author: JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SAMUEL L. SLEDGE, JR., Defendant-Appellant.
    Second District
    No. 2—87—0940
    Opinion filed June 6, 1989.

      Robert L. Rascia, of Rascia & Rascia, of Chicago, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People:
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Samuel L. Sledge, Jr., appeals his convictions after a jury trial for aggravated kidnaping (Ill. Rev. Stat. 1985, ch. 38, par. 10 — 1(a)(2), aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 16(c)(1)), unlawful restraint (Ill. Rev. Stat. 1985, ch. 38, par. 10 — 3(a)), and residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 3(a)). Defendant contends that (1) the trial court erred in denying his motion for a mistrial because the venire from which the jury was picked did not contain a fair representation of blacks; (2) the trial court erred in denying his motion for a mistrial after a witness made a reference implying that defendant had committed other crimes; (3) the trial court erred in denying defendant’s motion to suppress his oral and written statements; and (4) the State did not prove him guilty of the crimes beyond a reasonable doubt. We affirm.

On October 18, 1986, the victim, a six-year-old girl, was staying at the home of Pam and Keith Bielema, where her mother’s fiance, Joseph Foote, also resided. The victim went to sleep that night on a couch in the basement of that residence. The victim wore pajamas and slept with a pillow decorated by a cartoon character. In the early morning hours of October 19, 1986, the victim was awakened by a man who put the pillow over her face and carried her upstairs and out of the house. Once outside, the assailant dropped the victim onto the grass. The assailant then carried the victim to a small yellow car, placed her in the front seat, and drove to a nearby wooded area. The assailant told the victim to remove her clothing and subsequently touched the victim’s vagina with his hand. The assailant then allowed the victim to get dressed and drove her back to the Bielema residence. The victim did not tell anyone what had occurred until the evening of October 19, 1986, when she was questioned by her mother and Foote about the grass stains on her pajamas and the whereabouts of her pillow.

On October 22, 1986, Warren Wilkosz, a detective with the Du Page County sheriff’s department, met with the victim at her home. The victim described the assailant as a male black, approximately 25 years old, 5 feet 10 inches, with short, black matted-down hair, green teeth, and a pimple on the right cheek. The victim further stated that the assailant wore a hooded sweatshirt and blue jeans. Wilkosz showed the victim a series of six photographs; however, the victim was unable to identify anyone depicted in the photos. On the following day, after receiving information that defendant fit the description of the assailant, Wilkosz again met with the victim and showed her a second set of six photographs. Defendant was one of the persons depicted in the second photo lineup. The victim identified defendant as the man who removed her from the house.

On October 29, 1986, defendant was arrested by officers from the Village of Oakbrook Terrace after disobeying a traffic control device and fleeing from the police. Defendant was taken to the Oakbrook Terrace police station, where he made statements implicating himself in crimes unrelated to the instant action. Defendant was subsequently transferred to the Du Page County jail. Wilkosz learned of defendant’s arrest and went to the Du Page County jail to interview him about the abduction and assault on the victim in the instant action. Wilkosz advised defendant of his rights and spoke with him for approximately one hour. During that time, Wilkosz repeatedly accused defendant of committing the kidnaping and advised him that the victim identified him from a photo lineup. Defendant subsequently implicated himself in the crimes and agreed to prepare a written statement. Defendant signed a written waiver of rights form and drafted a two-page statement that he entered the Bielema residence with the intent to commit a theft, removed the victim from the residence, transported her to a nearby field, touched her vagina, intended to rape her but changed his mind, and transported her back to the Bielema residence. Defendant subsequently signed the written statement. No other witnesses were present during this interview, and no recordings were made at the time.

On November 12, 1986, defendant was charged in a four-count indictment with the offenses of aggravated kidnaping, aggravated criminal sexual abuse, unlawful restraint, and residential burglary. Prior to the trial on those charges, defendant moved to suppress his oral and written statements. Officer Wesley Galavan of the Oakbrook Terrace police department described defendant’s initial arrest. Galavan stated that defendant was advised of his rights and voluntarily gave a written statement implicating himself in crimes unrelated to the instant action. Galavan further stated that defendant did not ask for an attorney at any time and was not threatened or abused in any way. Detective Wilkosz testified that he subsequently interviewed defendant at the jail. Wilkosz stated that he advised defendant of his rights and told him that he wanted to talk about the kidnaping of a little girl in Villa Park. Wilkosz further stated that he told defendant that the victim identified him from a photo lineup, and after initially denying involvement, defendant admitted committing the crimes. Defendant subsequently prepared and signed the written statement. Wilkosz testified that defendant never asked for an attorney and was not threatened, beaten, or told that things would go better for him if he confessed.

Karen and David Eyer witnessed defendant’s initial arrest and testified on his behalf. Karen Eyer stated that she saw defendant hit his head as the officers were putting him in the car. She further testified that she did not see the officers hit defendant or verbally threaten him. David Eyer similarly testified that he did not hear any of the officers threaten defendant but stated that he saw the police officers “drag” defendant to the police car. On cross-examination, David Eyer testified that defendant was upright at all times. Defendant’s father also observed defendant’s arrest and testified that he saw one of the officers hit defendant in the head as he was placed in the squad car. Defendant’s father could not remember what part of defendant’s head was hit or if the officer used his open hand or a fist. Defendant’s father further testified that he did not hear any of the officers threaten defendant. All of defendant’s witnesses testified that the officers would not tell defendant’s father where they were taking defendant.

Defendant testified that he was physically and verbally abused during his arrest. Defendant stated that one of the arresting officers put a gun to his head while another repeatedly hit him in the stomach and side. Defendant testified that none of the officers hit him while he was being placed in the car but one of the officers “slammed” his head in the side of the car. Defendant further testified that he was verbally and physically abused at the Oakbrook Terrace police station and that an officer threatened to shock him with a stun gun unless he made a statement. Defendant stated that he asked for and was denied an attorney and subsequently made a statement before being transferred to the Du Page County jail. Defendant further testified that he requested an attorney when talking to Wilkosz and denied any involvement with the crimes in the instant action. According to defendant, Wilkosz told him that things would go easier on him if he spoke to Wilkosz first. Defendant further testified that Wilkosz told him the details of the crimes before he prepared the written statement.

Wilkosz and officers from the Oakbrook Terrace police department were called as rebuttal witnesses and denied defendant’s allegations of physical and verbal abuse or that defendant requested an attorney at any time. However, one of the officers testified that the Oakbrook Terrace police department did equip officers with stun guns. The trial court denied defendant’s motion to suppress and ruled that the testimony of the various police officers was more credible than the testimony of defendant and defendant’s witnesses.

Defendant also moved to quash his arrest and suppress the identification evidence. Defendant asserted that the arrest was improper and that the photo lineup was suggestive in that defendant’s photo portrayed him in a sweatshirt. With respect to the arrest, Wilkosz testified that he did not arrest defendant prior to October 29, 1986, because he wanted to continue the investigation to gather additional evidence. Wilkosz stated that he arrested defendant because defendant’s voluntary statement corroborated the victim’s identification. The trial court subsequently denied defendant’s motion to quash arrest.

With respect to the identification evidence, Wilkosz described the procedure he used in conducting the photo lineups, but denied that defendant’s photo portrayed him in a sweatshirt. Wilkosz testified that defendant was depicted in the photo lineup as wearing a high-collared jogging suit that zipped up in the front. The victim also testified at the hearing after the court made an initial finding of competency. The victim stated that the first photo lineup consisted of white people, and the second photo lineup consisted of black people. Although she remembered picking someone out of the second lineup, she could not remember why. The victim was then shown the lineups again, both consisting of blacks. Although she did not recognize anyone in the first lineup, she picked defendant’s photo out of the second lineup and stated that he was the man who removed her from the Bielema residence. The trial court subsequently denied defendant’s motion to suppress the identification, noting that defendant’s photo appeared to depict him in a high collar and not a hooded sweatshirt.

At the beginning of the trial, defendant objected to the panel of jurors brought to the court indicating that, of the 30 prospective jurors, 29 were Caucasian and one was Hispanic. Defendant made an oral motion to discharge the panel. The trial court noted that unless defendant presented evidence indicating that the selection process was tainted, it would be presumed random. The court granted defendant leave to call the jury commissioner and proceeded with jury selection. After the jury was picked and sworn in, defendant tendered Muriel Turner, the acting jury commissioner, and questioned her concerning the method of calling persons for jury service. Turner stated that prospective jurors were summoned on a randomly selected basis from the voter registration list. Turner further stated that there was no way to tell a person’s race from the list. Turner guessed that approximately 80 jurors were called to the courthouse each day Monday through Thursday, and of those, between four and eight per week were black. Of the jurors summoned to the courthouse, panels of 24 were randomly assigned to courtrooms. Turner did not know what percentage of Du Page County was black. On the basis of Turner’s testimony, defendant moved for a mistrial contending that he was not getting a jury of his peers. Defendant’s motion was denied, and the case continued to trial.

In addition to the above-stated facts, other evidence introduced at trial included the victim’s in-court identification of defendant as the man who took her from the Bielema residence on October 19, 1986. On cross-examination, the victim stated that it was dark in the room when she was awakened by defendant and that he put a pillow over her face. The victim could not recall her testimony from the motion to suppress the identification, nor was she able to determine the correct date of her former testimony. In addition, the victim could not recall the details of her interview with the police. Detective Wilkosz testified that a doctor’s examination of the victim indicated that she did not suffer any trauma to the vaginal area. Wilkosz also indicated that a yellow car was never recovered and defendant’s fingerprints were not found at the scene. However, the victim’s pillow was found in a nearby wooded area.

Defendant presented an alibi defense. Defendant’s father testified that on October 18, 1986, he was at his sister’s house in Chicago, Illinois, at approximately 3:30 to 4:50 p.m., and observed defendant arrive at that location along with three companions. Defendant’s father testified that defendant and his companions arrived in defendant’s 1978 Pontiac Lemans. Defendant’s father stated that he did not see his son for the next couple of days.

A.D. Thomas testified that on October 18, 1986, he accompanied defendant and two other companions to the south side of Chicago where they celebrated a birthday for defendant’s father at the home of defendant’s aunt. According to Thomas, he, defendant and their two companions left defendant’s aunt’s house and drove to Indianapolis, Indiana. During the trip to Indiana, defendant’s car developed mechanical problems. Defendant took the car to an automobile repair shop in Indianapolis. The car was at the shop from the evening of October 18, 1986, through October 20, 1986. During that time, defendant remained with Thomas in Indiana. The parties returned to Chicago on October 20,1986.

Lemuel Mills testified that he was an employee of T’s Car Care, Inc., in Indianapolis, Indiana. Mills identified an automobile repair receipt belonging to defendant’s father as a copy of a receipt issued by T’s Car Care. The receipt listed Samuel Sledge as the customer and was dated October 18, 1986. The receipt further indicated that the vehicle, a 1978 Pontiac Lemans, was picked up and paid for on October 20, 1986. The repair bill, totaling $443.55, was paid in cash. Mills could not identify defendant as the customer.

On July 23, 1987, the jury returned guilty verdicts on all four charges and the trial court entered judgment on those verdicts. The trial court continued the cause to September 2, 1987, for post-trial motions and sentencing. The trial court denied defendant’s motion for a new trial, and defendant brought this timely appeal.

Defendant first contends that the trial court erred in denying his motion for a mistrial on the basis that the method of selecting jurors in Du Page County denied defendant a jury of his peers in violation of his fifth, sixth, and fourteenth amendment rights. We disagree.

Initially, although the State does not raise waiver on this basis, we note that defendant appears to have waived this argument by virtue of having failed to file a written motion to discharge the jury panel pursuant to section 114 — 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 3). Section 114 — 3 provides that any objection to the manner in which a jury panel has been selected or drawn shall be raised by a motion to discharge the jury panel prior to the voir dire examination. (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 3(a).) That section further provides that “[t]he motion shall be in writing supported by affidavit and shall state facts which show that the jury panel was improperly selected or drawn.” (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 3(b).) Objections to jury panels which are not in writing and supported by affidavit are insufficient and properly denied on that basis. People v. White (1985), 134 Ill. App. 3d 262, 293; People v. Flowers (1985), 132 Ill. App. 3d 939, 942; see People v. Perry (1980), 81 Ill. App. 3d 422, 428.

In the instant action, defendant made an oral motion to discharge the panel and therefore did not raise a proper objection. We nonetheless note that the trial court received evidence of venire selection after defendant’s jury was chosen and sworn in. Even assuming that defendant’s subsequent motion for a mistrial after presenting this evidence was a proper manner in which to challenge the jury panel, defendant’s contention must still fail.

With respect to his sixth amendment challenge, defendant argues that the Du Page County system of calling jurors from the voter registration list systematically underrepresents blacks and other minorities and deprived defendant of his right to have a jury drawn from a fair cross-section of the community. We disagree.

The sixth amendment of the United States Constitution requires that a petit jury be drawn from a fair cross-section of the community. (Taylor v. Louisiana (1975), 419 U.S. 522, 528, 42 L. Ed. 2d 690, 697, 95 S. Ct. 692, 697.) In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show that (1) the group alleged to be excluded is a “distinctive” group in the community; (2) the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) this underrepresentation is due to the systematic exclusion of this group in the jury selection process. (Duren v. Missouri (1979), 439 U.S. 357, 364, 58 L. Ed. 2d 579, 587, 99 S. Ct. 664, 668; see People v. Broadnax (1988), 177 Ill. App. 3d 818, 827.) Once the defendant has made a prima facie showing of an infringement of his constitutional right to a jury drawn from a fair cross-section of the community, the burden shifts to the State to demonstrate that a significant State interest is advanced by those aspects of the selection process that result in a disproportionate exclusion of the distinctive group. (Duren, 439 U.S. at 367-68, 58 L. Ed. 2d at 589, 99 S. Ct. at 670; see Broadnax, 177 Ill. App. 3d at 827-28.) It is not enough for the State to advance merely rational grounds for the underrepresentation. Duren, 439 U.S. at 367, 58 L. Ed. 2d at 589, 99 S. Ct. at 670.

In the instant action, the venire from which defendant’s jury was selected consisted of 29 Caucasians and one Hispanic. The State does not dispute that blacks and Hispanics constitute a distinctive group for the purposes of the Duren test. (See Lockhart v. McCree (1986), 476 U.S. 162, 175, 90 L. Ed. 2d 137, 149, 106 S. Ct. 1758, 1765-66.) Rather, the State responds to defendant’s argument by contending that defendant failed to establish the second and third elements of the Duren test.

The second prong of Duren requires that defendant show that the representation of the distinctive group in venires from which panels are selected is not fair and reasonable in relation to the number of such persons in the community. (Duren, 439 U.S. at 364, 58 L. Ed. 2d at 587, 99 S. Ct. at 668.) In Duren, the defendant argued that a Missouri law permitting women to obtain an automatic exemption from service deprived him of his right to a jury chosen from a fair cross-section of the community. (439 U.S. at 360, 58 L. Ed. 2d at 584, 99 S. Ct. at 666-67.) The defendant’s evidence established that 54% of the population in the county were women, while women made up only 15.5% of the weekly venires. (439 U.S. at 362-63, 58 L. Ed. 2d at 586, 99 S. Ct. at 667-68.) The court concluded that “[s]uch a gross discrepancy between the percentage of women in jury venires and the percentage of women in the community requires the conclusion that women were not fairly represented in the source from which petit juries were drawn.” 439 U.S. at 366, 58 L. Ed. 2d at 588, 99 S. Ct. at 669.

In the instant action, defendant elicited testimony from Muriel Turner, the acting jury commissioner for Du Page County, establishing that approximately 320 jurors were randomly selected from a voter registration list and summoned to the courthouse each week. Of those, Turner opined that four to eight were black. Unlike Duren, defendant did not present any evidence establishing the population of blacks in Du Page County. Although defendant’s appellate brief states that 1.2% of Du Page County residents are black, no evidence of that figure was presented to the trial court. Thus, defendant failed to establish a prima facie case by omitting evidence crucial for a determination under Duren.

The State also asserts that defendant did not satisfy the third prong of the Duren test. The third prong of Duren provides that defendant must show that the underrepresentation of blacks is due to their systematic exclusion in the jury selection process. (439 U.S. at 364, 58 L. Ed. 2d at 587, 99 S. Ct. at 668.) In Duren, the court noted that the selection system utilized allowed women to exempt themselves from the process and that the exemption was automatically exercised if the potential juror did not respond to the summons. (439 U.S. at 366-67, 58 L. Ed. 2d at 588, 99 S. Ct. at 670.) The court noted that “any category expressly limited to a group in the community of sufficient magnitude and distinctiveness so as to be within the fair-cross-section requirement — such as women — runs the danger of resulting in underrepresentation sufficient to constitute a prima facie violation of that constitutional requirement.” (Emphasis added.) (439 U.S. at 370, 58 L. Ed. 2d at 590-91, 99 S. Ct. at 671.) The court concluded that defendant satisfied the third prong of the test through his “undisputed demonstration that a large discrepancy occurred not just occasionally but in every weekly venire for a period of nearly a year.” 439 U.S. at 366, 58 L. Ed. 2d at 588, 99 S. Ct. at 669.

To establish the third prong of Duren in the instant action, defendant notes that Turner testified that the number of blacks called for service was equal from week to week, thus indicating that the system was insufficient. Defendant argues without citation of authority that a system which calls jurors from voter registration lists has long been recognized as underrepresenting blacks. We note that selection of venires from voter registration lists is expressly authorized in Illinois by statute. (See Ill. Rev. Stat. 1987, ch. 78, par. 25.) In addition, Turner testified that there was no way to determine a person’s race from this process. Thus, regardless of the accuracy of defendant’s hypothesis, any “underrepresentation” of blacks would not be due to the systematic exclusion of that group by the process utilized. The trial court found that defendant failed to establish a prima facie violation of his sixth amendment right to a jury selected from a fair cross-section of the community. Based on defendant’s failure to introduce any evidence of underrepresentation or systematic exclusion, we conclude that the trial court did not err in denying defendant’s motion on that basis.

Defendant also argues that the jury selection process denied him equal protection under the fourteenth amendment. We disagree.

It has long been recognized that the systematic exclusion of members of an identifiable group from jury service based solely on their membership in such a group denies a defendant who is a member of that group equal protection under the fourteenth amendment of the United States Constitution. (Castaneda v. Partida (1977), 430 U.S. 482, 492, 51 L. Ed. 2d 498, 509, 97 S. Ct. 1272, 1279; People v. Rosa (1982), 111 Ill. App. 3d 384, 387.) The burden of proving selective discrimination against an identifiable group is upon the defendant. (Rosa, 111 Ill. App. 3d at 388.) The two methods of establishing a prima facie case under the fourteenth amendment are (1) showing that the statutory jury selection procedure is racially nonneutral, or susceptible to abuse on its face; or (2) the “rule of exclusion,” which requires a showing that, over time, an identifiable group has been substantially underrepresented in jury service in comparison with their proportionate presence in the total population of the community. (Rosa, 111 Ill. App. 3d at 388; see Castaneda, 430 U.S. at 494-95, 51 L. Ed. 2d at 510-11, 97 S. Ct. at 1280; Broadnax, 177 Ill. App. 3d at 830.) Once the defendant establishes a prima facie case of discrimination, the burden shifts to the State to rebut the presumption of unconstitutional action by showing that permissible racially neutral criteria and procedures were employed. Rosa, 111 Ill. App. 3d at 388.

Defendant’s argument in the instant action is raised under the “rule of exclusion” test. Defendant states that the “rule of exclusion” evidence was established by the testimony of the acting jury commissioner. As we noted above, defendant failed to introduce any competent evidence establishing the percentage of blacks residing in Du Page County and, thus, did not establish that blacks were underrepresented on juries in comparison with their proportionate presence in the total population of the community. In addition, the testimony of the jury commissioner indicated that approximately 1% to 4% of the weekly venires were black. Thus, even if defendant’s unsupported allegation that 1.2% of Du Page County is black is correct, his own statistics defeat his claim. Accordingly, we conclude that the trial court did not err in denying defendant’s motion for a mistrial on this basis.

Defendant next contends that the trial court erred in denying his motion for a mistrial after Detective Wilkosz characterized the second photo lineup as consisting of “Du Page County booking photos.” Defendant argues that this reference prejudiced the jury by implying that defendant had a criminal record. We disagree.

Generally, evidence of offenses other than those for which a defendant is being tried are inadmissible. (People v. Winfield (1983), 113 Ill. App. 3d 818, 839.) This rule has been held to be violated by references that a defendant was on probation when he committed the crime charged, and by testimony concerning a defendant’s statement that he did not wish to return to prison. (See 113 Ill. App. 3d at 839.) However, any prejudice in the presentation of such testimony is generally cured by sustaining the defendant’s objection and instructing the jury to disregard the improper reference. (113 Ill. App. 3d at 839.) In such a case, the trial court has wide discretion in considering a motion for mistrial, and its decision will not be disturbed absent an abuse of discretion. (People v. Omatto (1980), 88 Ill. App. 3d 438, 441; see also Winfield, 113 Ill. App. 3d at 839.) In other words, it must be apparent that the jury was so influenced and prejudiced by the comment that it could no longer be fair and impartial. Winfield, 113 Ill. App. 3d at 839.

In arguing that the jury in the instant action was so influenced and prejudiced by the remark that it could not be fair and impartial, defendant cites People v. Hudson (1972), 7 Ill. App. 3d 333, 337, wherein the court held that introduction of a “mug shot” was error since it called the jury’s attention to the defendant’s previous problems with the police. However, the photograph in Hudson depicted defendant from three views, one of which exhibited the defendant in front of a height chart. (7 Ill. App. 3d at 337.) Moreover, the Hudson court noted that while the record as a whole mandated a new trial, “none of the errors in the record, appearing singly, would necessarily require reversal.” (Emphasis added.) 7 Ill. App. 3d at 338.

A case closer on point is People v. Moscatello (1969), 114 Ill. App. 2d 16, 30, wherein the prosecutor characterized a photo of the defendant as a “mug shot,” and the court sustained an objection to the reference and admonished the jury to disregard the characterization. On appeal, the court stated that, although the characterization was improper, it was not reversible error since the trial court promptly sustained the objection, the photo was not admitted into evidence, and no reference was made to the defendant’s prior criminal record. 114 Ill. App. 2d at 30-31.

In the instant action, not unlike Moscatello, a witness characterized a photo lineup including a picture of defendant as Du Page County booking photographs. The trial court held an extensive hearing outside the jury’s presence to assess the substantive damage of the remark. Relying on Moscatello, the trial court admonished the jury to disregard the reference made by the witness to the type of photo used. No further references were made regarding the type of photo used or otherwise implying that defendant had a prior criminal record. From this evidence, we cannot say that the jury was so prejudiced by the remark that it deprived defendant of a fair trial. Therefore, we conclude that the trial court did not err in denying defendant’s motion for a mistrial.

Defendant next contends that the trial court erred in denying his motion to suppress his oral and written statements. Defendant argues that the confession was the product of coercion. We disagree.

Whether a statement is voluntarily given depends on the totality of the circumstances. (People v. Martin (1984), 102 Ill. 2d 412, 426-27.) The test is whether it has been made freely, voluntarily, and without compulsion or inducement of any sort or whether the defendant’s will was overcome at the time he confessed. (102 Ill. 2d at 427.) The finding of the trial court on the voluntariness of a confession will not be disturbed unless it is against the manifest weight of the evidence. People v. Davis (1983), 95 Ill. 2d 1, 25.

In the instant action, defendant asserted that he was denied access to an attorney and was subjected to physical and verbal abuse and repeated threats from the moment of his arrest until he wrote out the confession implicating himself in the instant charges. Each of the officers involved denied defendant’s allegations. The trial court denied defendant’s motion to suppress, noting that the officers’ credibility outweighed the witnesses presented by defendant. We will not substitute our judgment for that of the trial court in assessing the credibility of the witnesses. Indeed, the record more than adequately supports the trial court’s decision.

For example, defendant asserted that he was hit repeatedly by an officer at the time of his initial arrest, but his own witnesses neither saw him get hit nor heard him threatened. Defendant and his father testified that an arresting officer “slammed” or “smashed” his head on the car, but other of defendant’s witnesses who watched him placed into the car did not see that event and one of those witnesses testified that defendant hit his own head. Defendant further testified that during his initial questioning one of the officers put his fingers in defendant’s mouth and hit his head against the wall; however, this was not corroborated by any other witness or physical evidence. Defendant also alleged that he was threatened by an officer holding a stun gun; however, the officers denied defendant’s allegation and further stated that stun guns were not permitted in the booking area. Finally, defendant admitted that Wilkosz did not threaten him prior to obtaining his confession to the crimes for which he was charged in the instant action. Accordingly, we conclude that the trial court did not err in denying defendant’s motion to suppress his confession.

Defendant next contends that he was not proved guilty of the crimes beyond a reasonable doubt. Defendant first contests the credibility of the victim’s testimony and argues that the proof of his identity was not established by competent, credible evidence. We disagree.

As a general rule, an appellate court will not lightly overturn a jury’s verdict and will not substitute its judgment for that of the trier of fact unless the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Edwards (1984), 128 Ill. App. 3d 993, 997.) In addition, the question of a witness’ competency to testify is for the trial court, and the reviewing court will not disturb that ruling unless the trial court abused its discretion or misapprehended some legal principle. (In re A.M.C. (1986), 148 Ill. App. 3d 775, 778.) The controlling factor in determining a child’s competency is the degree of her intelligence, not her chronological age. (148 Ill. App. 3d at 778.) A child is competent to testify if she is sufficiently mature to receive correct impressions from her senses, to recollect and narrate those impressions intelligently, and to appreciate the moral duty to tell the truth. 148 Ill. App. 3d at 778.

In addition to his own confession, the evidence of defendant’s identity in the instant action consisted of the victim’s photo lineup and subsequent in-court identification of defendant. The trial court ruled the victim competent to testify and noted that any inconsistencies in her testimony would be a matter of weight for the jury. In challenging that evidence, defendant points to numerous inconsistencies in the victim’s testimony. For example, defendant notes that the victim testified at the motion to suppress identification that the pictures in the first photo lineup were of white men. In addition, the victim could not remember certain aspects of her prior identification or testimony at the motion to suppress, the victim did not make an immediate outcry, and there was no medical evidence corroborating abuse. Defendant also makes much of the fact that during questioning on competency, the victim stated that she did not know what it meant to tell a “fib.”

With respect to the court’s finding of competency, we note that on both occasions that the victim testified, she not only demonstrated her ability to receive correct impressions from her senses, but also stated that she could tell the difference between the truth and a lie and demonstrated her ability to do so. We do not consider her subsequent statement that she did not “know what it [was] to tell a lie” to be significant, especially given defendant’s repeated use of the term “fib” in eliciting that statement from her.

With respect to defendant’s remaining challenge concerning inconsistencies and weaknesses in her testimony, the trial court correctly noted that such inconsistencies would be a matter of credibility and weight for the jury. (See In re A.M.C., 148 Ill. App. 3d at 779.) Defendant was not precluded from highlighting those weaknesses. After examining the record as a whole, we do not find the evidence so improbable as to raise a reasonable doubt of guilt and we will not substitute our judgment for that of the jury.

Defendant next argues that he was not proved guilty of residential burglary beyond a reasonable doubt. Defendant contends that the State failed to present evidence establishing that defendant entered the Bielema residence with the intent to commit a theft. We disagree.

A person commits residential burglary when he knowingly and without authority enters the dwelling place of another with the intent to commit a felony or theft. (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 3(a).) Evidence of defendant’s intent when he entered the Bielema residence and kidnaped the victim was established by evidence of his oral and written statements that he intended to enter the premises to see if he could find a wallet or purse lying around. Defendant attacks this evidence by arguing that the statements were coerced. However, as we noted above, the trial court properly rejected defendant’s attempt to have his statements suppressed on that basis. Although defendant notes without argument that the jury had some question regarding the authorship of the written statement, defendant never challenged the State’s assertion that he was the author, and defendant himself testified that he prepared the statement. Accordingly, we conclude that the record supports defendant’s conviction for residential burglary.

For all of the reasons set forth above, defendant’s convictions are affirmed.

Affirmed.

UNVERZAGT, P.J., and LINDBERG, J., concur.


source: Caselaw Access Project

author: JUSTICE NASH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH FRANZEN, Defendant-Appellant.
    Second District
    No. 2—87—0182
    Opinion filed June 9, 1989.

      G. Joseph Weller and Beth Katz, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Virginia M. Ashley, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

After trial by jury defendant, Joseph Franzen, was convicted of aggravated criminal sexual assault, aggravated kidnapping, kidnapping, unlawful restraint and aggravated battery. Defendant was thereafter sentenced to natural-life imprisonment, without parole, for aggravated criminal sexual assault, as an habitual criminal offender, and also received concurrent extended-term sentences of 30 and 10 years for the offenses of aggravated kidnapping and aggravated battery. Defendant appeals, contending (1) that he was improperly denied a continuance of trial to enable new counsel to prepare to defend; (2) that extended-term sentences were improperly imposed for the aggravated kidnapping and aggravated battery convictions as they were not the most serious offenses of which defendant was convicted; and (3) that the Illinois habitual criminal statute (Ill. Rev. Stat. 1987, ch. 38, par. 33B — 1 et seq.) is unconstitutional. We affirm.

CONTINUANCE OF TRIAL

The record discloses that Assistant Public Defender Wayne Brucar was appointed to represent defendant in September 1986, and on November 26, 1986, defendant answered ready and demanded trial, which the court then set for January 12, 1987. It appears that on January 9 Brucar and defendant’s family had a disagreement concerning whether defendant should present evidence, whether defendant should testify, and whether members of defendant’s family should testify. According to Brucar’s in-court statements, he had instructed defendant’s family that they would have to hire somebody else if they were displeased with his representation. The next day, attorney Gerald Kielian was retained as defendant’s counsel, and on the morning of trial, Monday, January 12, 1987, Kielian requested both leave to file his appearance on behalf of defendant and a continuance to prepare for trial. The assistant State’s Attorney informed the court the State had paid air fare for two witnesses, that one witness had already been flown in to testify, and that another witness had been promised he could rejoin his family on Wednesday as he had been forced to cancel a vacation. The court accepted Kielian’s appearance as defendant’s counsel on the qualified basis that there would not be a continuance, and Kielian was informed that he could renew his motion for a continuance after reviewing discovery so long as it was made before the trial commenced.

Although the trial judge denied the motion for continuance, he did accommodate Kielian in his review of the case. On the day Kielian made his motion, which was scheduled for trial that morning, the court heard only pretrial defense motions. Later, Kielian met with Brucar to discuss the case, and he received copies of Brucar’s reports and abstracts; he was also introduced to Brucar’s investigator, who was made available for his use. Trial commenced on the following day, but was limited to jury selection. At that time, Kielian neither renewed his motion for a continuance nor sought to withdraw his appearance. The State was not to begin its case until Wednesday in order to give the defense additional time to prepare. No trial proceedings were held on Thursday because of the court’s calendar.

On Friday, January 16, 1987, Brucar informed the court that there had been a lack of communication during the trial between himself and Kielian, and Brucar asked for permission to withdraw from the case. Kielian objected to the withdrawal, stating he had been prepared for cross-examination of the State’s witnesses but that he was not prepared to proceed with defendant’s case alone. The trial judge suggested the attorneys confer regarding defense strategy, stating he would give them more time to present additional evidence. After conferring, the attorneys agreed that Brucar’s role would be to assist and advise, and no request for additional time was made. Later that day, the State rested. The only witness presented by the defense on that day was defendant, and earlier that morning Kielian had stated that he was prepared to call defendant as a witness. The trial did not resume until the following Tuesday, giving the defense an additional three days to prepare.

On appeal, defendant contends he was denied his sixth and fourteenth amendment right to counsel when the trial court arbitrarily and unfairly denied a reasonable motion for continuance, making it impossible for either retained or appointed counsel to properly represent him.

The right to counsel guaranteed by the constitution includes the right to be represented by counsel of one’s choice, but like all constitutional rights, it is not without limits. (People v. Koss (1977), 52 Ill. App. 3d 605, 607, 367 N.E.2d 1040.) It is within the trial court’s sound discretion to grant or deny a continuance for the substitution of counsel. (People v. Solomon (1962), 24 Ill. 2d 586, 589, 182 N.E.2d 736, cert. denied (1962), 371 U.S. 853, 9 L. Ed. 2d 87, 83 S. Ct. 94.) Defendant argues that the continuance was not sought for purposes of delaying the trial and the motion should have been granted. However, in determining whether a continuance has been improperly denied, it must appear that the refusal to grant additional time has in some manner embarrassed the accused, impeded the preparation of his defense or prejudiced his rights. (People v. Clayborne (1977), 47 Ill. App. 3d 202, 204-05, 361 N.E.2d 1141.) Nothing in the record suggests that defendant was prejudiced in any manner by the refusal to allow the continuance after he employed new counsel shortly before trial. (People v. Hart (1973), 10 Ill. App. 3d 857, 859, 295 N.E.2d 63.) Where a motion for a continuance is made on the date of trial, defendant must state substantial reasons for change of counsel (People v. Wallace (1976), 44 Ill. App. 3d 89, 92, 357 N.E.2d 858), and no substantial reasons are shown here. -

The disagreement between defendant’s family and public defender Brucar concerned whether he should present character evidence, whether defendant should testify, and whether members of defendant’s family should testify. However, the trial judge did inform defendant that he had a right to testify on his own behalf, even against the advice of his counsel (People v. Knox (1978), 58 Ill. App. 3d 761, 763, 374 N.E.2d 957), and defendant did so testify. Even if Brucar acquiesced in attorney Kielian’s defense strategies, trial strategy cannot be the basis for a claim of ineffective assistance of counsel. (See Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) Moreover, defendant received the benefits of the strategies of Kielian, who was his counsel of choice.

Defendant characterizes his joint representation by the attorneys as an improper experiment. However, in People v. Hanson (1983), 120 Ill. App. 3d 84, 89, 457 N.E.2d 1048, 1051, it was held that the trial court had not abused its discretion in denying a continuance for substitution of counsel when that motion was first made on the morning of trial, where a competent public defender had actively represented the defendant for 10 months and where private counsel was allowed to work with the public defender on the trial. Defendant also suggests that Kielian and Brucar were unable to work together. However, at the time Brucar expressed his concern as an attorney of record that he was not being consulted or utilized, he stated there were no conflicts or clashes between himself and Kielian.

We conclude that denial of the continuance did not interfere with defendant’s constitutionally guaranteed right to counsel.

EXTENDED-TERM SENTENCES

The trial court determined that because of defendant’s convictions of two counts of aggravated criminal sexual assault, a Class X felony (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(c)), and his two prior Class X felony convictions within a 20-year period, as described in the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 33B — 1), defendant was an habitual criminal and imposed concurrent sentences of natural-life imprisonment for the convictions of aggravated criminal sexual assault.

Defendant contends that the court could not impose an extended-term sentence under the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—2(a)) for his conviction of aggravated kidnapping, a Class 1 felony (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 2(b)(2)), as it is a lesser offense than aggravated criminal sexual assault, a Class X felony. The relevant portion of the Code provides:

“A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5 — 8—1 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of section 5 — 5—3.2 were found to be present.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—2(a).)

Defendant argues that the plain language of that section provides that an extended term may only be imposed for the class of the most serious offense of which defendant was convicted.

In People v. Evans (1981), 87 Ill. 2d 77, 87, 429 N.E.2d 520, the supreme court held that before an extended term can be imposed, the most serious offense of which the offender is convicted must be accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. However, in People v. Neal (1985), 111 Ill. 2d 180, 204-05, 489 N.E.2d 845, cert. denied (1986), 476 U.S. 1165, 90 L. Ed. 2d 733, 106 S. Ct. 2292, the court stated that the statute allows the imposition of an extended-term sentence of imprisonment for the class of the most serious offense of which the defendant was convicted where the defendant was sentenced to a term of years, even though the defendant was also separately sentenced to death for murder.

Our supreme court has recently examined imposition of an extended-term sentence under the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—2) for the offense of armed robbery where the defendant was also sentenced to a term of natural life for murder. (People v. Young (1988), 124 Ill. 2d 147, 529 N.E.2d 497.) The defendant argued that an extended-term sentence for armed robbery could not be imposed as the statute (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—2(a)) provided that an extended term could only be imposed for the class of the most serious offense of which the defendant was convicted. (Young, 124 Ill. 2d at 160.) The court rejected this argument, stating that the extended-term sentence for murder, not less than 40 nor more than 80 years, was not as severe as a sentence of natural life that could be imposed under the sentencing provisions of section 5 — 8—1. Authorization to impose an extended-term sentence in excess of the maximum sentence authorized in section 5 — 8—1 could not apply to murder convictions for which a natural-life imprisonment sentence had been imposed under section 5 — 8—1. The extended-term statute could have only logically applied where a term-of-years sentence was imposed under section 5 — 8—1. Therefore, the court held that section 5 — 8—2(a) allowed the imposition of an extended-term sentence for the class of the most serious offense of which the defendant was convicted, other than the offense of murder. Young, 124 Ill. 2d at 160-62.

Defendant argues he was sentenced as an habitual offender under section 33B — 1 and not under section 5 — 8—1 and therefore People v. Young does not apply to his case. (Young, 124 Ill. 2d at 160.) However, the language of section 5 — 8—l(a)(2) specifically incorporates section 33B — 1 and states that when a person is adjudged an habitual criminal under section 33B, he shall be sentenced to a term of natural-life imprisonment. The trial judge here sentenced defendant to natural life, and we do not find that he has distinguished People v. Young from his case.

In the case at hand, defendant received an extended-term sentence for aggravated kidnapping to run concurrently with a sentence of natural life. The Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(2)) provides for a sentence of natural life for persons adjudged habitual criminals, with no possibility of parole. (Ill. Rev. Stat. 1987, ch. 38, par. 1003 — 3—3(d).) The authorization in section 5 — 8—2(a) to impose an extended-term sentence in excess of the maximum sentence authorized in section 5 — 8—1 could not apply to the Class X felonies for which a natural-life sentence had been imposed under section 5 — 8—1 as section 5 — 8—2 does not provide for an extended term for a defendant found to be an habitual criminal. Young factually involved a sentence for murder and imposition of an extended-term sentence for a lesser felony, while the present case involves sentencing for an offense that acted to place defendant into the category of an habitual criminal, and imposition of extended-term sentences for other lesser felonies. Young held that where the defendant received a sentence of natural life, an indeterminate sentence, the trial court may also impose an extended-term sentence upon conviction of a lesser felony for which a determinant sentence is imposed where the lesser felony was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. We find that the analysis of our supreme court in People v. Young is applicable to the case at bar and, therefore, that an extended-term sentence may be imposed on the most serious offense for which defendant was sentenced to a term of years, here, aggravated kidnapping, even though defendant has also received a sentence of natural-life imprisonment upon his adjudication as an habitual criminal. Because aggravated kidnapping is a Class 1 felony, the applicable extended term is one of not less than 15 years nor more than 30 years’ imprisonment (Ill. Rev. Stat. 1987, ch. 38, pars. 10 — 2(b)(2), 1005 — 8—2(a)(3)), and it was properly imposed in this case.

Defendant also argues that his concurrent extended-term sentence for aggravated battery, a Class 3 felony (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(e)), was improperly imposed under the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—2(a)). When a defendant has been convicted of multiple offenses of differing classes, an extended-term sentence may only be imposed for the conviction within the most serious class. (People v. Jordan (1984), 103 Ill. 2d 192, 207, 469 N.E.2d 569.) The State agrees, and, pursuant to our authority under Supreme Court Rule 615(b)(4) (107 Ill. 2d R. 615(b)(4)), we find that, as defendant has received an extended-term sentence for the more serious offense of aggravated kidnapping, a Class 1 felony, his sentence for aggravated battery should be reduced to five years, the maximum term for a Class 3 felony, to run concurrently with the other sentences.

Finally, defendant argues that the Illinois Habitual Criminal Act (Ill. Rev. Stat. 1987, ch. 38, par. 33B — 1) is unconstitutional for reasons which have been raised and rejected in numerous prior appeals. Defendant argues that requiring a natural-life sentence without considering the offender’s personal characteristics and the seriousness of the offense violates article I, section 11, of the fllinois Constitution of 1970. However, the rehabilitative objective of this provision does not prevent the legislature from establishing mandatory minimum penalties where it has been determined that no set of mitigating circumstances could allow a proper penalty of less than natural life when required to protect the interests of society. (People v. Taylor (1984), 102 Ill. 2d 201, 209, 464 N.E.2d 1059.) The Habitual Criminal Act embodies the legislative determination that a three-time offender should be removed from society since he has shown he is impervious to the rehabilitative efforts of the State. People v. Hartfield (1985), 137 Ill. App. 3d 679, 691, 484 N.E.2d 1136, 1144.

Defendant argues that preventing consideration of any mitigating evidence violates the due process clause of the Illinois and United States Constitutions and the eighth amendment protection against cruel and unusual punishment. This argument has been rejected in People v. Morissette (1986), 150 Ill. App. 3d 431, 443-44, 501 N.E.2d 781, and People v. Hartfield (1985), 137 Ill. App. 3d 679, 691, 484 N.E.2d 1136, which relied on People v. Withers (1983), 115 Ill. App. 3d 1077, 1090, 450 N.E.2d 1323, 1332, cert. denied (1984), 465 U.S. 1052, 79 L. Ed. 2d 726, 104 S. Ct. 1332. These courts concluded, and we agree, that the Habitual Criminal Act did not violate the eighth and fourteenth amendments because two previous adjudications have afforded the defendant the opportunity to present mitigating factors to a court.

Defendant argues that the Habitual Criminal Act vests the judicial function of sentencing in the prosecutor in violation of the separation of powers provisions of the Illinois Constitution, the due process and equal protection clauses, and the eighth amendment of the United States Constitution. This argument has been rejected in People v. Westefer (1988), 169 Ill. App. 3d 59, 65, 522 N.E.2d 1381, and People v. Morissette (1986), 150 Ill. App. 3d 431, 443, 501 N.E.2d 781. Precise guidelines are set forth in the statute to enable the trial judge to determine the applicability of the recidivist statute and the appropriateness of a mandatory life sentence. The statute places no discretion in the hands of the State to determine which defendants qualify for a life term. People v. McNeil (1984), 125 Ill. App. 3d 876, 881, 466 N.E.2d 1058, 1061.

Defendant also contends that the Habitual Criminal Act violates principles of double jeopardy. Again, this argument has previously been raised and rejected. (People v. Westefer (1988), 169 Ill. App. 3d at 65.) It is recognized that the statute does not constitute punishment for the prior offenses; rather, the prior adjudications are used to establish matters in aggravation to support the disposition authorized for a third serious offense (People v. Washington (1984), 125 Ill. App. 3d 109, 117, 465 N.E.2d 666, 671), and there is no violation of the principles of double jeopardy. Defendant argues he was sentenced under an act that makes a substantive offense of the status of “habitual criminality” because the Habitual Criminal Act is found in the “Specific Offenses” portion of the Criminal Code rather than the Unified Code of Corrections. However, the placement of the Act within the Code is not a relevant consideration. Ill. Rev. Stat. 1987, ch. 38, par. 34 — 1.

Accordingly, the judgment of the circuit court is affirmed, with the sentence for aggravated battery modified to a five-year concurrent term.

Affirmed as modified.

DUNN and McLAREN, JJ., concur.


author: JUSTICE DUNN

text:
    COMMONWEALTH EDISON COMPANY, Plaintiff-Appellee, v. THE COUNTY OF LAKE et al., Defendants-Appellants.
    Second District
    No. 2—88—1096
    Opinion filed June 7, 1989.

      Fred L. Foreman, State's Attorney, of Waukegan (Joseph E. Kolar and Van J. Herrero, Assistant State’s Attorneys, of counsel), for appellants.
    Donald M. Lonchar, Jr., of Lonchar, Nordigian & Bakk, of Waukegan, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Defendants, County of Lake (county) and Robert Streicher, director of the Lake County building and zoning department, appeal from an order of the circuit court granting summary judgment in favor of plaintiff, Commonwealth Edison Company. Defendants raise one issue on appeal: whether the public utility exemption of “An Act in relation to county zoning” (County Zoning Act) (Ill. Rev. Stat. 1987, ch. 34, par. 3151) excepted plaintiff’s proposed land division which violated Lake County’s zoning ordinance by creating a nonconforming lot. We reverse.

On June 9, 1988, plaintiff filed a suit for declaratory judgment seeking a declaration that it was exempt from compliance with the county’s zoning ordinance by the public utility exemption. The complaint alleged that: plaintiff is a duly registered public utility as defined by the Public Utilities Act (Ill. Rev. Stat. 1987, ch. 1112/3, par. 1 — 101 et seq.); the county is a body politic organized under the laws of the State of Illinois; Streicher is the director of the building and zoning department and a zoning officer for the county; plaintiff is the owner of a parcel of land located in unincorporated Lake County, Illinois; on this parcel, plaintiff has a transmission distribution center which contains electric distributing equipment; the Lake County zoning ordinance (ordinance) regulates lot sizes in unincorporated areas of the county; plaintiff’s parcel is in an area zoned suburban estate (SE); plaintiff attempted to sell a portion of the parcel which it did not require for the operation and maintenance of the transmission distribution center; the subject parcel was to be divided, and plaintiff would have retained the southeast corner of the property where the transmission distribution center is located (retained parcel); the proposed lot which plaintiff intended to sell (sale parcel) would comply with the requirements of the ordinance for property zoned SE, but the retained parcel would not; the retained parcel is exempt from regulation by the county; and Streicher refused to issue any building permits for the sale parcel because the retained parcel violated the ordinance.

In their answer, defendants averred that plaintiff’s proposed sale would be an illegal land division because the retained parcel would become a nonconforming lot and, under the terms of article V of the ordinance (Lake County, Ill., Zoning Ordinance art. V (1988)), the county could subsequently be forced to issue a building permit for the retained parcel. Defendants alleged that if the retained parcel was issued a conditional use permit, the county could not be forced to issue a building permit for the parcel at some future date.

Defendants and plaintiff filed motions for summary judgment. Plaintiff based its motion on the argument that the property is exempt from county regulation because it belongs to a public utility which has located on it electric distributing equipment. Defendants’ motion denied that the public-utility exemption was applicable. In granting summary judgment in favor of plaintiff, the court found that plaintiff’s division of the parcel into a vacant conforming lot and a nonconforming lot on which it has electric distributing equipment does not violate the ordinance because the retained parcel is exempt from regulation by reason of the exemption granted to public utilities in the County Zoning Act (Ill. Rev. Stat. 1987, ch. 34, par. 3151). Defendants then filed a motion to reconsider, which was denied.

On appeal, defendants contend that the trial court erred when it construed the public utility exemption of the County Zoning Act to except plaintiff from compliance with the county’s zoning ordinance’s lot division section, which provides:

“Division of a Lot — No recorded lot shall be divided into two (2) or more lots unless such division results in the creation of lots each of which conforms to all of the applicable regulations of the zone in which the property is located. No further reduction in the size of a recorded lot, which would render the lot unable to meet the requirements of this Ordinance, shall be permitted.” Lake County, Ill., Zoning Ordinance art. IV, §VI G.6 (1988).

Summary judgment is proper where there is 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(c); Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 112, 514 N.E.2d 188, 190.) Since summary judgment is a drastic means of disposing of litigation, it should be allowed only when the right of the moving party is clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.) To defeat a motion for summary judgment, a party must provide a factual basis under which it would be entitled to judgment as a matter of law. (Burns v. Addison Golf Club, Inc. (1987), 161 Ill. App. 3d 127, 129, 514 N.E.2d 68, 70.) Defendants have not argued that there are any genuine issues of material fact. Thus, we must determine whether plaintiff was entitled to judgment as a matter of law.

The cardinal rule of statutory construction is to ascertain and give effect to the legislature’s intention. (County of Du Page v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 151, 485 N.E.2d 1076, 1079.) The language of the statute is the best indication of the intent of the drafters. (County of Du Page, 109 Ill. 2d at 151, 485 N.E.2d at 1079.) Where the language of the statute is unambiguous, a court must enforce the law as enacted without considering other aids because there is no rule of statutory construction which authorizes a court to declare that the legislature did not intend what the plain language of the statute denotes. 109 Ill. 2d at 151-52, 485 N.E.2d at 1079.

The County Zoning Act provides in relevant part:

“For the purpose of promoting the public health, safety, morals, comfort and general welfare, conserving the values of property throughout the county, *** the board of supervisors or board of county commissioners, as the case may be, of each county, shall have the power to regulate and restrict the location and use of buildings, structures and land *** [and] to divide the entire county outside the limits of such cities, villages and incorporated towns into districts ***.***
The powers by this Act given shall not be exercised *** so as to impose regulations or require permits with respect to land used or to be used for agricultural purposes ***; nor shall any such powers include the right to specify or regulate the type or location of any poles, towers, wires, cables, conduits, vaults, laterals or any other similar distributing equipment of a public utility ***.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 34, par. 3151.)

Plaintiff claims that “as is plainly expressed in the exemption,” the county’s power to regulate lot size does not apply to the property of public utilities upon which is located electric distributing equipment. We do not agree.

The language of the statute is unambiguous. The exemption applies only to “poles, towers, wires, cables, conduits, vaults, laterals or any other similar distributing equipment.” (Ill. Rev. Stat. 1987, ch. 34, par. 3151.) It does not state that the property of a public utility is exempt from county zoning regulations. Plaintiff can locate its transmission distribution centers anywhere on its property, but it cannot, however, circumvent county zoning regulations by selling off parts of a parcel of real estate to create nonconforming lots. We therefore conclude that defendants are entitled to summary judgment as a matter of law. The order of the circuit court is reversed, and the cause is remanded with directions that the trial court enter summary judgment in favor of defendants.

Reversed and remanded.

LINDBERG and WOODWARD, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH GRYCZKOWSKI, Defendant-Appellant.
    Second District
    No. 2—88—0674
    Opinion filed June 9, 1989.

      Christopher Cronson, of Oak Park, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Joseph Gryczkowski, appeals from the judgment of the circuit court of Du Page County which denied his petition for rescission of the summary suspension of his driving privileges, pursuant to section 2 — 118.1 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 118.1). Defendant contends that the trial court erred in failing to consider evidence that his blood-alcohol content was not .10 at the time he was arrested. He further contends that the trial court erred in finding that he failed to sustain his burden of proof in that the testimony of the arresting officer failed to confirm the validity of the breathalyzer certification and failed to establish the police department’s compliance with the Department of Public Health’s testing procedures. We disagree and affirm the judgment of the trial court.

Defendant was arrested in the early morning hours of March 6, 1988, by a Naperville police officer and charged with driving under the influence of alcohol in violation of a local ordinance. At the time of the arrest, defendant voluntarily performed various field-sobriety tests. Defendant failed the tests and was subsequently taken to the police station, where he voluntarily submitted to a breathalyzer test. His test result registered in excess of .10. On the basis of this test result, the arresting officer prepared a law enforcement sworn report and served notice upon defendant of the summary suspension of his driving privileges pursuant to section 11 — 501.1 of the Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.1). Defendant timely requested a summary suspension hearing, at which he presented his own testimony and that of an expert witness; the State presented the testimony of the arresting officer. The following facts were adduced at the hearing.

Officer Reavy of the Naperville police department testified that he was on routine patrol in the area of Washington and Sycamore Streets in Naperville when he observed defendant’s vehicle traveling northbound in the far right-hand lane of Sycamore. Officer Reavy observed defendant’s vehicle cross into the adjacent lane over the broken yellow lane divider. He pulled defendant’s vehicle over approximately five blocks later and met defendant between the cars. Officer Reavy observed that defendant had “somewhat unstable balance” and had the odor of alcohol on his breath and clothing. Defendant indicated that he had just come from a bar down the street where he had drunk four mixed drinks containing alcohol. Officer Reavy asked defendant to perform a series of sobriety tests, including the one-leg stand and the walk-and-turn test. Officer Reavy testified that defendant was unable to complete the tests satisfactorily and, consequently, defendant was placed under arrest for improper lane usage and driving while under the influence of alcohol.

Officer Reavy transported defendant to the Naperville police department and read him the warning to motorists at approximately 2:09 a.m. Officer Heavy testified that he observed defendant for 20 minutes, after which another officer gave defendant a breathalyzer test. Officer Heavy stated that he was not the breathalyzer operator and did not have direct personal knowledge of the machine’s certification date. In addition, Officer Heavy did not bring the log book pertaining to the machine in question with him to the hearing. Officer Heavy was unable to testify as to the proper procedures for performing a breathalyzer test and could not describe departmental regulations pertaining to the administration of such tests. Other than having observed defendant perform the test, he had no direct knowledge of the manner in which the test was administered.

Defendant testified at the hearing that, at approximately midnight, he and a friend went out for a drink at the Two Rivers Pub south of Naperville. He stated that he had not had anything to drink prior to arriving at the pub, but drank four mixed drinks consisting of Wild Turkey whiskey and Coke between midnight and 1:30 a.m. At approximately 1:30 a.m., he and his friend left the bar. Approximately five minutes later, defendant was stopped by the arresting officer, submitted to the field-sobriety tests, which he claimed to have performed satisfactorily, and was transported to the police department. Defendant stated that he was seated in a holding area for a long period of time and was not observed by any police officers. He further testified that he did not eat, smoke, regurgitate or vomit while in the holding area. He stated that he was given a warning regarding the breathalyzer test and voluntarily submitted to such a test. On the second attempt, he registered a result in excess of .10.

Defendant also offered the testimony of Nives Friedman, a former food chemist for the State of Illinois, for the purpose of rendering an opinion as to defendant’s blood-alcohol content at the time Officer Heavy stopped him. The court allowed Ms. Friedman’s testimony over the objection of the State. Ms. Friedman testified as to her education, experience, and expertise in the areas of blood- and breath-alcohol content and their measurement by breathalyzer machines. She offered her opinion that, based upon information given to her by the defendant’s attorney, defendant’s blood-alcohol content at the time he was arrested would have been between .04 and .06.

In closing, defendant argued that, based upon the lack of evidence indicating the breathalyzer machine to have been properly certified and a similar lack of evidence establishing the police department’s compliance with the Department of Public Health’s standards in the administration of his breathalyzer test, his test was not accurate. He further argued that his blood-alcohol content was not in excess of .10 at the time he was arrested and thus requested the court to rescind the statutory summary suspension of his driving privileges. The court noted that much of the evidence presented in the rescission hearing would have been extremely relevant in a trial on the charge of driving under the influence of alcohol; however, it found defendant had failed to sustain his burden of proof and denied the petition to rescind.

Defendant filed a motion to reconsider the court’s judgment and presented argument at a hearing on June 27, 1988. Counsel for defendant summarized the issues raised at the initial rescission hearing as follows: (1) whether, at the time defendant was driving, his blood-alcohol content was .10 or greater; (2) whether the breathalyzer machine used to administer defendant’s test was properly certified; and (3) whether the Naperville police department complied with the Department of Public Health’s regulations while administering defendant’s breathalyzer test. Defendant argued that his blood-alcohol content at the time he was driving was relevant under the “statutory scheme” contained in sections 11 — 501 and 11 — 501.2 of the Code (Ill. Rev. Stat. 1987, ch. 951/2, pars. 11 — 501, 11 — 501.2). He further argued that, as there had been no showing that the breathalyzer machine was properly certified, and the arresting officer was unable to indicate whether the Department of Public Health’s regulations had been followed, defendant had established that the breathalyzer test was invalid. The court denied defendant’s motion to reconsider, and his timely appeal ensued.

Defendant raises two issues on appeal: (1) whether a defendant’s blood-alcohol content at the time he is arrested is relevant in a hearing on the rescission of his summary suspension of his driving privileges; and (2) whether the defendant in the instant case sustained his burden of proof in establishing the invalidity of his breathalyzer test result.

Defendant’s initial contention lacks a basis in law, as evidence of a defendant’s blood-alcohol content at the time of an arrest is clearly not required by the statutory language of the summary suspension provision contained in section 11 — 501.1 of the Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.1) and the summary suspension hearing provision set forth in section 2 — 118.1 of the Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 118.1). Thus, we conclude that the trial court correctly rejected the defendant’s offer of proof on this issue.

In support of his position, defendant relies exclusively upon People v. Hamilton (1987), 118 Ill. 2d 153, claiming that Hamilton stands for the proposition that a petitioner can raise issues not enumerated in section 2 — 118.1 of the Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 2— 118.1). In Hamilton, the trial court struck down this section as unconstitutional on the basis that it improperly limited the scope of issues to be considered in a statutory summary suspension hearing. The supreme court reversed, holding that the trial court’s interpretation of the section was overly rigid and restrictive. Section 2 — 118.1(b) provides in pertinent part:

“The scope of the hearing shall be limited to the issues of:
* * *
4. Whether *** such person did submit to and complete such test or tests which determined an alcohol concentration of 0.10 or more.” (Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 118.1(b).)

The trial court had interpreted subsection 4 as limiting the defendant’s inquiry to a yes or no question. The supreme court, on the other hand, read this section in the context of sections 11 — 501.1 (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.1) (the implied consent and summary suspension provision) and 11 — 501.2 (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.2) (section which defines the types and requirements of chemical tests used to measure blood-alcohol content). The supreme court concluded that a defendant’s inquiry into the validity of the test result was implicit within the statutory scheme, stating:

“By its explicit language, section 11 — 501.1 provides that implied consent to the chemical tests, upon which grounds for summary suspension are predicated, is subject to section 11— 501.2, which specifically provides that the tests must comply with certain requirements. For purposes of this case, the issue then becomes whether a licensee seeking rescission of summary suspension may raise the issue of noncompliance at a rescission hearing. We answer that question in the affirmative.
***
***[Since] compliance with section 11 — 501.2 is mandatory for summary suspension purposes, noncompliance will render test results invalid and inadmissible. That being so, it follows inescapably that a licensee must be permitted to contest the admission of allegedly invalid test results at a rescission of summary suspension hearing.” Hamilton, 118 Ill. 2d at 160.

It is thus indisputable that the instant defendant had the right to challenge the accuracy of his breathalyzer test result. However, the Hamilton holding in no way supports defendant’s novel theory that the actual level of his blood-alcohol content at the time he was arrested is somehow relevant to the summary suspension of his driving privileges. Section 11 — 501.1(d) plainly states, “If the person *** submits to a test which discloses an alcohol concentration of 0.10 or more, the law enforcement officer shall immediately submit a sworn report to *** the Secretary of State.” (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.1(d).) Section 11 — 501.1(e) requires the Secretary of State to suspend such a person’s driving privileges upon the receipt of the law enforcement officer’s sworn report. (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.1(e).) The plain language of these statutory provisions compels the conclusion that the relevant time of blood-alcohol content is the time at which the subject is tested. Defendant has offered no statutory citations or references to legislative history in support of his theory that the State must establish that a defendant’s blood-alcohol content is .10 at the time of arrest in order to support a statutory summary suspension of driving privileges. Consequently, we reject this contention and affirm the trial court’s judgment that a defendant’s blood-alcohol content at the time he is operating his vehicle is not an issue in a statutory summary suspension proceeding pursuant to section 2 — 118.1 of the Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 118.1).

The sole issue remaining is whether the trial court’s order continuing defendant’s summary suspension was against the manifest weight of the evidence. As a general proposition, a motorist challenging the summary suspension of his driving privileges bears the burden of establishing a prima facie case for rescission. (People v. Orth (1988), 124 Ill. 2d 326, 340.) Elements of such a prima facie case include whether the breathalyzer test was properly administered and whether the result obtained was accurate. (People v. Davis (1989), 180 Ill. App. 3d 749, 752, citing Orth, 124 Ill. 2d at 336-38; People v. Torres (1987), 160 Ill. App. 3d 643, 647.) The burden of challenging the trustworthiness of the breathalyzer test results lies squarely on the defendant as the petitioner in a summary suspension hearing. (See People v. Martin (1987), 161 Ill. App. 3d 472, 475 (the defendant challenged the reliability of a blood test); see also People v. Wilder (1987), 156 Ill. App. 3d 663, 667.) The trial court’s determination of whether a defendant has met his burden of proof will be overturned only if that determination is against the manifest weight of the evidence. Orth, 124 Ill. 2d at 341; People v. Sanders (1988), 176 Ill. App. 3d 467, 469; Torres, 160 Ill. App. 3d at 646.

At the summary suspension hearing, defendant failed to introduce any evidence whatsoever that he was improperly tested. He also failed to introduce any evidence that the machine in question malfunctioned, or that the results obtained were inaccurate. Such evidence is indispensable for defendant to meet his burden in establishing a prima facie case for rescission. (Davis, 180 Ill. App. 3d at 752; see also Orth, 124 Ill. 2d at 336-38; Torres, 160 Ill. App. 3d at 647.) Defense counsel’s claims that the breathalyzer machine in question lacked a proper certification and that the police department failed to follow proper procedures were not established at the hearing and are totally unsupported by the evidence. If defendant and his counsel had wished to rely upon these claims, they should have introduced evidence to support them, such as the police department log book containing certification dates for breathalyzer machines and the testimony of the breathalyzer operator. Defense counsel’s statements at the initial rescission hearing on April 11, 1988, demonstrates that he failed to understand the placement of the burden of proof in such hearings:

“Well, Judge, obviously one of the things the State has to prove in these hearings is at the time that the person was either driving or in actual physical control of the vehicle that [his] blood alcohol content was in excess of .10. That’s set forth in the statute, Judge.” (Emphasis added.)

As stated above, the burden of proof rests on the defendant; the State has the task of rebutting the defendant’s evidence. In the instant case, defendant failed to produce any evidence whatsoever to support his claims. It is not the State’s responsibility to produce witnesses or evidence to support defendant’s challenge of the accuracy of a breathalyzer test result.

In view of the foregoing, we affirm the trial court’s judgment in continuing the statutory summary suspension of defendant’s driving privileges.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

UNVERZAGT, P.J., and LINDBERG, J., concur.