text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN D. LePRETRE, Defendant-Appellant.
    Fourth District
    No. 4—89—0473
    Opinion filed April 5, 1990.

      Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender’s Office, of Springfield, for appellant.
    John B. Huschen, State’s Attorney, of Eureka (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On April 21, 1989, following a jury trial in the circuit court of Woodford County, defendant Brian LePretre was convicted of committing the offense of attempt (murder). (Ill. Rev. Stat. 1987, ch. 38, pars. 8—4, 9—1.) He was subsequently sentenced to the minimum six-year prison term. He now appeals, alleging (1) he was not proved guilty beyond a reasonable doubt; (2) the court improperly refused his tendered jury instructions; (3) he received ineffective assistance of counsel; (4) the court erred by refusing to allow him to recall a witness; and (5) the court’s post-trial comments indicate the court should have granted defendant’s post-trial motion. We affirm.

On January 5, 1989, defendant was charged in the circuit court of Woodford County with committing the offense of attempt (murder). (Ill. Rev. Stat. 1987, ch. 38, pars. 8—4, 9—1.) The information alleged defendant performed a substantial step toward the commission of murder, in that he knowingly thrust a knife toward Bernard Remmert with the intent to kill him. Defendant raised the affirmative defense of voluntary intoxication. The jury trial commenced on April 19, 1989.

The State’s first witness was Bill Myers, under-sheriff of Wood-ford County. He stated he interviewed defendant on January 5, after defendant’s arrest for the instant offense. After waiving his Miranda rights, defendant told Myers that his sister and brother-in-law, Michelle and Daniel Schirer, picked him up on December 31 around 7:30 p.m., and they went to a bar in Metamora for a New Year’s Eve party. While there, he had six to eight drinks of Jack Daniels and Coke. He also had one glass of champagne at midnight and two puffs from a marijuana cigarette. At approximately 2 a.m., they left the bar and returned home.

Defendant told Myers that the Schirers then dropped him off at his residence. However, he was not feeling well and decided to walk around for awhile. At this time, he thought it was around 2:30 a.m. He walked around for a couple hours. Around 5 a.m., he was at the north end of Remmert Funeral Home parking lot and he saw Bernard Remmert. Defendant knew who Remmert was, though he had not seen him or spoken to him for several years. Defendant walked through the parking lot and later returned. He chatted with Remmert for awhile, and Remmert invited him in for some coffee.

They entered the funeral home and went to Remmert’s office, where Remmert began making coffee. Defendant then jumped Remmert and put his left arm around Remmert’s chest and neck area. Defendant pulled a knife out of his coat pocket with his right hand, and they struggled. The next thing defendant remembered was that he was lying on the floor, with Remmert on top of him.

After they calmed down, Remmert let defendant up. They talked about the attack and drank coffee. Defendant could not remember why he attacked Remmert or the actual attack. Remmert then let defendant go home. Upon his return, defendant told his parents about the attack, but failed to mention the knife.

Myers recovered the knife from the scene. The blade had been broken during the fight. The knife had a four-inch body and a three-inch blade. On cross-examination, Myers acknowledged that defendant was always cooperative, never indicated he had an intent to kill Remmert, and could not remember any of the incident after he took the knife from his pocket.

Bernard Remmert testified that at 5 a.m. on January 1 he was at his funeral home, having just picked up a body from a nursing home. As he exited the hearse, he could hear someone walking in the alley behind him. As he entered the funeral home, Remmert waved a greeting at the person, who continued through the parking lot, heading south. After entering, Remmert proceeded to turn up the heat, and thought the person might be his tenant who lives in the house to the north. He thought this tenant might have overindulged in partying the night before and was now walking it off. He decided to invite him in and offer him a cup of coffee.

Remmert stepped outside, where it was still dark, and invited the person in for coffee. After they entered the building and the bright light, Remmert noticed the person was not the tenant. In response to Remmert’s question, the person explained he was a Roanoke boy and his name was Brian LePretre. Remmert asked him if he" was the son of Nancy and Armand, who are good friends of his. When defendant responded affirmatively, Remmert felt more comfortable. As they walked to his office, they discussed the fact that defendant had been in the military service in Germany and was discharged last April.

Once they entered the office, Remmert went to the coffee pot to make the coffee. Defendant was walking behind him. Defendant suddenly jumped on Remmert’s back and got an arm lock, using his right arm, on Remmert’s neck. The arm was under Remmert’s chin and across his neck. Remmert was having trouble breathing.

The next thing Remmert knew, defendant started bringing his left arm down and, out of reflex, Remmert lifted his arm up to block it. Defendant’s arm crossed Remmert’s and, for the first time, Remmert saw the knife. The point of the knife pricked Remmert’s shirt several times and cut a tear in his coat, but he was not injured. The knife was poised over his heart, and defendant was applying a lot of pressure. They wrestled around the room, breaking furniture and banging into the wall. Defendant kept pressing with the knife. Eventually, after several minutes, Remmert was able to shove defendant to the ground.

Remmert climbed on top of defendant and picked up the knife, which was now broken. Defendant then began saying he was sorry and that he did not know what he was doing. Remmert helped defendant up and seated him on the couch. Remmert asked defendant why he attempted to kill him. Defendant repeatedly stated, “I don’t know.” Defendant said he was sorry and asked Remmert to not call the sheriff. Defendant explained he had never done anything like this before.

They then had a cup of coffee and talked. Remmert indicated he would not call the sheriff and stated that defendant should get in-house help. He let defendant go home. When he told his wife what happened, she insisted that he call the sheriff. He then called defendant’s parents.

Remmert explained that other than various scratches, bruises and a banged-up ankle, he suffered no injuries. He did not believe defendant was intoxicated or high on anything. He denied telling defendant’s mother that he thought defendant was high. He explained that he asked her if defendant was possibly on drugs or drank a lot. The State then rested.

Defendant’s first witnesses were his sister and brother-in-law, Michelle and Daniel Schirer. They picked defendant up around 7:30 p.m., and arrived at the bar around 8 p.m. While there, Daniel drank screwdrivers, Michelle drank some beers and some sodas, and defendant drank Jack Daniels and Coke. They estimated defendant drank three to four drinks per hour. They all had some champagne at midnight. They stayed at the bar until around 3:45 a.m., and arrived at defendant’s parents’ house around 4 a.m.

They were both of the opinion defendant was intoxicated when they dropped him off. Daniel based his opinion on the fact defendant seldom drank, the amount he drank, and the fact his eyes were glazed. Michelle based her opinion on the amount defendant drank, his lack of drinking experience, his gayer and happier mood, and the fact he vomited on his parents’ driveway when he exited the car.

However, neither observed that defendant had any trouble walking. They both acknowledged defendant danced some, and they did not observe him the entire evening. Michelle also admitted that, after vomiting, defendant responded to her question asking if he was alright.

Stan Schertz testified that he was also at the party with defendant. He left between 2 and 3 a.m. He was the designated driver of his group, so he drank only one glass of champagne. He estimated defendant consumed three to four mixed drinks per hour. It was his opinion, based on defendant’s staggering walk and stuttering speech, that defendant was drunk when Schertz left.

Defendant’s mother testified that, on January 1, Remmert told her that defendant was inebriated or high on something. She explained that Remmert never said that was his opinion, but she got the opinion from their conversation that it was. She also observed vomit in her driveway that morning.

Defendant testified he is 22 years old and currently lives with his parents. At the party, he drank Jack Daniels and Coke and one glass of champagne. He does not remember how many mixed drinks he drank. He also had two puffs on a marijuana cigarette. They left the bar around 2 a.m. and arrived home around 2:30 a.m. Once he got home, he threw up on the driveway. At that point, he decided to walk uptown to get some air. As he walked, he went through the funeral home parking lot and said hello to Remmert. He later turned around and went back to the parking lot. Remmert came outside and asked if he would like a cup of coffee.

They, then, went to the office. Prior to this, defendant did not know Remmert. As Remmert was working on the coffee machine, defendant remembered bringing his left arm up. Defendant is right-handed. The next thing he remembered is that he was on the ground, with Remmert in control of him. Then, they sat on the couch and Remmert asked why it happened. Defendant told Remmert he did not know, and that there was no reason for it. Defendant apologized repeatedly. Remmert stated he would not press charges, but would call defendant’s parents. At that time, the defendant went home.

On January 5, defendant spoke with Deputy Myers. However, he denied telling Myers any of the details of the fight, or that it took place at 5 a.m. Defendant believed he was intoxicated and stated he did not go into the funeral home intending to kill Remmert.

On cross-examination, he explained he could not remember how many mixed drinks he had. When he told Myers he had six to eight drinks, he only guessed. He does not remember eating a sandwich or hearing last call, but he does remember arriving home. He also remembers carrying the knife with him that night. He remembers walking around town, including several of the places that he passed.

Dr. Robert Chapman was qualified as an expert in the field of psychiatry and forensic psychiatry. He interviewed defendant on February 13, 1989. Prior to his examination of defendant, Chapman interviewed his sister and reviewed various reports, including a psychiatric examination from the Veterans Administration Hospital. Chapman related what defendant told him about the night in question. It correlated with defendant’s testimony, except that Chapman remembered defendant specifically saying he consumed six to eight drinks during the evening. His examination showed defendant was free of any major mental disorder or defect. He made three diagnoses concerning defendant’s status at the time of the offense. First, he believed defendant was suffering from acute alcohol-abuse syndrome, also known as alcohol intoxication. Defendant was also suffering alcohol blackout. The third diagnosis was that of episodic discontrol, which has also been referred to as intermittent explosive disorder or an isolated explosive disorder. It was Chapman’s opinion that defendant was not suffering from a mental disease at the time of the offense. It was also his opinion that defendant’s intoxication was such that it interfered with his power of reason.

On cross-examination, Chapman admitted that much of the information he relied on in forming the opinion came from defendant and his sister and, if the information was incorrect, it could affect his opinion. The defense rested.

Remmert testified, on rebuttal, that defendant was walking fine the entire time. When they spoke, defendant always answered responsively. He never noticed any slurred or stuttered speech, and he never smelled any alcohol on defendant’s breath. Defendant never staggered or supported himself.

Defendant was found guilty of the charge. He was eventually sentenced to the minimum six years’ imprisonment. Defendant now appeals.

Defendant initially argues he was not proved guilty beyond a reasonable doubt. He observes he raised the affirmative defense of voluntary intoxication. (Ill. Rev. Stat. 1987, ch. 38, par. 6—3.) He notes that when an affirmative defense is raised by the pleadings or the evidence, the State has a burden of proving the defendant guilty beyond a reasonable doubt as to that issue, together with all the other elements of the defense. (People v. Smith (1978), 71 Ill. 2d 95, 105, 374 N.E.2d 472, 476.) He does not believe the State has done so.

In order to constitute an affirmative defense, voluntary intoxication must be so extreme as to suspend all reason. (People v. Bradney (1988), 170 Ill. App. 3d 839, 855, 525 N.E.2d 112, 122.) Merely being drunk or intoxicated is insufficient to create the defense. (People v. White (1977), 67 Ill. 2d 107, 119, 365 N.E.2d 337, 343.) The question is not whether the defendant was intoxicated, but whether the evidence demonstrates beyond a reasonable doubt that the defendant could have formed the requisite mental state for the crime charged. (People v. Aguirre (1975), 30 Ill. App. 3d 854, 857-58, 334 N.E.2d 123, 127.) There are many levels of intoxication through which an individual may pass before he reaches the level of being unable to form the intent to act. (Bradney, 170 Ill. App. 3d at 855, 525 N.E.2d at 122.) The weight to be accorded testimony relating to this defense is peculiarly within the province of the trier of fact. Bradney, 170 Ill. App. 3d at 855, 525 N.E.2d at 122.

When a defendant raises a challenge to the sufficiency of the evidence, it is not the function of this court to retry the defendant. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) The relevant question is whether, if after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could not have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.

Defendant believes the evidence establishes that he did not have the requisite intent. He points to the testimony of those at the party, which established he drank three to four drinks per hour. They are also of the opinion that he was intoxicated. This is borne out by his being unsure of the time that he left the bar, not being sure the number of drinks he consumed, and vomiting in the driveway. He also observes he blacked out totally during the attack and that it was a totally irrational, violent act. He finally rests on the expert testimony of Dr. Chapman, who stated his opinion that defendant did not possess the required intent.

In determining whether a defendant was so intoxicated that his powers of reason were totally suspended, the trier of fact is not obligated to rely on the testimony of experts to the exclusion of other evidence relevant to the defendant’s mental state. Rather, the trier of fact may consider the opinion of experts, together with all of the other evidence relevant to the defendant’s mental state at the time of the offense, and reject the expert testimony if it deems the other evidence more probative. Bradney, 170 Ill. App. 3d at 855, 525 N.E.2d at 122.

In the present case, the evidence, considered in the light most favorable to the State, establishes that the defendant drank six to eight mixed drinks over an eight-hour period. While his companions opined he was intoxicated, they were unable to point to many factors other than the amount he drank. These assessments were based on conduct from one hour to three hours prior to the time of the attack. Thus, the jury could have found that if defendant had been intoxicated, he may have sobered up. Further, defendant’s sister stated he responded appropriately to her question after he vomited. Defendant was able to relate where he walked and what places he passed. When he met Remmert, they were able to carry on a normal conversation. Defendant was able to explain his military background and answer other questions. Remmert observed no slurring of speech or staggering of his walk. Once the episode was over, defendant was again able to carry on a conversation and then walk home. Admittedly, defendant said he blacked out during the attack but, due to his rational conduct both before and after the episode, the jury could reasonably have disregarded this testimony. Similarly, the jury could have disregarded Dr. Chapman’s opinion, since it was based, in good part, on statements of defendant and his sister, and does not conform to the other evidence.

We acknowledge that, due to the unexplainable irrational conduct, this case is factually close. However, it is in just such cases that the opportunity for the jury to observe and to evaluate the witnesses is so valuable. We cannot say that, based on the recited evidence, no rational trier of fact could have found defendant guilty beyond a reasonable doubt. The evidence is sufficient.

Defendant next contends the court erred in refusing to submit his proffered instructions on the offense of reckless conduct (Ill. Rev. Stat. 1987, ch. 38, par. 12— 5), which he maintains is an included offense of attempt (murder).

Initially, the court had accepted the instruction over the State’s objection. However, later, prior to the closing argument, the State sought to give instructions on aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12—4), asserting this is also an included offense. Defendant objected, and a recess for research purposes was taken. After the recess, the court concluded, based on People v. Primmer (1983), 111 Ill. App. 3d 1046, 444 N.E.2d 829, that reckless conduct is not an included offense of attempt (murder) and, reversing its earlier decision, denied defendant’s proffered reckless conduct instructions.

A defendant is entitled, under certain circumstances, to have the jury instructed as to an offense less serious than that with which the defendant is charged. (People v. Roberts (1989), 189 Ill. App. 3d 66, 72, 544 N.E.2d 1340, 1345.) The purpose of such a rule is to give the jury a third option by permitting it, if it deems the defendant not guilty of the charged offense but reluctant to completely acquit him, an opportunity to find the defendant guilty of a lesser offense, if the jury finds the proof of the lesser offense strong enough to convict. (People v. Bryant (1986), 113 Ill. 2d 497, 502, 499 N.E.2d 413, 415.) An included offense instruction is only proper when the charged offense requires the jury to find an element which is not required for conviction of the lesser offense (People v. Cramer (1981), 85 Ill. 2d 92, 100, 421 N.E.2d 189, 192), or, stated in another way, an included offense is an offense which contains some, but not all, of the elements of the greater offense and contains no element not included in the greater. People v. Traufler (1987), 152 Ill. App. 3d 987, 990, 505 N.E.2d 21, 23.

However, as our supreme court has observed, in something of an understatement, the grounds for determining whether a particular offense is included in another are not always clear. (Bryant, 113 Ill. 2d at 502, 499 N.E.2d at 415.) Section 2—9 of the Criminal Code of 1961 (Code) provides the following definition:

“ ‘Included offense’ means an offense which (a) Is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged.” (Ill. Rev. Stat. 1987, ch. 38, par. 2—9.)

The supreme court has recognized that this definition does not explain which of the following is determinative in deciding if a particular offense is an included offense of another: (1) the abstract statutory definition of the greater crime; (2) the greater crime as it is alleged in the indictment or other charging instrument; or (3) the greater crime as its necessary elements are proved at trial. (People v. Mays (1982), 91 Ill. 2d 251, 255, 437 N.E.2d 633, 635.) The courts have recognized that either review of the abstract charge, or review of the offenses as charged, is an appropriate means to be used. People v. Bratton (1989), 178 Ill. App. 3d 718, 727, 533 N.E.2d 572, 578; Traufler, 152 Ill. App. 3d at 991, 505 N.E.2d at 23-24.

Defendant acknowledges that this court previously answered the question of whether reckless conduct is an included offense of attempt (murder) in Primmer. There, the court stated:

“The offense of reckless conduct in shooting at David Farris was not an included offense of the attempt to murder David Farris because the reckless conduct charge, which defendant deems an included offense, required an endangering of the safety of Farris while the attempted murder charge had no such element.” (Primmer, 111 Ill. App. 3d at 1053, 444 N.E.2d at 834.

Similar conclusions have been reached by other courts. See People v. Smith (1980), 90 Ill. App. 3d 83, 86, 412 N.E.2d 1102, 1105; People v. Coleman (1985), 131 Ill. App. 3d 76, 80, 475 N.E.2d 565, 568.

Defendant argues that Primmer was decided prior to the supreme court’s decisions in People v. Dace (1984), 104 Ill. 2d 96, 470 N.E.2d 993, and Bryant. He believes these cases require a different conclusion.

In Dace and Bryant, the court looked to the evidence proved at trial and the language contained in the charging instrument. Thus, in Bryant, the court held that criminal damage to property is an included offense of attempt (burglary), where the indictment alleged that the substantial step toward the burglary was breaking of a window, and the evidence adduced at trial would have supported a criminal damage conviction. The court concluded it was not necessary to have all the elements of the included offense contained in the charge, as long as the charging instrument sets out the main outline of the lesser offense for which an instruction is sought. (Bryant, 113 Ill. 2d at 505, 499 N.E.2d at 416-17.) Accordingly, Bryant seems to conclude that included offense instructions should be given when the elements in the included offense are, in a broad sense, included in the offense charged, and the evidence that develops at trial proves the included offense. Roberts, 189 Ill. App. 3d at 74, 544 N.E.2d at 1346.

However, we need not determine if Bryant changes the Primmer holding because, even if Bryant does apply, it is apparent defendant is not entitled to the proffered instruction. The court, in Bryant, observing that restrictions upon the use of included instructions do exist, stated:

“There are several notable limits on the operation of the included-offense doctrine, however. For example, because a defendant’s instruction on a lesser offense is appropriate ‘if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.’ (Keeble v. United States (1973), 412 U.S. 205, 208, 36 L. Ed. 2d 844, 847, 93 S. Ct. 1993, 1995), the evidence presented in a particular case might rationally preclude the use of an instruction on a lesser offense. (See Hopper v. Evans (1982), 456 U.S. 605, 612-13, 72 L. Ed. 2d 367, 373-74, 102 S. Ct. 2049, 2053-54; People v. Perez (1985), 108 Ill. 2d 70, 81-83; People v. Mitchell (1984), 105 Ill. 2d 1, 14.) Moreover, an included-offense instruction ‘ “is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.” ’ (People v. Cramer (1981), 85 Ill. 2d 92, 100, quoting Sansone v. United States (1965), 380 U.S. 343, 349-50, 13 L. Ed. 2d 882, 887-88, 85 S. Ct. 1004, 1009.) Thus, instructions on less serious offenses are not required in every case.” Bryant, 113 Ill. 2d at 507, 499 N.E.2d at 417-18.

Defendant asserts the evidence in this case would support a reckless conduct conviction. A person is guilty of this offense if he harms or endangers the safety of another, and he recklessly performs the acts which did so. (Ill. Rev. Stat. 1987, ch. 38, par. 12—5.) Defendant submits that the reckless act in this case was his becoming intoxicated at the bar, and it was due to this intoxication that the attack occurred.

Section 4 — 6 of the Code provides that a person acts recklessly when he consciously disregards a substantial and unjustifiable risk that a result will follow. (Ill. Rev. Stat. 1987, ch. 38, par. 4—6.) This clearly connotes a certain sense of foreseeability that the result will occur from the conduct. We do not believe this is such a situation. The evidence establishes that between one and two hours after defendant ceased drinking, he suddenly attacked and attempted to kill a man defendant hardly knew and who had offered defendant some assistance. It would be difficult to conclude that defendant, as he was becoming intoxicated, was consciously disregarding the risk that he would subsequently, due to the drinking, attack with a knife and attempt to kill another for no apparent reason. While it could be argued that it is conceivable that something like this would occur, we note the definition requires a substantial risk. This is not such a risk.

Defendant can cite no cases where the alleged reckless act is so distant or attenuated from the harm to the victim, or where the resulting harm was due to such- an unlikely outcome of the reckless act. To hold as defendant suggests would seem to require that in any case where a perpetrator’s intoxication can be related to the actual harmful conduct, irregardless of the remoteness or the unlikelihood, his conduct can be viewed as reckless. We believe this is neither the scope nor intent of section 4 — 6. Defendant’s intoxication is properly addressed to his affirmative defense. We, therefore, hold that, under the circumstances of this case, the evidence would not support a reckless conduct conviction. Accordingly, since the evidence would not permit a jury to rationally find defendant guilty of that offense, his offered instructions were properly refused.

Defendant next contends he received ineffective assistance of counsel, since his counsel objected to the State’s included-offense instructions alleging aggravated battery.

The United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, formulated a two-part test for evaluating whether a claim of ineffective assistance of counsel rises to the level of a constitutional deprivation. Defendant must first demonstrate that counsel’s performance was deficient. (People v. Owens (1989), 129 Ill. 2d 303, 309, 544 N.E.2d 276, 278.) Defendant must also prove that his counsel’s deficient performance substantially prejudiced his defense. (Owens, 129 Ill. 2d at 309, 544 N.E.2d at 278.) To meet this second test, a defendant must show a reasonable probability that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

Defendant observes that courts have held that aggravated battery can be an included offense of attempt (murder). (See People v. Gvojic (1987), 160 Ill. App. 3d 1065, 513 N.E.2d 1083; People v. Cross (1980), 84 Ill. App. 3d 868, 406 N.E.2d 66.) Therefore, defendant maintains that counsel was mistaken in objecting to the instructions, and this conduct falls below the level of professionalism required. He also believes he was prejudiced by this conduct because, since the case is closely balanced, the jury might have chosen the “third option” and convicted him of the lesser charge, while acquitting him of the greater.

However, a review of the record establishes that counsel was not acting under a mistaken belief. Rather, he forcefully argued that the evidence presented would not support an aggravated battery charge. To properly evaluate counsel’s conduct, it is necessary to be aware of the procedural background.

As noted earlier, at the jury instruction conference the court accepted, over the State’s objection, defendant’s reckless conduct instructions. Later, prior to closing argument, the State sought to have the questioned instructions accepted. Defense counsel objected, and a recess was taken. Upon the court’s return, it reversed its earlier decision and refused defendant’s reckless conduct instructions. At this point, the State withdrew its aggravated battery instructions, while defense counsel, to no avail, sought to have the court reconsider its reckless conduct ruling.

Thus, it is clear that counsel’s objections were based on trial strategy. At the time he made the objections, the jury was to be instructed on attempt (murder), a Class X felony (Ill. Rev. Stat. 1987, ch. 38, par. 8—4(c)), and reckless conduct, a Class A misdemeanor (Ill. Rev. Stat. 1987, ch. 38, par. 12—5(b)). This is sound strategy. It was not until after he had argued forcefully against the aggravated battery instructions (a Class 3 felony (Ill. Rev. Stat. 1987, ch. 38, par. 12—4(e))) that the reckless conduct instructions were removed. By then, it was too late, since this position had been taken. It could be argued that counsel should not have objected at all. After all, having two included charges is better than none. However, his desire was to ensure that the only included charge was a misdeamnor and not a felony. Since counsel is continually subject to criticism in hindsight for strategies which may not have been successful, judicial scrutiny of counsel’s performance must be highly deferential. (Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.) Courts presume that counsel’s performance falls within the wide range of professionally competent assistance. (Owens, 129 Ill. 2d at 309, 544 N.E.2d at 278.) To overcome this presumption, the defendant must prove that his counsel’s representation fell below an objective standard of reasonableness. (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) We have no doubt that other counsel may have proceeded differently. However, this is true of every case. Counsel’s strategy was sound and is definitely within the range of acceptable representation.

Defendant argues, in the alternative, that the court should have sua sponte given the. aggravated battery instructions. Defendant failed to include this assertion in his post-trial motion, and it is, therefore, waived. People v. Tannenbaum (1980), 82 Ill. 2d 177, 181, 415 N.E.2d 1027, 1029.

Defendant next maintains the court erred by refusing to allow him to recall a witness. After Schertz testified and was excused, defendant made a request to recall him. This was done while it was still defendant’s case in chief. In an offer of proof, Schertz testified that he observed defendant drink champagne out of a party horn and break plastic glasses against his head. Schertz explained that he remembered this after he left the stand and brought it to defense counsel’s attention. The court declined to let him be recalled.

It is well settled that the decision of whether to allow recall of a witness is left to the sound discretion of the trial court. (People v. Harris (1979), 74 Ill. 2d 472, 477, 386 N.E.2d 60, 62; People v. Smith (1986), 149 Ill. App. 3d 145, 152, 500 N.E.2d 605, 610.) This ruling will not be reversed, absent a clear abuse of discretion. Smith, 149 Ill. App. 3d at 152, 500 N.E.2d at 610.

The offered testimony is simply further evidence of defendant’s intoxication. This is merely cumulative, since there already existed substantial evidence on this point. Further, the testimony dealt with defendant’s level of intoxication at midnight, which is over five hours prior to the incident. Thus, it is of marginal probative value concerning defendant’s state of mind at the time of the offense. We find no abuse of discretion.

Lastly, defendant insists the trial court erred by failing to grant his post-trial motion. At the sentencing hearing, the court found, in mitigation, that defendant did not contemplate that his conduct could cause or threaten serious physical harm to another. (See Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.1(a)(2).) Defendant notes that to be found guilty of attempt (murder), it is essential that he be found to have intended to kill Remmert. He maintains the court’s finding is contrary to the presence of such an intent and is tantamount to an acquittal. Therefore, he insists the court erred by not granting defendant’s post-trial motion.

This question has already been resolved by People v. Hendricks (1986), 145 Ill. App. 3d 71, 495 N.E.2d 85, aff'd (December 21, 1988), No. 63803, rehearing granted (1989). There, in refusing to impose the death penalty, the trial judge observed he was not convinced beyond a reasonable doubt of defendant’s guilt. An argument identical to the present one was made by Hendricks’ defense counsel. The reviewing courts observed that the court had already denied the motions for directed verdict, alleging the sufficiency of the evidence, and that the trial court specifically stated the evidence was sufficient to convict. The courts held the comments were made in the context of sentencing and were not a comment on the sufficiency of the evidence.

Similarly, in the present case, it is clear the comments are solely made in the sentencing context. The court specifically made this clear when it stated:

“So, with regard to Factor No. 2 as to sentencing only, Court would conclude independent of the jury’s conclusion, particularly given the fact there is no particular burden on these findings, that the Defendant did not contemplate that his criminal conduct would cause or threaten serious physical harm to another.”

Further, the court earlier denied motions for directed verdicts, and later denied the post-trial motion which specifically raised the question of the sufficiency of the evidence. Thus, pursuant to Hendricks, there is no error.

Affirmed.

SPITZ and McCULLOUGH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN JUSTICE McCULLOUGH,

license: Public Domain

text:
    PROFESCO CORPORATION, Plaintiff and Counterdefendant, v. MARILYN O. DEHM, Defendant and Counterplaintiff-Appellee (Joseph Catherine et al., Appellants).
    Fourth District
    No. 4—89—0665
    Opinion filed April 5, 1990.
    McCULLOUGH, J., concurring in part and dissenting in part.

      Peterson, Ross, Schloerb & Seidel, of Chicago (J. Robert Geiman and David J. Novotny, of counsel), for appellants.
    Roger B. Gomien, of Gomien, Root & Rigazio, of Morris, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

In May 1988, Profesco Corporation brought suit against Marilyn Dehm, seeking $2,374.68 plus costs and attorney fees and claiming that she owed Profesco money pursuant to a note she allegedly signed. Profesco claimed Dehm owed this sum as a result of a premium finance agreement. Dehm answered the complaint by denying the allegations. She also asserted as an affirmative defense that the note did not contain her signature.

Dehm later filed a counterclaim against Profesco seeking damages under the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 1211/2, par. 262 et seq.). In her counterclaim, Dehm alleged that the premium finance agreement was forged. Shortly thereafter, Dehm subpoenaed Charles Mitchell and Joseph Catherine, employees of John Hancock Life Insurance Company (Hancock), for deposition. (Hereafter, Mitchell, Catherine, and Hancock will be referred to as appellants.) The subpoena also required Mitchell and Catherine to produce certain documents of Hancock’s investigative department.

With regard to one of the documents — a two-page report of Hancock’s department of special activities — appellants refused to comply with the subpoena and filed several motions for protective relief, contending that the document in question was protected under the work-product doctrine. After an in camera inspection, the trial court ruled that while page one and the last paragraph of page two were protected under the work-product doctrine, the remainder of the document was not protected and was required to be produced. Appellants’ attorney, David Novotny, then asked the trial court to enter an order of contempt so appellants could appeal the ruling as to the discoverability of the document. In response, the trial court held appellants’ attorney in contempt of court and fined him $100 a day until the discovery order was complied with. This order is also before us on appeal.

Appellants first argue that the trial court erred in ordering the production of portions of the department of special activities report because it is privileged communications under the work-product doctrine.

It is well settled that pretrial discovery orders will not be interfered with on appeal in the absence of a manifest abuse of discretion affirmatively and clearly shown by the appellant. (Snyder v. Lowrey (1986), 141 Ill. App. 3d 30, 32-33, 489 N.E.2d 899, 901.) Because wide discretionary power rests in the trial court regarding pretrial discovery matters, appellants have the burden of showing that there has been a clear abuse of discretion. (City of North Chicago v. North Chicago News, Inc. (1982), 106 Ill. App. 3d 587, 593, 435 N.E.2d 887, 891; Bicek v. Quitter (1976), 38 Ill. App. 3d 1027, 1030, 350 N.E.2d 125, 127.) Here, we find no such abuse.

In Illinois, the work-product doctrine is found in Illinois Supreme Court Rule 201(b)(2) (107 Ill. 2d R. 201(b)(2)), which in pertinent part states the following:

“Material prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party’s attorney.” 107 Ill. 2d R. 201(b)(2).

In the present case, the first two paragraphs of the document at issue contain hearsay allegations that the insurance agent who wrote the policy being investigated has had several complaints made against him. The third paragraph of the document at issue relates to the company’s ability to obtain access to information concerning this individual through its internal computer system.

We have evaluated these paragraphs in light of the criteria for determining whether they are work-product as discussed in Consolidation Coal Co. v. Bucyrus-Erie Co. (1982), 89 Ill. 2d 103, 432 N.E.2d 250. We conclude that they do not “ ‘ “reveal the shaping process by which the attorney[s] [have] arranged the available evidence for use in trial as dictated by [their] training and experience” ’ (Monier v. Chamberlain (1966), 35 Ill. 2d 351, 359[, 221 N.E.2d 410, 416]) [which would] therefore entitlef] [them] to protection.” Consolidation Coal, 89 Ill. 2d at 110, 432 N.E.2d at 253.

While this information was obviously gathered for the purpose of litigation (albeit not this litigation), the subject matter of the three paragraphs in question does not remotely contain or disclose the theories, mental impressions, or litigation plans of the party’s attorney as required by Rule 201(b)(2). Accordingly, these three paragraphs, attached to this opinion as an appendix, are discoverable.

Appellants next argue that the trial court erred when it fined their attorney $100 a day until he complied with the discovery order. Specifically, appellants argue that the fine should be vacated in light of the fact that appellants’ attorney asked the trial court to enter an order of contempt against him so that he could bring a good-faith appeal of the trial court’s discovery order.

In their brief, appellants argue that Sakosko v. Memorial Hospital (1988), 167 Ill. App. 3d 842, 522 N.E.2d 273, Pemberton v. Tieman (1983), 117 Ill. App. 3d 502, 453 N.E.2d 802, Bicek (38 Ill. App. 3d 1027, 350 N.E.2d 125), and Consolidation Coal (89 Ill. 2d 103, 432 N.E.2d 250), support the proposition that contempt and fine orders imposed against a good-faith noncomplying party should be vacated if the discovery order is reversed on appeal, or if the noncomplying party is found to be in good faith. This argument, however, presumes the trial court is in agreement with the appellants’ good-faith claims. That the appellants’ attorney asked to be held in contempt so that he might bring this appeal in no way supports the notion that he would not have been held in contempt had he not requested that finding. On the record before us, we think it likely that appellants’ attorney would have been held in contempt once he refused to present the document in question, whether he asked for that finding or not. Our assessment is based in part on the fact that after appellant’s attorney was held in contempt with a $100 fine per day imposed, he asked the trial court to vacate the fine. The trial court refused.

In Fine Arts Distributors v. Hilton Hotel Corp. (1980), 89 Ill. App. 3d 881, 412 N.E.2d 608, the court was quite eloquent in stating that because the trial court is in the best position to determine whether a party’s conduct amounts to a deliberate or contumacious flouting of judicial authority, the trial court’s exercise of discretion regarding discovery violations should be afforded considerable deference. The court went on to state the following:

“Additionally, the nature of the decision called for urges respect for the ruling below, in that the trial court is required to balance competing considerations. On the one hand, it is clear that the purpose of sanctions is to accomplish the object of discovery, and not to punish recalcitrant litigants. [Citation.] At the same time, courts have an interest in promoting the unimpeded flow of litigation, which requires that careful attention be paid to the prompt and orderly handling of discovery. ‘Discovery for all parties will not be effective unless trial courts do not countenance violations, and unhesitantly impose sanctions proportionate to the circumstances.’ [Citation.] By serving notice that discovery is a serious phase of litigation and not an exercise in tactics, sanctions promote the flow of litigation and preserve the court’s role in expediting that flow. [Citation.] *** [A]ny attempt by counsel to use discovery for strategic delay or calculated misinformation corrupts the truth-seeking process and must be sternly rebuked.” Fine Arts Distributors, 89 Ill. App. 3d at 883-84, 412 N.E.2d at 610.

The deference to be given a trial court’s determination of the degree to which a contemptuous refusal to comply with its order of discovery is in “good faith” is particularly compelling when, as here, the person or entity in contempt is not even a direct party to the litigation in which the issue arises.

Upon careful review of this record, we find that the trial judge could have reasonably found appellants to be abusing discovery. Ten discovery hearings were held, and Mitchell and Catherine’s depositions had to be rescheduled several times. In light of these facts and the fact that a discovery order sanction will be upheld on review absent an abuse of discretion (Fine Arts Distributors, 89 Ill. App. 3d at 883, 412 N.E.2d at 610), we find no abuse of discretion in the trial court’s assessment of a $100-per-day contempt fine. Under the peculiar circumstances of this case, however, we deem it unnecessary for us to definitively resolve the matter of whether the trial court viewed the behavior of appellant’s attorney as being in “good faith.” Instead, we remand this cause to the trial court for the limited purpose of determining whether it wishes to vacate some, none, or all of the fine it imposed. The trial court should make that determination consistent with the views expressed herein and the developments regarding this litigation since the fine was imposed that the trial court determines are relevant to the issue before it.

Affirmed and remanded with directions.

KNECHT, P.J., concurs.

APPENDIX

MOWRY FALK, General Agent, Central Illinois General Agency, Peoria, Illinois. This source was contacted on November 10, 1986 by phone and the writer inquired if they had any correspondence or complaints from policyholders regarding Ray Jones in file. Mr. Falk stated he recalled at least three cases that he handled personally but added that Ray Jones’ policyholders had been “giving us fits” for years. He recalled the name of one customer, Edward Bach, who allegedly gave Ray Jones a personal check for $2,700.00 in some type of “deal.”

Mr. Falk recalled attending a recent President’s Club where he met with Mr. Sekara and a Mr. Paul Lutton of the Columbus General Agency and Falk learned that Mr. Lutton, while a marginal producer, was paid $100.00 a week by former Columbus General Agent Frank Clegg, to be a troubleshooter. According to Lutton, many of his activities involved resolving Ray Jones’ policyholder complaints.

THOMAS NORTON, Consumer Relations Division, Home Office. This source was contacted the same date and he advised that via computer, their department is able to enter an Agent’s number, and a record of their past complaints are stored and recalled. This search, however, must be authorized by the Law Department and if so authorized, conducted by Mr. Herb Keller of Consumer Relations, who has access to the system.

JUSTICE McCULLOUGH,

concurring in part and dissenting in part:

The assessment of the $100-per-day fine for contempt should be vacated without remand. As the majority points out, the appellants’ counsel “asked the trial court to enter an order of contempt so appellants could appeal the ruling as to the discoverability of the document.” 196 Ill. App. 3d at 128.

Contrary to the majority’s thinking “it likely that appellants’ attorney would have been held in contempt” (196 Ill. App. 3d 130), this court should not hypothecate on what might have happened. The record before this court justifies a finding of “good faith.” The trial court was not held in disdain or subjected to scorn. Sakosko v. Memorial Hospital (1988), 167 Ill. App. 3d 842, 848, 522 N.E.2d 273, 277.

The documents sought to be discovered were the property of a nonparty to the action. I disagree that because Novotny is a nonparty, the question of “good faith” loses importance.

As stated in Sakosko v. Memorial Hospital (1988), 167 Ill. App. 3d 842, 848, 522 N.E.2d 273, 277:

“The contempt order was entered at defendant’s request, as it was the proper procedure to follow in order to test on appeal the trial court’s discovery orders. [Citation.] Defendant was not being contemptuous in that the court was not held in disdain or subjected to scorn. [Citation.] Instead, defendant was acting in a good-faith effort to secure an interpretation of the two privileges in question.”

I would vacate the fine levied against Novotny for contempt. In all other matters I would affirm the trial court.


author: JUSTICE SPITZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN B. GERDES, Defendant-Appellant.
    Fourth District
    No. 4—89—0604
    Opinion filed April 5, 1990.
    Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.

      John B. Huschen, State’s Attorney, of Eureka (Kenneth R. Boyle, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

This is an appeal by defendant Brian B. Gerdes from a judgment of conviction entered in the circuit court of Woodford County following a guilty plea for driving while his license was revoked (Ill. Rev. Stat. 1985, ch. 951/2, par. 6— 303(a)). Defendant was sentenced to 12 months’ probation conditioned on his paying costs of $158.30 and serving 365 days’ periodic imprisonment with actual incarceration at all times other than between the hours of 1 to 4 p.m. each Saturday. Defendant was given credit of 257 days previously served, and the trial court directed that the sentence run consecutive to the sentence of imprisonment imposed in McLean County case Nos. 87—CF—456, 88—CF—275.

Initially, defendant concedes he failed to file a motion to withdraw his guilty plea prior to initiating this appeal, but argues that this appeal should not be dismissed by reason of the decision of People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, because the trial court failed to admonish defendant concerning his right to appeal and the need to file a motion to withdraw his guilty plea pursuant to Illinois Supreme Court Rule 605(b) (107 Ill. 2d R. 605(b)). The State concedes that the trial court failed to properly admonish defendant as to his right to appeal and agrees with defendant’s contention. See People v. Favelli (1988), 176 Ill. App. 3d 618, 531 N.E.2d 386.

However, in this case, the only issues raised by defendant on appeal are issues concerning sentencing. As Wilk points out, there is no need to file a motion to withdraw a guilty plea to raise issues concerning sentencing as long as a motion to reconsider the sentence is filed. And since Rule 605(b) does not require an admonishment concerning the filing of a motion to reconsider the sentence, the trial court’s failure to admonish pursuant to Rule 605(b) cannot form the basis for preserving the issues in the instant appeal.

Defendant admittedly did not file a motion to reconsider the sentence in the trial court before appealing to this court. Ordinarily, the failure to file a post-trial motion results in a waiver of the issues for purposes of appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) Courts have held that no motion to reconsider need be filed to challenge the severity of the sentence in order to preserve that issue on review (People v. Kennedy (1989), 188 Ill. App. 3d 1, 543 N.E.2d 617). Moreover, even if a motion to reconsider were required to be filed, pursuant to Supreme Court Rule 615(a) (107 Ill. 2d R. 615(a)), a reviewing court has the discretion to consider plain error or defects which affect substantial rights of the defendant even though defendant may have waived those issues for purposes of review. (See People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 461.) Since substantial rights of defendant are involved here, any error which may have occurred here would be plain error.

The first issue to consider is whether the trial court erred in ordering defendant’s 365 days of periodic imprisonment to be served consecutive to a term of imprisonment defendant was serving for felony charges tried in McLean County. The State concedes that error has occurred.

In People v. Lueloff (1987), 161 Ill. App. 3d 432, 514 N.E.2d 579, the only case cited by the parties, the appellate court reviewed a trial court’s order of concurrent terms of imprisonment for a felony and periodic imprisonment for a misdemeanor, where the trial court also ruled that neither sentence extinguishes the other. The appellate court disagreed, relying on section 5 — 7—8(a) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 1005—7—8(a)). The reviewing court held “a sentence of periodic imprisonment imposed on an offender for an offense committed prior to the imposition of a sentence of imprisonment is satisfied to the extent of actual incarceration served.” (Lueloff) 161 Ill. App. 3d at 437, 514 N.E.2d at 582.) The rationale is that section 5 — 7—8(a) is designed to prevent the tacking of a sentence of periodic imprisonment onto a continuous prison term. Moreover, the periodic imprisonment herein is a condition of defendant’s probation. Therefore, just as the trial court could not impose a sentence of probation consecutive to a sentence of imprisonment (People v. Mack (1985), 133 Ill. App. 3d 788, 479 N.E.2d 445), it is impermissible to require the periodic imprisonment to be served consecutive to the sentence of imprisonment. Under the Code, “imprisonment” means incarceration in a correctional facility under a sentence of imprisonment and does not include “periodic imprisonment” under section 5—1—10 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 1005—1—10). Since consecutive terms of imprisonment are referred to only in section 5—8—4 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 1005— 8—4 (imprisonment)) and are not mentioned in section 5—7—1 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 1005—7—1 (periodic imprisonment)), it is obvious the legislature never intended the consecutive-sentence provision to be applied with periodic imprisonment.

Defendant next contends that the trial court failed to properly credit defendant with an additional 45 days for time served by defendant. The State contends that question is moot because, if the sentences are required to run concurrent with the sentence of imprisonment on the McLean County cases, as this court has already determined, the term of periodic imprisonment has already been served regardless of whether the proper credit was 257 days, or the 302 days now demanded by defendant. Since the consideration of the first issue requires remand, and since it is more appropriate for the trial court to assess the proper credit, this court need not decide this issue.

Accordingly, the judgment of the circuit court of Woodford County' is affirmed in all respects, except: that portion of the order of probation indicating the sentence is to be served consecutive to sentence of imprisonment in the McLean County cases is reversed, and the cause is remanded for the trial court to amend the order of probation consistent with this opinion.

Affirmed in part; reversed in part and remanded.

LUND and McCULLOUGH, JJ., concur.


text:
    JAY ROGERS et al., Plaintiffs-Appellants, v. THE CITY OF JERSEYVILLE et al., Defendants-Appellees.
    Fourth District
    No. 4—89—0332
    Opinion filed April 5, 1990.

      Ronald C. Mottaz, of Thomas, Mottaz, Eastman & Sherwood, of Alton, for appellants.
    W. Thomas Ryder, Ltd., of Jerseyville, and Stobbs & Sinclair, of Alton (W. Thomas Ryder and James S. Sinclair, of counsel), for appellees.
   JUSTICE SPITZ

delivered the opinion of the court:

The plaintiffs, Jay and Raelene Rogers, Clifford and Thea Jones, Jim and Barbara Lumma, bring this appeal from judgment of the circuit court of Jersey County. They contest the circuit court’s declaring valid an ordinance of defendant City of Jerseyville (Jerseyville) which rezoned the subject property, and upholding an additional ordinance which vacated some of the streets in the subdivision.

In October 1987, the defendant Sinclair Food Markets, Inc. (Sinclair), purchased a piece of land consisting of approximately 28 acres within the southern boundary of Jerseyville. Sinclair intended to build a supermarket on the site. The land purchased by Sinclair had previously been platted as part of a residential subdivision known as Southview Terrace. A portion of the subdivision plat had already been developed for residential purposes, and the plaintiffs here are homeowners in the previously developed section.

In November 1987, Sinclair filed a petition to amend the zoning classification of the property it had purchased from R-2 (residential) to B-2 (commercial). A notice of the petition was filed and published in the newspaper. No personal notice was given to the owners of the residential property north of Sinclair’s property.

On November 19, 1987, the zoning board of appeals met and heard Sinclair’s petition. At this meeting, the board failed to either approve or deny the petition, but sent it on to the city council without a recommendation or findings of fact.

On December 1, 1987, the city council of Jerseyville discussed the petition and tabled it for two weeks in order to permit the council to obtain legal advice concerning the Jerseyville zoning ordinance’s prohibition against the creation of a buffer zone to avoid the necessity of giving notice to adjacent landowners, as it is applied to the Sinclair petition. Subsequently, the council approved the rezoning on December 15,1987, adopting ordinance 969.

On December 30, 1987, Sinclair filed a petition to vacate a portion of the subdivision plat and the undedicated, unconstructed and unaccepted streets designated on that portion of the plat. The parties agree the petition incorrectly described the property to be vacated. On January 12, 1988, the Jerseyville city council adopted ordinance No. 974, vacating the streets and lots in that portion of Southview Terrace incorrectly described in the petition. However, pursuant to the ordinance, Jerseyville Mayor Herman Blackerby and City Clerk Yvonne Hartman signed a plat which correctly represented the property to be vacated.

On January 14, 1988, the plaintiffs filed suit in the circuit court of Jersey County. The plaintiffs asked the court to invalidate the rezoning, to reclassify the property for residential use, and to enjoin Sinclair from using the property for commercial purposes. On April 4, 1989, judgment was entered on all counts for the defendants.

On appeal, the plaintiffs complain the defendants failed to comply with the applicable Jerseyville zoning requirements in that they (1) failed to list the adjacent property owners in the petition; (2) attempted to create a buffer zone in violation of the ordinance; (3) failed to give personal notice to adjacent property owners; (4) failed to obtain a recommendation or findings of fact from the zoning appeals board; and (5) improperly attempted to override the restrictive covenants pertaining to the subdivision by the rezoning.

When a court reviews the actions of a zoning authority, all presumptions favor the validity of the zoning ordinance. (La Salle National Bank v. City of Chicago (1955), 6 Ill. 2d 22, 126 N.E.2d 643.) When the proper authorities adopted the zoning ordinance, the presumption of validity cannot be lightly set aside. (Boward v. County of Cook (1963), 27 Ill. 2d 52, 187 N.E.2d 676.) The plaintiffs have cited Cain v. Lyddon (1931), 343 Ill. 217, 175 N.E. 391, for the proposition that when a municipality establishes zoning procedures, it must then follow them. However, what is required is not exact compliance, but substantial compliance. (Treadway v. City of Rockford (1962), 24 Ill. 2d 488, 182 N.E.2d 219.) Therefore, the question which this court must consider is whether substantial compliance with the Jerseyville zoning ordinance was had in this case.

Plaintiffs first maintain proper notice was not given since the residential landowners in the subdivision were not listed on the petition as required by ordinance and did not receive personal notice. Defects in notice of hearing on an application for zoning variances may not be raised by parties who had actual notice of the meeting, failed to object to the alleged defect at the meeting, and showed no prejudice from such defect. (Armour v. Mueller (1976), 36 Ill. App. 3d 23, 343 N.E.2d 251.) In this case, there was objection to the lack of notice at the meeting. However, plaintiffs do not contend they were unaware of the meeting or its subject matter, or did not have actual notice. Although plaintiffs suggest that with proper notice it would have been possible to better prepare their case, or retain counsel to represent them, the record does not demonstrate the plaintiffs were prejudiced or prevented in any way from fully participating in any of the three meetings which dealt with rezoning.

Plaintiffs also contend Sinclair’s decision to leave a strip of its property zoned as residential was an attempt to create a buffer zone in contravention of section 16 of the zoning ordinance. (City of Jerseyville, Ill., ch. 26, App. A, §16 (1987) (zoning).) All parties agree the purpose of this requirement is to prevent land developers from avoiding the notice requirements. While it does appear Sinclair did leave a strip of land adjoining other property in its existing zoning classification, the adjacent landowners who are parties to this litigation had actual notice and fully participated in the rezoning process. For this reason, they suffered no prejudice.

When the Jerseyville zoning appeals board considered Sinclair’s rezoning petition, the appeals board failed to make any recommendation or findings of fact and sent the petition on to the city council. The plaintiffs complain this was in contravention of the ordinance which requires the board to make a recommendation and findings of fact. (See City of Jerseyville, Ill., ch. 26, App. A, §§14.3—3, 14.3—4, 15.2 (1987) (zoning).) The zoning ordinance requires a public hearing before the zoning board of appeals, with recommendations forwarded to the city council, before the zoning ordinance can be amended. The city council may not grant a variation in any specific case without the zoning board having first conducted a hearing or without having received a report in which findings of fact specify the zoning board’s reasons for its decision. However, having received the report, the city council may adopt or deny the zoning variation without further public hearing. The zoning ordinance states that if the zoning board determines the variation should be granted, then the zoning board must find the zoning variation will not (1) impair an adjacent supply of light and air to adjacent property; (2) unreasonably increase the congestion in public streets; (3) increase the danger of fire or endanger the public safety; and (4) unreasonably diminish or impair established property values within the surrounding area, or in any other respect, impair the public health, safety, comfort, morals, and welfare of the inhabitants of Jerseyville.

In this case, the zoning board did conduct a hearing, and submitted a report of “no recommendation” to the city council. While the reasons therefor are not stated in the report, this action may have been prompted by the fact that one of the plaintiffs, Raelene Rogers, is the chairwoman of the Jerseyville zoning board of appeals. While there is no indication of impropriety, the reasons underlying the zoning board’s action would be obvious even though not specified in the report. Furthermore, the failure of the zoning board to make findings of fact does not require the rezoning ordinance to be invalidated, since the zoning board is merely an advisory administrative board. Kleidon v. City of Hickory Hills (1983), 120 Ill. App. 3d 1043, 458 N.E.2d 931; see also American National Bank & Trust Co. v. Village of Skokie (1989), 181 Ill. App. 3d 189, 536 N.E.2d 926.

The plaintiffs also maintain the rezoning is invalid because it would interfere with the enforcement of the restrictive covenants in the deeds. However, the restrictive covenants will prevail as to the purchasers of the property only where zoning is less restrictive than the covenants. Otherwise, the zoning ordinance prevails. (Bluett v. County of Cook (1958), 19 Ill. App. 2d 172, 153 N.E.2d 305.) In this case the trial court found that the rezoning did not interfere with the restrictive covenants since the restrictive covenants had been waived and were unenforceable due to a change in the character and environment of the property.

Plaintiffs contend the trial court erred when it held a longstanding adverse use precluded the enforcement of the restrictive covenants in the deeds. The trial court found there was a long-established commercial usage of one of the lots in the subdivision plat. This building had originally been erected by the developer for use as a sales office and was later used as an office by an attorney. Restrictive covenants will not be enforced when there has been such a change in the character and environment of the property that the objective of the restrictions cannot be accomplished by their enforcement or if, by such change, it would be unreasonable or oppressive to enforce them. Boschelli v. Villa Park Trust & Savings Bank (1974), 23 Ill. App. 3d 82, 318 N.E.2d 527.

In addition to the evidence of a long-standing adverse use, Sinclair also put on evidence it was no longer feasible to profitably develop its property for residential purposes. Due to the low demand for residential lots in Jerseyville and the high cost that a developer would face in providing the required streets, sewers, water and other services, a continued residential zoning would have the effect of forcing Sinclair to continue to lease the land for agricultural purposes or to develop it for residential use at a loss. In addition, Dean Hennigan, a civil engineer, described the commercial development which has taken place in the vicinity. Mayor Blackerby testified this is the area of the town in which the council wants to centralize the commercial growth and he approves of the proposed development of a supermarket on the subject property. Although the subject property consisted of 100 residential lots, as platted, the mayor is not aware of a subdivision that size being developed in Jerseyville and observed that this portion of the subdivision has remained undeveloped and used for farming since the property was subdivided. See Suhadolnik v. City of Springfield (1989), 184 Ill. App. 3d 155, 540 N.E.2d 895, for a discussion of the factors to be considered in determining the validity of a zoning decision.

The trial court’s findings as to the validity of a zoning ordinance will be overturned on appeal only if the findings are against the manifest weight of the evidence. (Thompson v. Cook County Zoning Board of Appeals (1981), 96 Ill. App. 3d 561, 421 N.E.2d 285.) The trial court’s decision will be considered to be against the manifest weight of the evidence if, after a review of the evidence, it is clearly evident that the conclusion opposite to the one reached by the trial court was the proper disposition. (Stone v. City of Arcola (1989), 181 Ill. App. 3d 513, 536 N.E.2d 1329.) Based on the record in this case, the decision of the trial court, as to the rezoning ordinance, is not against the manifest weight of the evidence.

However, the same cannot be said about the ordinance to vacate the streets and lots in the subject portion of the subdivision. In the petition for vacating the plat, a clerical error was made and the petition called for the vacating of block two of the plat. As Sinclair only owned a portion of the lots in block two, the plaintiffs contend the action is void because it required the consent of all the landowners with an interest on that block. However* the plat actually signed and filed by the mayor and city clerk correctly depicted the property to be vacated. Plaintiffs argue the ordinance passed as to the erroneous petition must control and the council action must be reversed. The circuit court held that as Sinclair did not own some of the lots in block two, there could be no vacating of those lots, and the ordinance would not apply to them. Certainly, Sinclair has the right to vacate the plat as to the property owned by Sinclair without the need to have others join in the vacation. (Chicago Anderson Pressed Brick Co. v. City of Chicago (1891), 138 Ill. 628, 28 N.E. 756; Littler v. City of Lincoln (1883), 106 Ill. 353; Ill. Rev. Stat. 1987, ch. 109, par. 7.) Nevertheless, it is quite a simple matter for the city council to amend its ordinance to conform to the plat and the trial court should have ordered that this be done.

Accordingly, the order of the circuit court of Jersey County is affirmed in part, reversed in part, and remanded for further proceedings concerning the ordinance vacating the plat and streets, not inconsistent with this opinion.

Affirmed in part; reversed in part and remanded with directions.

LUND and McCULLOUGH, JJ., concur.


author: JUSTICE McNAMARA JUSTICE McCULLOUGH,

text:
    BETTY ELLEN HUGHES, Appellant, v. THE INDUSTRIAL COMMISSION et al. (General Electric Company, Appellee).
    Fourth District (Industrial Commission Division)
    No. 4—89—0195WC
    Opinion filed April 9, 1990.

      McCULLOUGH, J., specially concurring.
    Stephen M. Cornelius, of Scheele, Cornelius & Associates, Ltd., of La-Grange, for appellant.
    Dukes, Martin, Helm & Ryan, Ltd., of Danville (John F. Martin, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Claimant, Betty Ellen Hughes, brought an action under the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) seeking compensation for injuries which she sustained on August 10, 1981, while working for respondent, the General Electric Company. The arbitrator awarded benefits to claimant under section 8(c) of the Act for permanent disfigurement and under section 8(d)(2) of the Act for permanent partial disability in the sum of $173.33 per week for 250 weeks. This award also included an interest award at 8.3% pursuant to section 19(n) of the Act. The Industrial Commission (Commission) reduced the award to 150 weeks of benefits pursuant to section 8(c) of the Act. This award also included an award of interest pursuant to section 19(n) of the Act. Respondent paid the principal of the award on July 30, 1987, and tendered the amount of interest due on the amount of the award that had accrued up to the date of arbitration. Claimant subsequently filed a petition pursuant to section 19(n) asking the Commission to determine the amount of interest due under its award. Claimant alleged she was due interest on the award amounts accruing after the date of the arbitrator’s decision. The Commission concluded that it did not have jurisdiction to hear the matter. The circuit court of Vermilion County confirmed the decision of the Commission.

Claimant appeals, contending that the Commission has jurisdiction to determine the amount of interest due pursuant to section 19(n) of the Act. Respondent maintains, however, that this court’s decision in Saldana v. American Mutual Corp. (1981), 97 Ill. App. 3d 334, 422 N.E.2d 860, requires a finding that the Commission did not have jurisdiction to hear claimant’s request.

In Saldana, the plaintiff filed suit in the circuit court seeking to collect interest on a section 19(n) award. The defendant argued that once payment of the award has been tendered without interest, plaintiff was required to proceed before the Commission to recover interest on the award. This court determined, however, that the Commission was not the proper forum for the action. The court stated that while the Commission would be able to determine the amount of interest owed on the award, it did not have the power to enter judgment for the payment of interest or to enforce the collection of such interest. Accordingly, the court concluded that the expertise of the Commission would not be required and that the Commission could not afford plaintiff adequate relief. Saldana v. American Mutual Corp. (1981), 97 Ill. App. 3d 334, 422 N.E.2d 860.

Nevertheless, our supreme court has specifically stated that interest accrued under section 19(n) “should properly be computed by the Industrial Commission.” (Keystone Steel & Wire Co. v. Industrial Comm’n (1981), 85 Ill. 2d 178, 188, 421 N.E.2d 918.) In light of Keystone Steel & Wire, we decline to follow Saldana, and instead, find that the Commission has jurisdiction to determine interest due under a section 19(n) award.

We next will address the issue of whether the Commission lost jurisdiction upon the lapse of the appeal period. Claimant filed her 19(n) petition on September 11, 1987, 84 days after the order of the Commission, and 43 days after her receipt of respondent’s payment of the award together with the interest it believed was owed. Section 19(f)(1) of the Act provides that a proceeding for review of the decision of the Commission shall be commenced within 20 days of the receipt of notice of that decision. (Ill. Rev. Stat. 1981, ch. 48, par. 138.19(f)(1).) We do not believe, however, that claimant seeks review or correction of the award. Rather, in our view, claimant seeks a determination of the interest due her pursuant to a valid section 19(n) award. Accordingly the section 19(f)(1) appeals period does not apply. Respondent does not cite, nor are we able to locate, any authority which would preclude the Commission from hearing this matter.

In her appeal, claimant seeks an award of interest on amounts accruing after the arbitrator’s award, but before the date of payment. This court, however, has held that interest is due only on those sums which have “accrued” as of the date of the award. (Folks v. Hurlbert’s Wholesale Siding & Roofing, Inc. (1981), 93 Ill. App. 3d 19, 416 N.E.2d 745. See also Ballard v. Industrial Comm’n (1988), 172 Ill. App. 3d 41, 526 N.E.2d 675.) Claimant argues that legislative amendments to section 19(n) of the Act render the Folks decision invalid. We disagree.

Prior to the 1984 amendments, section 19(n) provided as follows:

“(n) All decisions of the Industrial Commission confirming or increasing an award entered by an arbitrator of the Commission shall bear interest at the rate of 6% per annum from the date of the arbitrator’s award on all compensation accrued. However, the employer or his insurance carrier may tender the payments due under the award to stop the further accrual of interest on such award notwithstanding the prosecution by either party of review, certiorari, appeal to the Supreme Court or other steps to reverse, vacate or modify the award.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 48, par. 138.19(n).)

Subsequent to amendment, section 19(n) provides as follows:

“After June 30, 1984, decisions of the Industrial Commission reviewing an award of an arbitrator of the Commission shall draw interest at a rate equal to the yield on indebtedness issued by the United States Government with a 26-week maturity next previously auctioned on the day on which the decision is filed. Said rate of interest shall be set forth in the Arbitrator’s Decision. Interest shall be drawn from the date of the arbitrator’s award on all accrued compensation due the employee through the day prior to the date of payments. However, when an employee appeals an award of an Arbitrator or the Commission, and the appeal results in no change or a decrease in the award, interest shall not further accrue from the date of such appeal.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 48, par. 138.19(n).

Our review of the legislative history surrounding this amendment reveals no intent on the part of the legislature to alter the meaning of this provision insofar as it relates to the sums upon which interest is computed. Rather, the amendments to section 19(n) were intended merely to decrease the interest rate applicable to those sums. Furthermore, the amendments to section 19(n), together with the other amendments made to the Act by Public Act 83 — 1125, were intended to save the employer community an estimated $40 million per year. (See generally 83d Ill. Gen. Assem., House Proceedings, May 24, 1984, at 66.) Thus, the interpretation of section 19(n) which claimant urges on this court is inconsistent with the goals of the amendments to the Act.

Moreover, we believe the rationale articulated by this court in Folks applies with equal force to the amended statutory language. Specifically, the plain language of section 19(n) sets forth the date of the arbitrator’s award as the date from which interest is computed, and later indicates that the interest is due through the day prior to the date of payments. The section additionally defines the sums upon which interest is computed as “all accrued compensation.” As we noted in Folks, the use of the past tense “accrued” is significant, and when read in conjunction with the clause immediately preceding it, evidences an intent that interest be due only on those sums which have “accrued” on the date of the award. See generally Folks v. Hurlbert’s Wholesale Siding & Roofing, Inc. (1981), 93 Ill. App. 3d 91, 416 N.E.2d 745.

Further, the interpretation which claimant advocates would permit interest to be drawn from the date of the arbitrator’s award on sums which accrue as late as the day prior to payment. That is, claimant suggests that for purposes of interest computation, sums which accrue as late as the day prior to payment be treated as if they had accrued on the date of the arbitrator’s award. We do not believe the legislature intended such a result.

Accordingly, we conclude that claimant is not entitled to section 19(n) interest on compensation accrued after the date of the arbitrator’s award.

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

Judgment affirmed.

BARRY, P.J., and WOODWARD and LEWIS, JJ, concur.

JUSTICE McCULLOUGH,

specially concurring:

With respect to the jurisdiction issue, I respectfully disagree.

June 19, 1987, the Industrial Commission issued its decision, which stated in part:

“It is further ordered by the Commission that the respondent pay to the petitioner interest under section 19(n) of the Act.”

No motion was filed by either party to correct the decision, per section 19(f) of the Act.

No timely proceeding for review was filed, per section 19(f)(1) of the Act.

September 11, 1987, 84 days after the Industrial Commission decision, the claimant filed a petition with the Industrial Commission asking the Commission to determine the amount of interest due.

As is apparent, administrative review of the June 19, 1987, order was not sought. The claimant did not request the Industrial Commission to correct or modify its decision per section 19(f) of the Act. No appeal was taken. Hence, there is no authority granting the Industrial Commission jurisdiction of the September 11 petition.

This case does not fit in the Keystone mold. Keystone concerned a “timely" direct appeal.

The Industrial Commission did order respondent to pay section 19(n) interest. As the Saldana court stated:

“[P]laintiff is seeking to collect interest on his award. The only action the Industrial Commission could perform with regard to this request is to determine the amount of interest owed on the award. Since the interest is established by statute, this determination would merely be a perfunctory act which would not involve the expertise of the Commission.” (Saldana, 97 Ill. App. 3d at 339, 422 N.E.2d at 863.)

Although section 19(n) allows interest, as the Commission ordered, it does not mandate or suggest a calculation of the dollar amount.

The claimant has her final judgment. She is not without remedy or relief. The Commission in denying her petition was correct.


author: JUSTICE LUND

text:
    MARILYN FAYE FLORY, Indiv. and as Special Adm’r of the Estate of Keith J. Flory, Deceased, Plaintiff, v. ROBERT A. WEAVER et al., Defendants and Third-Party Plaintiffs-Appellants (Rose M. Gonyo, Independent Adm’r of the Estate of Robert R. Gonyo, Deceased, Third-Party Defendant; Jack Ledwon, Third-Party Defendant-Appellee).
    Fourth District
    No. 4—89—0811
    Opinion filed April 5, 1990.
    Gregory G. Lietz, of Hutton, Laury, Hesser, Lietz & Wilcox, of Danville, for appellants.
    Heyl, Royster, Voelker & Allen, of Peoria (Karen L. Kendall, James C. Kearns, and John D. Floodstrom, of counsel), for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Should this court overturn the decisions of our supreme court and those of the appellate courts of this State, and thereby adopt a common law cause of action where a noncommercial host can be held liable in negligence for providing alcohol to minors who, by reason of intoxication, cause injury to others? This appeal arises from the dismissal of a third-party complaint, based in part upon such a theory.

Because of the importance of this issue, we find it necessary to relate the tragic facts, which are set forth in the pleadings. Keith Flory and Robert Gonyo, after their graduation ceremonies from high school, joined other class members for a party given by third-party defendant Jackie Ledwon, a parent of another classmate. Alcoholic beverages were provided. Contrary to party rules, the two boys left the party in the early morning hours and went to the home of another friend, Brad Weaver. Gonyo was handling an AR-15 rifle in such a way that he shot and killed Flory. He then used the weapon to kill himself.

This action was initially brought on behalf of Flory’s estate, against Brad Weaver and his parents. They, as third-party plaintiffs, filed third-party complaints against the estate of Gonyo and against Jackie Ledwon. This appeal is limited to the question of whether the trial court was correct in dismissing counts II through V of the third-party action against Ledwon.

The third-party complaint, naming Ledwon as third-party defendant, basically stated that Ledwon had an after-graduation party, furnished alcoholic beverages to minors, knew or should have known that Gonyo had a history of alcoholic consumption to excess, and had set up party regulations requiring all those who attended to stay at her residence until the effects of alcohol were dissipated. The acts of negligence alleged were that Ledwon (1) permitted Robert Gonyo to consume alcohol to excess so as to become intoxicated; (2) allowed Keith Flory to leave her house at 2 a.m. with Robert Gonyo, who was intoxicated, in violation of her regulation, and travel to the residence of third-party plaintiffs; and (3) allowed Robert Gonyo to leave her house at 2 a.m., while intoxicated, with Keith Flory, in violation of her regulation, and travel to the residence of third-party plaintiffs.

Counsel for the Weavers cite various statutory and common law authorities from other jurisdictions, allowing causes of action against noncommercial hosts. Various treatises are referred to as justification for the position argued.

While recognizing a common law cause of action which involved the requirement of excessive consumption of alcohol in fraternity initiations and hazings, in Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity (1987), 155 Ill. App. 3d 231, 507 N.E.2d 1193, this court did recognize that the Liquor Control Act of 1934 (Ill. Rev. Stat. 1987, ch. 43, pars. 94 through 195) has preempted the field of liability relating to alcohol. See Quinn, 155 Ill. App. 3d at 235, 507 N.E.2d at 1196.

This court recently discussed the issue of a common law liability, relating to the furnishing of alcohol to minors, in Puckett v. Mr. Lucky’s Ltd. (1988), 175 Ill. App. 3d 355, 529 N.E.2d 1169. Our opinion stated:

“We recognize that there may well be validity to the position of the plaintiff. It may be that statistics justify making all those who furnish alcoholic beverages to minors financially responsible for the injuries resulting from the alcohol use. However, we feel bound by the decisions of our supreme court which have long limited liability relating to furnishing alcohol to the coverage of the Illinois Dramshop Act. Cunningham v. Brown (1961), 22 Ill. 2d 23, 28-29, 174 N.E.2d 153, 157; see also Hopkins v. Powers (1986), 113 Ill. 2d 206, 497 N.E.2d 757; Wimmer v. Koenigseder (1985), 108 Ill. 2d 435, 484 N.E.2d 1088; Demchuk v. Duplancich (1982), 92 Ill. 2d 1, 440 N.E.2d 112; Graham v. General U.S. Grant Post No. 2665 (1969), 43 Ill. 2d 1, 248 N.E.2d 657; Ruth v. Benvenutti (1983), 114 Ill. App. 3d 404, 449 N.E.2d 209; Gora v. 7-11 Food Stores (1982), 109 Ill. App. 3d 109, 440 N.E.2d 279.
In Miller v. Moran (1981), 96 Ill. App. 3d 596, 598, 421 N.E.2d 1046, 1049, our court refused to create a common law cause of action against a social host who wilfully and wantonly served liquor to a guest, holding the Dramshop Act was the exclusive source of liability.
We are requested to change the law, but we find that such a decision is best left to the supreme court or the legislature. A supreme court decision would be binding upon all of the State, not just the 30 counties of the Fourth Judicial District. Needless to say, the possible conflicts among the appellate districts on this particular subject could lead to a certain amount of economic and social havoc. The decision of the circuit court of Macon County is affirmed.” Puckett, 175 Ill. App. 3d at 357-58, 529 N.E.2d at 1170.

The third-party complainants also contend that Quinn is authority for finding a common law cause of action. They also contend that Ledwon, by providing the party and providing a rule prohibiting leaving her residence area, gratuitously undertook responsibility for keeping those consuming alcohol at the residence, thus becoming liable for negligent performance of a duty to enforce the rule. They cite as authority for this last proposition Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 199 N.E.2d 769.

The facts in Quinn are not similar to the facts alleged in the present cause. We do not find justification based upon Quinn for carving out a new common law cause of action which would sustain the third-party complainants’ position in this case.

In Nelson, an insurance company gratuitously undertook a duty of inspecting a construction site relative to safety procedures. The basic rule is:

“[Pjlaintiffs, to support their actions, had only to show (1) that defendant undertook to make safety inspections and to render safety engineering services under circumstances which created a duty on defendant, owed to plaintiffs, to perform its undertakings with due care, and (2) that the gratuitous undertakings were negligently performed, such negligence resulting proximately in plaintiffs’ deaths and injuries.” (Nelson, 31 Ill. 2d at 75, 199 N.E.2d at 774.)

The present allegation, unlike Nelson, did not include any type of business relationship. Those at the party were not required to attend. We know of no legal authority vested in a host such as Ledwon which would have allowed her to restrain the guests. The allegations establish Ledwon was a noncommercial social host and, as such, regardless of the good intentions indicated by the no-leaving rule, she does not come within the scope of the rule providing liability can arise from the negligent performance of a voluntary undertaking. The count relating to this issue is an attempt to circumvent the decisions holding noncommercial hosts are not liable for furnishing alcohol to their guests.

The dissent in Puckett makes a detailed argument for a change in the law by either the legislature or the courts. (Puckett, 175 Ill. App. 3d at 358-66, 529 N.E.2d at 1171-76 (Knecht, J., dissenting).) We conclude, as we did in Puckett, that any change should be made after careful consideration by either the legislature or our supreme court.

Affirmed.

SPITZ and STEIGMANN, JJ., concur.