source: Caselaw Access Project

author: JUSTICE RARICK JUSTICE CHAPMAN,

license: Public Domain

text:
      In re MARRIAGE OF VERNON THACKER, Plaintiff-Appellant, and JOANN THACKER, Defendant-Appellee.
    Fifth District
    No. 5-87-0659
    Opinion filed June 28, 1989.

      CHAPMAN, J., concurring in part and dissenting in part.
    Rosemary L. Berkemann and Robert E. Wells, Jr., both of Pessin, Baird, Belsheim & Wells, of Belleville, for appellant.
    Crowder & Scoggins, Ltd., of Columbia, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Plaintiff, Vernon Thacker, appeals the distribution of certain property awarded by the circuit court of St. Clair County in his action for dissolution of marriage to defendant, Jo Ann Thacker. We reverse and remand.

Vernon and JoAnn were married in June of 1982 and separated three years later. No children were born of the marriage, although Vernon has two children by prior marriages, one of whom lived with the parties during their marriage. Both Vernon and JoAnn work full time. Prior to the parties’ separation, JoAnn also served as a part-time secretary without compensation, averaging 10 hours a week, for Thacker Painting, Inc.

Vernon argues on appeal the trial court erred in classifying certain assets as marital property. Specifically, Vernon contends the parties’ residence, stock in Thacker Painting, Inc., and a bedroom set and coffee and end tables are all nonmarital property which rightfully belong to him. We turn first to the stock in Thacker Painting, Inc.

In 1979, prior to the parties’ marriage, Vernon started his own painting company, Thacker Painting, which he operated as a sole proprietorship. In 1984, after their marriage, Vernon incorporated the business. At the time of incorporation, Vernon’s accountant recommended that 20 shares of stock in the business be issued to JoAnn so that in the event of Vernon’s death Thacker Painting, Inc., could remain in operation. Thacker Painting, Inc.’s 1984 tax return indicates that 20 shares were transferred to JoAnn. JoAnn, however, never received any of the stock certificates. Vernon testified he never intended to give her 20 shares of the stock nor intended for her to have any right to control the operation of the business. JoAnn contributed no income to and did not become liable for any debts of Thacker Painting, Inc. JoAnn testified, however, she purchased the very first ladder for the predecessor Thacker Painting. She also continued to work part time for the business without pay after incorporation until the parties’ separation.

The trial court, in distributing the parties’ assets, classified Thacker Painting, Inc., as marital property. Vernon contends the stock is nonmarital property. He argues he merely exchanged one nonmarital asset (Thacker Painting) acquired prior to the parties’ marriage for another nonmarital asset acquired shortly after the marriage. JoAnn, however, asserts Thacker Painting was a marital asset owned by both parties prior to incorporation; consequently, Thacker Painting, Inc., as its successor, is also marital property. We cannot accept JoAnn’s argument. Clearly, Thacker Painting, Inc., is nonmarital property.

Section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 503) sets forth the guidelines to be consulted in determining whether property is marital. Subsections (a)(6) and (a)(2) clearly state property acquired before the marriage and property acquired in exchange for property acquired before the marriage is nonmarital. Vernon started Thacker Painting three years before the parties’ marriage. As such, it was property acquired before the marriage belonging solely to Vernon. It is true that JoAnn aided the fledgling business by purchasing its first ladder and contributing secretarial work, but she never exerted any control over the operation of the business, never claimed any income from the business on her individual tax returns prior to the parties’ marriage and never claimed to be a joint owner, or partner prior to incorporation. JoAnn’s contributions do not entitle her to any premarital property rights in Thacker Painting under the Illinois Marriage and Dissolution of Marriage Act. (See In re Marriage of Hughes (1987), 160 Ill. App. 3d 680, 685, 513 N.E.2d 1203, 1206; In re Marriage of Crouch (1980), 88 Ill. App. 3d 426, 430-31, 410 N.E.2d 580, 583.) And, her contributions after the marriage, standing alone, were not substantial enough to convert the business into a marital asset. See In re Marriage of Frazier (1984), 125 Ill. App. 3d 473, 478, 466 N.E.2d 290, 294, appeal after remand (1988), 164 Ill. App. 3d 207, 517 N.E.2d 775; In re Marriage of Pancner (1982), 111 Ill. App. 3d 546, 549, 444 N.E.2d 653, 655.

Our discussion, however, cannot end here, for in 1984, after the parties’ marriage, Vernon incorporated his business. If Vernon had issued all stock to himself, clearly this exchange of assets would fall under subsection (a)(2). Vernon, however, declared on the 1984 tax and incorporation forms that JoAnn was a stockholder. Under subsection (b) of the Act, all property acquired by either spouse after the marriage, including nonmarital property transferred into some form of co-ownership between the spouses, is presumed to be marital property, regardless of title. (See Ill. Rev. Stat. 1985, ch. 40, par. 503(b).) Vernon, however, has rebutted this presumption. First, the designation of ownership on tax returns in and of itself is too ambiguous to establish that a spouse intended to convey a gift to the marriage. (See Pancner, 111 Ill. App. 3d at 549, 444 N.E.2d at 655.) Second, JoAnn was to receive 20 shares of stock on the advice of the parties’ accountant to keep the business in operation should Vernon die. JoAnn never received the 20 shares of stock. More importantly, Vernon never intended to give her any stock. Vernon also never intended for JoAnn to exercise any control over the business, and she never attempted to do so. Under such circumstances, Thacker Painting, Inc., is not marital property. (See In re Marriage of Legge (1982), 111 Ill. App. 3d 198, 205, 443 N.E.2d 1089, 1094.) Vernon simply exchanged one non-marital asset for another, regardless of title. The trial court erred in classifying it otherwise. Consequently, we must remand this cause for a reclassification and redistribution of the parties’ assets.

We must also remand this cause for further proceedings because of the trial court’s erroneous handling of the parties’ residence.

In 1981, prior to the parties’ marriage, Vernon purchased a home in Belleville, Illinois. In 1983, Vernon sold this property, realizing $10,400 in equity. Vernon applied the $10,400 as a down payment on a new home in Belleville. The names of both parties appear on the mortgage note and on the title of the new house. Prior to incorporating Vernon’s business, all mortgage payments were made by Vernon out of Thacker Painting’s checking account. After 1984, the mortgage payments were made out of a joint checking account which consisted primarily of Vernon’s funds.

The trial court awarded Vernon the right to purchase JoAnn’s interest in the residence. If Vernon failed to exercise this right within the allotted period of time, the house was to be sold with the proceeds divided equally between the parties. Vernon argues on appeal that the residence is his nonmarital property because he merely exchanged his nonmarital equity in the first residence for nonmarital equity in the new house. Any presumption of gift is rebutted, Vernon claims, by his testimony he took title to the property in joint tenancy with JoAnn because he does not have a will. JoAnn counters that all of Vernon’s nonmarital funds used to acquire the residence were gifts to the marital estate.

Section 503(c)(1) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 503(c)(1)) provides that when marital and nonmarital property is commingled, resulting in a loss of the identity of the nonmarital estate, the commingled property is transmuted into marital property. Here, Vernon used his equity in the first residence to purchase a new home titled in both parties’ names, thereby commingling the properties so as to transmute his equity into marital property. (See Atkinson v. Atkinson (1981), 87 Ill. 2d 174, 179, 429 N.E.2d 465, 467; In re Marriage of Mayzner (1986), 144 Ill. App. 3d 645, 649, 494 N.E.2d 615, 618.) Consequently, the residence was properly classified as marital. Section 503(c)(2) provides, however, that the estate which contributed assets to another estate shall be reimbursed from the estate receiving the contribution provided that such contribution is traceable by clear and convincing evidence and was not made as a gift to the marital estate. (See Ill. Rev. Stat. 1985, ch. 40, par. 503(c)(2); see also Hughes, 160 Ill. App. 3d at 685, 513 N.E.2d at 1206; In re Marriage of Guerra (1987), 153 Ill. App. 3d 550, 555, 505 N.E.2d 748, 751-52.) Factors to be considered in determining whether a party has rebutted the presumption of gift under such circumstances include the size of the gift relative to the entire estate; when the property was purchased; and who paid the purchase price, made improvements, paid the taxes, and exercised control and management over the property. (See Guerra, 153 Ill. App. 3d at 556, 505 N.E.2d at 752.) Here, approximately one-fourth of the purchase price for the property, which also represents one-third of Vernon’s entire estate, came from Vernon’s nonmarital funds. All of the mortgage payments prior to 1984 were made through Vernon’s business which was operated from the property. In addition, Vernon provided the majority of the physical labor and finances used to make major improvements to the property. Such evidence, along with Vernon’s testimony as to his original intent in titling the property in joint names, rebuts the presumption that his original investment in the residence constituted a gift to the marital estate. Vernon, therefore, is entitled to reimbursement for the nonmarital contribution consisting of the $10,400 down payment applied to the purchase of the residence.

Finally, Vernon contends a bedroom set and a coffee and end table set were erroneously classified as marital property. We agree. Vernon’s cancelled checks for these items establish they were purchased prior to the parties’ marriage and therefore constitute non-marital property. JoAnn admitted as much as to the bedroom set at trial and was discredited as to her testimony pertaining to the tables as the alleged replacement set was purchased after the parties’ separation. The trial court therefore needs to readjust its distribution of property with regard to these items also.

Vernon also raises arguments pertaining to the trial court’s apportionment of marital debt and to the order requiring him to pay a portion of JoAnn’s attorney fees. We need not address these issues because of our disposition of Vernon’s other contentions. Our reversal as to the property distribution necessarily will require the trial court to reexamine the distribution of debt and the issue of attorney fees in light of the adjusted financial resources of the parties. See Guerra, 153 Ill. App. 3d at 559, 505 N.E.2d at 754; In re Marriage of Harmon (1985), 133 Ill. App. 3d 673, 676-77, 479 N.E.2d 422, 425. See also In re Marriage of Clearman (1980), 85 Ill. App. 3d 584, 588, 407 N.E.2d 189, 192, appeal after remand (1981), 97 Ill. App. 3d 641, 423 N.E.2d 283.

For the aforementioned reasons we reverse the judgment of the circuit court of St. Clair County and remand for further proceedings consistent with this opinion.

Reversed and remanded with directions.

GOLDENHERSH, J., concurs.

JUSTICE CHAPMAN,

concurring in part and dissenting in part:

I agree with the majority’s overall classification and distribution of the property in this cause; however, I disagree that the $10,400 down payment applied to the purchase of the residence should be reimbursed to Vernon as a nonmarital contribution.

As the majority points out, Vernon used his equity in the first residence to purchase a new home titled in both parties’ names, thereby commingling the properties so as to transmute his equity into marital property. (Ill. Rev. Stat. 1985, ch. 40, par. 503(c)(1); Atkinson v. Atkinson (1981), 87 Ill. 2d 174, 179, 429 N.E.2d 465, 467; In re Marriage of Mayzner (1986), 144 Ill. App. 3d 645, 649, 494 N.E.2d 615, 618.) However a residence purchased during the marriage and owned by both spouses, even if one spouse has furnished all of the consideration for the residence out of nonmarital funds, will be presumed “in fact” as marital property, absent convincing rebutting evidence. (In re Marriage of Rogers (1981), 85 Ill. 2d 217, 225, 422 N.E.2d 635, 638.) The presumption of marital property is overcome upon a showing by clear, convincing and unmistakable evidence that the property was a gift. (In re Marriage of Deem (1984), 123 Ill. App. 3d 1019, 1021, 463 N.E.2d 1317, 1320.) The trial court found that Vernon did not meet his burden and that finding is not against the manifest weight of the evidence.

Several factors have been deemed significant where a spouse who has paid the purchase price for property seeks to overcome the common law presumption of a gift. In addition to the parties’ testimony, factors include the size of the gift relative to the entire estate; when the property was purchased; who paid the purchase price, made improvements and paid the taxes; and who exercised control and management over the property. (In re Marriage of Guerra (1987), 153 Ill. App. 3d 550, 555, 505 N.E.2d 748, 752.) It is true that approximately one-fourth of the purchase price for the residence came from Vernon’s nonmarital assets. However, this factor by itself is not enough to overcome the presumption of a gift. Furthermore, it is undisputed that the residence was purchased during the marriage, thereby supporting the presumption that Vernon intended to make a gift to the marital estate.

The majority stresses that prior to 1984 all of the mortgage payments were made from the Thacker Painting checking account, but all mortgage payments made after the incorporation of Thacker Painting in 1984 came from a joint checking account. In addition, the majority fails to give credence to the Illinois Marriage and Dissolution of Marriage Act, which dictates that the parties’ income during the marriage is considered marital property. Classifying the earnings of one spouse made during the marital relationship as being separate and distinct from the earnings of the other spouse is inconsistent with the Act. (Ill. Rev. Stat. 1985, ch. 40, par. 503(a).) Although the mortgage payments made prior to 1984 came from the Thacker Painting checking account, the moneys represented “marital income” regardless of which bank account it was deposited into. The mortgage payments paid after 1984, coming from the parties’ joint checking account, also consisted of “marital income,” which was income earned by both spouses.

The majority places great emphasis on the presumption that Vernon provided the majority of the physical labor used to make improvements to the property. This presumption is misplaced. Testimony at trial indicated that both JoAnn and Vernon exerted physical efforts in improving the property. Of course, if the majority suggests that the labor and time Vernon spent on the home during the marriage was somehow a contribution of a nonmarital asset, then the logical conclusion would be that the time, labor and efforts of the wife were also contributions of nonmarital assets. This is clearly not the intent of the Illinois Marriage and Dissolution of Marriage Act. The majority fails to recognize that while the wife did not advance any money toward the acquisition of the property she did perform services, and the presumption of a gift has not been overcome. Bruin v. Bruin (1966), 72 Ill. App. 2d 51, 58, 219 N.E.2d 68, 72.

Furthermore, Vernon’s testimony as to his original intent in titling the property should not be given the weight the majority gives it, since obviously the trial court did not give credence to Vernon’s testimony. The fact that the residence was taken in joint tenancy raised a presumption of gift to the marital estate. (In re Marriage of Flemming (1986), 143 Ill. App. 3d 592, 597, 493 N.E.2d 666, 670.) Vernon testified that he titled the residence in joint tenancy because he did not have a will, but desired to provide for the disposition of his estate. He stated that he at no time intended to make a gift to JoAnn or to the marital estate. The trial judge obviously did not accept Vernon’s explanation and he is in the best position to judge the credibility of the witnesses.

The trial court’s division of property will be reversed only where “no reasonable man would take the view adopted by the trial court.” (In re Marriage of Pancner (1983), 111 Ill. App. 3d 546, 550, 444 N.E.2d 653, 656.) Given the fact that the parties here were the only witnesses to testify, the trial court’s determination as to credibility was central to its adjudication of the issue. It is well known that credibility issues are reserved to the province of the trial court, which had the opportunity to hear the testimony and observe the demeanor of the witnesses. (In re Marriage of Nagel (1985), 133 Ill. App. 3d 498, 502, 478 N.E.2d 1192, 1194.) When the evidence is considered as a whole, I do not find the trial court’s decision holding that Vernon did not overcome the presumption of gift to be an abuse of discretion.


author: JUSTICE HOWERTON

text:
      In re A.W., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. A.W., Respondent-Appellant).
    Fifth District
    No. 5-87-0791
    Opinion filed June 29, 1989.

      Daniel M. Kirwan and Rita K. Peterson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Mark H. Clarke, State’s Attorney, of Cairo (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

Notwithstanding being told by the circuit court that he had to file a motion to withdraw his admission of juvenile delinquency before he could appeal, the juvenile filed a notice of appeal without first filing and obtaining a ruling on a motion to withdraw his admission.

The State has moved to dismiss his appeal because of that failure, and we grant that motion.

Supreme Court Rule 660(a) provides that appeals in juvenile delinquency cases shall be governed by the rules applicable to criminal cases. 107 Ill. 2d R. 660(a).

Supreme Court Rule 604(d) governs appeals from pleas of guilty in criminal cases and provides in part:

“(d) Appeal by Defendant from a Judgment Entered upon a Plea of Guilty. No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to withdraw his plea of guilty and vacate the judgment. The motion shall be in writing and shall state the grounds therefor.” 107 Ill. 2d R. 604(d).

There is no question but that a person adjudicated a juvenile delinquent by admission of guilt must file a motion to withdraw the admission under Rule 604(d) in order to appeal. In re F.D. (1980), 89 Ill. App. 3d 223, 228, 411 N.E.2d 1200, 1203; In re R.L.B. (1987), 158 Ill. App. 3d 175,175-76, 511 N.E.2d 836, 837.

The supreme court of Illinois recently held that Rule 604(d) is mandatory in appeals from pleas of guilty in criminal cases. People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218.

In Wilk, the supreme court of this State was point blank. The rules are not suggestions; they are rules. “It is incumbent upon *** courts *** to follow them." Wilk, 124 Ill. 2d at 103, 529 N.E.2d at 221.

In their teaching capacity, the supreme court, by Wilk, told us that Rule 604(d) has a purpose. That purpose is to allow the trial judge who took the plea the opportunity to hear allegations of impropriety and correct any error that may have produced a guilty plea. Our supreme court then said that a motion to withdraw a plea of guilty is a condition precedent to an appeal from a plea of guilty.

In the case at bar, the juvenile attempts to distinguish Wilk on the grounds that in criminal cases the defendant will have a right to a hearing under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.), but that juveniles have no corresponding right. Although it is true that there is language in Wilk that says its holding does not render defendant necessarily without remedy, we do not believe that language is central to the holding, and certainly we do not believe that a fair reading leads to the conclusion that that language is part of Wilk’s holding. (Wilk, 124 Ill. 2d at 107, 529 N.E.2d at 223.) We view the language as being in the nature of an anticipatory instruction to the parties and all others similarly situated. Furthermore, the language of Wilk is strong and justifiably so. The supreme court, not us, should be the court that announces that the supreme court rules, despite clear language to the contrary, do not apply to juvenile cases.

The appeal is hereby dismissed.

Appeal dismissed.

LEWIS and RARICK, JJ., concur.


author: JUSTICE GOLDENHERSH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GROVER PROCELL, Defendant-Appellant.
    Fifth District
    No. 5-87-0228
    Opinion filed June 29, 1989.
    Daniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John R. Clemons, State’s Attorney, of Murphysboro (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, and Charles E. Petersen, of counsel), for the People.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Grover Procell, appeals from the judgment of the circuit court of Jackson County finding him guilty of possession of a stolen motor vehicle and escape. The court sentenced him to serve concurrent terms of three and five years which are consecutive to the sentence imposed by the circuit court of Peoria County. We affirm.

One of defendant’s issues on appeal is whether his conviction for possession of a stolen vehicle must be reversed because the penalty provision is unconstitutional. Defendant argues that a first conviction for possession of a stolen motor vehicle is a greater class offense (Class 2 felony) than the more serious offense of auto theft (Class 3 felony). Our supreme court addressed that issue in People v. Bryant (1989), 128 Ill. 2d 448, holding:

“We believe that the legislature’s decision to steadily increase the penalty for possession of a stolen motor vehicle was designed to distinguish possession of a stolen motor vehicle from theft in order to remedy the increasing frequency of the offense of possession of a stolen motor vehicle and its related activities. Therefore, we hold that section 4 — 103(b) of the Vehicle Code is reasonably designed to protect the public from the evils of the offense of possession of a stolen motor vehicle and its related activities. As such, section 4 — 103(b) of the Vehicle Code does not violate sections 2 and 11 of article I of the Illinois Constitution.” 128 Ill. 2d at 457-58.

Thus, this court finds that section 4 — 103(b) is not unconstitutional pursuant to Bryant.

The remaining issue before/ this court is whether defendant’s sentence was excessive. The record reveals the following facts.

At the bench trial on February 19, 1987, Howard Saver, a Community Correctional Center supervisor at Southern Illinois Community Correctional Center in Carbondale (SICC), stated that he is responsible for placing inmates in work release sites. Defendant was transferred to SICC on October 24, 1986. On October 30, 1986, defendant was assigned a work release job at Cristado’s Bakery in Carbondale. Saver was on call that night when he received a message on his beeper at 11:48 p.m. The message told him to report to the center immediately. After he arrived at the center, Greg Prineas, an employee of SICC, informed him of defendant’s escape. Saver then patrolled the area where defendant ran until 4 or 5 a.m. If defendant had worked the shift, he would have returned to the center at 4 a.m. Defendant did not report to the center.

Greg Prineas was in the process of making a transportation run on the evening of October 30. He was dispatched to Cristado’s Bakery to check on defendant because there had been a problem with him returning to work after his break. When he arrived at the bakery at 11:40 p.m., he began a search of the building and general vicinity. As he walked toward the west end of the shopping center where the bakery is located, he saw defendant. He asked defendant why he did not go back to work after the break. Prineas could not recall defendant’s answer. Prineas then proceeded to take defendant back to the center. When Prineas and defendant began to park the car in the parking lot at the center, defendant ran from the vehicle. Prineas and others searched for defendant but could not find him.

Steve Odom, a City of Carbondale police officer, was on patrol on October 30, 1986, at 5:50 a.m., when he observed an Oldsmobile Delta 88 accelerate rapidly and swerve. The driver of the car lost control of the car as the car swerved, causing the car to end up in the northbound lane of the street but traveling southbound. The officer eventually initiated a traffic stop. Odom discovered that defendant was driving the car. He had seen defendant earlier in the evening when defendant was first taken into custody. Odom asked defendant how he got the car and defendant stated that he took it and that the keys were in the car.

John Beatman, the owner of the car defendant was driving, stated that he did not give defendant permission to take the car.

After the trial, the court found defendant guilty and ordered a presentence investigation. The investigation revealed the following prior convictions and charges. In 1980, defendant was found guilty of possession of marijuana and sentenced to 30 days in the State of South Carolina Department of Corrections. In 1984, defendant was charged with driving while intoxicated in the State of Texas. Defendant failed to appear in court and there is an active warrant on him. In 1986, in the State of California, defendant was found guilty of “unlawful drive and take motor vehicle,” and of driving under the influence of alcohol. The California court sentenced him to three years’ probation, 204 days in the county jail, a $150 fine, restitution, and participation in a program for alcohol abuse. Defendant failed to complete any treatment because he left the State. Later in 1986, the circuit court of Peoria County found defendant guilty of theft over and sentenced him to 21/2 years in the Department of Corrections.

Defendant has earned a high school degree and completed two years at Texas A&M University. He dropped out of college because of his abuse of alcohol. His IQ is in the bright range of 110 and probably higher. Defendant has never held a job for more than one year.

Defendant has been a chronic alcoholic for the past 10 years but has never received any alcohol or substance abuse counseling. Defendant admits he needs counseling. At the sentencing hearing, defendant did not offer any mitigating evidence.

In light of the record, this court finds that the sentence was not excessive. However, defendant argues that the court did not give proper weight to his alcoholism or his rehabilitative potential. It is well established that a trial court is in the best position to tailor a sentence for a defendant to the needs of the case, and absent an abuse of discretion, this court will not alter the punishment. (People v. Steppan (1985), 105 Ill. 2d 310, 323, 473 N.E.2d 1300, 1307.) In this case, the trial court did not abuse its discretion.

Defendant had been incarcerated twice. He has an outstanding warrant for drunk driving in Texas and was convicted of driving while intoxicated in California. Defendant failed to complete the sentence in California because he left the State. Furthermore, defendant is an escape risk. Defendant is also a chronic alcoholic; in this case, defendant left a work release site to obtain a drink. During this incident, defendant stole a car and was discovered driving it erratically because he was intoxicated.

At the sentencing hearing, defendant’s only concern was being released from prison by 1990 or 1991. He did not offer any evidence in mitigation. The record is devoid of any evidence which tends to prove he ever sought any help for his alcohol problem.

In People v. Gavin (1969), 108 Ill. App. 2d 412, 248 N.E.2d 137, the court rejected the defendant’s argument that “in any case where the defendant is shown to be an alcoholic, recognizes that he is an alcoholic, and expresses the willingness to accept treatment, such defendant may not be sentenced to jail or, as insisted by defendant, any sentence under such condition is an abuse of the authority of the court.” (108 Ill. App. 2d at 414, 248 N.E.2d at 139.) The court found that “[e]ven if it could be said that incarceration of an alcoholic is not beneficially related to rehabilitation, the hazard posed to the public interest and the likelihood of repetition of the offense are equally important in determining the propriety of probation.” (108 Ill. App. 2d at 415, 248 N.E.2d at 139.) The court also found that the “cure” depends upon the alcoholic’s desire to be cured and the motivation behind that desire must be taken into account. In Gavin, the court found the defendant’s response may have been induced by the prospect of incarceration.

In light of Gavin, defendant’s argument lacks support. Defendant’s desire to seek counseling for his alcoholic problem apparently is due more to the potential of incarceration, as the numerous prior encounters for the same problem did not motivate him to seek help. Nothing in the record reveals that defendant will independently seek assistance or can be trusted to complete any program on his own. Furthermore, defendant’s problem is a hazard to the public because he managed to obtain a car and drive in his intoxicated state. Not only does he become a hazard to the public but he also shows a strong likelihood of repetition.

In conclusion, this court finds that the trial court did not abuse its discretion. For the foregoing reasons, this court affirms the judgment and sentence rendered by the circuit court of Jackson County.

Affirmed.

CHAPMAN and RARICK, JJ., concur.


author: JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BRIAN BERNASCO, Defendant-Appellee.
    Fifth District
    No. 5-87-0344
    Opinion filed June 27, 1989.

      Dick Allen, State’s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Matthew E. Franklin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    William C. Evers III, of Collinsville, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

This is an appeal by the State from an order of the trial court suppressing the confession of the defendant, Brian Bernasco, as involuntary. On December 30, 1986, the juvenile officer of the Collinsville police department told the defendant’s father that he wanted to talk to the defendant at the station. When the defendant and his father arrived at the police station the juvenile officer told them that a detective would do the questioning. According to the testimony of the defendant’s father, Detective Zukosky appeared and stated: “You can come in now.” The defendant’s father said that he then got up to go in with the defendant, but was told by the detective, “[N]o, you sit and wait here.” Detective Zukosky, however, testified that he did not recall the father wanting to accompany the defendant nor did he tell the father that he could not do so.

Detective Zukosky took the defendant to the detective’s office located in the basement of the Collinsville police station. The defendant, who was 17 years old and had never been arrested or interrogated by the police, testified that he was scared when he was taken downstairs. Officer Borkowski joined the defendant and Detective Zukosky in the detective’s office. The door to the office was left open. The defendant was given a copy of his Miranda rights and Officer Borkowski testified that he read each section to the defendant, who then initialled each section. The defendant was asked if he had any questions about his rights, and if he understood them, and he acknowledged that he did understand them. The defendant then signed a waiver of rights form which was witnessed by Officer Borkowski and Detective Zukosky.

Officer Borkowski then read the defendant his rights as printed on the “voluntary statement forms” used to take the defendant’s statement. The defendant then gave an oral statement in which he admitted his involvement in several burglaries, and Officer Borkowski reduced the statement to writing at the defendant’s request. The defendant was then given the statement to read, and Detective Zukosky testified that he read it aloud. The defendant then initialled the scratch mark that Borkowski had made and signed the voluntary statement. Detective Zukosky testified that there was nothing in the defendant’s demeanor or his answers to questions that would indicate that he did not understand what his rights were. He stated that the defendant did not seem to have any trouble grasping the questions he was asked, and that he answered in a normal manner, giving logical answers. No threats or promises were made to the defendant and he did not appear to be intoxicated or under the influence of any drugs.

. On cross-examination, Detective Zukosky testified that, he did not know if the defendant was in school or what level of education the defendant had attained. Zukosky also agreed that he did not know anything about the defendant’s reading ability, comprehension ability, or IQ. Detective Zukosky also stated that he did not know if someone with a fourth-grade reading and comprehension level could understand legal terms. Officer Borkowski similarly acknowledged that he was not familiar with the defendant’s academic credentials or his reading ability.

Don Mattingly, a school psychologist employed by the Parando Special Education District in Red Bud, testified for the defendant at the suppression hearing. Mattingly has a bachelor’s and a master’s degree in psychology from Eastern Illinois University and has spent the last 12 years working as a school psychologist. Mattingly evaluated the defendant in March of 1986, approximately nine months prior to the defendant’s interrogation, to determine whether he was qualified for special education services. After evaluating the defendant, who was attending regular classes at the time, Mattingly concluded that the defendant did not qualify for the Collinsville special education programs. Mattingly also concluded that the defendant had a full scale IQ of 80, and he stated that the 80 to 89 range is referred to as the slow learner or low average range. Mattingly also determined that the defendant’s reading skills were at the beginning to middle fourth-grade level.

The psychologist testified that when the two police officers interviewed the defendant in the police station, the defendant would have found the circumstances intimidating. On cross-examination, however, Mattingly also indicated that anyone, regardless of educational background, who was being interrogated by two police officers would find the circumstances intimidating. In such a situation, Mattingly stated that the defendant would probably agree “to most everything that was said to him to get himself out of the situation.”

Mattingly further stated that in his opinion defendant did not have the ability to understand legal terms. He agreed that it was unlikely that the defendant could understand words like “interrogate,” “court-appointed attorney,” “intimidation,” “immunity,” or “waiver.” He also testified, however, that the defendant probably had an idea what a lawyer is, and would likely understand the phrases “I do not have to talk with any Collinsville police officer, unless I want to” and “I know I can refuse to answer any questions.”

The defendant’s father, Carl Bernasco, testified that the defendant dropped out of school in the ninth grade and had never before been arrested or interrogated by the police.' Mr. Bernasco testified that the only reason he did not go with his son when he was being questioned by the police was because Detective Zukosky told him that he could not.

The defendant, Brian Bernasco, also testified at the suppression hearing. He stated that the officer handed him a copy of the Miranda waiver and read it to the defendant at a normal pace. The defendant admitted that he initialled and signed the waiver of rights forms, but stated that he was not paying attention, was scared, and did not understand what the waiver meant. The defendant also denied that the officer asked him if he understood his rights after each section of the Miranda waiver was read to him. Instead, the defendant stated that the officer told him to initial each paragraph, and then when he finished reading the entire document, he was asked if he understood his rights. The defendant admitted that he told the officer that he understood his rights when he was asked.

The defendant also admitted initialing the Miranda rights waiver at the top of the voluntary statement form but denied that Detective Zukosky readvised him of his rights. After signing the waiver forms, the defendant was asked to tell everything he knew. The defendant gave his statement and Detective Zukosky wrote it down. The defendant admitted that the information contained in the written statement came from him and that he read it over, but stated that he did not read it out loud. The defendant admitted signing the voluntary statement forms, but said that he did not understand at the time of the questioning that he had a right to refuse to speak to the police and had a right to leave when he wanted.

The court found that the defendant did not knowingly and voluntarily waive his right to remain silent. The court stated that it did not find that the Collinsville police department did anything inappropriate or threatened or harassed the defendant in any way. The court nevertheless suppressed the defendant’s statement because:

“Based upon the Berry case [People v. Berry (1984), 123 Ill. App. 3d 1042, 463 N.E.2d 1044] I do not believe that this Defendant, who had no prior criminal experience and who reads at a beginning fourth-grade level and who, more importantly, comprehends at a fourth-grade level, could affectively [sic] under those circumstances, without the aid of his parents or someone who would assist him in translating what was really happening, I don’t believe he voluntarily waived his rights, even though there is no question that he did sign the Wavier of Rights Form, and there is no question that he did so without being forced to do so by anyone.”

In its written order the court, after finding that the defendant had an IQ of 80, a fourth-grade reading and comprehension level, and no prior criminal experience, further found:

“4. That the Statement, which is sought to be suppressed, was written totally by the police officer, who was doing the interrogating and only signed by the Defendant, Brian Bernasco.
5. That the police officers in this case, namely Detectives Zukosky and Borkowski, were of the opinion that the Defendant, Brian Bernasco, understood his constitutional rights prior to giving a Statement in this case. Further, the police officers, quite properly, had Brian Bernasco initial his Miranda Waiver Form and to sign it with them witnessing it. Further, the police officers did not inquire into Brian’s background and, instead, relied solely upon him indicating that he understood his ‘rights.’
6. That the school psychologist, who had personally tested Brian Bernasco, testified in the case and testified that there were numerous words contained in, the Miranda Waiver, which Brian in his opinion would be incapable of understanding because of his limited comprehension and reading skills. The psychologist further testified that his ability to understand those words, while limited, could be enhanced by someone explaining them to him, but the testimony of the police officers clearly indicated that no one explained what the terminology within the Miranda Waiver meant.
7. That the Father of Brian Bernasco took Brian to the police station and requested an opportunity to be with Brian during the interrogation, and that opportunity was refused.
8. That the direct testimony of Brian Bernasco indicated to the Court, in its observations of the Defendant, that the Defendant had substantial difficulty in understanding relatively routine questions. The Court further observed, from the testimony of Brian Bernasco, that the Defendant was not only limited in his comprehension of single words but, further, was substantially unable to understand relatively simple concepts. That it is the Court’s opinion that Brian Bernasco was barely a 17 year old adolescent with sub-normal intelligence, with little education, dependent fully upon his parents, and lacking in experience in criminal affairs completely.
9. That the Court, when confronted with such a situation, feels that it is the obligation of the Court to make sure that the greatest of care was taken to assure that the Confession was voluntary and, further, that the Confession was not a product of ignorance of rights or of adolescent fantasy, fright or despair. (In re Gault and People v. Simmons).
10. That the Court is not suggesting in these findings that the Collinsville Detectives, in any way, overreached or threatened or coerced the Defendant into giving his Statement in this case; rather, the Court feels that the facts indicate, clearly, that the Confession was not voluntary; and that the Confession was the product of Brian’s sub-normal intelligence, his inability to comprehend what his rights were, and his fright of the situation.
11. That the Court is convinced from the testimony of the psychologist, who had no vested interest in this case, whatsoever, that Brian Bernasco would have agreed to and signed most anything placed in front of him during the interrogation process.”

The State now appeals, arguing that: (1) since the trial court found that the Collinsville police officers did not coerce the defendant’s confession, the confession is admissible against the defendant; (2) the court’s decision was against the manifest weight of the evidence; and (3) the court applied the wrong standard to determine whether the defendant’s confession was voluntary.

The State initially contends that absent a finding that the police engaged in some coercive activity, the confession must be deemed voluntary, citing Colorado v. Connelly (1986), 479 U.S. 157, 93 L. Ed. 2d 473, 107 S. Ct. 515. In Connelly, a defendant told a Denver police officer that he had murdered someone and wanted to talk about it. Both that officer and a detective who arrived shortly thereafter advised the defendant of his Miranda rights. The defendant was then taken to police headquarters where he detailed his story to the police and subsequently pointed out the location of the murder. The next day the defendant became visibly disoriented and was sent to a State hospital for evaluation. At a subsequent suppression hearing, a psychiatrist testified that the defendant was suffering from chronic schizophrenia and was in a psychotic state on the day he confessed. The psychiatrist further testified that the defendant was experiencing “command hallucinations” which interfered with his ability to make free and rational choices. The psychiatrist also testified that Connelly’s illness did not significantly impair his cognitive abilities, and thus he understood his rights when the police advised him that he need not speak to them. Connelly, 479 U.S. at 160-61, 93 L. Ed. 2d at 480,107 S. Ct. at 518-19.

On the basis of this evidence the Colorado trial court decided that the defendant’s statements must be suppressed because they were “involuntary.” The court ruled that a confession is admissible only if it is the product of the defendant’s rational intellect and free will. Although the court found that the police had not engaged in any coercive activity, Connelly’s illness destroyed his volition and compelled him to confess. The trial court also found that Connelly’s mental state vitiated his attempted waiver of the right to counsel and the privilege against compulsory self-incrimination. The Colorado Supreme Court affirmed the trial court, finding that the defendant’s initial statement was not the product of a rational intellect and a free will, and noting that the absence of police coercion does not foreclose a finding of involuntariness. The court then considered the defendant’s attempted waiver of his constitutional rights and found that his mental condition precluded his ability to make a valid waiver. Connelly, 479 U.S. at 161-62, 93 L. Ed. 2d at 481,107 S. Ct. at 519.

The United States Supreme Court reversed, finding that coercive police activity is a necessary predicate to a finding that a confession is not “voluntary” within the meaning of the due process clause. While the mental condition of a defendant may be a significant factor in determining the voluntariness of a confession, it does not “by itself *** dispose of the inquiry into constitutional ‘voluntariness.’ ” (Connelly, 479 U.S. at 164, 93 L. Ed. 2d at 482, 107 S. Ct. at 520.) “Only if we were to establish a brand new constitutional right — the right of a criminal defendant to confess to his crime only when totally rational and properly motivated — could respondent’s present claim be sustained.” Connelly, 479 U.S. at 166, 93 L. Ed. 2d at 484, 107 S. Ct. at 521.

The Supreme Court also found that the supreme court of Colorado was mistaken in its analysis of the question of whether the defendant had waived his Miranda rights. The Colorado court relied on the testimony of the psychiatrist to the effect that the defendant was not ca,pable of making a free decision with respect to his constitutional right of silence and his constitutional right to confer with a lawyer before talking to the police. The Supreme Court stated that the Colorado court “erred in importing into this area of constitutional law notions of ‘free will’ that have no place there. There is obviously no reason to require more in the way of a ‘voluntariness’ inquiry in the Miranda waiver context than in the Fourteenth Amendment confession context.” (Connelly, 479 U.S. at 169-70, 93 L. Ed. 2d at 486, 107 S. Ct. at 523.) The voluntariness of a waiver of the fifth amendment privilege “has always depended on the absence of police overreaching, not on ‘free choice’ in any broader sense of the word.” (Connelly, 479 U.S. at 170, 93 L. Ed. 2d at 486, 107 S. Ct at 523.) Miranda, stated the Court, “protects defendants against government coercion leading them to surrender rights protected by the Fifth Amendment; it goes no further than that.” Connelly, 479 U.S. at 170, 93 L. Ed. 2d at 487, 107 S. Ct. at 524.

The defendant, relying on the following language, argues that Connelly does not stand for the proposition that absent police coercion any confession is voluntary.

“We conclude that the admissibility of this kind of statement is governed by state rules of evidence, rather than by our previous decisions regarding coerced confessions and Miranda waivers.” Connelly, 479 U.S. at 159, 93 L. Ed. 2d at 479, 107 S. Ct. at 518.
“We think the Constitution rightly leaves this sort of inquiry [into a criminal defendant’s state of mind] to he/' resolved by state laws governing the admission of evidence and erects no standard of its own in this area. A statement rendered by one in the condition of respondent might be proved to be quite unreliable, but this is a matter to be governed by the evidentiary laws of the forum *** and not by the Due Process Clause of the Fourteenth Amendment.” Connelly, 479 U.S. at 167, 93 L. Ed. 2d at 484,107 S. Ct. at 522.

Based on the above language, the defendant argues that the States are free to develop their own “voluntariness” standards and therefore the trial court correctly relied on People v. Berry (1984), 123 Ill. App. 3d 1042, 463 N.E.2d 1044, in suppressing his confession. The defendant’s argument is unpersuasive for two reasons.

First, while it is true that the defendant in Berry, who was 17 years old, had an IQ of 80, limited ability to read, write and comprehend, and no prior criminal record, bears a remarkable resemblance to the defendant in the instant case, the Berry court did not find those factors to be determinative. The Berry court correctly recognized that the test to determine whether a confession is voluntary is whether the defendant’s will was overborn at the time of the confession. (Berry, 123 Ill. App. 3d at 1044, 463 N.E.2d at 1047, citing People v. Kincaid (1981), 87 Ill. 2d 107, 429 N.E.2d 508.) The court further recognized that the general rule is that subnormal mentality does not in itself make a confession involuntary as long as the defendant has the capacity to understand the meaning and effect of the confession. (Berry, 123 Ill. App. 3d at 1045, 463 N.E.2d at 1047.) The court found that the defendant’s subnormal mentality, coupled with his young age, lack of education, and complete lack of experience in criminal matters, suggested an increased susceptibility to coercion and intimidation. The court then examined the conduct of the police in obtaining the confession and held it to be involuntary in “light of the intimidating, coercive and deceptive atmosphere of the interrogation.” (Berry, 123 Ill. App. 3d at 1045, 463 N.E.2d at 1048.) The activities which the court found to be deceptive and coercive included isolating the defendant from his mother, closing the door to the interrogation room and stationing an officer outside, interrogating the defendant about an unrelated offense concerning an acquaintance, and intimating that the defendant’s fingerprints might have been found at the scene of the crime. Moreover, the police officer who questioned the defendant admitted that he knew of the defendant’s impairment of mind, that he did not give him any Miranda warnings because he wanted to obtain a confession, and that he told the defendant he was not under arrest in order to avoid Miranda. In the instant case, on the other hand, the court explicitly found that the police had not engaged in any type of coercive activity.

Second, the statement by the Supreme Court in Connelly that “the Constitution rightly leaves this sort of inquiry [into the state of mind of a criminal defendant who has confessed] to be resolved by state laws governing the admission of evidence and erects no standard of its own” (Connelly, 479 U.S. at 167, 93 L. Ed. 2d at 484, 107 S. Ct. at 522) is not an invitation to State courts to individually define the scope of the protection afforded by the fourteenth amendment. It is merely an acknowledgment that, while in the absence of police coercion the due process clause does not require a confession to be suppressed, the evidentiary rules of a State concerning such matters as the defendant’s competency may affect the admissibility of the confession. Based on the above, it is clear that the defendant’s confession was “voluntary” within the meaning of the due process clause.

We note with approval, however, that some commentators critical of Connelly have urged that State courts, when called upon to apply the provisions of their own constitutions, should not adhere to the Supreme Court’s expansive interpretation of voluntariness. (See, e.g., Garcia, Mental Sanity & Confessions: The Supreme Court’s New Version of the Old “Voluntariness” Standard, 21 Akron L. Rev. 275, 285 (1988) (After Connelly, State law is the “last bastion of protection for mentally ill defendants”); Note, Confessions Compelled by Mental Illness: What’s an Insane Person to Do?, 56 Cin. L. Rev. 1049, 1072 (1988) (Connelly “once again places the burden on the states to uphold individual rights”).) While our supreme court has recently indicated an increased willingness to construe provisions of the Illinois Constitution differently than similar provisions in the Federal Constitution (see, e.g., People ex rel. Daley v. Joyce (1988), 126 Ill. 2d 209, 533 N.E.2d 873), we need not decide whether our constitution provides broader protection than the Federal Constitution to criminal defendants such as Connelly. We do not base our decision on Connelly, which held that police coercion is necessary to render a statement involuntary. Rather, we affirm the suppression of the defendant’s confession based on the trial court’s finding that the defendant did not knowingly and intelligently waive his fifth amendment rights.

The trial court, in addition to finding the defendant’s confession was involuntary, also found that the defendant had not voluntarily waived his fifth amendment Miranda rights. The Miranda warnings are required, however, only when a defendant is in custody “or otherwise deprived of his freedom of action in any significant way.” (People v. Wipfler (1977), 68 Ill. 2d 158, 168, 368 N.E.2d 870, 874, quoting Miranda v. Arizona (1966), 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706, 86 S. Ct. 1602, 1612.) We must therefore determine, as a preliminary matter, whether the defendant’s statement in the instant case was the result of a custodial interrogation.

The test used to determine whether a statement was made in a custodial setting is whether a reasonable, innocent person would have believed that he was free to leave or was expressly or impliedly bound to remain in the presence of the police. (People v. Finklea (1983), 119 Ill. App. 3d 448, 452, 456 N.E.2d 680, 682; People v. Savory (1982), 105 Ill. App. 3d 1023, 1028, 435 N.E.2d 226, 230.) The court must look to all the circumstances surrounding the questioning, with no single factor deemed controlling. The factors to be considered include: (1) the location, time, length, and mood and motive of the interrogation, including the extent of the knowledge possessed by police; (2) the number of police officers present and the presence or absence of friends or family of the accused; (3) any indicia of formal arrest, including physical restraint, show of weapons or force, booking, fingerprinting, or informing the person he is under arrest; (4) whether the accused arrived at the place of interrogation voluntarily on his own, in response to a police request, or on a verbal command indicating compulsion; (5) whether the accused voluntarily assists police in their investigation; (6) whether the subject is allowed to walk within and from the location of the interrogation unaccompanied by police; and (7) the age, intelligence, and mental make-up of the subject. (Finklea, 119 Ill. App. 3d at 452, 456 N.E.2d at 682; Savory, 105 Ill. App. 3d at 1028, 435 N.E.2d at 230.) In the instant case we note that the defendant, who was 17 years old, of below normal intelligence, and inexperienced in dealing with the police, was brought to the police station by his father at police request. The defendant was then taken to an office in the basement of the Collinsville police department where, isolated from his father, he was questioned by two experienced detectives. We particularly note that the defendant’s father was not allowed to accompany the defendant, but was instead told to remain upstairs. While this factor is not determinative, we believe that it would reasonably suggest to the defendant that he was no longer free to do as he might choose, but was instead subject to the control and commands of the police. (See Smith, The Threshold Question in Applying Miranda: What Constitutes Custodial Interrogation?, 25 S.C.L. Rev. 699, 732 (1974) (Arguing that a- person requested to come to the police station “is subject to the same coercive atmosphere and tactics as the person placed under arrest” and that an “ignorant defendant may see the police request as an order which he cannot refuse, and thus be in custody as effectively as if he were handcuffed”).) As Justice Goldenhersh pointed out in his dissent in People v. Wipfler (1977), 68 Ill. 2d 158, 175-76, 368 N.E.2d 870, 877 (Goldenhersh, J., dissenting, joined by Dooley, J.):

“The constitutional rights which Miranda was designed to protect are so important that their effective exercise should not depend on the type of judicial hairsplitting present in this and similar cases. The record shows that this 18-year-old defendant was taken to the sergeant’s office in the police station, that Detective Kuntz sat at one desk, Detective Mahoney sat at the other, the defendant sat across the desk from Mahoney, and the door to the office was closed. It would be remarkable indeed if under those circumstances an 18-year-old high school student reached any conclusion other than he was in custody and that any attempt to leave would be unsuccessful. Assuming, arguendo, that the defendant’s belief that he was not free to leave during the questioning was not ‘objectively reasonable,’ ‘[i]t has been noted that as a logical matter, a person who honestly but unreasonably believes he is in custody is subject to the same coercive pressures as one whose belief is reasonable; this suggests that such persons also are entitled to warnings. See, e.g., LaFave, “Street Encounters” and the Constitution, 68 Mich. L. Rev. 39, 105 (1968); Smith, The Threshold Question in Applying Miranda: What Constitutes Custodial Interrogation, 25 S.C.L. Rev. 699, 711-714 (1974).’ Oregon v. Mathiason, 429 U.S. 492, 496 n.l, 50 L. Ed. 2d 714, 720 n.l, 97 S. Ct. 711, 714-15 n.l (Marshall, J., dissenting).”

Although it is a close question, we believe that a reasonable, innocent person would have believed that he was not free to leave. (See People v. Hagar (1987), 160 Ill. App. 3d 370, 513 N.E.2d 628 (defendant was questioned in custodial setting where he was brought to office of DCFS investigator by parents and questioned behind closed doors); People v. Clark (1980), 84 Ill. App. 3d 637, 405 N.E.2d 1192 (defendant was in custodial situation where friend who had been sitting in squad car with defendant was asked to leave after defendant stated she had shot her husband).) Having concluded that the questioning of defendant occurred in a custodial setting, we now examine the trial court’s finding that the defendant’s waiver of his Miranda rights was invalid.

The trial court found that the defendant had not “voluntarily waived his rights”. As explained in Connelly, however, police coercion is a necessary predicate of such a finding. Since no such coercion was found here, we are compelled to hold that the defendant’s waiver of his Miranda rights was voluntary within the meaning of the fifth amendment. An analysis of the validity of a waiver of the defendant’s fifth amendment rights, however, does not cease upon a finding of voluntariness.

As Justice Brennan pointed out in his dissent in Connelly, there is a second requirement, apart from the voluntariness requirement, that the State must satisfy to establish a waiver of Miranda rights. Besides being voluntary, the waiver must be knowing and intelligent. (Connelly, 479 U.S. at 187-88, 93 L. Ed. 2d at 498, 107 S. Ct. at 533 (Brennan, J., dissenting, joined by Marshall, J.).) To be knowing and intelligent, “the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.” (Moran v. Burbine (1986), 475 U.S. 412, 421, 89 L. Ed. 2d 410, 421, 106 S. Ct. 1135, 1141.) Only if the totality of the circumstances “reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” (Moran, 475 U.S. at 421, 89 L. Ed. 2d at 421, 106 S. Ct. at 1141.) The Illinois Supreme Court has similarly held that a defendant’s purported waiver of his Miranda rights is ineffective unless it is knowingly and intelligently made. (People v. Smith (1982), 93 Ill. 2d 179, 185-89, 442 N.E.2d 1325, 1328-29 (no knowing and intelligent waiver of right to counsel during interrogation where police interfered with attorney’s effort to consult with defendant); People v. Turner (1973), 56 Ill. 2d 201, 205-07, 306 N.E.2d 27, 30-31 (defendant who had history of mental retardation known to police and polygraph operator had not made knowing and intelligent waiver of Miranda rights).) As Justice Simon has explained:

“The distinction between an intellect that is rational and a will that is free must not be blurred. It is possible to have one without the other, but both are necessary for a statement to be voluntary. For example, one operating under insane delusions, as in Blackburn v. Alabama, may freely choose, without any external compulsion, to confess participation in a crime in great detail. The. defendant may seem to give ‘sensible’ answers to questioning. But the mental disease afflicting the defendant robs the defendant of any rational choice. Although there is volition, it cannot be said that there is any ’meaningful volition.’ Thus, the confession must be suppressed. (Blackburn v. Alabama (1960), 361 U.S. 199, 211, 4 L. Ed. 2d 242, 250, 80 S. Ct. 274, 282.) On the other hand, a defendant being tortured on the rack or under more modern third-degree methods may be perfectly rational, concise and consistent in confessing. It is even readily believable that a defendant would try to hedge a confession under such pressures, in order to say as little damning as possible while avoiding harsher physical or psychological pain. (See e.g., Mincey v. Arizona (1978), 437 U.S. 385, 57 L. Ed. 2d 290, 98 S. Ct. 2408.) But a rational confession of that type lacks free will. It too must be suppressed.” People v. Kincaid (1981), 87 Ill. 2d 107, 127-28, 429 N.E.2d 508, 517 (Simon, J., dissenting).

In the instant case the court found, based on its observations of the defendant, that the defendant had substantial difficulty in understanding relatively routine questions, and that the defendant was not only limited in his comprehension of single words, but was substantially unable to understand relatively simple concepts. The court also found that the defendant’s confession was the product of his subnormal intelligence, his inability to comprehend what his rights were, and his fright of the situation. Furthermore, the court stated that it was convinced from the testimony of the psychologist that the defendant would have agreed to and signed most anything placed in front of him during the interrogation process. We believe that the trial court’s findings, if supported by the evidence, are sufficient to conclude that the defendant did not knowingly waive his Miranda rights. We therefore consider the State’s second argument.

The State next contends that the trial court’s decision was against the manifest weight of the evidence. We will not needlessly lengthen this opinion by again repeating the testimony of the witnesses at the suppression hearing. Suffice it to say that the testimony of the psychologist that the defendant was not capable of understanding certain terms of the Miranda rights, and the defendant’s own testimony that he did not understand his rights, coupled with the defendant’s age, minimal educational level, and lack of experience in criminal matters, are sufficient to support the trial court’s decision. The trial court, which had the opportunity to observe the defendant during his testimony, clearly was in a position superior to a court of review to determine the defendant’s mental abilities.

We are aware, of course, that evidence of limited intellectual capacity, standing alone, does not indicate that a defendant is incapable of waiving his constitutional rights, (People v. Murphy (1978), 72 Ill. 2d 421, 437, 381 N.E.2d 677, 685) nor are the police required, as a prerequisite to accepting a waiver, to conduct a mental examination of the accused to ascertain his ability to comprehend his rights. (People v. Cooper (1975), 30 Ill. App. 3d 326, 332, 332 N.E.2d 453, 458, cert. denied (1976), 425 U.S. 994, 48 L. Ed. 2d 818, 96 S. Ct. 2206.) Mental deficiency is, however, an important factor in considering the totality of the circumstances under which a purported waiver of rights was made since the “purpose of advising an accused of his rights is to enable him to make an intelligent decision, and to understand the consequences of that decision, and the fact that the advice was iterated and reiterated, and that he said he understood it, is of little consequence unless the defendant was possessed of the intelligence to understand the admonition.” People v. Turner (1973), 56 Ill. 2d 201, 205, 306 N.E.2d 27, 30.

In support of its position, the State cites numerous cases where a defendant’s confession has been held to be admissible despite the defendant’s low mental capabilities. (E.g., People v. Madden (1986), 148 Ill. App. 3d 988, 501 N.E.2d 1297 (defendant had an IQ of 82 and was under the influence of drugs); People v. Kokoraleis (1986), 149 Ill. App. 3d 1000, 501 N.E.2d 207 (defendant had an IQ of 75 and dropped out of school after the eighth grade); People v. Ellison (1984), 126 Ill. App. 3d 95, 466 N.E.2d 1024 (defendant had an IQ of 77, was borderline mentally retarded, and had a verbal language disability); People v. Hester (1968), 39 Ill. 2d 489, 237 N.E.2d 466 (defendant was 14, had an IQ of 82 and a mental age of nine years, nine months), cert. dismissed (1970), 397 U.S. 660, 25 L. Ed. 2d 642, 90 S. Ct. 1408; People v. Clements (1985), 135 Ill. App. 3d 1001, 482 N.E.2d 675 (defendant was 16, had a IQ of 58, and was mildly retarded and passive dependent), cert. denied (1986), 476 U.S. 1106, 90 L. Ed. 2d 361, 106 S. Ct. 1952.) These decisions can offer little support for the State’s position, however, since the validity of a waiver of rights is essentially a question of fact. “The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” (People v. Turner (1973), 56 Ill. 2d 201, 205-06, 306 N.E.2d 27, 30, quoting Johnson v. Zerbst (1938), 304 U.S. 458, 464, 82 L. Ed. 1461, 1466, 58 S. Ct. 1019, 1023; see also People v. Redmon (1984), 127 Ill. App. 3d 342, 347, 468 N.E.2d 1310, 1314; People v. Perez (1983), 113 Ill. App. 3d 143, 147, 446 N.E.2d 1229, 1233.) The court in the instant case, after considering all of the evidence and testimony presented, concluded that the defendant’s confession was the product of his “sub-normal intelligence, his inability to comprehend what his rights were, and his fright of the situation.” Such a conclusion was not contrary to the manifest weight of the evidence.

The State’s final contention is that the trial court erred by applying the incorrect standard in determining whether the defendant’s confession should be suppressed. In its written order, the court found that the defendant “was barely a 17 year old adolescent with sub-normal intelligence, with little education, dependent fully upon his parents, and lacking in experience in criminal affairs completely.” The court went on to state:

“When confronted with such a situation, [the court] feels that it is the obligation of the court to make sure that the greatest of care was taken to assure that the Confession was voluntary and, further, that the Confession was not a product of ignorance of rights or of adolescent fantasy, fright or despair. (In re Gault and People v. Simmons).”

Based on the above language, and on the trial court’s citation to Gault and Simmons, both cases involving juvenile defendants, the State argues that the trial court incorrectly applied the “juvenile standard” to this adult defendant. The State contends that the references to “the greatest of care” and to “adolescent fantasy, fright or despair” are only applicable to juveniles and the court therefore erred in basing its suppression of the defendant’s confession on adolescent fright or on any “particularly great scrutiny.”

The State seeks, in effect, to have this court remand this case to the trial court for a new suppression hearing with directions that the court use less care and be less rigorous in its scrutiny of the defendant’s ability to understand and knowingly waive his constitutional rights. We flatly reject such a suggestion. The trial court found that the defendant was unable to comprehend his rights. We fail to see how applying a different “standard” would change that determination. We hold, therefore, that any error which the trial court may have committed in this regard was harmless.

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

Affirmed.

HOWERTON and GOLDENHERSH, JJ., concur.


author: JUSTICE RARICK

text:
    ALBERT A. WOLL et al., Plaintiffs-Appellants, v. HERMAN L. LOEB, Defendant-Appellee.
    Fifth District
    No. 5-87-0161
    Opinion filed July 6, 1989.

      L. James Hanson and Warren N. Loar IV, both of Musick & Mitchell, P.C., of Mt. Vernon, for appellants.
    C. Michael Witters, of Mt. Carmel, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Plaintiffs, Albert A. Woll (Woll) and Woll Enterprises, Inc., appeal from the judgment entered in their favor by the circuit court of Clinton County on their complaint seeking money judgments and foreclosure of operator’s liens against defendant, Herman L. Loeb (Loeb).

Woll and Loeb, along with others, are owners of undivided fractional working interests in various oil and gas leases. As mining partners, each is required to pay a proportional share of the operating expenses for the wells on the leases. These expenses include overhead and supervision costs and third-party charges or supply, repair and maintenance costs. At some point in the parties’ relationship, Woll took over the operation of 10 separate groups of the oil and gas leases, known as the “Family Leases.” Woll began charging $75 per month per well for overhead and supervision in connection with the “Family Leases.” Woll subsequently increased this charge to $100 per month per well, then to $1,000 per month, and finally to $2,400 per month once Woll’s son entered the business. Loeb objected to these increases, and as of July 1983, began paying only his share of the third-party charges. Some of Loeb’s payments included the notation “payment in full”; others did not. Woll refused to cash any of Loeb’s checks once the dispute arose between the two. Loeb eventually stopped making all payments, which in turn resulted in the instant suit. Loeb admitted to owing certain portions of the amounts sued upon, these being his share of the third-party expenses. The trial court granted plaintiffs a partial summary judgment and awarded them $53,440.96. Loeb appealed, but his appeal was dismissed as premature. Following a bench trial, the court found $75 per month per producing well to be a reasonable charge for overhead and supervision costs and entered a money judgment against Loeb for an additional $95,790.42 plus court costs after granting Loeb a $5,000 credit for a previous payment. The trial court denied plaintiffs’ claim for prejudgment interest.

Plaintiffs argue on appeal the trial court erred in denying prejudgment interest, in giving Loeb credit for a $5,000 payment, and in calculating the award itself.

With respect to the trial court’s error in calculating the amount of the award, Woll raises no issue as to the method of determining the amount owed, only as to the actual amount. Woll believes the court’s finding as to the number of producing wells, when plaintiffs presented the only evidence as to the number of wells operated, was against the manifest weight of the evidence. Woll contends the court failed to include two wells and reduced the operating time for an additional well, thereby reducing plaintiffs’ recovery by $2,325 on this aspect alone. Woll also believes the court made a transpositional error and incorrectly reduced the operating expenses for 1983 as established by plaintiffs’ exhibits by $10,000. We agree in part and disagree in part with Woll’s contentions. It is quite clear the trial court inadvertently reduced the 1983 operating expenses by $10,000. The trial court expressly accepted in its order the summaries of third-party charges as listed on one of plaintiffs’ exhibits for the period July 1983 through February 1985. The figure for 1983 incorporated into the court’s order, $32,972.77, is exactly $10,000 less than that listed on plaintiffs’ exhibit while the 1984 figure is the same on both. Loeb argues the reduced operating expense figure for 1983 incorporates credits for payments he made during the year prior to the parties’ dispute. Loeb, however, cited no evidence for his claim, and we have no duty to find it for him. (See 47th & State Currency Exchange, Inc. v. B. Coleman Corp. (1977), 56 Ill. App. 3d 229, 232, 371 N.E.2d 294, 297.) The only clear evidence in the record indicates the third-party expenses for 1983 were indeed $42,972.77. We therefore must remand the judgment to correct this error. We do not, however, agree with plaintiffs’ contention that the court’s finding as to the number of producing wells is against the manifest weight of the evidence. The findings of a trial court in a nonjury case are not to be disturbed on review if there is any evidence in the record to support these findings. (See Briggs v. Gaddis (1985), 133 Ill. App. 3d 704, 709, 479 N.E.2d 350, 353.) Plaintiffs’ testimony as to the number of operating wells often was vague and uncertain. Woll testified he rarely was on the leases himself. Woll did testify, however, that plaintiffs operated only one well on the “Schomacher Lease.” The evidence further revealed one well on the “Leighty Lease” was producing only from July 1983 to December 1983. Woll later tried to refute or explain his testimony and this evidence, but it was for the trial court to resolve the matters and weigh the credibility of the parties. We choose not to interfere with the court’s decision. We do note, however, the trial court did make a calculation error with respect to the “Clinton County Group” of leases, and accordingly, we remand for correction of this error also. According to the court’s order, the number of producing wells and overhead and supervision expenses for the “Clinton County Group” is listed as:

The error occurs in the calculations for 1984. One well on each of the “Deters” and “McCabe” leases was abandoned in February, and the well on the Schomacher lease was abandoned in September. The total number of producing wells for 1984 should have read:

13 for 1 mo. (or in the reverse) 10 for 12 mos.

11 for 8 mos. 1 for 9 mos.

10 for 3 mos. 2 for 1 mo.

resulting in a total of 131 x $75 or $9,825. Completing the rest of the chart, Loeb’s share of overhead and supervision for this group of leases is $6,620.92:

This in turn results in a new total of overhead and supervision expense on the “Family Leases” of $16,265.68. Adjusting all of the figures accordingly, including the $10,000 1983 third-party expense correction, the total judgment should be $105,828.14 plus court costs in favor of plaintiffs.

Original Order

$138,003.42 (Loeb’s share of third-party expenses)

+ 16,227.96 (Loeb’s share of overhead & supervision)

- 5,000.00 (Credit (payment 8/9/83))

- 53,440,96 (partial summary judgment payment) $95,790.42 plus court costs

Corrected $148,003.42 + 16,265.68

- 5,000.00

- 53,440.96

$105,828.14

Plaintiffs contend, however, Loeb is not entitled to a credit of $5,000 toward this judgment for his payment made on August 9, 1983. Plaintiffs argue Loeb’s August payment pertained to an earlier month’s charges which were not included in the present controversy. While it is true that Loeb did not affirmatively plead the $5,000 payment (see National Acceptance Co. v. Exchange National Bank (1968), 101 Ill. App. 2d 396, 401, 243 N.E.2d 264, 266), plaintiffs’ own exhibits reflect receipt of this $5,000 payment and lack of credit given. Plaintiffs’ bookkeeper acknowledged she had not given Loeb credit for the $5,000 payment although she did testify on redirect the payment may have been attributable to an earlier invoice. Plaintiffs and Loeb, however, had an ongoing relationship with a constant flow of expense and income items. WTiether or not Loeb was entitled to this credit of $5,000 toward the amount in controversy here became a question of fact for the trial court to determine and one which we will not disturb on review. See Briggs, 133 Ill. App. 3d at 709, 479 N.E.2d at 353.

Plaintiffs’ final argument on appeal is that the trial court should have awarded them prejudgment interest on the unpaid third-party charges. Plaintiffs believe Loeb’s refusal to pay these undisputed amounts was unreasonable and vexatious and done solely to gain an advantage in the parties’ dispute over the supervisory and overhead charges. Plaintiffs point to the fact that only 10.6% of the total amount was in dispute, yet Loeb withheld all amounts due or placed “payment in full” notations on checks drawn for undisputed amounts.

Whether a delay in payment is unreasonable and vexatious is a question of fact to be determined by the trial court. We sitting as a court of review will not disturb that determination unless it is contrary to the manifest weight of the evidence. (Charles Selon & Associates, Inc. v. Estate of Aisenberg (1981), 103 Ill. App. 3d 797, 801, 431 N.E.2d 1214, 1217.) Such is not the case here. Plaintiffs, without consulting Loeb, arbitrarily increased overhead and supervisory charges from $100 per month to $2,400 per month with little relation to the actual overhead and supervision costs incurred. Loeb rightfully objected to such charges (see Kinne v. Duncan (1943), 383 Ill. 110, 114-15, 48 N.E.2d 375, 377-78), thereby creating a legitimate controversy between the parties. An honest dispute as to the existence of a legal obligation will not result in an unreasonable and vexatious delay triggering recovery of prejudgment interest. (See Emmenegger Construction Co. v. King (1982), 103 Ill. App. 3d 423, 429, 431 N.E.2d 738, 743.) While Loeb may have placed “payment in full” notations on many of his tendered payments, plaintiffs refused to cash even those checks for undisputed third-party charges which did not contain such notations. Loeb did not refuse, to pay; plaintiffs refused to accept. The trial court properly denied prejudgment interest in this instance.

For the aforementioned reasons, we affirm the judgment of the circuit court of Clinton County but remand for modification of the dollar amount in accordance with this opinion.

Affirmed in part; remanded with directions.

CHAPMAN and HOWERTON, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES L. MORSE, Defendant-Appellant.
    Fifth District
    No. 5-87-0482
    Opinion filed July 19, 1989.

      Daniel M. Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, and Lori J. Lanciani, of State Appellate Defender’s Office, of Springfield, for appellant.
    Mark C. Hunter, State’s Attorney, of Metropolis (Kenneth R. Boyle, Stephen E. Norris, and Matthew E. Franklin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

The State must disclose charges pending against one of its witnesses and must disclose the terms of any deal for leniency for that witness so that a defendant can show bias. Failure to so disclose can deprive a defendant of due process of law as guaranteed by the fifth amendment to the Constitution of the United States, made applicable against the several States by operation of the fourteenth amendment. See, e.g., Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194; Napue v. Illinois (1959), 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173.

We affirm defendant’s conviction despite the State’s erroneous position taken both at trial and on appeal that there is no duty to disclose these matters, because the record establishes that defendant knew of the pending charges, was not restricted in his cross-examination, and thereby was able to show the bias of the State’s witness.

Defendant was convicted by a jury of unlawful delivery of a controlled substance. The drug deal was set up by drug agents and utilized an informant who wore an eavesdropping device. The drug agents watched and listened as defendant sold cocaine to the informant.

The informant had been persuaded to participate in the setup by the Massac County State’s Attorney’s offer of leniency on an existing charge of armed violence, a Class X, nonprobational felony. The armed violence charge arose out of the informant shooting into a house. In exchange for the informant wearing an eavesdropping device and arranging a drug deal with defendant, the State’s Attorney promised both to reduce the armed violence charge to a, probational offense and to recommend probation upon a plea of guilty. The deal was sweetened later when the State’s Attorney further agreed to refrain from transferring a case against the informant’s son from juvenile to criminal court.

Notwithstanding a request by defendant during discovery, the State refused to disclose this promise of leniency. The State also failed to disclose information concerning the dismissal of certain traffic charges involving the informant. The State claimed that this was not “Brady material,” and therefore, not discoverable.

Nevertheless, after a pretrial conference, defense counsel asked if any deals had been made with the informant and the State’s Attorney replied that he had agreed to reduce the armed violence charge and to recommend probation when defendant pleaded guilty. However, the State’s Attorney did not disclose information concerning dismissal of the traffic cases.

Before trial, the State’s Attorney left office, and a new one appointed.

On the day defendant’s trial commenced, the armed violence charges against the informant were dismissed because the speedy trial period had expired. Additionally, charges against the informant of driving under the influence, driving while license revoked, and driving with a suspended license had been dismissed between the time defendant had been arrested and put on trial.

At trial, the informant was cross-examined by defendant about the dismissal of the pending traffic cases, the deal that he had made on the armed violence charges, and the favorable treatment that his son had received. The cross-examination dwelled, at length, on the fact that the armed violence charges had been dismissed because of a speedy trial violation instead of resulting in probation on a lesser charge.

Defendant moved for a mistrial based on the State’s refusal to disclose. The circuit court denied that motion.

The State called as a witness the previous State’s Attorney. He testified to the promise of leniency for the informant as well as for the informant’s son, but denied deliberately allowing the speedy trial period to run. The ex-State’s Attorney further denied that the traffic cases were dismissed in consideration of the informant’s efforts against defendant.

Disclosure of leniency is critical to the integrity of the fact-finding process. A defendant has the right to question a witness concerning any matter which would tend to discredit the witness, and the fact that a witness has been charged with a crime may be shown where it reasonably tends to show bias or motive to fabricate. (People v. Barr (1972), 51 Ill. 2d 50, 280 N.E.2d 708.) The State usually has superior access to information regarding a promise of leniency. Because a defendant cannot cross-examine on what he does not know, we require the State to give the defendant this information to allow him the opportunity to show bias. However, if that defendant has knowledge of the promise of leniency, there is no prejudice in failure to disclose. See People v. Elbus (1983), 116 Ill. App. 3d 104, 451 N.E.2d 603.

Here, defendant not only knew of the promise, but extensively cross-examined the informant on it, as well as on the dismissal of the pending traffic cases. While, in this case we find that there was no prejudice, ordinarily, refusal to disclose will result in a denial of due process.

Defendant complains that the ex-State’s Attorney should not have been allowed to testify as to his motivations in making the promise of leniency to the informant, and that his testimony had the effect of vouching for the credibility of the informant. Defendant further claims that the circuit court erred in allowing the ex-State’s Attorney to testify, because he was not one of the witnesses listed in the State’s discovery answer. The State cites People v. Hudson (1987), 161 Ill. App. 3d 447, 514 N.E.2d 799, and counters that because it had no intent to call the ex-State’s Attorney to testify until defendant’s opening remarks concerning the “deal” struck between the ex-State’s Attorney and the informant, it had no duty to disclose the witness’ name prior to trial.

The question of whether a witness who has not been listed should testify is submitted to the discretion of the circuit court, and absent a showing of surprise or prejudice, the circuit court’s decision to permit a witness to testify will not be reversed. (People v. Taylor (1982), 107 Ill. App. 3d 1019, 1023, 438 N.E.2d 565, 567; People v. Hudson (1987), 161 Ill. App. 3d at 452, 514 N.E.2d at 802.) We find no such abuse of discretion.

The ex-State’s Attorney’s testimony was relevant to show the terms of the promise of leniency and was made critical to the State’s case when defendant implied that the speedy trial period for the informant’s armed violence case deliberately had been allowed to expire. The only means the State had to rebut that implication was through the testimony of the ex-State’s Attorney, himself. Further, the defendant had implied that the traffic cases had been dismissed in exchange for the informant’s efforts in this case. Again, the testimony of the ex-State’s Attorney was relevant to rebut that implication. Both implications were made by defendant’s cross-examination of the informant. Ordinarily, witnesses who are called to rebut material presented by the defense need not be listed as witnesses. (People v. Fox (1988), 177 Ill. App. 3d 602, 532 N.E.2d 472.) We feel that the same theory should apply here, since the implication was made by the defense, not by the State. Since the implication that was made here ordinarily would not be one that would be part of the State’s case in chief, we do not feel that the circuit court abused its discretion in allowing the ex-State’s Attorney to testify.

The ex-State’s Attorney was allowed to testify as to why he exchanged leniency for the informant’s work. Defendant now says those reasons are irrelevant. They are. Illinois has adopted Rule 401 of the Federal Rules of Evidence. (People v. Monroe (1977), 66 Ill. 2d 317, 362 N.E.2d 295.) “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” (Monroe, 66 Ill. 2d at 322, 362 N.E.2d at 296.) Here, the fact of consequence is not the reason the offer of leniency was made, rather it is the bias of the informant shown by the promise of leniency. However, we find that the defendant waived any claim of prejudice in this case. When the prosecutor asked the ex-State’s Attorney how he arrived at the decision to offer leniency, defense counsel objected, and then said, “I will withdraw that objection. I will take that up on cross-examination, Judge.” That is more than waiver, it amounts to a request, and overt approval.

Defendant next complains that the circuit court erred in overruling his objection to the portion of the ex-State’s Attorney’s testimony wherein he said he thought the informant was sincere; defendant points out that it is error for one witness to comment on the credibility of another witness. (See People v. Dowd (1981), 101 Ill. App. 3d 830, 428 N.E.2d 894; People v. Best (1981), 97 Ill. App. 3d 1083, 424 N.E.2d 29.) The proposition of law defendant has relied on is correct; however, it has no application in this case. This testimony came when the ex-State’s Attorney was asked how he arrived at the decision to promise leniency. When defendant’s objection had been withdrawn, the witness began to give his reason, and when he said, “It also appeared to me that the information that he was providing was one of first hand knowledge, and that he was sincere,” defendant objected that the witness was trying to vouch for the credibility of the informant. The circuit court properly overruled this objection. Defendant wanted the witness to give the reasons. Sincerity of the informant most likely will always be a reason to offer leniency. Defendant cannot withdraw an objection and then later reassert the objection merely because the testimony becomes unfavorable to him. He cannot have it both ways.

Defendant next complains that he was prejudiced despite the circuit court’s sustaining his objection to a witness making an unsubstantiated claim that defendant had a drug operation. We find no error. When a circuit court sustains an objection, ordinarily there can be no reversal. Only in instances of extreme prejudice has a reviewing court found error and reversed a conviction. (Greer v. Miller (1987), 483 U.S. 756, 97 L. Ed. 2d 618, 107 S. Ct. 3102; People v. Carlson (1980), 79 Ill. 2d 564, 577, 404 N.E.2d 233, 238; People v. Whitfield (1986), 140 Ill. App. 3d 433, 441, 488 N.E.2d 1087, 1092.) That is not presented here.

Only one fleeting reference was made to the “operation” and defendant’s objection to the reference was promptly sustained. Furthermore, there can be no prejudice because the informant had testified without objection that he and defendant had been involved together in drug trafficking six or seven times before, and that in these instances defendant would deliver the drugs to the informant, who then would go out and sell them and then pay defendant, and further that he owed defendant $3,000 from an earlier drug deal.

Defendant next urges this court to reverse his conviction because of “bad faith” on the part of the State. He argues that refusing to disclose the promise of leniency, together with the testimonial improprieties establish a course of conduct that should not be sanctioned. Suspicions of reasonable people are aroused by the fact sequence of this case: The State refused to disclose leniency, denied dismissing traffic cases as a payoff for the informant’s efforts, and then claimed that taking a dismissal of the informant’s case the very day defendant’s trial began because the speedy trial period had run was a coincidence. However, neither this court nor any other court can give judgment on suspicion. No lawyer should be found in “bad faith” on suspicion. The record in this case does not support defendant’s contention.

Defendant lastly contends that he was fined too much under section 5 — 9—1.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 9—1.1). Under the provisions of that section, a person convicted of unlawful delivery of drugs must be fined not less than the “full street value of the [drugs].” (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 9—1.1.) The circuit court relied on the expert opinion of a drug agent that the street value of the drugs involved was $11,000. Defendant contends that the value should have been determined by the amount defendant charged for the drugs, $4,800. We reject defendant’s claim. Where a quantity of drugs larger than would be used for personal consumption is sold, the “street value fine” can be higher than the price actually paid on the theory that the price paid is wholesale, but the value on the street is retail. (People v. Lusietto (1988), 167 Ill. App. 3d 251, 253, 521 N.E.2d 174, 175; People v. Pilcher (1986), 147 Ill. App. 3d 193, 196, 497 N.E.2d 1360, 1361-62.) Defendant sold 56.1 grams of cocaine; the evidence showed that cocaine usually is sold in quantities of eight grams or less in Massac County. The cocaine sold was 68% pure; the evidence showed that cocaine sold in Massac County is rarely more than 50% pure, and ordinarily in the range of 34%. This evidence justified the circuit court in imposing a fine in excess of the amount paid to the defendant.

The circuit court is affirmed.

Affirmed.

GOLDENHERSH and RARICK, JJ., concur.