author: JUSTICE GORMAN JUSTICE STOUDER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WESLEY ROBINSON, Defendant-Appellant.
    Third District
    No. 3—89—0822
    Opinion filed March 26, 1992.
    STOUDER, J., dissenting.
    Kenneth D. Brown, of State Appellate Defender’s Office, of Ottawa, for appellant.

      Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Judith Z. Kelly, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

The defendant, Wesley Robinson, was charged in a three-count indictment with first degree murder and armed robbery. The defendant pleaded not guilty and was tried before a jury. Pursuant to the defendant’s request, an instruction regarding the offense of misdemeanor theft was included. The defendant was found guilty of first degree murder, armed robbery and theft. The jury subsequently determined that the defendant was eligible for the death penalty, but declined to impose it. The defendant was then sentenced to a term of natural life imprisonment. The defendant appeals. We affirm in part, reverse in part and remand.

At trial, Gary Adams testified for the State. Adams, employed as a supervisor at Stateville Correctional Center, testified that in the early morning of October 27, 1988, he was en route to the general store at Stateville to pick up supplies. As Adams approached the area of the commissary, he saw the defendant, an inmate he had known for about five years, walking back and forth near the commissary. The defendant pointed or waved at Adams with his right hand as Adams passed him. It appeared to Adams that the defendant was concealing something because he was holding his left hand behind his body where Adams could not see it. As Adams continued toward the general store, he did not see anybody else in the area.

Gerald Oberholtzer, a correctional officer at Stateville, testified that he was in charge of distributing keys to employees who worked the 7 a.m. to 3 p.m. shift on October 27, 1988. On that date at about 6:30 a.m., Oberholtzer gave the keys to the commissary to Suon Troeng, whose assignment that day was to open the commissary.

Robert Shepherd, a correctional sergeant, testified that he supervises inmates in the dining room at Stateville. On October 27, 1988, the defendant was to work in the dining room and was to arrive for work between 5 and 5:30 a.m. According to Shepherd, the defendant did not show up for work at any time on that date. About 7 a.m. that morning, Shepherd became aware of an incident involving Troeng. Shepherd left his assignment and ran toward the commissary. In front of the commissary, Shepherd saw Troeng’s body lying on a grate. Near the body, Shepherd saw an iron bar and some papers strewn about.

Jessie White and her husband, James White, testified that they went to their jobs at Stateville with Troeng Kim on the morning of October 27, 1988. Mrs. White worked in the commissary under Troeng’s supervision, and Mr. White worked in the general store. At about 6:40 a.m., the Whites and Mr. Kim were walking through the main tunnel. As they approached the commissary, the Whites saw Troeng’s cap on the ground. Next, Mrs. White saw an inmate come down the tunnel and jump over one of the side walls. Mr. and Mrs. White then looked over the wall and saw an inmate “crunched” over in the corner of the grass. When they asked him what he was doing, the inmate, whom Mrs. White identified as the defendant, jumped over the wall and started running. Mr. White pursued the inmate, who was carrying a large plastic garbage bag over his shoulder. He chased the defendant down a grassy area, where he saw two correctional officers coming from the area of the general store. Mr. White yelled to the officers, who then chased the defendant and caught him. Mrs. White ran into the commissary for help, where she noticed that her work area was in disarray, with bags strewn around and two opened Kool cigarette cartons on the floor that had not been left there the night before. When she came back out, Mrs. White found Troeng’s body in front of the commissary.

Correctional officers Darryl Coleman, Robert Sutton, and Albert Williams testified about their involvement in the apprehension of the defendant. At about 6:50 a.m. on the date in question, the officers were leaving their assignments at Stateville’s G-dorm when they saw Mr. White yelling at them to stop an inmate. The officers saw the defendant running on the grassy side of the tunnel. He was carrying a black garbage bag, and the officers could hear the jingling of keys. Eventually, the defendant dropped the bag and the keys. Coleman stopped to pick up the keys and Sutton caught the defendant behind the air conditioner unit on the side of the law library. Williams picked up the garbage bag the defendant dropped and found some loose cartons of cigarettes inside the bag. The officers identified the defendant as the inmate they caught. When King arrived on the scene, he handcuffed the defendant and took him away. Sutton later found a second set of keys in the grassy area.

On the second day of trial (November 6, 1989), defense counsel orally moved to exclude the testimony of correctional officer Elton Lawler or, in the alternative, for a mistrial on the basis that the State had violated discovery. Defense counsel noted that he had just received, for the first time that morning, a copy of Lawler’s report, which report was dated October 24, 1989. Lawler’s report indicated that Lawler searched the defendant following his arrest and found, among other things, some gloves on the defendant. The gloves were examined by the crime lab and found to have blood on them which could match the blood of the victim. Defense counsel further noted that, until he received Lawler’s report, he never had any reports that the gloves were taken from the defendant. When defense counsel received a supplemental list of witnesses on October 20, 1989, it contained Lawler’s name and the name of Yolanda Galvan, a correctional officer who allegedly received the gloves from Lawler. At that time, defense counsel asked the prosecutor if he had a report from Lawler, but the prosecutor said he had no report from either Lawler or Galvan.

Defense counsel went on to argue that the prosecution’s late disclosure of Lawler’s report was prejudicial because it was counsel’s theory of the case that the State could not link the gloves to the defendant. Counsel pointed out that, when he declared in his opening statement that the evidence would show only that the defendant was guilty of theft, it was with the expectation that the State could not connect the gloves to the defendant.

The prosecutor responded that he first learned on October 22 or October 23, 1989, that Lawler found the gloves on the defendant. (This case was tried by two prosecutors; “prosecutor” will be used throughout this order when referring to one or both of the prosecutors.) He recalled handing Lawler’s report to defense counsel on October 25 or 26, 1989. The court asked respective counsel if the blood tests would at best show that the blood on the gloves could have come from the victim, and counsel responded affirmatively. The court then denied the defendant’s motion and testimony resumed.

Correctional officer Peter King testified that after he arrived at the scene and handcuffed the defendant, he took the defendant to unit 1, a segregation unit separated from the general prison population. At unit 1, King and Lawler removed the defendant’s clothing and searched it. After this strip-search was completed, the defendant was turned over to unit 1 staff.

Elton Lawler testified that he strip-searched the defendant after he and King escorted the defendant to unit 1. According to Lawler, he found two pairs of gloves, which appeared to be stained with blood, in the defendant’s back pocket. Lawler also found four or five “stingers” — heating elements for boiling water for coffee. Lawler testified that Peter King was present at all times during Lawler’s search of the defendant. He also testified that he gave the gloves and stingers to Galvan on the date of the incident.

On cross-examination, Lawler testified that he prepared a written report after he turned the evidence over to Galvan. He wrote the report at a desk in the prison hospital on the day of the incident and filed it with Galvan. When Lawler was interviewed in 1989 by Russ Nelson, an investigator for the Department of Corrections, he was told that the Department did not have a report from him. Consequently, on October 24, 1989, Lawler was asked to prepare a report. Basing everything on his memory of the events of October 1988, Lawler dictated the report to Nelson on October 24, 1989, and Nelson wrote it up. In the report, he indicated that he removed a couple of pairs of gloves from the defendant. Also, on cross-examination, Lawler admitted that, while he testified that he removed four or five stingers from the defendant, only two stingers were in evidence at trial.

Richard Williams testified that when he was the correctional sergeant in unit 1 on the date in question, the defendant was brought to the shakedown room, where he was strip-searched by Williams, Captain Nash, and Lieutenant Johnson at about 8:30 a.m. Williams did not believe that the defendant had been previously searched. Among the items taken from the defendant were some State-issued work boots, a gray hooded sweatshirt, and a blue jumpsuit. The jumpsuit had stains on the knee and thigh areas which appeared to be bloodstains.

Yolanda Galvan testified that she worked in the investigation unit at Stateville on October 27, 1988, and was responsible for processing contraband confiscated from searches of inmates. About 7:30 a.m. on that date, Lawler came to the investigation unit with two pairs of gloves and two stingers in their original package. Lawler said he had gotten the items from the defendant. A secretary and correctional officer Sanders were also in the room at the time. Sanders put the items in a brown paper bag, and Lawler was told to go across the hall to make his report. Galvan testified that she never received a report from Lawler. On cross-examination, Galvan testified that she told Investigator Russ Nelson that she received the gloves and the stingers from Lawler, but she could not explain why Nelson did not mention the gloves in his report.

Investigator Russ Nelson testified that he transported certain evidence, including two plastic garbage bags containing cigarettes, to the State crime lab in Joliet. On cross-examination, Nelson testified that, when he spoke to Galvan sometime within the month prior to trial, Galvan told him that the stingers that were removed from the defendant by Elton Lawler were turned over to her in the office.

Several witnesses gave testimony about what occurred when they responded to the scene of the incident on the morning of October 27, 1988. William Price, a correctional lieutenant, testified that shortly after 6:50 a.m. he found Troeng lying on the ground next to the grate. Price administered “CPU,” but he was unable to establish a pulse. Price saw an iron bar and wallet near Troeng’s body. When correctional officers William Buffington and Orville Bradford arrived at the commissary about 7:05 or 7:10 a.m., Buffington searched the building, but found no inmates inside. He noticed that an area known as the bagging room was in disarray. Bradford found two black garbage bags; one was inside the commissary and the other outside in the tunnel area. A carton of cigarettes was in the bag he found outside the commissary. Buffington secured the building so that nothing would be disturbed.

Hayden Baldwin of the Illinois State Police testified that he arrived at Stateville about 8 a.m. to process the scene. Baldwin recovered two paper sacks from the floor of the commissary. A partial shoe impression was on the top portion of one of the sacks. Walter Sherk, an expert in footprint comparisons, testified that he compared the footwear impression on the paper sack with the boots recovered from the defendant. Sherk testified that the pattern on the sack was consistent with the right boot, but he could not say that the defendant’s boot made the impression. Sherk also testified that the defendant’s boots were standard issue at the Department of Corrections.

Susan Rutter, a forensic scientist, testified that she processed two black plastic garbage bags for latent fingerprints. On each bag, she found a print that she identified as belonging to the defendant. She also processed the iron bar found at the scene, but was unable to find any latent prints suitable for comparison.

Judie Welch, an expert in forensic serology, testified that she compared blood samples of Troeng and the defendant to the human bloodstains she found on two of the gloves introduced at trial, one a right-handed and the other a left-handed glove. Welch determined that the blood on the gloves could have originated from Troeng, but did not originate from the defendant. Welch also analyzed the human bloodstains she found on the middle of the iron bar taken from the scene, and on the right front pocket of the blue jumpsuit taken from the defendant. She determined that the stains could have originated from Troeng, but not the defendant.

At the conclusion of the State’s case in chief, the parties stipulated, among other things, that if Peter Seymour was called to testify, he would testify that he was an accountant with the Department of Corrections. As a result of an inventory he conducted at the Stateville commissary on October 31, 1988, and a later inventory which included all cigarettes subsequently taken into custody, it was determined that 242 packs of cigarettes remained unaccounted for following the break-in at the commissary on October 27, 1988. Also, at the conclusion of the State’s case in chief, a coroner’s report, which indicated that Troeng died from a severe head injury due to blunt-force trauma, was admitted into evidence.

After the prosecution rested, the defendant moved for a directed verdict. The motion was denied.

In his own defense, the defendant testified that he was in the Department of Corrections because he had been convicted of a felony. On the date in question, the defendant arrived at his work assignment, dining room number 1, at about 5 a.m. Nobody was in the dining room, so the defendant left to get some supplies and then returned. When inmates and staff began to arrive for breakfast between 5 and 5:30 a.m., the defendant emptied a trash container and then decided to go to the laundry room to get some bleach. As he approached the laundry room, he saw correctional officer Gary Adams and two inmates in the food wagon, and he waved to them. Shortly thereafter, the defendant decided to follow Adams to the general store and assist him there. When the defendant got to the store, though, Adams and the inmates were already inside. The defendant banged on the door of the store and waited about 10 minutes until he saw a line of inmates on their way back from breakfast. When he saw this, he realized it was close to 7 a.m. and he had to report back to the dining room to be counted. On the way back, he passed the commissary and saw a hat, some keys, some stingers, and two or three large bags on the ground.

Next, the defendant heard someone groaning. He looked over the wall and saw Troeng lying on the ground. He climbed over the wall and lifted Troeng up to a sitting position. Some blood was trickling from Troeng’s mouth, but he did not appear to be seriously injured. The defendant did not want to be blamed for the incident, so he climbed back over the wall. The defendant recalled that as he began to leave the area, he picked up two stingers, the keys, and one of the bags. He looked in the bag and saw that it contained a lot of cigarettes. He then heard someone coming and, under the circumstances, he decided he did not want to be seen so he hid on the other side of the wall. He still had the cigarettes with him, but he never made a conscious decision to steal them. When somebody yelled at him, the defendant ran toward the general store and, as he did so, he dropped the bag of cigarettes and the keys.

The defendant denied striking Troeng with an iron bar on the date in question. He also testified that he did not have any gloves with him that day and that, after he was taken into custody, Lawler searched him but did not find any gloves.

Following the evidence, the conference on jury instructions was held. In addition to instructions on the charged crimes of first degree murder and armed robbery, the court agreed to give a defense-tendered instruction on misdemeanor theft. Following closing arguments and jury deliberations, the jury returned with verdicts of guilty of first degree murder, armed robbery, and theft.

The cause then proceeded to a death penalty hearing. The jury found the defendant eligible for the death penalty but directed the court not to impose it.

The trial court subsequently sentenced the defendant to natural life imprisonment. The court also denied the following: (1) the motion for new trial filed by defense counsel; (2) the defendant’s pro se post-trial motion which alleged, inter alia, that he had been denied effective assistance of counsel; and (3) the defendant’s pro se motion to disclose all discovery to the defendant. The defendant appeals his conviction, raising four issues for our consideration.

The defendant initially contends that the State’s evidence failed to establish his guilt beyond a reasonable doubt because it merely placed him near the scene of the attack some time after it occurred. We disagree.

When presented with a challenge to the sufficiency of the evidence, it is not the function of the reviewing court to retry the defendant. The relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Once a defendant has been found guilty, the fact finder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) The Collins standard should be applied in reviewing the sufficiency of evidence in all criminal cases, whether the evidence is direct or circumstantial. People v. Pintos (1989), 133 Ill. 2d 286, 291, 549 N.E.2d 344, 346.

Our review of the record reveals that the defendant was the only unescorted inmate present in the area of the crime before and after the crime occurred. The defendant never checked into his proper work station. The shoeprint left inside the commissary was consistent with the size of the defendant’s boots. The defendant was found crouched behind a wall near the body, and fled the scene with the commissary keys and the proceeds of the robbery, which he then discarded as he continued to flee. When the defendant was seen by a correctional officer prior to the offense, he appeared to be hiding something behind his back. There was evidence that the fence to a construction site immediately adjacent to the scene of the offense had been tampered with, and contained among the debris at the construction site were bars similar to the one used to inflict the fatal wound. The defendant’s jumpsuit contained blood consistent with that of the victim and inconsistent with defendant. The defendant testified in his own behalf, asserting his own version of what transpired. We are of the opinion that the evidence, when viewed in the light most favorable to the prosecution, is sufficient to support the jury’s verdict.

The defendant next alleges that he is entitled to a new trial due to an alleged discovery violation by the State. We disagree.

Illinois Supreme Court Rule 412 (134 Ill. 2d R. 412) provides for the disclosure of materials and information within the State’s possession. Under Rule 412, the prosecution has the duty to ensure that a flow of information is maintained between various investigative personnel and its office sufficient to place within its possession or control all material and information relevant to the accused. The purpose of the discovery provisions is to afford the accused protection against surprise, unfairness and inadequate preparation. People v. Boucher (1978), 62 Ill. App. 3d 436, 379 N.E.2d 339.

The record in the instant case reveals that the State complied with Rule 412. On December 2, 1988, the State furnished its original discovery, including a lengthy list of witnesses and notification of reports summarizing oral statements of certain witnesses. Supplemental discovery was filed in April, August, September and October of 1989. Lawler was not listed as a witness in any of this discovery. During trial preparation by the State’s Attorney’s office in October 1989, as that office sought to reconstruct the chain of custody evidence for the gloves, the State first became aware that Lawler and Galvan were somehow involved in the chain of custody. The State, on October 20, 1989, immediately disclosed these witnesses to the defense.

During questioning by the State’s investigator, Russ Nelson, Lawler revealed that he was the one who had removed the gloves from the defendant. Lawler’s original report was apparently misplaced, was never recovered, and was unknown to the prosecutor. Thus, on October 24, 1989, Lawler gave a second report to Investigator Russ Nelson, which report was then signed by Lawler. This second report was filed on October 25,1989.

The defendant’s counsel claimed that he did not receive the report until November 6, 1989, while the prosecutor claimed that he had given the report to defense counsel on October 25 or 26, 1989. The trial court resolved this factual question in favor of the State. Given the fact that the report was filed on October 25, we see no reason to overturn that finding.

Accordingly, we find no discovery violation was committed by the State. The prosecutor was clearly unaware of the missing and never-filed earlier report, and no review of the discovery materials would have disclosed it. This case is one in which the prosecutor was unaware of the existence of a statement prior to trial and where there was no lack of due diligence by the prosecution. (People v. Kradenych (1980), 83 Ill. App. 3d 547, 554, 404 N.E.2d 488; People v. Steidl (1991), 142 Ill. 2d 204, 568 N.E.2d 837.) The State revealed that Lawler was involved in the chain of custody as soon as it became aware of that fact. When the State learned that Lawler was the individual who removed the gloves from the defendant, it disclosed Lawler’s report.

The defendant’s third contention is that he was denied his right to a fair trial due to the prosecutorial misconduct during closing arguments. It is well settled that in order to preserve this type of an issue for review the defendant must both contemporaneously object and present that issue in a post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1129.) In the instant case the defendant failed to object to all but one aspect of the prosecutor’s comments at trial and completely failed to raise it in his post-trial motion. Accordingly, we find this issue to be waived.

The last issue raised by the defendant maintains that his cause must be remanded for a further post-trial hearing. The basis for this claim is that, prior to sentencing, the defendant filed a pro se post-trial motion in which he raised the issue of ineffective assistance of appointed counsel. However, at the sentencing hearing the trial court refused to permit the defendant to specify his complaints and present supporting evidence and documentation.

In People v. Krankel (1984), 102 Ill. 2d 181, 464 N.E.2d 1045, our supreme court addressed a situation where a defendant raised a pro se post-trial challenge to the competence of his attorney’s performance at trial. The court held that the cause should be remanded for further inquiry into trial counsel’s performance.

In the subsequent case of People v. Jackson (1985), 131 Ill. App. 3d 128, 474 N.E.2d 466, the court set forth the procedure to be followed when a defendant, during post-trial proceedings, asserts that his attorney afforded him ineffective representation at trial. The court in Jackson adopted an objective approach:

“The trial court should examine the factual matters underlying the defendant’s claim. There are several matters to be determined. If the claim goes to matters of trial tactics or strategy, the defendant’s claim should be found spurious and his request for new counsel denied. *** If, however, the factual matters show possible neglect of the defendant’s case, the court should appoint new counsel who can undertake an independent evaluation of the defendant’s claim and present the matter to the court from a detached, yet adversarial position.” 131 Ill. App. 3d at 139, 474 N.E.2d at 474.

The court in Jackson went on to indicate that some interchange between the trial court and trial counsel regarding the facts and circumstances surrounding the allegedly ineffective representation is necessary and permissible in assessing what further action, if any, is warranted on a defendant’s claim.

In the case at bar, the defendant raised a post-trial challenge to the competence of his counsel at trial. However, during post-trial proceedings, the trial court failed to make even a preliminary inquiry into the defendant’s claims. The trial court should have inquired into the defendant’s challenge to counsel and examined the factual matters underlying the claim. The court should have afforded the defendant the opportunity, pursuant to the defendant’s request, to specify his complaints and to present the evidence and documents he wished to present in support of his motion. The court then could have made the determination whether the defendant was merely questioning counsel’s strategy or whether he was showing possible neglect of the case, such that appointment of new counsel was warranted. By failing to inquire and to hear the defendant’s claims, the court did not meet its obligation to address the defendant’s challenge to counsel and resolve it.

Accordingly, the defendant’s conviction is affirmed. The cause is remanded for a further post-trial hearing on defendant’s challenge to counsel’s performance pursuant to the guidelines as set forth in People v. Jackson.

The circuit court of Will County is affirmed in part, reversed in part and remanded.

Affirmed in part; reversed in part and remanded.

SLATER, J., concurs.

JUSTICE STOUDER,

dissenting:

Respectfully, I must dissent.

It is apparent to me the State breached its obligation under Supreme Court Rule 412(a) by failing to disclose, until the second day of trial, the fact that it would present evidence showing that the bloodstained gloves were in fact obtained from the defendant.

The court in People v. Young (1978), 59 Ill. App. 3d 254, 375 N.E.2d 442, reversed a conviction due to the State’s failure to comply with Supreme Court Rule 412 and disclose an incriminating statement made by the defendant. There, the court held:

“It is no excuse to say the police did not advise the State of the statement. The police department must fully participate in providing its evidence to the state’s attorney in order that discovery can be accomplished. A timely compliance is not when the trial commences or during the trial.” 59 Ill. App. 3d at 257.

Similarly, in the instant case, the knowledge of the State’s investigators is imputed to the State, such that the prosecutor’s argument that he didn’t learn about the report until shortly before trial commenced is irrelevant. Benign neglect on the part of the State will not excuse a discovery violation such as this. The information obtained by the State investigators is imputable to the prosecutors and they should not be allowed to introduce such material evidence either just prior to or during the second day of trial. Under these circumstances, the defense should have been afforded the opportunity to investigate the report and attempt to find an avenue of impeachment (if one exists) in order to present the strongest possible defense.

Furthermore, I find the defendant was sufficiently prejudiced by the evidence to warrant a new trial. A new trial should only be granted in cases like this if the discovery violation prejudiced the defendant and the trial court failed to eliminate the prejudice. (People v. Harris (1988), 123 Ill. 2d 113, 526 N.E.2d 335.) Among the factors to be considered in determining whether the defendant is entitled to a new trial are the closeness of the evidence, the strength of the undisclosed evidence, the likelihood that prior notice could have helped the defense discredit the evidence, and the willfulness of the State in failing to disclose. Harris, 123 Ill. 2d at 152.

In the instant case, the introduction of the report and Lawler’s subsequent testimony had a dramatic impact on the outcome of the trial. The basis of the defendant’s case was the State could not prove the gloves were either the defendant’s or were ever in his possession. By introducing the statement of Lawler at trial linking the defendant to the bloodstained gloves, the State extinguished the defendant’s opportunity to investigate the background of the report, to interview the other security guards on duty on the date of the killing, and to investigate any possible flaw in the chain-of-custody employed by the State in regards to the bloodstained gloves.

The failure of the State to provide a defendant with proper discovery material until just before or during trial can easily affect and jeopardize a defendant’s trial strategy. (People v. Elston (1977), 46 Ill. App. 3d 103, 360 N.E.2d 518.) Without sufficient time for preparation, disadvantages and errors are induced which erode the guarantee of a fair trial. (People v. Millan (1977), 47 Ill. App. 3d 296, 361 N.E.2d 823.) In the instant case, the belated disclosure by the State of such material evidence — in a capital case pending for nearly a year — subjected the defendant to surprise, unfairness, and inadequate preparation. Accordingly, I would grant a new trial under these circumstances.

For these reasons, I must dissent.


source: Caselaw Access Project

author: JUSTICE SLATER

license: Public Domain

text:
    THE COUNTY OF WILL, Plaintiff-Appellee, v. THE CITY OF NAPERVILLE, Defendant-Appellant.
    Third District
    No. 3—91—0024
    Opinion filed March 26, 1992.
    Ancel, Glink, Diamond, Murphy & Cope, P.C., of Chicago (Marvin J. Glink and David Lincoln Ader, of counsel), for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Judith Z. Kelly, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

In this case the City of Naperville (city) and the County of Will (county) each claim the power to zone a parcel of land. The trial court found in favor of the county. We affirm.

The city purchased a 40-acre parcel of land in unincorporated Will County. The parcel was not contiguous to the corporate limits of the city nor was it geographically situated to permit annexation by the city. The parcel was zoned A-l (agricultural) under the county zoning ordinance. In accordance with the city’s plan to place a fire station, maintenance facility, water storage tanks and other structures on the property, the city sought and received approval from the Naperville Plan Commission and the city council to zone the property R-l (low-density single-family residence) with a conditional use permit for municipal uses. This was done by city ordinance. The city began to prepare the site, including injecting sludge into the property, applying compost over the ground and building earthen berms. The county then claimed that the city’s action violated the county’s zoning ordinance which prohibited the filling of land without obtaining a site development permit. The county also claimed that use of the land was restricted to agricultural purposes unless the city obtained a special use permit. The county sought a declaratory judgment that the parcel was subject to the Will County zoning ordinance and a permanent injunction seeking to prevent the city from filling the land, to prevent further violations of the county zoning ordinance and to require the city to restore the land to its former condition. The county relied on section 5 — 12001 of the Counties Code (Ill. Rev. Stat. 1989, ch. 34, par. 5—12001) and section 11 — 13—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 11—13—1), while the city believed that section 7 — 4—2 of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 7—4—2) should be controlling. The circuit court found that the parcel of land was subject to the county zoning ordinance and ordered the city to cease development of the property and apply to the county for a site development permit. This appeal followed.

The issue presented by this case may be stated simply: does the city have the power to zone its property which lies outside the city’s corporate limits or does that power belong to the county? The county relies upon two statutory sections to support its position. Section 5— 12001 of the Counties Code grants general zoning authority to the county over lands outside the limits of cities, villages and incorporated towns which have municipal zoning ordinances. This section also provides:

“Nothing in this Division shall be construed to restrict the powers granted by statute to cities, villages and incorporated towns as to territory contiguous to but outside of the limits of such cities, villages and incorporated towns. Any zoning ordinance enacted by a city, village or incorporated town shall supersede, with respect to territory within the corporate limits of the municipality, any county zoning plan otherwise applicable.” Ill. Rev. Stat. 1989, ch. 34, par 5—12001.

The county does not contend that section 5 — 12001 limits the zoning power of the city. The county simply notes that this section contains a specific grant of power to the county to zone unincorporated areas. The county maintains, however, that section 11 — 13—1 of the Illinois Municipal Code restricts the city’s zoning power and prohibits it from exercising that power beyond city limits. That section provides, in relevant part:

“The powers enumerated may be exercised within the corporate limits or within contiguous territory not more than one and one-half miles beyond the corporate limits and not included within any municipality. *** No municipality shall exercise any power set forth in this Division 13 outside the corporate limits thereof, if the county in which such municipality is situated has adopted ‘An Act in relation to county zoning’, approved June 12, 1935, as amended.” (Ill. Rev. Stat. 1989, ch. 24, par. 11—13-1.)

The “Division 13” referred to above is that part of the Illinois Municipal Code which grants general zoning powers to municipalities.

On the other hand, the city argues that it has absolute authority over the parcel of land in question on the basis of section 7 — 4—2 of the Illinois Municipal Code, which states:

“All property which (1) is owned by a municipality, and (2) lies outside the corporate limits of the municipality, and (3) does not lie within the corporate limits of any municipality, shall be subject to the ordinances, control, and jurisdiction of the municipality in all respects the same as the property owned by the municipality which lies within the corporate limits thereof.” Ill. Rev. Stat. 1989, ch. 24, par. 7—4—2.

The city contends that the plain language of section 7 — 4—2 gives the city the same power and control over the outlying 40-acre parcel as it has over property within the corporate limits. Since the city has the power to zone property lying within city limits, the city maintains that it possesses the same power over the property in question. The county argues, however, that since section 7 — 4—2 does not specifically refer to zoning, any power in this regard is at best implied by the statutory language. Such an implied power cannot exist, according to the county, where that power has been explicitly granted to the county by section 5 — 12001 of the Counties Code and has been explicitly denied to the city by section 11 — 13—1 of the Illinois Municipal Code.

We find the county’s argument persuasive. Section 7 — 4—2 of the Municipal Code, on which the city relies, is a general provision describing the jurisdictional scope of a municipality’s authority. The powers of a municipality are set forth in article 11 of the Code. Division 13 of article 11 details a municipality’s zoning powers. The power to zone outside the corporate limits is specifically and unambiguously denied by section 11 — 13—1 when the county has enacted a zoning ordinance. This specific statutory provision is controlling and cannot be broadened by reference to the general jurisdictional provisions of section 7 — 4—2. See People v. Singleton (1984), 103 Ill. 2d 339, 469 N.E.2d 200 (specific statutory provisions control over general provisions).

Nor do we find that section 1 — 9—1 of the Illinois Municipal Code, upon which the city relies, requires a different result. That section states in part:

“The provisions of this Code shall be cumulative in effect and if any provision is inconsistent with another provision of this Code *** it shall be considered as an alternative or additional power and not as a limitation upon any other power granted to or possessed by municipalities.” (Ill. Rev. Stat. 1989, ch. 24, par. 1—9—1.)

This section is part of the general savings and grandfathering provisions of the Illinois Municipal Code, enacted to avoid problems resulting from the fact that the Code is a compilation of provisions enacted over decades. As stated above, section 7 — 4—2 describes the general jurisdictional authority of municipalities regarding property owned outside the corporate limits. Section 11 — 13—1 sets forth the specific zoning power, including limitations on that power. These provisions are not inconsistent. One describes in broad terms the general jurisdictional authority while the other delineates the specific powers which may be exercised within that authority. The general language of section 1 — 9—1 may not be used to amend and broaden specific statutory grants of power.

Finally, the city’s status as a home rule unit does not endow it with any extraterritorial zoning authority. (City of Carbondale v. Van Natta (1975), 61 Ill. 2d 483, 338 N.E.2d 19.) Such extraterritorial governmental powers may only be conferred by the legislature. (City of Carbondale, 61 Ill. 2d 483, 338 N.E.2d 19; City of Peoria v. Keehner (1983), 115 Ill. App. 3d 130, 449 N.E.2d 1376.) Contrary to the city’s contention, we find that section 7 — 4—2 does not include the zoning power which the city seeks to exercise in this case.

For the reasons stated above, we affirm the judgment of the circuit court.

Affirmed.

GORMAN and STOUDER, JJ., concur.


text:
    H C R LIMITED PARTNERSHIP I, Plaintiff-Appellant, v. ANNE K. BEHRENS et al., Defendants-Appellees.
    Third District
    No. 3—91—0766
    Opinion filed March 26, 1992.
    Lousberg, Kopp, Bonnett & Kutsunis, P.C., of Rock Island (Frederick P. Kopp, of counsel), for appellant.
    Michael E. Evans, of Husch, Eppenberger, Donohue, Cornfeld & Jenkins, of Peoria, and Leslie K. Sha, of Husch & Eppenberger, of Kansas City, Missouri (Stephen D. Gay, of counsel), for appellees.
   JUSTICE SLATER

delivered the opinion of the court:

Plaintiff, HCR Limited Partnership I, appeals from an order of the circuit court of Rock Island County denying its motion for a preliminary injunction to extend a 90-day cure provision in a lease. We affirm.

This case arises out of a lease agreement dated October 26, 1966, for the operation of a nursing home in Moline, Illinois. Plaintiff is the successor in interest to the original lessee of the nursing home, and the defendants, Anne K. Behrens and Rebecca Rice, are the successors in interest to the owners under the lease. Under the terms of the lease agreement, the lessee was to pay both rent and monthly mortgage payments. The lease provided that lessee “shall not prepay said mortgage in any amount, without written consent of the owner.”

On April 5, 1989, plaintiff prepaid the balance of the mortgage. In June of 1991, plaintiff and defendants entered into negotiations for the purchase of the nursing home by plaintiff. During negotiations, plaintiff informed defendants that the mortgage had been paid off. On July 8, 1991, defendants served a notice of default on plaintiff citing prepayment of the mortgage without defendants’ consent as a breach of the lease. The lease provided that upon notice of such a default plaintiff “shall have a period of 90 days *** in which to remedy such default.” From the representations made by the parties at oral argument, it appears that they could not come to an agreement on an adequate amount to cure the damages resulting from the default, which consisted of the payment of additional back taxes, tax penalties, accounting costs, and loss of the right to bargain for written consent to prepay the mortgage.

On August 7, 1991, plaintiff filed a complaint for declaratory judgment and injunctive relief seeking a determination by the court of a proper amount required to cure the default. Plaintiff also filed a motion for a preliminary injunction to extend the 90-day cure period until the court ruled in the declaratory judgment action. On October 2, 1991, a hearing on the motion for a preliminary injunction was held. The court denied the motion, finding that plaintiff had failed to establish the elements required for a preliminary injunction. This interlocutory appeal followed.

It is well established that an injunction is an exceptional remedy which is not granted as a matter of course, but with great caution and only when plaintiff’s right to such relief is clearly established. (Tamalunis v. City of Georgetown (1989), 185 Ill. App. 3d 173, 189, 542 N.E.2d 402, 413; Plasti-Drum Corp. v. Ferrell (1979), 70 Ill. App. 3d 441, 452, 388 N.E.2d 438, 447.) “It is an extraordinary remedy, the use of which is applicable only to situations where an extreme emergency exists and serious harm would result in the absence of the injunction.” (Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 386, 483 N.E.2d 1271, 1277.) The granting or denying of a preliminary injunction is within the discretion of the trial court, and its decision will not be reversed absent an abuse of discretion. (Millard Maintenance Service Co. v. Bernero (1990), 207 Ill. App. 3d 736, 566 N.E.2d 379; Tie Systems, Inc. v. Telcom Midwest, Inc. (1990), 203 Ill. App. 3d 142, 560 N.E.2d 1080.) Before a preliminary injunction will be granted, the plaintiff must establish that: (1) he possesses a clearly ascertained right in need of protection; (2) he will suffer irreparable harm without the injunction; (3) there is no adequate remedy at law for his injury; and (4) he is likely to be successful on the merits of his action. Buzz Barton, 108 Ill. 2d at 387, 483 N.E.2d at 1278; Levitt Homes, Inc. v. Old Farm Homeowners’ Association (1982), 111 Ill. App. 3d 300, 307, 444 N.E.2d 194, 198-99.

Plaintiff contends that the right to cure granted in the lease is a clearly ascertained right in need of protection. Plaintiff argues that because defendants did not inform the plaintiff of the specific amount required to cure the default within 90 days, plaintiff’s right to cure should be extended until the court can determine what is required to cure the default. The cure provision in the lease provides as follows:

“14. DEFAULT: In the event that the OPERATOR shall fail to make any payment of rent specified in this lease promptly as the same become due, or shall fail to comply with any other term, condition or covenant of this lease, the OWNER shall give the OPERATOR notice of said default in writing, which writing shall specify in detail the nature of such claimed default, and the OPERATOR shall have thirty days after receipt of said notice within which to rectify said default. Should said notice be uncomplied with within said period of thirty days, the OWNER may enter into said premises, remove the OPERATOR’S signs therefrom, and re-let the same for the account of the OPERATOR upon the best rental and terms obtainable. Such re-entry shall not work a forfeiture of the rents to be paid and the covenants to be performed by the OPERATOR during the full term of this lease. In the event such default involves an agreement other than the simple payment of money, the OPERATOR shall have a period of ninety days after service or receipt of such notice in which to remedy such default.”

Plaintiff clearly has 90 days under the lease to cure the default. This right is not contested by defendants. However, the fact that the parties cannot agree on a proper cure does not entitle the plaintiff to an extension of the time during which to cure. The plaintiff has not yet tendered any cure at all. The trial judge denied plaintiff’s request for a preliminary injunction because plaintiff had not yet tendered a cure and defendants had not yet rejected any attempt to cure. This was not an abuse of discretion. Plaintiff’s right to cure under the lease is not in need of protection at this time.

The principal case upon which plaintiff relies is Eppers v. First National Bank (1987), 151 Ill. App. 3d 902, 503 N.E.2d 589. Plaintiff contends that Eppers stands for the proposition that the right to cure a breach of contract is a right which is properly protected by preliminary injunction. We disagree.

In Eppers, the plaintiffs had purchased commercial real estate from defendant under an installment contract. The contract provided, among other things, that the plaintiffs would pay all property taxes before accrual of any penalty and keep all buildings on the property insured in defendant’s name. The contract also provided that if plaintiffs breached any contractual conditions, defendant could declare the contract forfeited and reenter and take possession of the property. Plaintiffs failed to pay real estate taxes before penalties accrued and also failed to keep the buildings on the property insured as agreed. Defendant served plaintiffs with a notice of intent to declare forfeiture and notice of intent to file a forcible entry and detainer suit with demand for possession. At the time the notice was served, taxes were in arrears in the amount of $3,500 and insurance premiums were owed in the amount of $639. Within 30 days of receiving the notice, plaintiffs tendered $4,139 to defendant in order to cure the default. Defendant then served plaintiffs with a declaration of forfeiture and a demand for possession of the property. Plaintiffs filed a complaint seeking to enjoin defendant from proceeding with any forfeiture or forcible entry and detainer action. The injunction was granted.

On appeal, the court held that under both the common law and the forcible entry and detainer statute, plaintiffs had 30 days in which to cure the default under the installment contract. The court also found that plaintiffs’ complaint met the requirements for injunctive relief. However, the clearly ascertained right alleged by the plaintiffs in Eppers was not the right to cure. On the contrary, plaintiffs alleged that they had already cured the default and alleged a clear and certain right to continued possession of the property. Because the court had determined that plaintiffs had cured the default within 30 days, the court found that plaintiffs’ right to continued possession of the property was a clear and certain right in need of protection.

In the case at bar, plaintiff admits that it breached the contract, but plaintiff has not yet tendered a cure. Until plaintiff tenders a cure, it cannot claim a clearly ascertained right to possession of the property. Plaintiff’s position in this case is clearly different from the plaintiffs’ position in Eppers.

Moreover, defendants have not served plaintiff with a declaration of forfeiture, nor have they filed a forcible entry and detainer suit. While it is true, as plaintiff points out, that equity may enjoin prosecution of a forcible entry and detainer suit (Venturi v. Bulk Petroleum Corp. (1979), 70 Ill. App. 3d 967, 388 N.E.2d 1147), it does not follow that an injunction should be granted based on the mere possibility that a forcible entry and detainer suit may be filed. Speculative possibility of injury is an insufficient basis upon which to grant injunctive relief. In re Marriage of Strauss (1989), 183 Ill. App. 3d 424, 539 N.E.2d 808.

Plaintiff has failed to establish a clear and certain right in need of protection. Therefore, we need not consider whether plaintiff has established the other elements required for injunctive relief. The order of the circuit court of Rock Island County denying plaintiff’s motion for a preliminary injunction is affirmed.

Affirmed.

McCUSKEY and STOUDER, JJ., concur.


author: JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH HILL, Defendant-Appellant.
    Third District
    No. 3—91—0121
    Opinion filed March 26, 1992.

      Catherine FitzSimmons, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (John X. Breslin and Jay P. Hoffmann, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Defendant, Joseph Hill, appeals his conviction for unlawful possession of a weapon by a felon. Hill argues that proof of his possession of the weapon was lacking where another person living with him had lawful possession of the weapon. Hill additionally contends that the State made improper remarks during closing argument which shifted the burden of proof and misstated the law. We disagree with both arguments and affirm Hill’s conviction.

Hill was charged with unlawful possession of a weapon by a felon (Ill. Rev. Stat. 1989, ch. 38, par. 24—1.1(a)) and unlawful possession of a controlled substance (cocaine) with intent to deliver (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2)). A jury returned a not guilty verdict on the charge of unlawful possession of cocaine with intent to deliver and a guilty verdict on the charge of unlawful possession of a weapon by a felon. Hill was sentenced to five years’ imprisonment.

At 8:30 a.m. on August 7, 1988, Rock Island police officers arrived at Hill’s home at 2380 11th Street to execute a search warrant. Hill rented the single-family residence and lived there with Karen Scott. The officers were admitted to the residence by Scott. The police then handcuffed Scott and Jacquelyn Bailey, who had stayed overnight in a guest bedroom. Thereafter, the police searched Hill’s residence pursuant to the search warrant.

Officer Scott Reid testified that Hill was found in another bedroom, awake and lying in bed under the covers. Officer Reid handcuffed Hill and removed him from the bedroom. Behind Officer Reid, within four to six feet from the foot of Hill’s bed, was an armoire. The left door of the upper cabinet of the armoire was open one to three inches. Officer Reid observed in the cabinet of the armoire the butt of a semi-automatic pistol, which was later identified as a .22 caliber Beretta. Officer Reid opened the doors of the cabinet and removed the weapon. A wallet containing Hill’s Illinois driver’s license was found in the lower right hand corner of the cabinet. A second wallet with Hill’s Illinois identification card was found on top of the cabinet. Officer Reid also found a slightly opened, black zippered bag. The black bag contained cocaine, a chrome-plated Raven’s Arm .25 caliber semi-automatic pistol, and Karen Scott’s Iowa firearm owner’s identification (FOI) card.

Jacquelyn Bailey identified the black bag as a purse belonging to Karen Scott. Bailey testified that she and Karen Scott had traveled to Chicago the previous day and that Scott had taken the purse with her. The women returned from Chicago at approximately 3:45 a.m. the morning the police conducted the search. Hill arrived home after 6 a.m. the same morning.

Hill first contends that proof of his exclusive control of the weapon was lacking since Karen Scott also had control over the bedroom. Hill additionally argues that he could not unlawfully possess the .22 caliber Beretta because Scott held an FOI card which would allegedly allow her lawful possession of the weapon. Hill contends that Karen Scott’s presumed lawful possession of the .22 caliber Beretta precludes his conviction for unlawfully possessing the weapon. We disagree.

To support a conviction involving constructive criminal possession of a weapon, the State must establish (1) the defendant’s knowledge of the presence of the weapon; and (2) his immediate and exclusive control over the area where the weapon was found. (People v. Rangel (1987), 163 Ill. App. 3d 730, 739, 516 N.E.2d 936, 942.) While Hill does not dispute that he had control over the premises he rented, he contends that his control was not exclusive.

We have previously addressed the question of whether another person’s access to a weapon is sufficient to negate a defendant’s responsibility for constructive possession of the same weapon. (People v. Williams (1981), 98 Ill. App. 3d 844, 424 N.E.2d 1234.) The police in Williams recovered a sawed-off shotgun following a search of premises occupied by Williams and two alleged prostitutes. The weapon was stored under a mattress in a bedroom of a second-floor apartment. Both women had taken clients into the apartment where the shotgun was located. One of the women admitted handling the shotgun and testified the other woman and several other persons also handled the weapon.

This court in Williams affirmed the defendant’s conviction for unlawful use of a deadly weapon, rejecting his argument “that because several persons handled the weapon, he did not exclusively control and thus possess the weapon.” (Williams, 98 Ill. App. 3d at 849, 424 N.E.2d at 1237.) Our court stated:

“The law is clear that the exclusive dominion and control required to establish constructive possession is not diminished by-evidence of others’ access to the contraband. [Citation.] When the relationship of others to the contraband is sufficiently close to constitute possession, the result is not vindication of the defendant, but rather a situation of joint possession. To hold otherwise would enable persons to escape criminal liability for possession of contraband by the simple expediency of inviting others to participate in the criminal enterprise.” (Emphasis added.) (Williams, 98 Ill. App. 3d at 849, 424 N.E.2d at 1237.)

“[T]he rule that possession must be exclusive does not mean that possession may not be joint." (Emphasis added.) (People v. Burke (1985), 136 Ill. App. 3d 593, 599, 483 N.E.2d 674, 679.) Scott’s access to the bedroom and the contents of the armoire does not defeat defendant’s constructive possession of the Beretta. See People v. Janis (1977), 56 Ill. App. 3d 160, 165, 371 N.E.2d 1063, 1067.

We note the .22 caliber Beretta was clearly visible in Hill’s bedroom cabinet since the armoire door was ajar. The .25 caliber Raven’s Arm, however, was recovered along with Scott’s FOI card from inside her purse. Also, the storage by Hill of his wallet in his bedroom armoire supports a presumption that Hill was familiar with the contents of the armoire. Accordingly, we find sufficient evidence to support the jury’s verdict.

Hill’s second contention on appeal is that he was denied a fair trial because of improper remarks made by the prosecutor during closing argument. Hill argues the prosecutor’s comments misstated the law and shifted the burden of proof to the defendant.

Hill objects to two comments made by the prosecutor. In the first comment, the prosecutor stated:

“When the defendant, —he has no right to possess a weapon. Don’t get hung up on this concept of ownership. It is not anything anyone has to prove or disprove.”

Hill interprets the prosecutor’s remark to suggest to the jury that ownership of the weapon was irrelevant. The State counters by arguing (1) the prosecutor’s comment only implies to the jury that ownership of the weapon was not an element of the offense; and (2) that the prosecutor’s remark is an accurate statement of the law. We need not address the merits of either parties’ argument because Hill did not object to the prosecutor’s comment at trial and failed to include it as an issue in his post-trial motion. Claimed errors not properly preserved for review are considered waived. (People v. Walker (1985), 109 Ill. 2d 484, 504, 488 N.E.2d 529, 537-38.) We also decline Hill’s invitation to invoke the plain error doctrine. The plain error rule will be applied only where the evidence is closely balanced or the error alleged is of such gravity as to deny defendant a fair trial. (Walker, 109 Ill. 2d at 504, 488 N.E.2d at 538.) We find neither requirement has been met here.

We will, however, consider Hill’s argument concerning the second comment made by the prosecutor. This comment was properly objected to by Hill at trial. During the State’s rebuttal argument, the following exchange occurred:

“[PROSECUTOR]: Mr. Hoffman wants you to believe that Karen Scott owned that gun. There is no proof. Remember possessory offense, ladies and gentlemen.
MR. HOFFMAN [Defense Counsel]: Objection, Your Honor. It is the State’s burden of proof. If they want to prove ownership, they can prove it. They don’t have to disprove ownership or prove somebody else owned it.”

The trial court overruled the objection. Hill contends the prosecutor’s comment improperly shifted the burden to the defendant to prove that Karen Scott owned the weapon. Hill maintains the prosecutor’s comment was especially prejudicial to him because he had argued to the jury that Karen Scott’s alleged ownership of the .22 caliber Beretta would preclude him from unlawfully possessing it. We find no merit to this argument. Hill’s argument is based upon the mistaken, and totally unsupported, belief that the State must prove the weapon was not legally owned by another. The prosecutor was only informing the jury that possession under the law, rather than ownership, is the critical element for the State to prove.

Hill also argues that the prosecutor’s alleged misstatements of law led the jury to return inconsistent verdicts on the cocaine and weapon charges. The State contends that it was evidentiary differences presented with regard to the cocaine and the weapon which led the jury to return the verdicts. We find no inconsistent verdicts. We note Hill presented considerable evidence to suggest that the cocaine was purchased the day before the search during Karen Scott’s trip to Chicago. Also, evidence was presented to the jury that the cocaine in Scott’s bag was placed in the cabinet of the armoire in Hill’s bedroom only hours before he went to bed. The only evidence Hill presented to rebut the weapon charge was the fact that Karen Scott possessed an FOI card. These differences in the evidence presented to the jury clearly allowed the jury to infer that Hill had knowledge of the presence of the .22 caliber Beretta but not the cocaine. The jury could reasonably find, based on the evidence presented, that the cocaine stored in Scott’s purse was placed in the armoire without defendant’s knowledge, while also finding the .22 caliber Beretta — recovered by police in plain view — was within defendant’s constructive possession.

For the foregoing reasons, we affirm Hill’s conviction.

Affirmed.

BARRY, RJ., and STOUDER, J., concur.


author: JUSTICE HAASE

text:
    WILLY STERLING et al., Petitioners-Appellants, v. PAUL KLINCAR, Chairman, Prisoner Review Board, et al., Respondents-Appellees.
    Third District
    Nos. 3-91-0428, 3-91-0466, 3-91-0270 cons.
    Opinion filed March 27, 1992.

      Willy Sterling, of Joliet, appellant pro se.

    Henry Dee, of Joliet, appellant pro se.

    Ronnie Lee Cunningham, of Joliet, appellant pro se.

    Roland W. Burris, Attorney General, of Springfield (Daniel N. Malato, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE HAASE

delivered the opinion of the court:

The three petitioners in this case, Willy Sterling, Ronnie Lee Cunningham, and Henry Dee, individually filed actions in mandamus, alleging that the Illinois Prisoner Review Board (Board) had violated their due process rights by arbitrarily denying them parole. Dee additionally alleged that a recent amendment to section 3 — 3—5(f) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1003—3—5(f)), which allowed the Board to set parole hearings more than one year apart, is an ex post facto law as applied to him. The circuit court dismissed their complaints. The petitioners appeal. This court, on its own motion, ordered the consolidation of these appeals because they raised the common claim that the Board arbitrarily denied parole.

In 1975, Willy Sterling was convicted of murder and sentenced to 100 to 150 years’ imprisonment. He appeared before the Board every year from 1983 through 1991, and was denied parole each time.

In 1976, Ronnie Lee Cunningham was convicted and sentenced to consecutive terms of 100 to 150 years’ imprisonment for murder, 10 to 15 years for armed robbery, and three to nine years for aggravated battery. He appeared before the Board every year from 1984 through 1990. He, too, was denied parole each time.

In 1972, Henry Dee was convicted of two counts of murder and sentenced to two concurrent terms of 100 to 200 years’ imprisonment. He was also convicted of two counts of armed robbery and sentenced to two concurrent terms of 20 to 40 years’ imprisonment which were to run consecutively to the 100- to 200-year terms. He appeared before the parole board every year from 1980 through 1988. He was likewise denied parole each time.

On appeal, the petitioners all contend that they were denied due process because the reasons the Board gave for denying parole were inadequate. In support of that contention they note that in each of their cases, the Board indicated that parole was denied because “parole at this time would deprecate the serious nature of the crime and promote a disrespect for the law.” The petitioners suggest that this language is mere “boiler plate” and not an adequate reason. In support of their contention, they argue that because other inmates convicted of murder have been paroled, the nature of the crime is not an adequate reason for denying parole. See United States ex rel. Scott v. Illinois Parole & Pardon Board (7th Cir. 1982), 669 F.2d 1185.

The due process clauses of the Federal and State Constitutions protect against deprivation of liberty or property without due process of law. (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2.) Consequently, procedural due process protections are triggered only when a constitutionally protected liberty or property interest is at stake. Board of Regents of State Colleges v. Roth (1972), 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701; Wilson v. Bishop (1980), 82 Ill. 2d 364, 412 N.E.2d 522.

We find, however, that we need not determine here whether the Illinois parole release statute (Ill. Rev. Stat. 1989, ch. 38, par. 1003—3—5(c)) creates a constitutionally protected liberty interest. Even if such a liberty interest arises, the reasons the Board gave the petitioners for the denial of their parole applications satisfied due process requirements. See Tiller v. Klincar (1990), 138 Ill. 2d 1, 561 N.E.2d 576.

The test to determine whether reasons for denying parole are constitutionally sufficient is whether the reasons are adequate to enable a reviewing body to determine whether parole has been denied for an impermissible reason or for no reason at all. (Tiller v. Klincar (1990), 138 Ill. 2d 1, 561 N.E.2d 576.) Further, detailed findings of fact are not required if the Board considered all the relevant factors and furnished the inmate with both the grounds for its decision and the facts upon which inferences were drawn. (Tiller v. Klincar (1990), 138 Ill. 2d 1, 561 N.E.2d 576.) Where the Board denies parole on the ground that release would deprecate the seriousness of the offense and promote disrespect for the law, due process standards are met if the Board lists the offense of which the inmate was convicted and indicates the extreme length of the sentence imposed. Tiller v. Klincar (1990), 138 Ill. 2d 1, 561 N.E.2d 576.

In the instant cases, we find that the Board adequately set forth reasons for denying parole. In denying parole for Sterling, the Board stated:

“You were heard for the possibility of parole during the regular docket of the Illinois Prisoner Review Board. The facts of your committing offense were reviewed, your institutional records noted and you were seen in a face to face hearing.
You were found guilty of murder in 1975 and sentenced to 6 concurrent terms of 50 to 150 years. You and an accomplice went into a public aid office and shot two security officers to death.
The Board notes your good adjustment and presidency of the Jaycees. Adequate parole plans were presented, but the Board still feels that a parole at this time would deprecate the serious nature of your offense (Murder) and promote disrespect for the law.
Parole is denied.”

In determining that Cunningham should not be granted parole, the Board concluded:

“The Board has reviewed material in your file including but not limited to the Statement of Facts, institutional adjustment, release plans and your personal appearance including the testimony of your wife and other visitors.
The file reflects that you were sentenced to 100-150 years (murder), 10-25 years (armed robbery), and 3-9 years (aggravated battery).
Material in the record indicates that you and other codefendants entered the residence of the victim and the end resulted in the beating death of one victim with a rifle and vase, and permanent injury to another. You and your codefendant received similar lengthy sentences to be served consecutively.
Your institutional adjustment appears good and your assignments to Officer’s Dormitory, Farm Garden, and adult education are noted.
Release plans were reviewed and discussed with you.
However, parole is denied at this time because of the brutal nature of your offenses and in the opinion of the Board parole, now, would deprecate the seriousness of your offenses and promote disrespect for the law.
Parole denied.”

After considering Dee’s application for parole, the Board stated:

“Members of the Prisoner Review Board in making a decision to grant or deny parole have reviewed the following: statement of facts of case and sentence imposed, prior criminal records, institutional adjustment, parole plans and the personal interview conducted with the resident. Protests, including that of the State’s Attorney of Cook County is noted.
Presently Mr. Dee is serving 100-200 years for murder; 20-40 years for armed robbery (consecutive), 100-200 years for murder; 20-40 years for armed robbery, two concurrently but consecutive to the first two counts. The instant crime occurred when the resident and a co-defendant held two victims at gunpoint, hogtied, gagged, tied them and killed the male victim while a robbery took place. Later the female was raped and beaten to death. All gas jets and a gas oven were turned on and fire set to an apartment in an attempt to destroy the evidence. A past history of criminal behavior exists and the above crime was committed while on parole.
Institutional adjustment is satisfactory and plans to work and live in Chicago were weighed by the board in their decision.
After deliberation of the above the board denied parole due to the brutal and heinous nature of the offense. To grant parole at this time would deprecate the seriousness of the crime and promote a disrespect for the law.”

These statements do not indicate that parole was denied merely because the petitioners were convicted of murder. Rather, the Board adequately set forth reasons explaining why parole was being denied. The Board indicated that among the factors it considered in denying parole were the nature of the offenses, the extreme length of the sentences imposed, previous criminal conduct, and the objections of the State’s Attorney. Even assuming that a protectable liberty interest arose by operation of the Illinois parole release statute, the Board’s explanations for its decisions denying parole satisfied the requirements of due process. (See Tiller v. Klincar (1990), 138 Ill. 2d 1, 561 N.E.2d 576.) Accordingly, we find that the circuit court properly dismissed the petitioners’ due process complaints.

Petitioner Sterling additionally contends that he was convicted of only two murders, but that the Board indicated he was convicted of six murders. We find from the language used by the Board that we are unable to discern whether the Board was referring to six murder convictions or a total of six convictions for various crimes. An appellant has the burden to present a sufficiently complete record to support his claim and, in the absence thereof, it will be presumed that the trial court acted correctly. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 459 N.E.2d 958.) Since the record the petitioner supplied with this appeal does not supply adequate details concerning his sentencing, we are unable to conclude that there is any merit to the petitioner’s contentions.

Petitioner Dee likewise contends that the Board erred in stating that he raped his victim, because he was never convicted of rape. We first note that the Board did not say that Dee committed the rape. Additionally, even if the Board’s statement is read as indicating that Dee raped his victim, such a statement is not without support. In fact, in Dee’s direct appeal from his conviction the appellate court noted that although Dee was not charged with sexual assault, one could draw a reasonable inference from the evidence that the victim was sexually assaulted. (People v. Dee (1975), 26 Ill. App. 3d 691, 325 N.E.2d 336.) Finally, even if all references to sexual assault were ignored, the Board still found and stated adequate grounds for denying the petitioner’s parole. Accordingly, we cannot conclude that the circuit court improperly dismissed his appeal.

We now turn our attention to Dee’s contention that the current version of section 3 — 3—5(f) of the Unified Code of Corrections is an ex post facto law as applied to him. Dee’s contention is founded on the fact that subsequent to his conviction, section 3 — 3—5(f) was amended to provide for hearings every three years rather than annually. Ill. Rev. Stat. 1989, ch. 38, par. 1003—3—5(f).

The Illinois Supreme Court has made it clear that section 3 — 3— 5(f) is an ex post facto law when its amended version is applied to prisoners who were convicted prior to the amendment. (Tiller v. Klincar (1990), 138 Ill. 2d 1, 561 N.E.2d 576.) However, Tiller was released in 1990 and Dee was scheduled for a parole hearing in December of 1991. There is no evidence in the record that the December 1991 hearing was not held, nor is evidence presented indicating that subsequent hearings would not be held on an annual basis. Because the amended version of section 3 — 3—5(f) is no longer being applied to Dee, the issue is moot. Accordingly, we find that the circuit court properly dismissed Dee’s complaint.

The judgments of the circuit court of Will County are affirmed.

Affirmed.

BARRY, P.J., and GORMAN, J., concur.


author: JUSTICE GORMAN

text:
      In re J.M. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. William Marquardt, Respondent-Appellant).
    Third District
    No. 3—91—0055
    Opinion filed March 26, 1992.

      Sonnemaker, Sonnemaker & Vespa, of Peoria (Joe R. Vespa, of counsel), for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

This action was brought petitioning the court for the adjudication of wardship in the interest of the minors, J.M., M.M., and D.M. It was alleged in count I of the petition that respondent William Marquardt sexually abused his 21/2-year-old daughter, D.M., and in count II that he sexually abused his girlfriend’s 121/2-year-old daughter, J.M. The trial court found both counts proven. We affirm.

During 1985, Lori Minton and her two children, M.M. and J.M., began living with respondent William Marquardt in Peoria. In 1985, D.M. was born to Minton and respondent. On November 24, 1988, Minton and respondent argued heatedly. The police were summoned and respondent left the abode voluntarily. On November 28, 1988, Minton obtained an order of protection against respondent. Respondent also attempted to get custody of D.M. and an order of protection against Minton. The court ordered custody of D.M. to be with each party on alternating weeks. On November 30, 1988, Min-ton and respondent, per directions from the Department of Children and Family Services (DCFS) child abuse investigator, took D.M. for an examination for possible sexual abuse.

On December 5, 1988, the People filed a petition requesting that D.M., J.M., and M.M. be adjudicated abused minors. In June and July 1989, an adjudicatory hearing was held on the petition. Count I alleged that D.M. was an abused minor because respondent committed a sex offense against her by fondling her vagina on at least one occasion before the summer of 1988. Count II alleged that J.M. was an abused minor because, during the summer of 1988, respondent kissed her neck, touched her breasts, and asked her to have sexual intercourse with him. Count II also alleged that during the summer of 1988, defendant took J.M.’s hand and placed it on his penis; after the minor removed his hand, respondent attempted to repeat his actions.

At the hearing, Susan Wright, a registered nurse, testified that she examined D.M. for possible sexual abuse. Wright testified that she had received no training or certification in sex abuse cases, but had interviewed a number of victims of sexual assault. She stated that she observed no unusual markings or bruises, redness, or tenderness in the vaginal or rectal area of the child. She further testified that she spoke with D.M. alone and asked her if respondent had touched her. She stated that D.M. told her that respondent had tickled her legs, stomach, and perineal area. D.M. then showed the same areas on a doll and demonstrated a rubbing motion on the perineal area. Wright testified that she asked D.M. if the touching had occurred during bath time. D.M. had said that the touching did not occur during bath time, but while respondent and D.M. were playing and while D.M. was undressed.

Judy Trent, D.M.’s babysitter, testified that, when respondent was in town, D.M. had a diaper rash and vaginal discharge. She also stated that in the spring or summer of 1988, D.M. occasionally woke up screaming and crying and that she had said “no, daddy, no, daddy” in her sleep. Trent also stated that when D.M. was two years and two months old, she was changing D.M.’s diaper when the minor said that her “butt” hurt. When Trent asked D.M. what was wrong with her “butt,” D.M. said “my daddy put his finger in it.” Trent also testified that D.M. did not know the difference between “butt” and vagina. She also said that when D.M. made these statements, there was a mucous-colored discharge coming from D.M.’s vagina. Trent did not report her findings to DCFS until late November 1988.

J.M. testified that she was 13 years old. She stated that she and respondent did not get along well and often argued. She said that he restricted her to PG-rated movies and he did not approve of her boyfriends or other friends. J.M. also stated that respondent had asked her to model her swimsuit and her mother’s lingerie. She further testified that one time respondent took her to a motel in Peoria Heights when he was supposed to be taking her to his mother’s house. She stated that respondent said that he had forgotten the key to his mother’s house. She further said that they stayed overnight in the motel and that respondent tried to have sexual intercourse with her.

J.M. also testified that one time, after she had taken a bath at respondent’s mother’s house, she had wrapped herself in a towel and closed all the bedroom doors. Respondent came into the room and put his hand on her breast. She stated that he said something to her at this time, but she could not recall what it was. J.M. testified that another time when respondent and J.M. were at his mother’s house, J.M. was sleeping on the floor with D.M. and respondent asked J.M. to massage his stomach. J.M. stated that respondent then picked up J.M.’s hand and put it near his penis. J.M. pulled her hand away and respondent tried to place it on his penis again.

Kathy Corl, a DCFS investigator, testified that she had spoken to J.M. for about half an hour and that J.M. was initially very direct and assertive for a child of her age. Corl further stated that when she asked J.M. if J.M. had been sexually abused, J.M. became very shy and looked uncomfortable; her voice became much softer and she looked down. In an earlier videotaped statement to Corl, which was introduced at the adjudicatory hearing, J.M. had told her about the touching incidents.

Corl also testified as to alleged abuse of D.M. She stated that, immediately after the medical exam for possible sexual abuse, D.M. did not disclose to her that there was any touching. Also, shortly before the hearing, when Corl spoke to D.M., D.M. stated that neither her mother nor her father had touched her private parts.

Respondent also testified at the hearing. He denied ever having fondled J.M.’s breast. He also denied ever having placed J.M.’s hand near his penis. He also stated that the doors to his mother’s bedroom had been inoperable since 1976. Respondent offered into evidence a diagram of that part of his mother’s house where the alleged touching occurred. He stated that the diagram was made in late November 1989 by an architect who was internationally known. Respondent denied ever having taken J.M. to a motel and denied asking to photograph J.M. in a nightgown. He also denied ever having placed his finger in D.M.’s vagina or rectum. Respondent also testified that in late November 1988 he reported Judy Trent to DCFS for certain day-care violations. He reported that Trent had left D.M. in the house by herself on more than three occasions. He also reported that he had discovered that Trent and Minton were colluding to cheat DCFS. He said that Minton was understating her income and receiving extra day-care benefits and splitting them with Trent. Respondent testified that he had a bachelor’s degree from the University of Maryland and was a few hours short of his master’s degree in social work from Stanford University. He also testified that he had been a psychologist 1 correctional vocational instructor with the Department of Corrections. This testimony of his education and employment credentials was largely impeached on cross-examination. Respondent offered numerous reputation witnesses to testify to his good reputation for truthfulness, decency, and morality. The court did not allow the testimony of Phillip B. Fleming, a family therapist, and Rick Long, a clinical social worker, who testified in the offers of proof that respondent did not exhibit any of the personality traits or characteristics commonly found in known sex offenders.

At the conclusion of the hearing, the trial judge found that D.M. and J.M. were abused minors. Respondent now appeals.

The first issue is whether the findings that respondent sexually abused D.M. and J.M. are against the manifest weight of the evidence.

Under the Juvenile Court Act, “in any hearing *** proof of the abuse *** of one minor shall be admissible evidence on the issue of the abuse *** of any other minor for whom the respondent is responsible.” (Ill. Rev. Stat. 1989, ch. 37, par. 802 —18(3).) Thus, under a similar, prior provision, the second district upheld a finding of sexual abuse as to one minor daughter even though there was no evidence that she personally was physically molested because there was evidence that the other minor daughter was molested. In re S.M. (1988), 171 Ill. App. 3d 361, 525 N.E.2d 565.

Here the trial judge heard J.M., respondent, and the other witnesses testify as to the alleged acts of abuse. He determined that J.M., Wright, and the others were credible witnesses and that respondent was not credible. Moreover, the evidence on the abuse of J.M. can be considered on the question of abuse of D.M. The trial court found that, by a preponderance of the evidence, D.M. and J.M. were abused minors. Given the facts in the record, we cannot say that the trial court’s findings of abuse of the minors are against the manifest weight of the evidence.

The second issue respondent raises for review is whether the trial court abused its discretion in excluding the testimony of a therapist and a social worker that respondent did not have the personality traits of a sex offender.

The general rule is that when a character trait is at issue, opinion testimony is not admissible. (People v. Williams (1990), 139 Ill. 2d 1, 563 N.E.2d 431; People v. Wheeler (1991), 216 Ill. App. 3d 609, 575 N.E.2d 1326.) In Wheeler, this court upheld the barring of testimony by two psychologists who intended to testify in defendant’s trial for aggravated criminal sexual assault that the defendant did not possess traits consistent with those of a pedophile. Here, the trial court followed existing law. We can find no abuse of discretion in refusing to admit the opinion testimony of the therapist and of the social worker and so affirm the circuit court’s ruling.

Affirmed.

BARRY, P.J., and SLATER, J., concur.


author: JUSTICE BARRY JUSTICE GORMAN,

text:
    ROBERT T. HALL, Petitioner-Appellee, v. REBECCA J. HALL, a Minor, et al., Respondents-Appellants.
    Third District
    No. 3—91—0019
    Opinion filed October 31, 1991.
    Rehearing denied April 28, 1992.

      GORMAN, J., dissenting.
    Ehlers Law Firm, of Bloomington (Randall B. Ehlers, of counsel), for appellants.
    Thomson & Weintraub, of Bloomington (Donald W. Wilcox, of counsel), for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Dawn Rippel, the unmarried mother of Rebecca J. Hall, appeals from the judgment of the circuit court of Marshall County awarding permanent custody of Rebecca to her father, Robert T. Hall. The issue on appeal is whether the trial court’s determination that it was in the child’s best interest that custody be awarded to the father is contrary to the manifest weight of the evidence.

Rebecca was bom June 2, 1987. At the time, her mother was 17 years old and her father, nearly 23. Dawn and Rebecca initially lived at home with Dawn’s parents on a farm outside of Toluca, Illinois, and Robert lived with his parents a few miles away. In September 1987, Dawn, Robert and Rebecca set up housekeeping in a home situated approximately equidistant between the Hall and Rippel homes. They lived together until Dawn and Robert had a serious argument and physical confrontation in May 1988. At that time, Dawn left with Rebecca. In early June 1988, Dawn rented a home outside of Rutland, Illinois, and has continued to live there with Rebecca throughout these proceedings. Robert still lives alone in the house in Toluca. On June 16, 1988, when Rebecca was just a year old, Robert initiated this suit seeking a judicial declaration of his paternity, and custody, visitation and support determinations. Dawn admitted Robert’s paternity and resisted his other requests for relief.

The matter proceeded doggedly for more than two years through numerous, protracted hearings, culminating with the judge’s oral ruling from the bench immediately after counsel’s closing arguments. This was followed by a written decision two months later granting sole permanent custody to Robert on January 28, 1991. In February, Dawn filed a timely notice of appeal. Rebecca was four by the time this appeal was heard. It is not over for her. While it is most certainly not in the child’s best interest to perpetuate this custody battle, for reasons that follow, we find that the court’s determination to grant permanent custody to Robert cannot be sustained.

The bulk of the testimony presented to the trial court consists of the parties’ exchanges of charges of isolated incidents of misconduct, carelessness or the exercise of immature judgment. There is testimony tending to corroborate such charges and further testimony tending to discount them. The details need not be repeated because they are only marginally relevant, at best. The impact of such testimony is simply that these parents were young and unprepared to be parents when Rebecca was born. Both parents have made mistakes and both have acknowledged incidents of poor judgment in their pasts. They have matured in many respects throughout this period of litigation. Perhaps only in the interest of currying judicial favor they have achieved success in modifying or eliminating destructive habits and inappropriate behavior, and they have begun to demonstrate some willingness to cooperate in decisions pertaining to Rebecca. Both Dawn and Robert have strong support from their respective families, and all grandparents are anxious to provide the nurturing and care Rebecca needs while her parents work. The record discloses that Rebecca is a bright, affectionate, well-adjusted child. She relates well to both of her parents and to both sets of grandparents.

Expert testimony of record from two psychologists, Ms. Leone Legan and Dr. Eric Ward, would support a decision to grant custody to either parent, or to fashion a joint custody agreement. Extensive testimony by the grandparents as well as expert testimony from the psychologists about how Rebecca related to each grandparent during interviews conducted in the psychologists’ respective offices was admitted into evidence. Dawn and her mother, Rose Rippel, who had been Rebecca’s primary care-giver and babysitter, respectively, provided insight into Rebecca’s daily schedule. Likewise, Robert and his parents testified about Rebecca’s conduct and activities during Robert’s visitation periods. Ms. Legan interviewed Dawn and Robert, each in the company of Rebecca when she was 18 months old, and evaluated them as potential custodians. Ms. Legan expressed concern about Robert’s susceptibility to substance addiction. She also found that Rebecca and Dawn had a “bonded” relationship that she did not observe with Robert. Based upon her various tests and interviews, Legan favored not disrupting Rebecca’s custodial arrangement; however, upon further questioning by the court, Legan also recommended that both parents and the grandparents could benefit from family counselling to create a more cooperative atmosphere for the child’s benefit.

Dr. Ward, in addition to interviewing and evaluating the parents, conducted separate interviews of the grandparents and of two of Dawn’s friends, Larry and Paul, in Rebecca’s presence. Dr. Ward’s interviews were conducted between July 1989, when Rebecca was just two years old, and October 1990. Dr. Ward observed that Rebecca was equally comfortable with both parents, but that she seemed to respond more readily to directions from the Hall grandparents. He also observed that Mrs. Rippel acted nervous when Rebecca resisted leaving Dawn so that she could be observed with the maternal grandmother. Ultimately, it was Dr. Ward’s suggestion that this was a unique situation in which the court might consider joint custody with on-going mediation of custody disputes.

In a custody dispute, the primary consideration is the best interest and welfare of the child. Because the trial court is in a better position to evaluate the demeanor and conduct of the parties and witnesses, the court’s decision is given great deference and will not be disturbed on appeal unless such decision is contrary to the manifest weight of the evidence. (In re Marriage of Dall (1989), 191 Ill. App. 3d 652, 548 N.E.2d 109; In re Custody of Bourey (1984), 127 Ill. App. 3d 530, 469 N.E.2d 386.) Regardless of whether the parents have ever been married, the statutory factors listed in section 602(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 602(a)) (the Act) are relevant in determining a child’s custody. (In re Marriage of Kennedy (1981), 94 Ill. App. 3d 537, 418 N.E.2d 947; Bourey, 127 Ill. App. 3d 530, 469 N.E.2d 386.) This is not to say that statutory list is exclusive or that the trial judge must recite each factor upon which the court’s determination is made; but where nonstatutory factors are considered determinative of the custody decision, such factors should not remain obscure, and the weight of the evidence of record must support the custody decision.

In the court’s ruling granting sole custody to Robert, the court specifically noted that “no significant consideration was given to evidence of Dawn Rippel’s prior misconduct outside the presence of the child” and that the court had “considered all relevant factors, including the applicable factors listed at ch. 40 Ill. Rev. Stat. sec. 602.”

In her appeal to this court, Dawn argues that, despite the court’s recitation of the applicable statutory section enumerating “best interest” factors, the court’s determination that granting custody to Robert was in Rebecca’s best interest is contrary to the manifest weight of the evidence. In support of this argument, Dawn points out that the weight of Robert’s evidence related to isolated incidents of Dawn’s misconduct as a teenager, most of which were either before Rebecca’s birth or outside of the child’s presence. Of course we agree with the trial court that such testimony was largely irrelevant to the custody decision, and these incidents should not have been a determining factor, either singularly or cumulatively.

Dawn also points out that the trial court may have given undue consideration to testimony tending to compare the relative parental abilities of the parties’ parents. We note in this regard that at one point, in denying a motion to strike testimony, the court stated that this is a case “where the grandparents will really be the parties who will be raising the child” and that “the nature and character they display on the witness stand and project is often more important than the particular information they are disclosing.” While we recognize that the record on appeal does not disclose credibility factors such as the witnesses’ demeanor, it does not appear that the trial court found one set of grandparents significantly more believable than the other. On the other hand, the testimony they provided coupled with that of Dr. Ward does reveal differences between the Rippels and the Halls. These several differences, however, are subtle with respect to the relevant issue before the court and certainly do not provide a basis for determining which of Rebecca’s parents should be awarded custody.

Dawn argues further that the court failed to give adequate consideration to statutory factors that should have weighed in her favor. We find this argument persuasive. In particular, section 602(a)(4) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 602(a)(4)) requires that the court consider as a relevant factor the child’s “adjustment to his home.” Although the “tender years doctrine” — a presumption favoring the mother — has been abrogated in this State (Kennedy, 94 Ill. App. 3d 537, 418 N.E.2d 947), we have repeatedly emphasized the importance of maintaining stability and continuity in a young child’s environment. In re Custody of Walters (1988), 174 Ill. App. 3d 949, 529 N.E.2d 308; Bourey, 127 Ill. App. 3d 530, 469 N.E.2d 386.

In this case, although they both work outside the home, both Dawn and Robert took responsibility for Rebecca’s day-to-day care for the nine-month period when they all lived together. Prior thereto and after the break-up, Dawn has provided primary care for her daughter. The record on appeal clearly demonstrates that Rebecca is now comfortably settled into her life with Dawn as her primary care-giver and the Rippel grandparents as day care providers. Dawn’s work schedule as an insurance claims data typist is regular — eight hours a day, five days per week, with no overtime or week-end shifts. Also clear is the fact that Robert has maintained an abiding interest in Rebecca and has not shirked his support obligations. However, his work schedule is less structured. Certainly, had the custody determination been rendered in a more timely fashion, the “stable environment” factor would not have weighed significantly in Dawn’s favor. However, there is no denying that after 2xh years of litigation, during which time Rebecca has spent most of her life in her mother’s home and to all appearances has developed remarkably well, a clear environmental factor has developed that has not been given adequate consideration by the court. Given that all other discernible relevant factors are evenly balanced and that a significant factor, the young child’s stable environment, clearly tips the scale in favor of awarding custody to Dawn, we must conclude that the court’s decision to grant custody to Robert is contrary to the manifest weight of the evidence.

Although we are loathe to prolong this custody determination, we find it necessary to remand this cause. This case is unusual in that both parents and both sets of grandparents who provide child care during the parents’ working hours continue to live in close proximity to one another. Both parents and both sets of grandparents have demonstrated their love for Rebecca and their ability and willingness to provide proper care for her. Dawn and Robert have a history of noncooperation with only recent indications that some effort to get along for Rebecca’s sake is being made. Nonetheless, they are both relatively young and continue to mature in their attitudes and conduct. The record contains a detailed proposal for joint custody and mediation of custody disagreements. Because the relevant factors other than factor 602(a)(4) are so evenly balanced in this case, rather than reversing the custody determination outright, we believe that the court on remand should first give serious consideration to Dr. Ward’s recommendation of joint custody. If the court determines that joint custody cannot be implemented, then an order should be entered granting sole custody to Dawn with liberal visitation for Robert.

The judgment of the circuit court of Marshall County is reversed and this cause is remanded for further proceedings.

Reversed and remanded with directions.

STOUDER, P.J., concurs.

JUSTICE GORMAN,

dissenting:

The myriad of facts as they relate to the awarding of permanent custody of the minor, Rebecca J. Hall, are set out accurately in the majority opinion. During the course of the hearing there was extensive testimony from two psychologists and extensive testimony regarding the relationship of the child with her parents and grandparents. The primary consideration is correctly stated to be the best interest and welfare of the child.

Considering the statutory factors listed in section 602(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 602(a)), I am unable to conclude that the decision of the trial court is contrary to the manifest weight of the evidence. In re Marriage of Dall (1989), 191 Ill. App. 3d 652, 548 N.E.2d 109.

I therefore dissent from the opinion of the majority.