author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HORTEZ DANIEL, Defendant-Appellant.
    First District (4th Division)
    No. 1—91—0845
    Opinion filed September 30, 1992.
    Rehearing denied December 3,1992.

      Rita A. Fry, Public Defender, of Chicago (Andrea Monsees, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Gael O’Brien, Special Assistant State’s Attorney, and Renee Goldfarb and Jeanne Lobelson, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, defendant, Hortez Daniel, was convicted of first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)); armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2); and residential burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 3). The trial court sentenced defendant to three concurrent prison terms ranging from 15 to 70 years.

Defendant appeals, contending the trial court should have suppressed: (1) his confession, and (2) the fruits of a warrantless search of his car. Defendant also contends (3) his sentence was improper and excessive.

We affirm the judgment of the trial court.

Background

The record contains the following pertinent facts. On July 10, 1990, defendant was charged in a 14-count indictment with eight counts of first degree murder, two counts of home invasion, one count of armed robbery, one count of robbery, and two counts of residential burglary.

A

On November 16, 1990, the trial court held a hearing on defendant’s motion to suppress statements. The State’s evidence was essentially as follows. On June 13, 1990, Chicago police detective Ellen Moran was investigating the murder of Eulis Reese. At approximately 10:30 a.m., as part of the investigation, Detective Moran and other Chicago police officers brought to a police station defendant; his father, Horace; his grandmother, Bernice; his cousin; and Horace’s girlfriend. Defendant and his family were taken in two squad cars. Detective Moran could not remember whether defendant was placed in a squad car separate from his family.

At the police station, Detective Moran first questioned Horace’s girlfriend. During this time, defendant was with his family. At approximately 12 noon, Moran took defendant to a second-floor interview room and questioned him for roughly one hour. From approximately 1:30 p.m. to 6:30 p.m., Moran investigated the information that defendant gave to her. She then briefed the next watch assigned to the case.

Chicago police detective George Holmes came on duty on June 13, 1990, at 4:30 p.m. His partner was Detective George Tracy. Defendant was still in the station’s second-floor interview room. At approximately 7 p.m., Detective Holmes arrested defendant for the murder of Eulis Reese. At approximately 7:25 p.m., Detective Holmes advised defendant of his constitutional rights and, because defendant was 16 years old, also advised defendant that he could be charged as an adult. Defendant responded that he understood each of his rights. In the room with Detective Holmes was Chicago police department youth officer Carol Kilgore. The door to the room did not lock and defendant was not handcuffed. Defendant agreed to talk with Detective Holmes and they spoke for about an hour. Defendant did not appear upset and was able to answer questions.

At approximately 10 p.m., Detective Holmes again spoke with defendant in the presence of youth officer Kilgore. The conversation lasted for about 10 minutes. Defendant again appeared natural and normal.

Kilgore remained with defendant in the interview room from their 7:25 p.m. conversation until the end of her shift at midnight. Further, neither Kilgore nor anyone in her presence threatened or mentally coerced defendant. Also, defendant did not display any condition that rendered him unable to understand his constitutional rights.

Although Horace remained at the police station throughout the day, Detective Holmes could not recall whether Horace spoke with defendant subsequent to his arrest. However, Horace was allowed to bring defendant food. At approximately 1:30 a.m. on June 14, Horace left the station.

At roughly 2:15 a.m., Detectives Holmes and Tracy spoke with defendant for 10 to 30 minutes. Thereafter, Holmes and Tracy, joined by Detectives Robert Utter and George Carey, took defendant with them on a field investigation. Defendant was handcuffed when they left the station. They went to one location, where they unsuccessfully searched for someone. They thereafter went to a second location, where they unsuccessfully searched for an object.

At approximately 3:30 a.m., the detectives then took defendant to Horace’s home. Defendant and the four detectives met with Horace, Horace’s girlfriend, and defendant’s grandmother. In their presence, defendant made statements that implicated him in the crime. The detectives also recovered evidence from the residence. Defendant made additional statements as he left Horace’s residence.

Detectives Holmes and Tracy then took defendant to the home of his friend and high school classmate Sergio Thomas. Detectives Carey and Utter followed. At Thomas’ home, the detectives recovered additional evidence. At approximately 4:30 a.m., the detectives took defendant and Thomas back to the police station.

Detectives Holmes and Tracy returned defendant to the second-floor interview room and removed his handcuffs. At approximately 5:15 a.m., the detectives again spoke with defendant. He was again advised of his constitutional rights, to which he again responded that he understood each of his rights. They spoke for roughly 30 minutes. During this conversation, defendant made a confession. The detectives then requested the presence of an assistant State’s Attorney.

Throughout the field investigation that morning and during the 5:15 a.m. conversation, each of the four detectives observed that defendant was alert and coherent, responsive and cooperative. Defendant did not appear to have any physical, psychological, educational, or emotional condition that rendered him incapable of understanding and. appreciating his constitutional rights. Each detective testified that neither he, nor anyone in his presence, threatened or mentally coerced defendant.

Assistant State’s Attorney Aaron Iverson arrived at the police station and spoke with defendant at approximately 7 a.m. Detective Holmes was present at the beginning of the interview. Iverson explained to defendant that he worked with the police and was not defendant’s lawyer. Iverson also informed defendant of his constitutional rights. Defendant was not in handcuffs and appeared alert and calm. Defendant and Iverson spoke for roughly one hour. Defendant agreed to repeat his confession in the presence of a court reporter.

Chicago police department youth officer Donald Petersen spoke with defendant at approximately 8:35 a.m. He advised defendant of his constitutional rights and of the possibility that he could be tried as an adult for the offense of murder. Defendant responded that he understood these rights and admonition. Defendant spoke with Petersen for approximately 10 minutes, during which time Detective Moran was in the room periodically. Defendant was not handcuffed. He appeared relaxed and alert, and did not appear to have any physical, mental, educational, or emotional condition that prevented him from understanding his constitutional rights. In response to Petersen’s questions, defendant stated that he had eaten and that he was “okay.” Neither Officer Petersen nor anyone in his presence threatened or mentally coerced defendant. During this conversation, defendant did not tell Petersen that he had been struck, threatened, or mistreated in anyway by anyone.

Prior to the arrival of the court reporter, defendant went to sleep. When the court reporter arrived, defendant was allowed five or six minutes to wake up. At approximately 9:37 a.m., defendant was again advised of his constitutional rights, and then he repeated his confession, which the court reporter transcribed. With defendant and the court reporter were Iverson, Detective Moran, and youth officer Petersen.

Defendant stated that he was making the confession voluntarily. He had received food, drink, and a cigarette. He was not denied use of the washroom.

However, near the end of the confession, defendant indicated that he had been threatened by a police officer sometime during the early morning. Specifically, a man, using profanity, “threatened to beat [defendant’s] head in the wall.” Defendant was threatened a total of three times during this encounter. In response to Iverson’s questions, defendant stated: he was never actually hit; the person who threatened him was not in the room at that time; the officer did not tell defendant that he had to give the statement or be hit; and that defendant had given the statement voluntarily because “that’s what actually happened.” Defendant read, made corrections to, and signed the typed statement.

Defendant was the sole defense witness on the motion to suppress. Defendant’s testimony was essentially as follows. In cooperation with the police, defendant and his family went to the police station to assist the police in their investigation of the victim’s death. When defendant and his family were transported to the police station, he rode in a separate squad car with only the police. Upon their arrival, defendant was taken to a waiting room. He remained in that room throughout the day. He was not handcuffed while he was in the police station.

During the 7:25 p.m. conversation with Detective Holmes and Officer Kilgore, defendant was told that the detectives had recovered a gun from his car. Defendant was further told that Horace identified the gun as the one taken from the victim’s home. During the 10 p.m. conversation with Detective Holmes and Officer Kilgore, defendant was told that a friend had seen him with a large amount of money on the day that the victim was killed.

During the early morning of June 14, a police officer entered the interview room. The officer approached defendant, drew a fist near defendant’s face, and told defendant to “sit up. Tell me or I’m going to bust your [expletive] head in the wall.” Defendant could not identify this officer, but the officer was one of the detectives that interviewed him and also testified at the hearing.

The four detectives subsequently took defendant on the above-described field investigation. During the investigation, Officer Carey told defendant “don’t make us mad, or I’m going to [expletive] you up.” After their return to the police station, defendant made a confession because, as he testified, he “was scared” of “Police Officers beating me up.” Further, defendant repeated his confession to Assistant State’s Attorney Iverson and in the presence of a court reporter for the same reason. The first time defendant alleged that he was threatened was at the end of his court-reported confession. Also, no one ever physically attacked defendant.

At the close of the suppression hearing, the trial court denied defendant’s motion to suppress the confession. The court found as follows. Defendant voluntarily went to the police station. He was not under arrest until 7 p.m. Defendant was at the police station for “a substantial length of time.” However, police questioning was intermittent rather than continuous. Defendant’s family was present at the station “for a substantial period of time” both prior to and following his arrest. Defendant had normal intelligence and prior experience with the police.

The trial court did not find that defendant was threatened. Further, even if defendant was threatened, the threats were not of such a nature as to overcome his will. The court also noted that police substantially complied with the Juvenile Court Act of 1987. (See Ill. Rev. Stat. 1989, ch. 37, par. 801 — 1 et seq.) Considering the totality of the circumstances, the trial court found that defendant’s confession was voluntary and admissible.

B

On January 7, 1991, immediately prior to trial, the trial court held a hearing on defendant’s motion to suppress physical evidence. Defendant sought to suppress a .32 caliber revolver. The police recovered the handgun from the trunk of defendant’s automobile as the result of a warrantless search.

The testimony at the hearing was essentially as follows. At approximately 1 p.m. on June 13, 1990, Detective Moran asked for defendant’s consent to verify his school attendance records and to search his automobile. Detective Moran testified that defendant gave his consent; he told her that the car was parked in front of Thomas’ home and that Thomas had the car keys. However, defendant testified that Moran did not ask for, and he did not give, his consent to search the car.

Detective Moran then spoke to defendant’s father, Horace. Horace told Moran that he had bought the automobile and signed the papers for it. However, there was testimony that title to the car was in defendant’s name, Horace drove the car “maybe once,” and that defendant drove the car primarily. At Moran’s request, Horace signed a consent-to-search form. Moran believed that Horace could consent to the search because defendant was 16 years old and because Horace had paid for the car.

At the close of the hearing, the trial court denied defendant’s motion to suppress evidence. The court noted that it was disputed whether defendant consented to the search of the car. The court further noted, however, that it was undisputed that Horace consented. The court found that the police acted in good faith and could reasonably believe that Horace could consent to the search.

C

The State’s case at trial, which included defendant’s confession, was essentially as follows. On June 11, 1990, Sergio Thomas rode a motor scooter to his high school. Although the scooter actually belonged to another, Thomas told several classmates, including defendant, that Thomas owned the scooter. Thomas told defendant that the scooter cost roughly $1,800.

On June 12, defendant was at school between 8:30 a.m. and 9 a.m. Later that day, he went to the victim’s apartment. The victim was 77 years old. He was the boyfriend to defendant’s grandmother; he was regarded as a stepfather by Horace. The victim lived with defendant’s grandmother and cousin. In the victim’s apartment, Horace kept approximately $3,600 and a .32-caliber revolver in a suitcase in a closet.

Defendant spoke with the victim for a few minutes. Defendant then grabbed the victim from behind and choked him; defendant used his forearm in a “full Nelson” hold. The victim passed out and defendant placed him on the kitchen floor.

Defendant found the suitcase containing the money and the handgun. He returned to the kitchen and placed them both on the kitchen table. Defendant also loaded the handgun and laid it on the table. The victim stirred. Defendant took a kitchen knife, put one hand over the victim’s mouth, and attempted to stab the victim. However, defendant cut himself during the ensuing struggle.

Defendant took the gun and ordered the victim to stand up and be quiet. Defendant then went into the living room to see whether anyone was coming. The victim attempted to escape down the back stairs of the building. Defendant returned to the kitchen and chased the victim. Defendant shot at the victim twice as he ran down the stairs, from a distance of eight or nine feet. Defendant shot at the victim a third time as he ran toward his car. Defendant then took the money and ran in the opposite direction of the victim.

Defendant hid the money behind his school and hid the gun behind a house. He eventually picked up his car, retrieved the money and the gun, and drove to his high school to meet Thomas.

At approximately 2:45 p.m., defendant and Thomas drove to Thomas’ home. Thomas noticed that one of defendant’s thumbs was bandaged and bloody. When they arrived, defendant placed the gun in the back of the car beside the spare tire, telling Thomas that he had to hide it. Defendant took the money to Thomas’ room, where defendant counted $2,000. Thomas gave defendant a black waist sack in which defendant put the $2,000. Thomas hid the remainder in his mattress. Defendant did not tell Thomas how defendant acquired the money.

Defendant and Thomas returned to defendant’s car. Defendant unloaded the gun and replaced it beside the spare tire. Thomas drove defendant’s car to an automobile dealer to buy a scooter. On the way to the dealer, defendant threw the bullets onto the street. They eventually arrived at the dealership, where defendant bought a scooter for $1,820. Thomas signed the papers and the scooter was placed in his name because defendant was too young.

Defendant drove the scooter and Thomas drove defendant’s car back to Thomas’ home. Defendant gave Thomas his car keys and said that he would return that night or the next day. Thomas advised defendant not to carry the gun while driving the scooter. Thomas took the remainder of the money from his mattress and hid it in a tool box trader his desk.

At approximately 12:45 p.m. on June 12, Detective Moran was assigned to investigate the homicide. She noticed a pool of blood where the victim was found, roughly 50 to 60 feet from the building’s back stairs leading to the victim’s apartment. There were bloody footprints on the stairs, another pool of blood on the kitchen floor, and blood on the kitchen cabinets and the back door knob. They found the victim’s pants, inside of which was a wallet containing approximately $70. The parties stipulated that the victim died of two gunshot wounds.

Through her investigation, Detective Moran met the family of the victim and that of defendant. Horace told Moran that money and a gun were missing from the victim’s apartment.

As we recounted earlier, on June 13, defendant and his family were taken to the police station. That afternoon, Detective Moran received the consent of both defendant and Horace to search defendant’s car. At approximately 3:30 p.m., Detective Moran went to Thomas’ home. Thomas gave the car keys to Moran, who found the revolver near the spare tire. The parties stipulated that the handgun was the instrument of death.

When the detectives and defendant went to Horace’s home on June 14 at 3:30 a.m., they recovered the black waist sack. It contained roughly $130. Also, when the detectives and defendant thereafter went to Thomas’ home, they recovered the remainder of the stolen money.

At the close of the State’s case, the trial court granted defendant’s motion for an acquittal on the two counts of home invasion and the two counts of murder based on the home invasion. Presenting no witnesses, the defense rested.

The trial court convicted defendant of first degree murder. The court convicted defendant of armed robbery and further found that the charge of robbery merged into the armed robbery conviction. The court also convicted defendant of residential burglary.

At the sentencing hearing, the trial court denied defendant’s post-trial motion. At the close of the hearing, the trial court found that the victim’s age was an aggravating factor that qualified defendant for an extended prison term. (See Ill. Rev. Stat. 1989, ch. 38, pars. 1005—5—3.2(b)(3)(ii), 1005—8—2(a).) The court sentenced defendant to three concurrent prison terms of 70 years on the murder conviction, 20 years on the armed robbery conviction, and 15 years on the residential burglary conviction. Defendant appeals.

Opinion

I

Defendant first claims that the trial court should have granted his motion to suppress statements. Defendant contends that his confession was involuntary.

The test for determining the voluntariness of a defendant’s statement is quite settled. “The test for voluntariness is whether the statement was made freely and without compulsion or inducement of any sort or whether the defendant’s will was overcome at the time he confessed.” People v. Jones (1990), 196 Ill. App. 3d 937, 957, 554 N.E.2d 516, 528; see People v. Hattery (1989), 183 Ill. App. 3d 785, 821, 539 N.E.2d 368, 392.

The question of whether a confession is a product of free will must be answered on the facts of each case because no single fact is dispositive. In determining whether a defendant gave statements voluntarily, a court may consider many factors, which include: the defendant’s age, intelligence, background, experience, mental capacity, and education, and physical condition at the time of questioning; the legality and duration of the detention; and any physical or mental abuse by police, including the existence of threats or promises. The trial court’s finding that a statement was voluntary will not be disturbed on review unless it is against the manifest weight of the evidence. In reviewing the trial court’s finding, we may consider the entire record, including trial testimony. Jones, 196 Ill. App. 3d at 957, 554 N.E.2d at 528; Hattery, 183 Ill. App. 3d at 821, 539 N.E.2d at 392-93.

Further, this test applies to both juvenile and adult confessions. However, courts recognize that the making of an incriminating statement by a juvenile is a sensitive concern that requires great care, in the absence of counsel, to assure that the admission was neither coerced nor suggested, nor the product of ignorance of rights, fright, or despair. (Jones, 196 Ill. App. 3d at 957, 554 N.E.2d at 528.) For the following reasons, we uphold the trial court’s finding of voluntariness.

A

Defendant assigns error to the trial court’s findings that defendant freely and voluntarily went to the police station on June 13, 1990, at 10:30 a.m. and that he was not under arrest until 7 p.m. Rather, defendant contends that his confession was the result of an illegal detention that began at 10:30 a.m.

Police must have probable cause to believe that a person committed a crime in order to detain that person involuntarily for purposes of interrogation. The test to determine whether a person has been detained for custodial interrogation is whether a reasonable, innocent person in the circumstances would believe that he was free to leave. The test is objective; therefore, defendant’s belief that he was under arrest is not determinative. People v. Finklea (1983), 119 Ill. App. 3d 448, 451-52, 456 N.E.2d 680, 682; People v. Reed (1982), 104 Ill. App. 3d 331, 335-36, 432 N.E.2d 979, 982-83.

As with the general issue of voluntariness, a court must look to all of the circumstances surrounding the questioning, with no single factor deemed controlling. The factors include: the place of interrogation, any statements or conduct that indicate that the accused is not free to leave, the extent of the knowledge of the police and the focus of their investigation, and the intentions of police officers in questioning the accused. A court should also consider the time, length, mode and mood of the interrogation; the number of police officers present and the presence or absence of the accused’s friends or family; the manner in which the accused arrived at the interrogation site; and the age, intelligence, and mental makeup of the accused. People v. Matthews (1990), 205 Ill. App. 3d 371, 402-03, 562 N.E.2d 1113, 1131-32, quoting People v. Smith (1986), 150 Ill. App. 3d 524, 528, 501 N.E.2d 1010, 1013; Finklea, 119 Ill. App. 3d at 452, 456 N.E.2d at 682.

Further, the facts that the questioning took place in a police station and that police drove the defendant to the station, considered either individually or in combination, are not sufficient to convert the questioning into an arrest. Also, the fact that police suspicions may have shifted during the course of the interrogations does not render the situation custodial. Finklea, 119 Ill. App. 3d at 453, 456 N.E.2d at 682.

Applying these factors to the case at bar, we conclude that defendant’s confession was not the result of an illegal detention. Defendant himself testified that he and his family were taken to the police station to cooperate with the police and to assist in the investigation of the victim’s homicide. The record does not show that the police had at that time focused their investigation on defendant.

True, defendant’s pre-arrest interrogation period lasted from 10:30 a.m. until 7 p.m. However, at least Horace was present throughout the interrogation period. Further, defendant was questioned only once, by only Detective Moran, and for only one hour. Defendant was not restrained in any way; he was not placed in a locked room; he was not told that he was not free to leave. We cannot say that the trial court’s findings, that defendant freely and voluntarily went to the police station on the morning of June 13, 1990, and that he was not under arrest until 7 p.m., were against the manifest weight of the evidence.

B

Defendant next assigns error to the trial court’s finding that defendant was advised of his constitutional rights (see Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602) on “many, many occasions.” Rather, defendant points to the fact that he was first advised of his constitutional rights at 7:25 p.m., approximately nine hours subsequent to his arrival at the police station. However, defendant came to the police station voluntarily and was not in custody until his arrest at 7 p.m. Therefore, Miranda warnings were not required. See Finklea, 119 Ill. App. 3d at 453-54, 456 N.E.2d at 683.

Defendant also points to the fact that he was not readmonished until 5:15 a.m., approximately 10 hours subsequent to his first admonishment, and that he made incriminating statements in the interim. However, once an accused is advised of the Miranda warnings and acknowledges his understanding of them, the voluntariness of subsequent statements is not compromised by failure to repeat the warnings at each successive interview. (People v. Hill (1968), 39 Ill. 2d 125, 131-32, 233 N.E.2d 367, 371; People v. Genus (1979), 74 Ill. App. 3d 1002, 1011, 393 N.E.2d 1162, 1169.) We note that defendant was advised of his rights on several additional occasions prior to giving a transcribed confession. We cannot say that the trial court’s finding was against the manifest weight of the evidence.

C

Defendant assigns error to the trial court’s findings regarding alleged threats made by a police officer. The trial court did not find that defendant was threatened. Further, the court did find that even if defendant was threatened, the threats were not of such a nature as to overcome his will.

The trial court applied the correct analysis. As we stated earlier, the test of voluntariness is based on all of the circumstances surrounding the making of the statement. No one factor is dispositive. “It is possible that, although threats or promises may have been made, the evidence as a whole shows that a statement was made voluntarily and is therefore admissible in evidence.” (People v. Jones (1972), 8 Ill. App. 3d 849, 853, 291 N.E.2d 305, 308.) It was within the province of the trial court to judge the credibility of defendant and the other witnesses. (See Jones, 196 Ill. App. 3d at 960, 554 N.E.2d at 530.) We cannot say that the trial court’s finding was against the manifest weight of the evidence.

D

Defendant next assigns error to the trial court’s finding that there “was clearly no evidence of any physical abuse in this case.” Defendant characterizes the following facts as “incidents of abuse”: he was given food only once during the interrogation period; he was isolated in a small room with no sleeping facilities; he was given something to drink only once; and police officers interrupted what sleep he obtained to interrogate him.

We uphold the trial court’s finding. The fact that the interview room lacked comfortable furnishings does not indicate that defendant was coerced into making his confession. “The mere existence of some discomfort is not sufficient to render a statement involuntary.” (People v. Stachelek (1986), 145 Ill. App. 3d 391, 402, 495 N.E.2d 984, 991.) Indeed, defendant never testified that he was hungry, thirsty, tired, or denied access to the washroom. We cannot say that the trial court’s finding was against the manifest weight of the evidence.

E

Defendant next assigns error to the trial court’s finding that the police substantially complied with the Juvenile Court Act of 1987. (See Ill. Rev. Stat. 1989, ch. 37, par. 801—1 et seq.) However, the Act does not apply to defendant. “Defendant in the instant case was not arrested pursuant to a petition in the juvenile court, but was simply arrested for murder and was therefore subject to the jurisdiction of the criminal courts.” People v. Visnack (1985), 135 Ill. App. 3d 113, 126, 481 N.E.2d 744, 753.

Defendant also assigns error to the trial court’s finding that defendant had prior experience with police. However, this is an accepted factor in the totality of the circumstances which a court should consider. People v. Racanelli (1985), 132 Ill. App. 3d 124, 132, 476 N.E.2d 1179, 1185.

We have carefully reviewed the entire record. In view of all of the circumstances surrounding defendant’s confession, we cannot say that the trial court’s finding, that defendant voluntarily made the confession, was against the manifest weight of the evidence.

II

Defendant next claims that the trial court should have granted his motion to suppress evidence. He contends that the police did not receive a valid consent to search his car. Defendant argues that the illegal search produced not only Horace’s revolver, but also defendant’s further inculpatory statements, additional physical evidence and, ultimately, defendant’s confession.

On a motion to suppress evidence, the burden of proof is on the defendant to establish that the search was unreasonable. (People v. Brown (1987), 162 Ill. App. 3d 528, 540, 515 N.E.2d 1285, 1292.) A trial court’s determination on a motion to suppress will not be overturned unless it is manifestly erroneous. Brown, 162 Ill. App. 3d at 535, 515 N.E.2d at 1289.

Under the fourth and fourteenth amendments to the United States Constitution, a search conducted without a search warrant is per se unreasonable. An exception to the requirements of a search warrant and probable cause is a search that is conducted pursuant to consent. (People v. Callaway (1988), 167 Ill. App. 3d 872, 877, 522 N.E.2d 337, 340; People v. Johnson (1974), 23 Ill. App. 3d 886, 891, 321 N.E.2d 38, 42-43.) To be valid, the consent must be freely and voluntarily given. Whether a consent is voluntary is a question of fact to be determined from all of the circumstances. Callaway, 167 Ill. App. 3d at 877, 522 N.E.2d at 340.

In the present case, the trial court based its ruling on the undisputed fact that Horace consented to the search. It is axiomatic that consent to a search must be voluntary. It is further settled that consent need not be given by the defendant. “Rather, any person who has access to or control of the property for most purposes has authority to consent to a search, and the evidence seized during the search may be used against defendant.” People v. Bolden (1987), 152 Ill. App. 3d 631, 635, 504 N.E.2d 835, 839, cited in People v. Harris (1990), 199 Ill. App. 3d 1008, 1013, 557 N.E.2d 1277, 1280.

The authority that justifies third-party consent is not based on the law of property, but is based rather on mutual use of the property by persons generally having joint access or control for most purposes. Therefore, it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right, and that the others have assumed the risk that one of their number might permit the common area to be searched. Brown, 162 Ill. App. 3d at 536, 515 N.E.2d at 1290, quoting United States v. Matlock (1974), 415 U.S. 164, 171 n.7, 39 L. Ed. 2d 242, 250 n.7, 94 S. Ct. 988, 993 n.7.

A corollary to the concept of common authority applies when a parent gives a third-party consent to search the property of a minor. It is reasonable to recognize that “a parent may consent to a warrant-less search of his [or her] minor child’s property as a part of the parent’s right and duty to exert parental authority and control over minor children.” (Annot., 4 A.L.R.4th 196, 204 (1981).) This court has specifically held as follows:

“We believe that there is implicit in the rights and duties imposed upon a parent, the right to exert parental authority and control over a minor son’s [or daughter’s] surroundings ***.” In re Salyer (1977), 44 Ill. App. 3d 854, 859, 358 N.E.2d 1333, 1336.

Additionally, our supreme court has recently held as follows:

“But this court has not decided what standard the alleged consent has to meet or whether the consent needs to be unequivocal and specific. We now hold that, when a court is deciding whether consent was given (not whether that consent was voluntary), the circumstances must have been such that the police could have reasonably believed they had been given consent to enter.” People v. Henderson (1990), 142 Ill. 2d 258, 299, 568 N.E.2d 1234, 1254, citing Illinois v. Rodriguez (1990), 497 U.S. 177, 111 L. Ed. 2d 148, 110 S. Ct. 2793.

Applying these principles to the present case, we uphold the trial court’s denial of defendant’s motion to suppress evidence. Detective Moran believed that Horace could consent to the search of the car because defendant was 16 years old and because Horace paid for the car. After considering the totality of the circumstances, the trial court found that the police acted in good faith and could reasonably believe that Horace could consent to the search. We cannot say that the trial court’s determination was manifestly erroneous. See, e.g., State v. Braxton (1978), 294 N.C. 446, 465, 242 S.E.2d 769, 780; State v. Dhaemers (1967), 276 Minn. 332, 338, 150 N.W.2d 61, 65.

Ill

Defendant lastly claims that his prison sentence of 70 years was improper and excessive. It is true that Supreme Court Rule 615(b)(4) authorizes this court to reduce a criminal sentence. (134 Ill. 2d R. 615(b)(4).) However, a sentencing decision is a matter of judicial discretion and, so long as the sentence is within the statutory limits, we hesitate to exercise our power to reduce it absent a finding that the trial court exceeded its discretion. People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883.

A

Defendant argues that the 20-year sentence on the armed robbery conviction should be vacated because “the acts on which the armed robbery conviction was based represent a segment in a rapid succession of events leading to the murder.”

It is established “ ‘that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.’ ” (People v. Myers (1981), 85 Ill. 2d 281, 287-88, 426 N.E.2d 535, 538, quoting People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 845.) “As long as there are multiple acts as defined in King, their interrelationship does not preclude multiple convictions and the imposition of concurrent sentences based upon them.” Myers, 85 Ill. 2d at 288, 426 N.E.2d at 538.

In the case at bar, defendant had already committed the offense of armed robbery when he committed the separate offense of murder. Defendant repeatedly shot at the victim as he attempted to escape. This act occurred after defendant robbed, stabbed, and threatened the victim with a gun. We conclude that defendant was properly charged with the separate offenses of murder and armed robbery. See, e.g., People v. Withers (1976), 38 Ill. App. 3d 77, 80, 347 N.E.2d 393, 396; People v. Thompson (1972), 3 Ill. App. 3d 684, 690, 278 N.E.2d 1, 6.

Defendant also argues that the 15-year sentence on the residential burglary conviction should be vacated because “the trial court merged the residential burglary with the murder charge.” Defendant misreads the record. The record shows that the trial court convicted defendant of murder, armed robbery, and residential burglary. The court found that the robbery charge merged into the armed robbery conviction. The record does not contain any reference whatsoever to a merger of the residential burglary charge into any other offense. We cannot say that the trial court exceeded its discretion on this issue.

B

Defendant next argues that his 70-year, extended-term sentence is disproportionate when compared against: (1) “sentences imposed for murder on other youthful defendants,” (2) “other murders for which a lesser term has been imposed,” (3) “the terms imposed for murder convictions based on similar facts,” and (4) “sentences imposed by the same judge for murders containing equal or greater aggravation.”

This court has previously rejected such a “proportionality” argument. We observed:

“Initially, we note that persons who commit crimes independently are seldom, if ever, similarly situated. Furthermore, it would be a futile act to require a sentencing court to consider the sentences previously imposed on other defendants who were convicted of a particular type of crime ***.” (People v. Conaway (1981), 101 Ill. App. 3d 202, 204, 427 N.E.2d 1302, 1304.)

The trial judge is normally in a better position to determine punishment than a reviewing court. A trial judge properly bases a sentence on the particular circumstances of each individual case, including the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, and age. The trial judge has the superior opportunity to consider these factors; we have before us only the cold record. Perruquet, 68 Ill. 2d at 154, 368 N.E.2d at 884.

After reviewing the record in the present case, we cannot say that the trial court exceeded its discretion. The 70-year extended sentence was within the statutory range. (See Ill. Rev. Stat. 1989, ch. 38, pars. 1005—5—3.2(b)(3)(ii), 1005—8—2(a).) The record shows that the trial court considered many different factors prior to imposing sentence. We hold that defendant’s extended sentence of 70 years was proper and not excessive.

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

Affirmed.

JIGANTI, P.J., and McMORROW, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE JIGANTI

license: Public Domain

text:
    STELLA SHEFTS, Special Adm’x of the Estate of Stanley Shefts, Deceased, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (4th Division)
    No. 1—91—0020
    Opinion filed September 30, 1992.
    Rehearing denied December 2,1992.

      Albert E Hofeld and Howard Schaffner, both of Hofeld & Schaffner, of Chicago, for appellant.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Brian Trubitt, Assistant Corporation Counsel, of counsel), for appellee.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Stella Shefts, appeals from the circuit court’s granting of summary judgment in favor of the defendant, the City of Chicago (City). In her complaint for wrongful death, Shefts alleges that on May 14, 1990, her husband became short of breath while at home and also began to perspire. Recognizing that her husband was having a heart attack, Shefts telephoned 911 to secure emergency medical help. Shefts spoke with the 911 operator/dispatcher. The complaint further alleges that Shefts told the operator that her husband was having a heart attack and that an ambulance should be sent immediately to transport her husband to St. Margaret’s Hospital in Hammond, Indiana, which was the closest hospital and also where her husband’s doctor was on staff. The operator told Shefts that her husband would not be taken to St. Margaret’s Hospital, SVa miles from her home, but would be transported to South Chicago Hospital, seven miles from her home. At that point, Shefts decided to contact a private ambulance service to take her husband to St. Margaret’s Hospital. Shefts alleges that as a result of the City’s failure to send an ambulance, her husband was deprived of medical attention for at least 30 minutes. Shefts’ husband was pronounced dead on arrival to St. Margaret’s Hospital.

Count I of Shefts’ complaint charged the City with willful and wanton misconduct; count II charged gross negligence. Both counts claimed that the City’s misconduct in failing to send an ambulance was the direct and proximate cause of her husband’s death. The City filed a motion for summary judgment and attached a copy of the transcript of Shefts’ phone conversation with the 911 operator as well as affidavits attesting to the accuracy of the transcript. Shefts filed a memorandum in answer to the motion which was not accompanied by affidavits or any other evidence. The court granted the City’s motion, and Shefts filed a motion to vacate, attaching Shefts’ and her attorney’s affidavits. The attorney’s affidavit stated that he believed that the City’s custom and practice required that Shefts’ husband be taken to the Hammond hospital. The motion was denied and Shefts appeals.

Our sole function in reviewing the trial court’s entry of summary judgment is to determine whether the lower court correctly ruled that no genuine issue of material fact had been raised, and if none was raised, whether judgment was correctly entered as a matter of law. (Blankenship v. Dialist International Corp. (1991), 209 Ill. App. 3d 920, 568 N.E.2d 503.) Summary judgment is appropriate only when the pleadings, depositions, affidavits, and admissions on file present no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005.) Moreover, it is well established that the pleadings, depositions, admissions, and affidavits in support of the summary judgment motion are to be construed most strictly against the moving party and liberally in favor of the opponent. Pyne v. Witmer (1989), 129 Ill. 2d 351, 543 N.E.2d 1304.

The City’s motion for summary judgment alleged that the City had no duty under the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85, par. 5—101) to provide emergency medical services to Shefts’ husband, and further, under the Emergency Telephone System Act (Ill. Rev. Stat. 1987, ch. 134, par. 45.1), the City could not be held liable for any act or omission, except for willful and wanton misconduct and that the City’s conduct did not meet that standard.

We note that the City’s motion for summary judgment encompassed the allegation that the City was immune from liability under the Tort Immunity Act. We believe this allegation should have been filed in a separate motion to dismiss. (Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605.) The failure to do so confused both the parties and the court and unduly extended the trial court hearings on the summary judgment motion.

On the issue of immunity, the City contends that under section 5— 101 of the Tort Immunity Act, the City has no duty to establish an emergency service and, therefore, the City is immune from tort liability.

This issue was addressed in Barth v. Board of Education (1986), 141 Ill. App. 3d 266, 490 N.E.2d 77, where the court' held that the City’s 911 system is an emergency service under the Emergency Telephone System Act and not a police protection service. Therefore, the Tort Immunity Act did not apply and the applicable standard of liability was that of willful and wanton misconduct.

Similarly, in the instant case, we believe that in spite of the fact that Shefts was connected to the fire department when she placed her call to 911, this fact was insufficient to contradict the standard of liability that is expressly imposed on public agencies and their employees who operate and implement the 911 service. We thus apply the standard of willful and wanton misconduct to the City in assessing the court’s entry of summary judgment.

We now address the issue of fact which was appropriately brought in the City’s summary judgment motion. We agree with Shefts’ definition of what constitutes willful and wanton misconduct. The acts must reflect a reckless disregard or an utter indifference for the safety of others. (Schneiderman v. Interstate Transit Lines, Inc. (1946), 394 Ill. 569, 69 N.E.2d 293.) Willful and wanton misconduct “ ‘ “approaches the degree of moral blame attached to intentional harm, since the defendant deliberately inflicts a highly unreasonable risk of harm upon others in conscious disregard of it.” ’ ” Loitz v. Remington Arms Co. (1990), 138 Ill. 2d 404, 416, 563 N.E.2d 397, quoting Bresland v. Ideal Roller & Graphics Co. (1986), 150 Ill. App. 3d 445, 457, 501 N.E.2d 830, quoting Restatement (Second) of Torts §886A, Comment k (1979).

Shefts contends that the affidavits and the undenied allegations in the complaint presented a question of fact as to whether the operator was guilty of willful and wanton misconduct. Shefts further argues that the operator’s admitted refusal to follow standard procedure to aid a known heart attack victim should qualify as willful and wanton.

Attached to the City’s summary judgment motion was the transcript of the conversation which Shefts had with the 911 service and reads as follows:

“Ms. Bonner: Fire Department, Bonner.
Mrs. Shefts: I would like to have an ambulance take my husband to St. Margaret’s Hospital in Hammond.
Ms. Bonner: We won’t take him to a hospital in Hammond. First of all, what’s wrong with him?
Mrs. Shefts: Well, he’s sweating profusely and he can’t catch his breath.
Ms. Bonner: What is your address?
Mrs. Shefts: 13318 Buffalo Avenue.
Ms. Bonner: Alright now.
Mrs. Shefts: I, I, — Daley’s Ambulance Service is not too far from here but I can’t find their number. D-A-L-E-Y in Cal City.
Ms. Bonner: Alright now, we’ll send the ambulance over there Ma’am.
Mrs. Shefts: Well, he has to go to Hammond Hospital. If you can’t send an ambulance that will take him to St. Margaret’s Hospital, I don’t need you. You know what I mean. I have to go to Hammond Hospital — that’s where his doctor is.
Ms. Bonner: Alright, well, I can give you the private ambulance number. Did you check your telephone book under ambulances to find Daley’s number? Did you call?
Mrs. Shefts: No, I didn’t. I thought if I called I could get help. What is that number please?
Ms. Bonner: 637-5400.
Mrs. Shefts: Is that the Daley number?
Ms. Bonner: That’s the Metropolitan Ambulance Service. They provide service throughout the City of Chicago.
Mrs. Shefts: Well we are on the very far south side.
Ms. Bonner: Right.
Mrs. Shefts: How far are they? Where are they?
Ms. Bonner: I don’t know their location, Ma’am.
Mrs. Shefts: Well, I’ll have to look in the ambulance myself. I’m sorry — because I can’t wait for an ambulance from downtown.
Ms. Bonner: O.K.”

The transcript illustrates that the operator was prepared to send the ambulance to Shefts’ home. Shefts flatly rejected the ambulance unless the ambulance would take her husband to the hospital of her choice. At that point, the dispatcher gave Shefts the telephone number of a private ambulance service that provided service throughout the City.

Referring to the definition of willful and wanton misconduct, with its elements of recklessness and carelessness, we do not believe the dispatcher’s conduct rises to the level required to overcome the City’s summary judgment motion. Even when we consider Shefts’ affidavit and her attorney’s affidavit which were submitted in their motion to vacate, we do not find a material issue of fact. Shefts’ affidavit states that she told the operator, even though the transcript does not reflect her statement, that her husband was having a heart attack. She further states that she knew that the difference in time between taking her husband to the next nearest hospital and the hospital in Hammond was over 20 minutes. Shefts states that she knew that it was routine for 911 ambulances to take patients from her area to the Hammond hospital because it was the closest hospital. She told the operator that she did not need the ambulance because she knew that her husband would die if he was not taken to the nearest hospital. The attorney’s affidavit attested to Shefts’ belief that her husband would die if he were not taken to the Hammond hospital.

We do not believe that what Shefts believed was required to save her husband’s life and what she believed was routine protocol for 911 ambulances is germane to whether the dispatcher’s conduct can be considered willful and wanton. Simply, the dispatcher was prepared to send an ambulance and Shefts refused the ambulance. Construing the evidence most strictly against the City, no genuine issue of material fact has been raised as to whether the dispatcher’s conduct rose to the level of willful and wanton. We accordingly affirm the court’s entry of summary judgment.

We further find that Shefts’ final argument that the court should have allowed further discovery in order to show that the operator’s conduct was willful and wanton to be without merit. The discovery requests concerned what the attorney believed the standard procedures were for the City’s emergency services. As we have already discussed, in light of the transcript of Shefts’ conversation with the dispatcher, discovery was unnecessary. Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

JOHNSON and McMORROW, JJ., concur.


text:
    WATER PIPE EXTENSION, BUREAU OF ENGINEERING LABORERS’ LOCAL UNION 1092, Plaintiff-Appellee, v. THE CITY OF CHICAGO, Defendant-Appellant.
    First District (4th Division)
    No. 1—91—1150
    Opinion filed September 30, 1992.
    Rehearing denied December 2,1992.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Mardell Nereim, Assistant Corporation Counsel, of counsel), for appellant.

      Wilson Frost and Joel L. Greenblatt, both of Frost & Greenblatt, Chartered, of Chicago, for appellee.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The defendant, the City of Chicago (City), appeals from an order of the trial court modifying an arbitration award which resulted from a grievance filed by the plaintiff, Water Pipe Extension Bureau of Engineering Laborers’ Local Union 1092 (Union). The City contends on appeal that the trial court erred in finding that grounds existed for modifying the award. Alternatively, the City contends that the court was without power to modify an arbitration award in a manner which affected the substantive rights of the parties.

The grievant, Robert Roberts, was employed by the City in its Department of Sewers as a sewer department watchman. On March 10, 1987, pursuant to a posted application for bids, Roberts submitted a bid to the Department of Sewers for the position of laborer. The sewer department lost all of the bids responding to the March 1987 posting and did not find them until April 1989.

Having failed to hear from the sewer department, Roberts submitted a bid to the water department for the position of laborer. The water department required applicants to take a physical examination. The examination results showed that Roberts, who was 75 years old at the time of the circuit court hearing, was unfit for a laborer’s position in the water department. Based on the examination results, Roberts was also unsuccessful in his bid for a laborer’s position in the sewer department. It was uncontroverted that none of the sewer department watchmen who were appointed to sewer laborer positions were required to take a physical examination.

Pursuant to the provisions of the collective bargaining agreement between the City and the Union, Roberts filed a grievance which was submitted to an arbitrator. The issue before the arbitrator was whether Roberts should be deemed a successful bidder for a sewer department laborer position. The Union’s position was that the City was unfair to Roberts because none of the other sewer department watchmen appointed to the position of laborer had been required to take a physical examination. The City’s position was that Roberts’ physical condition required a determination that he was unfit to perform the duties of a laborer.

In an opinion and award issued on December 16, 1989, the arbitrator found that the City had treated Roberts unfairly by singling him out to take a physical examination. However, the arbitrator also found that Roberts was not physically fit to hold the position of laborer and that awarding him the position with back pay “would unreasonably jeopardize his health and safety, or, at a minimum, would afford him economic relief to which he would not have been entitled had the Employer uniformly subjected all bidders to such physical examinations.” The award stated as follows:

“The Employer violated the rights of the Grievant, Robert Roberts, by selectively requiring him to take and pass a physical examination without good and proper cause as part of the selection process for the Sewer Department Laborer position. However, based upon the physical condition of the Grievant, the Employer will not be required to offer him the position or the backpay that would otherwise be due him.
The Employer is however directed to cease and desist from utilizing physical examinations to screen and select bidders for bargaining unit positions on a non uniform basis without good and proper cause.”

The Union filed an application to vacate or modify the arbitration award on the grounds that the arbitrator exceeded his power and denied Roberts his right to equal protection under the law. Following a hearing on the City’s motion to dismiss the Union’s application, the trial court found that the arbitrator’s decision was illogical and inconsistent. The court ordered that the award be modified to provide that Roberts be deemed a successful bidder for a laborer’s position in the sewer department and that he was entitled to back pay. In doing so, the court made the following findings:

“1. No other bidders for the Sewer Department Laborer position were required to take a physical examination.
2. No persuasive reason has been presented by the City of Chicago as to why the grievant, Robert Roberts, was singled out to take a physical examination.
3. The Arbitrator committed mistake in the arbitration award dated December 16, 1989, which award is the subject matter of this Application.”

The City contends on appeal that the trial court erred in modifying the arbitration award in a manner that essentially reversed the arbitrator’s decision. The City argues that no grounds existed to overturn the award.

Judicial review of an arbitrator’s award is intended to be more limited than appellate review of a trial court’s decision. (Rauh v. Rockford Products Corp. (1991), 143 Ill. 2d 377, 394, 574 N.E.2d 636.) A court may not set aside an arbitration award merely because the court would have reached a different result. (Hollister Inc. v. Abbott Laboratories (1988), 170 Ill. App. 3d 1051, 1062, 524 N.E.2d 1035.) As the Supreme Court stated in Burchell v. Marsh (1855), 58 U.S. 344, 15 L. Ed. 96:

“Arbitrators are judges chosen by the parties to decide the matters submitted to them, finally and without appeal. *** If the award is within the submission, and contains the honest decision of the arbitrators, after a full and fair hearing of the parties, a court of equity will not set it aside for error, either in law or fact. A contrary course would be a substitution of the judgment of the chancellor in place of the judges chosen by the parties, and would make an award the commencement, not the end, of litigation.” Burchell, 58 U.S. at 349, 15 L. Ed. at 99.

The Union advances two arguments in support of the trial court’s order modifying the arbitration award. First, it contends that the award was properly overturned because of a mistake of law on the part of the arbitrator. Second, the Union maintains that the arbitrator exceeded his authority.

The Union’s first contention is that the arbitrator committed a mistake because he determined that Roberts was not entitled to a laborer’s position despite finding that he was treated unfairly by the City. The Union does not assert that the arbitrator was mistaken as to the facts, but rather that his determination was inconsistent with his findings. It argues that the arbitrator’s failure to remedy the unfair treatment served to deny Roberts his right to equal protection of the law as guaranteed by the Illinois Constitution.

It is well established that errors of judgment in law are not grounds for vacating an arbitrator’s award. (Board of Education v. Chicago Teachers Union, Local No. 1 (1981), 86 Ill. 2d 469, 477, 427 N.E.2d 1199.) Only where it appears on the face of the award that the arbitrator was so mistaken as to the law that, if apprised of the mistake, the award would be different may a court review the legal reasoning used to reach the decision. (Board of Education, 86 Ill. 2d 469, 427 N.E.2d 1199.) As stated in White Star Mining Co. v. Hultberg (1906), 220 Ill. 578, 606, 77 N.E. 327, 337, arbitrators chosen to decide cases according to the law were, “in the absence of an expressed intention to the contrary, *** to be their own judges as to what the law was, otherwise the parties would have provided that the case should be subject to review by the courts or that the legal questions should be referred to some other tribunal for final determination.”

The trial court found that the arbitrator’s decision was illogical and inconsistent. According to the principles of law stated above, this is an insufficient basis upon which to overturn an arbitration award. Nor can we conclude from the face of the award that the arbitrator was so mistaken as to the law that, if apprised of the mistake, his award would have been different. The law relied upon by the Union is the equal protection clause of the Illinois Constitution. (Ill. Const. 1970, art. I, §2.) It has been held that the application of the equal protection clause is limited to instances of purposeful or invidious discrimination and is violated only where the government withholds from a person a right, benefit or privilege without a reasonable basis for the governmental action. (Chicago National League Ball Club, Inc. v. Thompson (1985), 108 Ill. 2d 357, 367, 483 N.E.2d 1245.) Here, the arbitrator determined that even though the City treated Roberts unfairly by considering the results of his physical examination, it was not unreasonable for the City to deny him a job he was physically unfit to perform. The face of the award does not establish that the arbitrator was mistaken as to the law, but merely that he determined that it led to a different result than did the trial court. We therefore find no basis for vacating the award on the grounds of mistake.

The second contention made by the Union is that the arbitrator’s award was properly overturned on the grounds that the arbitrator exceeded his authority. The only argument made in support of this contention is that the arbitrator exceeded his authority because he made what the Union believes was an incorrect decision.

An arbitrator exceeds his authority when he decides matters which were not submitted to him. (Board of Trustees of Community College District No. 508 v. Cook County College Teachers Union, Local 1600, AFT, AFL/CIO (1979), 74 Ill. 2d 412, 419, 386 N.E.2d 47.) The arbitrator in the instant cause was asked to decide whether Roberts should be deemed a successful bidder for a laborer’s position in the sewer department. The arbitrator decided that he should not. We therefore find no merit to the contention that the arbitrator exceeded his authority.

Based on our disposition of this cause, it is unnecessary for us to reach the question of whether the trial court had the power to modify an arbitration award in a manner which affected the substantive rights of the parties.

Accordingly, the judgment of the circuit court is reversed.

Reversed.

JOHNSON and McMORROW, JJ., concur.


author: JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY ROBINSON, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—1345
    Opinion filed October 5, 1992.
    Rehearing denied November 23,1992.

      Randolph N. Stone, Public Defender, of Chicago (Henry L. Hams, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Christine Perille, Special Assistant State’s Attorney, and Renee Goldfarb and Randall Roberts, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MANNING

delivered the opinion of the court:

Defendant Anthony Robinson appeals from his conviction and sentence of 30 years’ imprisonment for murder after being convicted by a jury for the shooting death of Charles Watson. On appeal defendant raises three issues: (1) whether the trial judge improperly injected his own bias during the hearing on defendant’s motion to suppress his confession; (2) whether the court abused its discretion by denying defendant’s motion to dismiss a juror for cause; and (3) whether the prosecution made improper remarks during the closing argument which necessitates a new trial. We affirm.

Defendant first asserts that the trial judge erred by injecting his own bias into the determination of whether or not defendant’s inculpatory statement should have been suppressed. Defendant contends the trial judge considered facts which were not in evidence when he commented about his own boxing and football experiences and his disbelief of the lack of injuries shown by defendants claiming to have been beaten by the police.

Defendant filed a motion to suppress a statement which was given to the police and assistant State’s Attorney in January 1988 concerning his involvement in the robbery and murder of Charles Watson. Primarily, defendant asserted that he was repeatedly kicked and slapped by several police officers during his interrogation in late July. He claimed that the beating lasted for several hours and estimated that he was hit in the face approximately 25 to 50 times and kicked approximately 25 to 50 times. During the beating, he was screaming loudly and blood was splattered all over his nose, ear and clothes.

At the suppression hearing, testimony in support of the motion was presented which revealed that on or about July 30, 1987, four police officers went to defendant’s apartment and questioned him about the whereabouts of an acquaintance, Fitzgerald Stewart. At that time, defendant responded that he had not seen Stewart since the previous day. Within the next day or so, the officers returned and transported defendant and his sister Antoinette to the police station where they were placed in the same room for about 45 minutes. Then, the two of them were placed in separate rooms where, according to defendant, the beating occurred. Although his injuries were not immediately visible, afterwards defendant realized that his nose and mouth were swollen and his ribs and ear were bruised. However, defendant did not seek medical treatment for his left ear until three days later when he went to the hospital.

A stipulation was entered into evidence which supported defendant’s claim that he sought and received medical treatment for a perforated ear drum on August 4, 1987. Additionally, Antoinette testified that she heard her brother holler “don’t hit me no more.” She observed her brother in the interrogation room handcuffed to a wall and bleeding from his nose and mouth. She also recalled that when defendant returned home he was limping and said that he had been kicked in the groin area.

Defendant also testified that he was arrested on January 18, 1988, and brought back to Chicago from Dixon, Illinois, where Officer Kill and another officer slapped him a few times. Because he was frightened and felt he had no other choice, he agreed to sign the papers and gave a statement to the assistant State’s Attorney about the murder of Watson.

In opposition to the motion to suppress the statement, Detectives Foley, Smith and Kill all denied hitting, threatening or making promises to defendant while he was in custody. According to Foley and Smith, Detectives Foley and Byron had a conversation with defendant on July 31, 1987, for about 20 minutes; however, defendant was not in custody at the time and had not been charged with a crime.

The officers also testified that six months later, Detective Smith and his partner, Rusnak, travelled to Dixon, Illinois, and placed defendant in custody based on a murder warrant which had been issued in Chicago. They arrested defendant and advised him of his Miranda rights before driving him back to Chicago. They also fed him. When they arrived at the station, at about 4 p.m., defendant was again advised of his Miranda rights, indicated he understood those rights and voluntarily spoke to the police. Detective Kill, who took over the investigation at about 5 p.m., stated that he didn’t see any signs of injury at that time. About an hour later, Kill reentered the room, handcuffed defendant and moved him to another room where defendant again was given his rights, waived them and gave a statement to Kill about the incident.

At approximately 6:45 p.m. Assistant State’s Attorney Kranig arrived at the station, and after speaking to the defendant, he obtained an oral statement which was reduced to a five-page written statement. Kranig testified that defendant agreed to make a statement and he never complained of mistreatment by the police. The last portion of the signed statement indicated that defendant was treated well, given food and drinks, and was not threatened or promised anything.

After counsel presented their arguments and the trial judge heard all of the evidence, he denied defendant’s motion to suppress based on the lack of credibility of defendant’s testimony. In making his ruling, the trial judge questioned defendant’s story about being hit 25 to 50 times by the police, yet defendant failed to tell the assistant State’s Attorney about the beatings. The court stated:

“Well, I think the case boils down to the credibility issue, if the officer did hit him twenty-five to fifty times; that he had to go to the hospital. I have boxed and played football in my younger years. I’m always amazed when I hear these individuals who are hit, slapped and so forth in the police station as much as they were and the little amount of injuries which are sustained as a result of all these beatings that they have in the police station.
I think the greatest thing the State’s Attorney of Cook County did was when they started sending Assistant State’s Attorneys over to police stations afterwards. And here we have an Assistant State’s Attorney who didn’t appear being the [sic] vagus witness I have seen in my life, probably the opposite.
And here he is, he is in with the individual for half an hour. He didn’t tell him anything about any beating. He didn’t tell anything except he gave a statement. Basically, he says the police [sic] treated him, fine. And he basically says he ate.
The credibility issue here has to completely and totally go in favor of the State. Therefore, your Motion is denied.”

Defendant contends since the trial judge’s references to his boxing and football experiences and his recollections regarding injuries of past criminal defendants were not subject to cross-examination or the rules of evidence, defendant was denied his constitutional right to due process of law. He argues that while acting under the guise of authority, officers can use both psychological and physical methods to obtain confessions and that police officers when inflicting physical abuse may avoid methods which result in visible signs of injury to defendants. In further support of his argument that the trial judge here was not a fair and impartial jurist, defendant points to another remark made by the judge during voir dire. Prior to the jury selection, the public defender objected to the racial composition of the venire on the ground that it did not represent a cross-section of the community since it contained only four African-Americans. When defense counsel remarked that defendant was constitutionally entitled to a jury of his peers, the court asked “[w]ho are his peers?” When counsel replied “[t]he community, the judge inquired, “[p]eopIe charged with armed robbery and murders?” The judge then denied the motion for a mistrial, stating that there had been no showing of an improper selection in the jury room.

When defendant raises a claim of involuntariness of a confession, the State must establish that the confession was voluntary by a preponderance of the evidence. (People v. Clark (1986), 114 Ill. 2d 450, 457, 501 N.E.2d 123.) The test of voluntariness is whether the statement was made freely, voluntarily and without compulsion or inducement of any sort or whether defendant’s will was overcome at the time he made the statement. (People v. Prim (1872), 53 Ill. 2d 62, 70, 289 N.E.2d 601.) When conflicting evidence is presented, the trial court resolves the issues of credibility, and a reviewing court will not substitute its judgment for that of the trial court unless the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Ross (1985), 132 Ill. App. 3d 553, 558, 478 N.E.2d 27.) The trial court’s finding will not be reversed unless such finding is contrary to the manifest weight of the evidence. (Clark, 114 Ill. 2d at 457.) The reviewing court, in reaching its determination, may consider evidence presented at the suppression hearing and the evidence adduced during the trial. People v. Caballero (1984), 102 Ill. 2d 23, 35-36, 464 N.E.2d 223.

In the present case, we find since the trial court’s decision is not against the manifest weight of the evidence, its ruling will be affirmed. In People v. Mackey (1990), 207 Ill. App. 3d 839, 861, 566 N.E.2d 449, defendant also claimed that he confessed due to police coercion under circumstances in which the police injured his ear. He reported an ear injury two days after being arrested and presented the testimony of the doctor who examined him 10 days after his arrest. Defendant there reported to the doctor that he had been hit by the police, and the examination confirmed an injury to his ear. However, the cause of the injury or when it was inflicted could not be determined. This court refused to reverse the trial court’s ruling in Mackey that the confession was voluntary.

Strikingly similar to Mackey, the defendant here had a witness with a close relationship to him testify on his behalf. His sister Antoinette testified that she heard defendant scream and observed him handcuffed to the wall in the interview room. She also observed that he was bleeding from the nose and mouth. However, Antoinette’s testimony contradicted that of the investigating police officers. Further, her testimony was inconsistent with defendant’s testimony of injury to his ear. Neither was the doctor who testified for defendant able to see any physical injuries. Unlike the defendant in Mackey, who sought medical treatment 10 days following the arrest, the defendant here sought medical treatment within three days of the alleged beating; yet, the doctor was unable to find visible signs of the type of injuries defendant now complains were inflicted upon him by the police.

We recognize that more than a mere denial by the police is required to deny a motion to suppress. (See People v. Banks (1989), 192 Ill. App. 3d 986, 549 N.E.2d 766.) In the present case, the police denied beating defendant. There was no evidence of a prompt outcry to other police personnel. The defendant did not complain of mistreatment to the assistant State’s Attorney who interviewed him. There was no corroborative medical evidence or physical evidence other than the perforated eardrum which could have been caused by a number of factors. In addition, defendant did not seek medical treatment until three days after the first alleged beating and presented no corroborative evidence of police coercion after the alleged second beating.

Accordingly, we believe, as in Mackey, the defendant has failed to prove that the trial court’s ruling was against the manifest weight of the evidence.

With respect to the statements made by the trial judge during voir dire, we note that the remarks made to counsel outside of the presence of the jury were better left unsaid. However, such statements cannot be said to have any bearing on the propriety of the court’s ruling on the motion to suppress. Neither have we found rebuttal in the record to the presumption that the trial court considered only competent evidence when reaching its determination. (See People v. Phillips (1989), 127 Ill. 2d 499, 538 N.E.2d 500; People v. Gilbert (1977), 68 Ill. 2d 252, 369 N.E.2d 849.) To the contrary, the trial court’s discussion centered on the credibility of the witnesses and defendant’s testimony and did not violate his right to due process of law.

Defendant next contends that the trial court erred when it refused to grant his motion to dismiss prospective juror Melburn Anglin for cause. Defense counsel argued that Anglin, who was an inspector of police in Country Club Hills, Illinois, had too close a relationship with law enforcement personnel to be impartial. Counsel asserted that Anglin was well acquainted with many judges and attorneys, including one of the prosecuting attorneys in the instant case; that he testified in court often; that he had been a victim of an assault and battery; and that his home had been burglarized. Because Anglin responded he could be fair and impartial to both sides, the judge denied defendant’s motion to dismiss him for cause.

Defendant then exercised a peremptory challenge to excuse Anglin from the jury. On appeal, defendant has failed to allege that he exhausted his peremptory challenges when he excused Anglin or that an objectionable juror was subsequently forced upon him after he exhausted his peremptory challenges. In the precedential case of Spies v. People (1887), 122 Ill. 1, 12 N.E. 865, the trial court had overruled defendant’s challenges for cause to jurors. The reviewing court held even if a defendant has exhausted his peremptory challenges, no error will be found unless it is shown that an objectionable juror was forced upon the defendant after he had exhausted his peremptory challenges. Cases following Spies have likewise found no reversible error under these factual circumstances, either on the theory of harmless error (People v. Harris (1990), 196 Ill. App. 3d 663, 677, 554 N.E.2d 367), or waiver (People v. Green (1990), 199 Ill. App. 3d 927, 929-31, 557 N.E.2d 939; People v. Washington (1982), 104 Ill. App. 3d 386, 392, 432 N.E.2d 1020). In each of the foregoing decisions, the court found that, by failing to indicate they were forced to accept an objectionable juror, the defendants denied the trial court the opportunity to cure the alleged error by exercising its inherent power to grant the defense an extra peremptory challenge.

Accordingly, based on the foregoing analysis, we hold that defendant’s failure to indicate to the trial court that he was being forced to accept an objectionable juror because of the court’s refusal to excuse Anglin for cause denied the court an opportunity to cure the error. We also adopt the rationale and further analysis of this issue found in People v. Delgado (1992), 231 Ill. App. 3d 117, 590 N.E.2d 149.

Finally, defendant asserts that he was denied a fair trial because the prosecutor’s comments made during closing argument improperly attacked one of the defense witnesses. The record reveals that after talking with Tina Jackson, defendant’s ex-common-law wife, on August 13, 1987, Detective Drish obtained a warrant for defendant’s arrest. Allegedly, Tina had told the detectives that defendant came to her home on July 28, 1987, and admitted that he and Stewart had killed Watson. However, at trial Tina recanted her testimony. Tina also testified that she was kept in a cage at the station for two days back in 1987 and questioned; however, the officers were unable to fully understand her because she was high on POP.

During closing argument, the prosecutor commented that Tina Jackson was not to be believed in her attempt to recant an earlier statement. The prosecutor remarked that she was high on POP at the time of the trial. He stated:

“We heard Tina Jackson here today. Can we believe anything that Tina Jackson said? We have no idea. That girl didn’t know where she was today. She was high on narcotics today as she stood in that witness stand. She didn’t know what she was saying. Probably the only time she ever told the truth in her life is on August 13, 1987, when she told the police that ‘my boy friend, Tony Robinson, came over to my house with a gun and said, “We killed Charlie Joe, me and Fitzgerald, we killed him. We shot him. We took his money, we took his drugs, and we booked.” ’ That is the only time Tina Jackson probably ever told anybody the truth.”

Defense counsel objected; however, the trial court noted the objection and stated that the jury “heard the evidence.”

The State first contends the issue of alleged prosecutorial misconduct is waived on appeal because defendant failed to specifically include the error in his motion for a new trial. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) A review of the record indicates that counsel objected at trial when the complained-of comments were made; however, he failed to state the specific grounds he now alleges on review. Further, he failed to mention the specific complained-of comments in his post trial motion. We have held that the general allegation of a prejudicial closing argument is too vague to preserve the issue for review. People v. Buchanan (1991), 211 Ill. App. 3d 305, 312, 570 N.E.2d 344; People v. Thomas (1983), 116 Ill. App. 3d 216, 452 N.E.2d 77.

Accordingly, we hold since defendant failed to include this alleged error in his post-trial motion, he is precluded from raising it on review. Were we to review this issue, nevertheless, we would conclude that the complained-of remarks do not require reversal. A prosecutor is permitted to comment on the credibility of witnesses if the comments are based on the facts of the record or inferences drawn from those facts. (People v. Flores (1989), 128 Ill. 2d 66, 94, 538 N.E.2d 481.) When the evidence and Tina’s admission of past drug use are considered in conjunction with her trial testimony and behavior, in which she rambled on and on, was often unresponsive to the questions asked and appeared to be unaware of her surroundings, we believe the prosecutor’s comments here were proper remarks on the demeanor and credibility of Tina; moreover, they were proper inferences based on her own testimony and behavior exhibited at trial. Further, the jury received instructions telling them that opening and closing statements should not be considered as evidence.

Based upon the foregoing, we affirm defendant’s conviction for murder.

Affirmed.

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


author: JUSTICE JOHNSON

text:
    THE VILLAGE OF ARLINGTON HEIGHTS, Plaintiff-Appellee, v. MORTON KANTOFF, d/b/a Northwest-V.I.P., Inc., Defendant-Appellant.
    First District (4th Division)
    No. 1—91—1820
    Opinion filed October 22, 1992.
    Rehearing denied December 28,1992.

      Burton Berger & Associates, of Chicago (Burton Berger and Adrienne M. Zibelman, of counsel), for appellant.
    Ernest R. Blomquist, of Massucci, Blomquist & Brown, of Arlington Heights, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

This proceeding arose from a suit brought by plaintiff, the Village of Arlington Heights (hereinafter, the Village), against defendant, Morton Kantoff, for failure to improve a parcel of real estate which he bought from the Village on June 21, 1982. The property was to be used temporarily as a parking lot until it was developed. Defendant filed a motion to dismiss contending that he was bound by no terms other than those specifically addressed in the ordinance of conveyance. The trial court denied defendant’s motion. The court then ruled in favor of the Village. This appeal followed.

Ordinance No. 82 — 73 is an ordinance authorizing the sale of real estate. It describes the sale of property located at the northwest corner of Northwest Highway and Douglas Avenue in Arlington Heights, Illinois. The property was rezoned from P — 1 (public property) to B — 3 (business).

The Village’s acceptance of defendant’s bid was subject to certain terms and conditions. One of these conditions was that the land could be used by the purchaser for parking pending development. On October 18, 1983, this condition was reiterated in a rider entered between the parties.

On November 28, 1990, the Village cited defendant for violating sections 11.2 — 12.2 and 6.16 — 1.2 of the Village of Arlington Heights Municipal Code. According to the Village, these ordinances are implied terms of sale that involve this parcel because of its parking lot character and use. They require off-street parking areas to be surfaced and screened. Defendant contends that he is not bound by these regulations because neither they nor any other ordinances were specifically mentioned in the ordinance authorizing the sale of real estate.

On May 8, 1991, defendant’s motion to dismiss was denied. The trial court found that the ordinance of conveyance did not grant defendant permanent relief from the municipality’s regulations for parking facilities. This matter was set for trial but never tried. Defendant is appealing the judgment of May 8, 1991. Counsel for both parties have stipulated that this is an appeal from a declaratory judgment. Therefore, this appeal is taken pursuant to the provisions of Illinois Supreme Court Rule 301 (134 Ill. 2d R. 301) from a final judgment entered in the third municipal district of the circuit court of Cook County, Illinois.

There are two issues on appeal. First, defendant contends that the trial court erred by not recognizing and considering all of the terms and conditions of ordinance No. 82 — 73. Second, defendant contends that the trial court erred in finding that the ordinance of conveyance was subject to other existing ordinances and regulations.

We affirm.

Simply put, ordinance No. 82 — 73 authorizes the sale of real estate. Section 1 describes in detail the parcel of land that the Village sold to defendant. The section at issue, section 2, states the following:

“[T]he former use of said property was for a water well site and storage facility. That said land is presently vacant and will be used by the purchaser for parking while waiting for development.” (Emphasis added.)

Section 3 is also important as it details the terms and conditions to which the order of conveyance is bound. Similar to section 2, section 3(b) states the following:

“[T]he sale of the real estate hereinabove described is subject to the following terms and conditions:
b. That the purchaser shall be entitled to use said real estate for parking purposes pending development ***.”

Section 4 involves the enforcement of this ordinance.

“The law in existence at the time and place a contract is made is deemed part of that contract to the same extent as though expressly referred to or incorporated in the contract.” (Horwath v. Parker (1979), 72 Ill. App. 3d 128, 131.) Thus, “[w]here *** a municipal ordinance is applicable to a contract it becomes by operation of law an implied term of that contract.” Bethel Terrace, Inc. v. Village of Caseyville (1976), 43 Ill. App. 3d 276, 279. See McMahon v. Chicago Mercantile Exchange (1991), 221 Ill. App. 3d 935, 947-48.

In the instant case, the contract concerns the conveyance of a parcel of land. The law concerning real estate contracts is as follows:

“It is settled law that all contracts for the purchase and sale of realty are presumed to have been executed in the light of existing law, and with reference to the applicable legal principles. [Citation.] Thus, the law existing at the time and place of the making of the contract is deemed a part of the contract, as though expressly referred to or incorporated in it.” Schiro v. W.E. Gould & Co. (1960), 18 Ill. 2d 538, 544.

A court must determine the intention of the parties by close examination of the language used in the contract. (Green v. Ashland Sixty-Third State Bank (1931), 346 Ill. 174, 182.) Further, our supreme court has stated the following:

“One who contracts cannot be relieved of the obligation of his contract, which binds him to perform his agreement, without the consent of the other party, and he has no right to impose a condition not provided for in the contract itself.” Green, 346 Ill. at 183-84.

It is not the duty of the court to improve the contractual terms agreed upon by the parties. (Volid v. Volid (1972), 6 Ill. App. 3d 386, 393.) Parties who decide to contract with each other cannot accept the “benefits of a contract without taking therewith the obligations imposed by that contract.” (Industrial Loan & Trust Co. v. Bell (1939), 300 Ill. App. 502, 507-08.) One of these obligations is to abide by the applicable legal principles. Courts cannot change contracts for parties who were misinformed as to the legal effect of the terms and provisions of their contract. In re Estate of McIlrath (1934), 276 Ill. App. 408, 415.

Given these legal principles, we now turn to the first issue. The trial court was able to completely examine ordinance No. 82 — 73 as well as the regulations at issue in the Arlington Heights Municipal Code. The finding was that the ordinance was for the conveyance of property from the Village to defendant. These municipal regulations were existing at the time the parties agreed to this sale. Further, the trial court found that nothing in ordinance No. 82 — 73 indicates that defendant was not responsible for the existing regulations of the Arlington Heights Municipal Code. In fact, the court stated as follows:

“[T]he ordinance [No. 82 — 73] was not one granting to Defendant-purchaser permanent relief from the totality of Arlington Heights ordinances affecting the use and occupancy of the parcel, specifically those attendant to screening and paving and other improvements.”

There is no question that the ordinance allows the property to “be used by the purchaser [defendant] for parking while waiting for development.” Yet, by defendant’s interpretation, his use of the property as a parking lot should be without limitations, save his own, and without the expense of abiding by the Village regulations concerning parking facilities.

The record indicates that the trial judge examined ordinance No. 82 — 73, considering all of its terms and conditions. She specifically refers to this ordinance in her findings in support of her order. She also properly considered the applicable law existing at the time this ordinance of conveyance went into effect. The Village ordinances set forth in chapter 28, sections 11.2—12.2 and 6.16—1.2, of the Arlington Heights Municipal Code became implied terms of ordinance No. 82—73 by operation of law. (See Bethel Terrace, Inc. v. Village of Caseyville (1976), 43 Ill. App. 3d 76.) Thus, it was not only proper, but absolutely essential that the trial judge consider the applicable sections of the Arlington Heights Municipal Code as well as ordinance No. 82—73, authorizing the sale of real estate.

Defendant’s misinterpretation of the totality of legal obligations included in the agreement with the Village is unfortunate. However, it is not the function of the trial court or the court on review to revise a contract whose terms were originally agreed upon by both parties. See Volid v. Volid (1972), 6 Ill. App. 3d 386; In re Estate of McIlrath (1934), 276 Ill. App. 408.

We find that the conclusions of the trial court were not against the manifest weight of the evidence. Thus, we agree with the order of the trial court that defendant should comply with the ordinances of the Arlington Heights Municipal Code.

The second contention on appeal is whether the trial court erred in finding that defendant was subject to the entire body of the Village’s existing ordinances and regulations for the use and occupancy of the property at issue. Defendant argues that the ordinance of conveyance neither mentioned nor showed an intent to be bound by an incorporated document. We disagree.

As we stated earlier, in forming a contractual agreement, it is presumed that the agreement incorporates existing applicable law. (First National Bank v. Mid-States Engineering Sales, Inc. (1981), 103 Ill. App. 3d 572, 574; Pole Realty Co. v. Sorrells (1979), 78 Ill. App. 3d 361, 364.) Thus, “ ‘the courts, in construing the existing law as part of the express contract, *** are merely construing the contract in accordance with the intent of the parties.’ ” First National Bank, 103 Ill. App. 3d at 574, quoting Schiro v. W.E. Gould & Co. (1960), 18 Ill. 2d 538, 544.

In the case at bar, municipal ordinances are a part of the existing law and there is no question as to the role of the judiciary in their interpretation. The Illinois Supreme Court stated:

“[T]he judicial role in construing statutes is to ascertain legislative intent and give it effect. To aid in accomplishing this, a court will seek to determine the objective the legislature sought to accomplish and the evils it desired to remedy.” (People v. Scharlau (1990), 141 Ill. 2d 180, 192.)

Further, it is preferable to determine the legislative intent of a statute from the plain meaning of the language. M.I.G. Investments, Inc. v. Environmental Protection Agency (1988), 122 Ill. 2d 392, 398.

The burden of proof necessary to challenge a municipal ordinance has been set forth by our supreme court as follows:

“[I]t [an ordinance] will survive constitutional scrutiny if it is rationally related to a legitimate governmental purpose [citations]. One who challenges an ordinance as failing this test of minimum rationality bears the burden of proving ‘by clear and affirmative evidence that the ordinance constitutes arbitrary, capricious and unreasonable municipal action; that there is no permissible interpretation which justifies its adoption, or that it will not promote the safety and general welfare of the public.’ ” (Triple A Services, Inc. v. Rice (1989), 131 Ill. 2d 217, 226, quoting City of Decatur v. Chastteen (1960), 19 Ill. 2d 204, 210.)

“It is well settled that unless there is a clear abuse of discretion by the municipality, this court cannot interfere.” (Village of Wheeling v. Exchange National Bank (1991), 213 Ill. App. 3d 325, 334.) The subordination of an individual’s right to freely use his property for the good of the public welfare is a legitimate use of a State’s police power. City of Evanston v. Create, Inc. (1981), 85 Ill. 2d 101, 115; Petterson v. City of Naperville (1956), 9 Ill. 2d 233, 246-47.

Given these legal principles, we now examine the facts of this second issue. The ordinances that defendant has termed “extraneous” are nothing less than the existing law that must be considered in examining the terms of ordinance No. 82—73. The Arlington Heights Municipal Code existed at the time the Village and defendant agreed to contract for the sale of realty. The particular ordinances concerning parking facilities are specifically applicable to the property at issue, which is being used as a parking lot and has been used as such for the past nine years. Thus, sections 11.2—12.2 and 6.16—1.2 of the Arlington Heights Municipal Code and cumulative regulations are the existing applicable law and should be complied with as part of the express contract for conveyance of the property.

There is no question that the ordinances at issue legitimately address a public interest in safety and in preserving the esthetic value of this property in Arlington Heights. “[C]ourts presume that the General Assembly, in passing legislation, did not intend absurdity, inconvenience or injustice.” (Carson Pirie Scott & Co. v. Department of Employment Security (1989), 131 Ill. 2d 23, 45.) There is no evidence that the demands of these regulations are in any way arbitrary, capricious or unreasonable. (Triple A Services, Inc. v. Rice (1989), 131 Ill. 2d 217, 226.) Instead, defendant contends that because no specific mention of these ordinances was included in the agreement, he cannot be bound by them.

This argument misunderstands the rights of an individual property owner relative to the State. The Village is able to legitimately exercise its municipal power to maintain the Village as a whole. Defendant may argue that he will suffer some detriment in following these regulations. However, these regulations are part of the implied terms of ordinance No. 82 — 73. Therefore, by entering into a contract with the Village, defendant assumed the responsibility to uphold these regulations as part of his contractual obligations.

In reference to the first issue, defendant argues in his reply brief that “[t]he parties mutually recognized that the obligation to immediately pave and screen, at a cost to Defendant of approximately $80,000.00, would be an unrealistic and unfair financial burden on the Defendant.” The request for defendant to uphold these parking regulations did not come “immediately” nor was the right to make such a request ever waived by the Village. With respect to the burdens of municipal ordinances, the Illinois Supreme Court has stated the following:

“The fact alone that the ordinance may operate to impose burdens or restrictions on the property which would not have existed without the enactment of the ordinance is never determinative of the question of validity.” Petterson v. City of Naperville (1956), 9 Ill. 2d 233, 247.

The general question in this case is what is entailed in ordinance No. 82 — 73, a contractual agreement for the sale of property. Therefore, the focus is not on the reasonableness or unreasonableness of defendant’s inaction, but only on whether he has fulfilled his duties under the contract. The municipal parking ordinances at issue are valid implied terms of ordinance No. 82 — 73.

For the foregoing reasons, we affirm the order of the trial court finding that defendant should comply with sections 11.2 — 12.2 and 6.16 — 1.2 of the Arlington Heights Municipal Code and with cumulative regulations of the community.

Affirmed.

JIGANTI, P.J., and McMORROW, J., concur.