceding to the stipulation rather than exercising its discretion and making an independent decision as to defendant’s fitness.

Defendant relies upon People v. Thompson (1987), 158 Ill. App. 3d 860, 511 N.E.2d 993, for the proposition that a prior adjudication of unfitness to stand trial raises the presumption that defendant remains unfit, and that a court’s subsequent finding of fitness may not be based on a stipulation to psychiatric conclusions. We find, however, that the facts in this case are clearly distinguishable from Thompson. At the fitness hearing in Thompson, the parties simply stipulated to findings of doctors contained in reports and their conclusion that defendant was fit to stand trial rather than stipulating that, if called to testify, the qualified psychiatrist or psychologist who had examined defendant would testify that in his opinion he was fit to stand trial. While this distinction can be characterized as a fine one, it is one drawn by our supreme court in People v. Lewis (1984), 103 Ill. 2d 111, 468 N.E.2d 1222. It is also significant that the trial judge in Thompson failed to review the reports and question the defendant about his own fitness to stand trial.

In this case, the colloquy at the restoration hearing expressly sets forth that “(/"doctors were called, stipulation would include the fact that she became unfit and that later was reexamined, and with proper medication, is fit for trial.” (Emphasis added.) Further, defense counsel expressly stated that Dr. Gershin Kaplan of the Psychiatric Institute would so testify. At that point, the court queried defendant as to whether she was taking her medication. After defendant’s affirmative response, the court made its pronouncement that defendant was fit to stand trial.

In People v. Mounson (1989), 185 Ill. App. 3d 31, 540 N.E.2d 834, this court held that defendant’s due process rights were not violated where attorneys did not merely stipulate to expert’s conclusions, and where the court was free to rely on the report and on its own in-court observations in determining defendant’s fitness to stand trial. We conclude, therefore, that because the facts in this case demonstrate that the trial judge reviewed the report filed by the staff psychiatrist and did not merely rely upon his conclusions, and where the trial judge had the opportunity to observe defendant’s demeanor and determined that she was in fact taking her medication, the restoration hearing did not offend minimal due process.

Defendant next asserts that attempts to impeach her prejudiced her case because the State’s cross-examination of her consisted of unsupported insinuations that defendant told an inconsistent story. Defendant’s argument is based on the following questions posed to her by the State during cross-examination:

“ASSISTANT STATE’S ATTORNEY: Well, also at the time did you strike or hit or cause injury to S.J. with a strap or belt?
DEFENDANT: No.
ASSISTANT STATE’S ATTORNEY: No. Do you recall having a conversation with Karen Allen that you struck S.J. with a strap?
DEFENDANT: No.
ASSISTANT STATE’S ATTORNEY: Or anytime in November of 1986 having a conversation with Karen Allen from DCFS admitting that you struck S.J.?
DEFENDANT: No.”

The State never produced Karen Allen to perfect impeachment by showing that the alleged inconsistent statement was ever made, and the State acknowledges that it erred in not doing so. We agree with the State, however, that the error was harmless.

Improper cross-examination is not reversible error if it can be considered harmless (People v. Enis (1990), 139 Ill. 2d 264, 564 N.E.2d 1155), and in a bench trial it is presumed that the trial judge has considered only competent evidence in reaching a decision. (People v. Coleman (1991), 212 Ill. App. 3d 997, 571 N.E.2d 1035.) While it is improper for the prosecution to make an unsupported insinuation of misconduct on cross-examination without producing supporting evidence in response to a denial of misconduct (People v. Jurczak (1986), 147 Ill. App. 3d 206, 497 N.E.2d 1332), reversal is required only where the insinuations are substantial, repeated, and definitely prejudicial. See Jurczak, 147 Ill. App. 3d 206, 497 N.E.2d 1332; People v. Hawkins (1975), 61 Ill. 2d 23, 329 N.E.2d 221.

It is clear here that the cross-examination in question did not rise to the level of substantial, repeated and prejudicial questioning; rather, the error consisted of three questions concerning whether defendant had a conversation with Allen about striking S.J. It is noteworthy that the questions were posed to defendant only after she acknowledged that she had trouble controlling her children, that she had been in contact with DCFS and Allen in the past, and that at some time in the past she had struck one of her children with a belt. Given the context in which the cross-examination was conducted, and the fact that there was no extended pattern of unsupported insinuation, we find no reversible error.

Defendant’s final contention is that the 20-year sentence is excessive. Defendant was found guilty of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(b)(1)), which is a Class X offense (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(c)) punishable by no less than six years’ and no more than 30 years’ imprisonment (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—l(a)(3)). Defendant had no prior criminal record. When the trial court is determining an appropriate sentence, the defendant’s history, character, and rehabilitative potential, along with the seriousness of the offense, the need to protect society, and the need for deterrence and punishment, must be equally weighed. People v. Darnell (1981), 94 Ill. App. 3d 830, 419 N.E.2d 384.

We recognize that the facts of this crime are reprehensible and heinous. We also recognize that sentencing is a matter of judicial discretion, and absent an abuse of discretion by the trial court, a sentence may not be altered on review. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) Nevertheless, we find that the sentence imposed in the present case was excessive.

We do not believe that the trial court took into consideration defendant’s mental condition as a mitigating factor. Several months before the offense, defendant was hospitalized with a nervous breakdown. Midway through the trial, defendant was diagnosed with a schizoaffective disorder and was again hospitalized for her mental condition. Although defendant was subsequently found fit to stand trial, the staff psychiatrist recommended that defendant remain involved in out-patient individual psychotherapy with supplemental medication. Clearly, defendant’s mental history warranted consideration as a mitigating factor.

Just as importantly, at the time of sentencing, the trial judge made repeated references to the criminal sexual acts to S.J. by her father and other members of the family, not by defendant. Indeed, the judge stated that he believed S.J.’s father, Jackson, was the principal offender, and that at first defendant was an “unwilling partner.” The trial court improperly considered the criminal acts of others in imposing sentence on defendant. In so doing, the trial court abused its discretion in the imposition of sentence upon defendant.

Accordingly, we reduce the sentence from 20 years to 10 years.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed as modified.

Judgment affirmed as modified.

RAKOWSKI, P.J., and EGAN, J., concur.


author: JUSTICE LaPORTA

text:
    PEOPLES GAS LIGHT AND COKE COMPANY, Petitioner-Appellant, v. ILLINOIS COMMERCE COMMISSION et al., Respondents-Appellees.
    First District (6th Division)
    No. 1 — 90—2639
    Opinion filed November 8, 1991.

      James Hinchliff, Gerard T. Fox, Matthew A. Greene, and Allison L. Wood, all of Chicago, for petitioner.
    Roland W. Burris, Attorney General, of Springfield (David L. Nixon, Special Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Commerce Commission.
    Robert Habib, of Chicago, for respondent Lionel Pittman.
   JUSTICE LaPORTA

delivered the opinion of the court:

Lionel Pittman, as president of Englewood Investment Enterprises, Inc., filed a verified complaint with the Illinois Commerce Commission (ICC) alleging that the Peoples Gas Light and Coke Company (Peoples Gas) improperly terminated gas service to Pittman’s 18-unit apartment building in Chicago in winter conditions and without notice. Peoples Gas contended that all gas used for heating the building after October 22, 1985, was improper, the shutoff therefore was permissible and Pittman owed the gas company $13,360.69.

Following a hearing the examiner reviewed facts and testimony from witnesses, subsequently reopened proofs for additional testimony and issued a proposed order. The ICC entered an order denying Peoples Gas the right to recover the $13,360.69 and ordered that the amount be removed from the Englewood account. Peoples Gas filed an application for rehearing which was denied. Peoples Gas appealed.

Peoples Gas raises two issues on appeal: (1) whether the Commission’s order must be reversed in part because it violates Illinois law'in granting relief not requested by Englewood; and (2) whether the Commission’s order must be reversed in part because the findings on which a part of the order is based are not supported by substantial evidence in the record.

On May 20, 1988, Pittman filed a complaint with the ICC on behalf of Englewood, contending that Peoples Gas violated the Public Utilities Act (Ill. Rev. Stat. 1989, ch. lll2/3, par. 1 — 101 et seq.) when it terminated gas service to his building without notice and during winter conditions. Englewood sought an ICC finding that the termination was improper and an order that Peoples Gas resume gas service upon reasonable payment.

The parties participated in a hearing before the hearing officer on September 13, 1988. The summary of facts in the resulting examiner’s report found that Pittman owned the 18-unit building in question since 1982 and as landlord he provided gas heat to his tenants. The tenants paid their own cooking gas bills from separate meters. Pittman testified that, to the best of his knowledge, there had been no interruption in gas service to the building from 1982 until it was terminated without notice on February 12, 1988. Pittman stated that when he was told about the $13,360.69 outstanding bill he offered to pay $4,500 with the rest on a payment plan but Peoples Gas demanded full payment.

On cross-examination, Pittman testified that he was unaware of a notice of shutoff allegedly posted on the building in October 1985 and stated that he believed the gas was never shut off. Pittman testified that he received and paid several bills after October 1985 and he continued to make payments on a $40,000 bill from Peoples Gas that was outstanding at the time he purchased the building in 1982. He testified that he had no knowledge of an outstanding $13,360.69 bill for the period 1985 through February 12, 1988, and was never billed that amount.

A former tenant, Sarah Curtis, testified that she lived in Pittman’s building from 1986 until 1988. She testified that her gas service, both for cooking and heat, was terminated without notice on February 12, 1988, forcing her to move out.

Peoples Gas special investigator Samuel Wright testified that during his review of company records he discovered that the gas service at Pittman’s building had been “locked off” on October 22, 1985, though he had no personal knowledge of the circumstances surrounding the actual shut off. He acknowledged that from that date forward, Peoples Gas provided cooking gas service to 17 separate customer accounts in the same building between 1985 and 1988. He admitted that the records disclosed that Peoples Gas employees read the heating gas meter twice between January and August of 1987 but the company did not send bills to Englewood or react in any other way to those readings other than to record them in the company’s records.

Peoples Gas special investigator Monty Reynolds testified that he went to Englewood’s building February 12, 1988, to remove the building’s gas meter but Pittman refused to permit him to do so. He testified that the heating gas had already been shut off when he arrived on February 12. He admitted that he found no evidence of tampering to bypass the shutoff.

At the conclusion of the hearing, the record was marked “heard and taken.” On April 7, 1989, the hearing examiner issued his first proposed order. Peoples Gas filed exceptions to the proposed order. A new hearing officer was assigned to the case and the hearing examiner permitted the record to be reopened to allow both parties to address unanswered questions from the hearing officers.

The reopened hearing was held June 23, 1989. Englewood chose to stand on the evidence presented in the first hearing. Wright and Reynolds testified again for Peoples Gas. Neither was able to testify that he had personal knowledge that use of unauthorized gas service took place. On April 22, 1990, the hearing examiner issued his second proposed order.

On June 27, 1990, the ICC issued its order, stating in part, that as to the charge that Peoples Gas had improperly turned the gas off in winter conditions and without notice: “[t]he record is incomplete and does not allow the Commission to come to any conclusion on this allegation. [Peoples Gas’] records indicate that proper notice was effectuated; however, [Peoples Gas’] testimony lacks a sufficient basis to come to a conclusion. There is insufficient evidence proffered by [Peoples Gas] to show that gas service at the subject premises was properly shut off on October 22, 1985, for non-payment or that [Englewood] continued to receive gas usage and received a benefit from an unauthorized use of gas. The Commission can only conclude that the [complaint] must be granted to the extent that the bill rendered to [Englewood] in the amount of $13,360.69 for gas service rendered on the subject premises should be removed from [Englewood’s] account with [Peoples Gas].”

The Commission order issued seven findings:

“(1) Peoples Gas Light and Coke Company, an Illinois corporation is engaged in the business of providing gas service to the public ***;
(2) The Commission has jurisdiction ***;
(3) [Englewood] disputes the responsibility for payment of a bill in the amount of $13,360.69 for gas service provided to an apartment building owned by [Englewood];
(4) [Peoples Gas’] evidence fails to show that unauthorized use of gas service took place at the subject premises between 1985 and 1988;
(5) [Peoples Gas’] evidence fails to show that [Englewood] should be held responsible for gas service resulting in a bill in the amount of $13,360.69;
(6) the bill rendered by [Peoples Gas] to [Englewood] in the amount of $13,360.69 should be removed from [Englewood’s] account;
(7) the Complaint should be granted only to the extent found appropriate in Finding (6) herein.”

Peoples Gas requested a rehearing, contending that the ICC had granted relief not requested by Englewood, that is, a removal of the $13,360.69 charge from its account. Rehearing was denied and the utility filed this appeal.

After briefs were filed by the ICC and Peoples Gas in this appeal, the ICC sought leave to withdraw its brief, to plead error and to have the case remanded to the Commission for further proceedings. Englewood then filed a motion for leave to intervene in this appeal, file a brief and object to the ICC’s motion. Englewood’s motion was ordered “taken with the case” but the ICC’s motion to withdraw brief and plead error was allowed on June 28, 1991. The ICC’s request to reverse and remand the case to the Commission was taken with the case. The ICC’s brief was withdrawn. Peoples Gas then filed its reply brief, and the case was set for argument with Peoples Gas and Englewood as the parties in interest in this appeal.

The standard of review on the appeal of an administrative ruling from the ICC is as follows: “The findings and conclusions of the Commission on questions of fact shall be held prima facie to be true and as found by the Commission; rules, regulations, orders or decisions of the Commission shall be held to be prima facie reasonable, and the burden of proof upon all issues raised by the appeal shall be upon the person or corporation appealing from such rules, regulations, orders or decisions.” Ill. Rev. Stat. 1989, ch. lll2/3, par. 10 — 201(d).

“The court shall reverse a Commission rule, regulation, order or decision, in whole or in part, if it finds that: A. The findings of the Commission are not supported by substantial evidence based on the entire record of evidence presented to or before the Commission^] *** The rule, regulation, order or decision is in violation of the State or federal constitution or laws.” Ill. Rev. Stat. 1989, ch. lll2/3, pars. 10 — 201(e)(iv)(A), (iv)(C).

In the review of ICC cases, orders of the ICC are entitled to great weight (Northern Illinois Water Corp. v. Illinois Commerce Comm’n (1965), 33 Ill. 2d 580, 213 N.E.2d 274) and should only be set aside if clearly against the manifest weight of the evidence. Peoples Gas Light & Coke Co. v. Slattery (1939), 373 Ill. 31, 25 N.E.2d 482.

Peoples Gas contends that since the ICC has acknowledged error, this court should give no deference to the order and should find it outside the statutory standard of “prima facie reasonable.”

The ICC, in its motion to withdraw its brief and plead error, provided this court with no authority for such an action nor can we locate any authority. The ICC has provided this court neither with adequate reason, or sufficient proof, or case or statutory authority to reverse the ICG’s order without further review, nor has Peoples Gas provided such authority.

Therefore, we first consider whether the Commission’s order must be reversed in part because it violates Illinois law by granting Pittman and Englewood relief not requested.

Peoples Gas’ argument here is simply that the ICC has no authority under the Public Utilities Act to grant to Pittman and Englewood relief not requested. Peoples Gas contends that the Commission’s action of granting unrequested relief was improper and inconsistent with its findings of fact because the ICC specifically found it was unable to determine the validity of Englewood’s allegations against Peoples Gas.

Peoples Gas argues that Englewood did not ask for the bill to be reduced or removed from its account. Englewood only sought relief in the form of a resumption of gas service and a finding that Peoples Gas had improperly disconnected the gas service on February 12, 1988.

Peoples Gas cites Alton & Southern R.R. v. Illinois Commerce Comm’n (1925), 316 Ill. 825, 147 N.E. 417, for its holding that the ICC cannot enter a valid order which is broader than the written complaint filed in the case. In Alton, the Perry Coal Company and 17 other companies filed complaints with the ICC against the Alton & Southern Railroad. The coal companies argued that the railroad was charging them an unjust, unreasonable and discriminatory rate in violation of the Public Utilities Act. The complainants were all located within 20 miles of the railroad’s relay station in East St. Louis and complained that they were charged the same 91-cent-per-ton amount as other companies located as far as 70 miles away from the relay station.

The ICC entered an order requiring the railroad to reduce its rate to 70 cents per ton for coal companies that used the carrier for distances between 20 miles and 30 miles. The ICC also ordered the rate reduced to 80 cents for those companies between the distances of 30 miles and 70 miles. The circuit court affirmed the order with regard to the 70-cent charge for distances between 20 and 30 miles only. On appeal the railroad contended that the ICC had no jurisdiction to enter an order affecting the rates for any company for transport beyond the 30-mile range because the companies filing the complaint were located within 20 miles from the relay station.

The supreme court found the ICC “went beyond the allegations and prayer of the complaint, in that it ordered that appellants be required to reduce the rates on coal from mines located beyond 20 miles of the Relay station and not beyond 30 miles *** and it ordered that appellants be required to reduce the rates on all mines *** located beyond 30 miles from the Relay station.” Alton, 316 Ill. at 629.

The court found that the public utilities statute “requires that all investigations by the Commerce Commission with reference to the reduction and regulation of rates of public utilities must be based upon a complaint in writing.” (Alton, 316 Ill. at 629-30.) The court held that while the Commission should be liberal in construing pleadings, the statute requires that carriers be notified of the complaint and that the complaint be specific enough to permit the carrier to defend. The court held that “[t]he evidence should be limited by the issue made. The Commerce Commission cannot enter a valid order which is broader than the written complaint filed in the case.” Alton, 316 Ill. at 630.

Peoples Gas contends that the ICC here violated the holding in Alton when it issued an order broader than the written complaint filed in the case.

Englewood disagrees, contending that the ICC had the authority to enter the order that it entered and that the Alton case is readily distinguishable. It finds Alton distinguishable by noting that the Commission granted relief to coal companies who were not complainants, whereas here, the only relief sought and granted was relief to the complainant, Englewood. Englewood argues that the amount of the bill was put into question in the complaint filed by Englewood when Englewood asked the Commission to “order Peoples Gas to resume gas service to the aforesaid building upon reasonable payment.”

Englewood contends the Public Utilities Act grants the Commission the authority “to conduct any investigations or inquiries authorized by this Act, in such manner and by such means as it may deem proper, and to take such action as it may deem necessary in connection therewith.” Ill. Rev. Stat. 1989, ch. 1111/2, par. 10 — 110.

Englewood contends that this broad authority was acknowledged in City of Champaign v. Illinois Commerce Comm’n (1986), 141 Ill. App. 3d 457, 490 N.E.2d 119, when the court affirmed a rate hike for water hydrant service which was granted by the ICC despite no request to do so from the water company. Englewood distinguished City of Champaign from Alton because City of Champaign involved a utility merely filing a rate schedule with the ICC whereas Alton involved an actual complaint filed against the ICC. Peoples Gas argues, however, that a further reading of the City of Champaign opinion shows the court found the Alton holding applicable only where proceedings are initiated by complaint.

We find the City of Champaign analysis of Alton compelling. If the ICC were permitted to enter an order that is broader than the written complaint filed in the case it then would be ruling on an issue of which the responding party had no notice and no opportunity to defend or address.

In fact, the ICC’s findings belie its own ruling. The ICC at finding No. 4 found insufficient evidence of “unauthorized” gas use from 1985 to 1988. The logical conclusion then is that the gas usage by Englewood was “authorized.” To order that any charge for that gas use be stricken from Englewood’s bill would be inconsistent with the specific factual finding of the ICC.

Because the ICC’s findings and its order to strike the $13,360.69 charge from Englewood’s account granted Englewood relief not sought in the complaint, we find that the ICC order exceeded the authority of the Commission under the facts of this case. Therefore, we hold that the ICC erred in findings Nos. 3, 5 and 6 of its order that found the $13,360.69 charge at issue in the case and that ordered Peoples Gas to strike the charge from Englewood’s account.

As to the finding of the ICC that Peoples Gas’ proof of notice was from its records only but that the testimony of its employees was insufficient to show that shutoff was proper or that Englewood continued to receive gas service and to benefit from its unauthorized use, we find that the ICC ruling was error. Under Supreme Court Rule 236, any writing or record shall be admissible as evidence of the act if made in the regular course of any business and if it was the regular course of the business to make such a record, and all other circumstances of the making of the record, including lack of personal knowledge by the maker, shall not affect its admissibility. (107 Ill. 2d R. 236.) The business record does not fail as proof if the employee who made the notation does not testify so long as the record is established as having been kept in the ordinary course of business.

Because the Commission has failed to rule on Englewood’s specific requests for a finding that Peoples Gas’ termination of service on February 12, 1988, was improper and for an order that gas service be resumed upon reasonable payment, we reverse and remand this cause for further proceedings consistent with this opinion.

For all of the above reasons, we reverse and remand this cause to the ICC for further proceedings consistent with this opinion.

Reversed and remanded.

RAKOWSKI, P.J., and EGAN, J., concur.