text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EUGENIO FLORES, Defendant-Appellant.
    Fourth District
    No. 4—91—0567
    Opinion filed June 29, 1992.

      Donald J. Casper, P.C., of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Norbert J. Goetten, Robert J. Biderman, and Jeffrey K. Davison, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On March 26, 1991, the circuit court of McLean County entered judgment on a jury verdict finding defendant Eugenio Flores guilty of possession of more than 30 grams but less than 500 grams of cannabis (Ill. Rev. Stat. 1989, ch. 56V2, par. 704(d)), but not guilty of possession with the intent to deliver cannabis (Ill. Rev. Stat. 1989, ch. 561/2, par. 705(d)). He was subsequently sentenced to 8 days’ periodic confinement in the county jail, 30 months’ probation, and a street-value fine of $830. Defendant appeals, contending the evidence was insufficient to support his conviction. In addition, defendant claims he received ineffective assistance of trial counsel, as shown by his counsel’s failure to (1) file a motion to suppress the cannabis seized from under the hood of his automobile; (2) call the latent fingerprint examiner for the State crime laboratory to testify regarding fingerprint evidence; (3) make an opening statement; or (4) impeach the testimony of one of the State’s key witnesses. We affirm.

Initially, we consider defendant’s claim that the State failed to prove beyond a reasonable doubt he was in possession of the cannabis seized from under the hood of his automobile.

At trial State Trooper Layfield, the arresting officer, testified as follows: (1) on February 1, 1990, while on patrol with the “Valkyrie” team, a drug interdiction patrol, she initiated a traffic stop of a 1981 Oldsmobile automobile driven by defendant for speeding northbound on 1-55; (2) there were two other male occupants in defendant’s automobile; (3) when asked for a driver’s license, defendant produced a Missouri traffic citation; (4) a State and national computer check indicated defendant’s driver’s license had been suspended in California; (5) the two men in defendant’s automobile were illegal aliens and could not speak English; (6) defendant was placed under arrest and transported to the McLean County building; (7) she also transported the other two men to the McLean County building until the United States Immigration and Naturalization Service (INS) could be notified; (8) defendant’s automobile was towed by Jerry Brimmer’s wrecker service because none of the occupants had a valid driver’s license to drive the automobile, and defendant was unable to prove ownership; and (9) when defendant attempted to retake possession of the automobile on February 3,1990, she arrested him for the present offense.

On cross-examination, Layfield testified as follows: (1) she made a check with a Federal bureau run by the United States Customs Service to determine whether any of the occupants of the automobile had committed any immigration violations; (2) she was told defendant was listed in the system for an unspecified immigration violation; (3) the INS told her not to “worry about it”; (4) at the scene of the traffic stop defendant gave her permission to search his automobile; (5) she only did a “basic” search of the inside of the car, and not the trunk because of the inclement weather; (6) she requested that the automobile be impounded for the vehicle inspection officer to determine ownership because “she had a problem with the ownership”; (7) after she transported defendant to the McLean County building, she went to Brimmer’s home garage, where defendant’s automobile was impounded, and searched the trunk and glove box because defendant told her “there was [sic] some papers on the vehicle in it”; (8) the garage was locked and Brimmer had to open it for her; and (9) she was not searching the automobile for illegal drugs.

In addition, Sergeant Shumaker, of the Illinois State Police, testified as follows: (1) he was working in the vehicle identification section when defendant’s automobile had been towed to Brimmer’s garage; (2) he was requested to “process” the automobile to determine ownership; (3) on February 2, 1990 (the morning after defendant’s automobile was impounded), he went to Brimmer’s garage; (4) when he got there the garage door was open, and Brimmer was sitting on steps nearby; (5) he first located the vehicle identification number in the left front window; (6) he then located the Federal sticker which also contained the vehicle identification number and is either attached to the left front door or left front door pillar; (7) after he checked those numbers, he released the hood latch from inside the automobile to check the body tag, which is located on the engine and which indicates the plant the automobile was produced at, the model and sometimes the production number; (8) as he raised the hood of the automobile, he observed a semi-clear plastic bag lying on the front wheel well on the left side of the automobile; and (9) he observed two containers wrapped in aluminum foil which contained stems, seeds, and plant material resembling cannabis.

Shumaker testified on cross-examination as follows: (1) at trial he identified fingerprint powder on the plastic bag he found in the left wheel well of the automobile; (2) their procedure is to check for fingerprints; (3) he did not wear rubber gloves when he picked up the plastic bag; (4) his fingerprints would probably be on the plastic bag; (5) the tinfoil was probably not checked for fingerprints; and (6) he ran a computer check through the State of California and on February 2, 1990, and July 1990, the license plates on defendant’s automobile were registered to a Mr. Jesus Preciado in Escondido, California.

Jerry Brimmer testified, and essentially corroborated the testimony of Sergeant Shumaker regarding the search which led to finding the cannabis on the left front wheel well of defendant’s automobile. In addition Brimmer testified as follows: (1) he towed defendant’s automobile to his personal two-car garage because the police requested indoor storage; (2) no other automobile was located in the garage; (3) the garage was always locked, but he was not sure of whether the automobile was locked; (4) only he and his wife, Trooper Layfield and Sergeant Shumaker had access to the garage; and (5) he was present when Trooper Layfield and Sergeant Shumaker searched the automobile.

In addition, Denise Vaughn, a forensic scientist with the Illinois State Police, testified that one of the aluminum foil containers found in the plastic bag located in the left front wheel well of the automobile weighed 101.2 grams, the other container weighed 125 grams, and both packages contained cannabis.

Defendant was the principal witness for the defense and testified as follows: (1) he lived in St. Lords and was driving two individuals he had previously worked with to Chicago when he was stopped for speeding on 1-55; (2) he did not know whether those individuals were illegal aliens; (3) he was. not driving as fast as Trooper Layfield claimed and he believed she stopped him because the automobile had California license plates; (4) he did not know his driver’s license was suspended; (5) in response to Trooper Layfield’s request for proof of ownership, he showed her some “papers,” and “that’s how they put all the information in the papers that [he had] proof that said [he] had all those things”; (6) at the scene, Trooper Layfield asked him if she could search his automobile and she searched under the seats and the trunk; (7) he gave her $100 for bond, and the driver of the tow truck gave him and his passengers a ride to a nearby gas station; (8) he was surprised the police found the cannabis, and he never saw it there when he had previously checked the water and oil under the hood; and (9) he never uses drugs.

To establish possession of the cannabis by defendant, the State must prove two elements: (1) defendant had knowledge of the presence of controlled substance; and (2) the controlled substance was in the defendant’s “ ‘immediate and exclusive control.’ ” (People v. Jackson (1961), 23 Ill. 2d 360, 364, 178 N.E.2d 320, 322, quoting People v. Matthews (1959), 18 Ill. 2d 164, 170, 163 N.E.2d 469, 472.) Possession can be either actual, requiring an act of physical dominion over the controlled substance, or constructive, which can be inferred if the defendant had exclusive control over the premises where the controlled substance was found. (People v. Evans (1986), 143 Ill. App. 3d 236, 492 N.E.2d 1036.) Knowledge of the location of the controlled substance alone does not prove possession. However, because of the difficulty in proving knowledge, when actual or constructive possession is established, generally the element of knowledge can be inferred from the surrounding facts and circumstances. Jackson, 23 Ill. 2d at 365, 178 N.E.2d at 322.

Defendant maintains that, here, possession cannot be inferred when the only evidence connecting him to the cannabis was that he owned the automobile in which it was found, especially when no fingerprint evidence was presented. In particular, defendant contends the State failed to prove he had “ ‘immediate and exclusive’ ” control over the cannabis, or the automobile where the cannabis was found, because (1) no evidence was presented concerning whether the two men who occupied his automobile had knowledge of the cannabis; and (2) the automobile was beyond his control and custody and accessible by others for at least 18 hours before the cannabis was found. Defendant claims the instant case is similar to People v. Boswell (1974), 19 Ill. App. 3d 619, 312 N.E.2d 17, and Jackson, where convictions for possession of a controlled substance were reversed because the evidence failed to establish the defendant had exercised some control over the substance. In both of those cases the issue was whether the defendant had actual possession of the controlled substance.

In Boswell, a police officer, while initiating a traffic stop of an automobile, observed the front passenger door open and a package drop from the open door. The defendant had been sitting in the front passenger seat. In addition, the police heard the defendant say “ ‘that was stupid’ ” or “ ‘that was a dumb thing to do.’ ” (Boswell, 19 Ill. App. 3d at 620, 312 N.E.2d at 18.) The package was later found to contain cannabis. Because the defendant was not actually observed throwing the package out of the door and a possibility existed that one of the other three passengers could have thrown the package out, the appellate court concluded the evidence was insufficient to establish that the defendant exercised exclusive or joint control over the cannabis.

Similarly, in Jackson, the defendant locked herself in the bathroom of her third-floor apartment after being informed by a narcotics agent that she was under arrest. The defendant was carrying a large handbag. After the defendant opened the bathroom door, the narcotics agent noted the bathroom window opened upon an airwell. He then located a package containing a controlled substance directly under the window among some debris. Seven other apartments had access to the same airwell. Furthermore, there was no fingerprint evidence presented by the State. The Illinois Supreme Court noted that the controlled substance was not found in an area under the exclusive possession of the defendant, and no evidence was offered regarding the other tenants who had access to the airwell. The Illinois Supreme Court concluded the evidence was insufficient to show the defendant had possession of the controlled substance.

Unlike the foregoing cases where the State had to prove the defendant had actual physical control over the controlled substance, here, an inference of exclusive control by defendant over the cannabis can be established because defendant owned the automobile, and more importantly, because the cannabis was found in an area of the automobile to which only the owner ordinarily has access. The evidence at trial established that defendant had owned the automobile for several months prior to the traffic stop and was driving at the time of the stop. Defendant testified that he personally checked the water and oil levels under the hood. The jury knew there were two passengers in defendant’s automobile at the time of the traffic stop, and could reasonably have concluded that the passengers would not have had access to that area of defendant’s automobile. In any event, the requirement that defendant have immediate and exclusive control over the controlled substance, or the premises where the controlled substance was found, does not rule out joint control. Boswell, 19 Ill. App. 3d at 621, 312 N.E.2d at 19.

Additionally, the jury was aware that the automobile was towed and out of defendant’s immediate and exclusive control for approximately 18 hours. However, the evidence also established that during that time the automobile was in a locked garage, and the only individuals who had access to the automobile were Trooper Layfield, Sergeant Shumaker, Brimmer, and Brimmer’s wife. The jury could reasonably have concluded that those individuals would not have placed the cannabis under the hood of defendant’s automobile. Under the circumstances, the lack of fingerprint evidence would not necessarily raise a reasonable doubt. Once the jury concluded defendant was in constructive possession of the cannabis, defendant’s knowledge of the presence of the cannabis could reasonably be inferred.

In determining whether the evidence in a criminal case is sufficient to support a verdict of guilt, we view the evidence in a light most favorable to the prosecution and determine whether, under that evidence, a rational trier of fact could have found that each essential element of the offense was proved beyond a reasonable doubt. (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) We find the proof met that test here.

In addition, defendant claims that various omissions by his counsel at trial, individually or in combination, denied him effective assistance of counsel. We disagree for reasons that follow.

Allegations of ineffective assistance of counsel are evaluated according to a two-part test announced in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. Under the Strickland test, the defendant must prove (1) “that despite a strong presumption of counsel’s professional competence, counsel’s allegedly unprofessional acts or omissions in fact were ‘outside the wide range of professionally competent assistance,’ and (2) that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” (People v. Stewart (1990), 141 Ill. 2d 107, 118, 565 N.E.2d 968, 973, cert. denied (1991), _U.S. _, 116 L. Ed. 2d 126, 112 S. Ct. 162, quoting Strickland, 466 U.S. at 690, 694, 80 L. Ed. 2d at 695, 698, 104 S. Ct. at 2066, 2068.) The Strickland Court noted that if it is easier to decide a case on the ground of lack of sufficient prejudice, rather than having to decide whether counsel’s representation was constitutionally deficient, a court should do so. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.

Defendant’s first allegation of constitutionally deficient representation concerns his trial counsel’s failure to file a motion to suppress the cannabis seized from his automobile. Defendant argues that there was substantial authority to support a motion to suppress, and his trial counsel’s failure to make such a motion lacked any strategic advantage and prejudiced the outcome of the trial. Defendant acknowledges the State Police had authority to search his automobile at the scene of the traffic stop based upon his consent, and also authority to tow the automobile because neither he nor his passengers possessed a valid driver’s license. Defendant maintains that the search of his automobile the morning after it had been towed to Brimmer’s garage in order to either inventory the contents or determine ownership was a pretext to search for illegal drugs, which would otherwise have been impermissible without a warrant.

The evidence at trial revealed that the search in question occurred on February 2, 1990, the morning after defendant was arrested for the traffic violations and the automobile had been towed to Brimmer’s home garage. A basic search of the front and back seats of the automobile had been conducted by Trooper Layfield at the scene, and another search by Layfield of the glove box and trunk was conducted after the automobile had been impounded at Brimmer’s garage. The search in question here was conducted by Sergeant Shumaker. As already stated Shumaker worked for the vehicle identification section and was also a member of the “Valkyrie” team. Testimony at trial indicated that Shumaker had a dog with him at the time of the search, and that the “Valkyrie” team owned a dog to sniff out drugs. There was no evidence of whether this dog with Shumaker was the “Valkyrie” team dog, or why the dog was with him.

The State acknowledges the search in question would not have been a permissible inventory search, but instead argues that the limited search of defendant’s automobile without a warrant was permissible as a search to determine ownership. The State contends that regardless of Sergeant Shumaker’s motive for bringing along a dog when gathering the identification information from the automobile, the cannabis would have in any event been discovered when conducting a permissible search under the hood for the body tag number for identification purposes. Consequently, the State maintains there was no proper basis for filing a motion to suppress the evidence seized from the permissible search.

The prevailing analysis by the United States Supreme Court is to “first [examine] the challenged searches under a standard of objective reasonableness without regard to the underlying intent or motivation of the officers involved.” Scott v. United States (1978), 436 U.S. 128, 138, 56 L. Ed. 2d 168, 178, 98 S. Ct. 1717, 1723.

No Illinois case has been found which has directly considered the reasonableness of a warrantless search under the hood of an automobile to determine ownership. However, Professor LaFave discusses the permissibility of automobile searches to determine ownership in section 7.4(d) of his treatise. (3 W. LaFave, Search & Seizure §7.4(d), at 120-21 (2d ed. 1987).) In particular, LaFave states as follows:

“Under a variety of circumstances, it is reasonable for the police to make a limited search of a vehicle in an effort to determine ownership. ***
* * *
*** The better view is that if the driver has been given an opportunity to produce proof of registration but he is unable to do so, and even if he asserts that there is no such proof inside the car, the officer is not required to accept such an assertion at face value, at least when his ‘previous conduct would *** cast doubt upon his veracity’; at that point, the officer may look for registration papers ‘on the dashboard, sun visor and steering column’ and, if not found in those places or seen in plain view, in ‘the glove compartment,’ all ‘places where it may reasonably be found.’ This is significant in that a search for this purpose may at least sometimes be more intrusive than would likely be permitted in an ordinary inventory of the contents.” 3 W. LaFave, Search & Seizure §7.4(d), at 120-21 (2d ed. 1987), quoting State v. Taras (1972), 19 Ariz. App. 7, 10, 11, 504 P.2d 548, 551, 552.

Here, objectively viewed, Sergeant Shumaker’s search under the hood of defendant’s automobile for ownership identification purposes was reasonable. Warrantless searches are not per se unconstitutional, but may be justified so long as they are reasonable. (South Dakota v. Opperman (1976), 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092.) There was no evidence that a limited search of this kind was unnecessary or contrary to normal police procedure. Although defendant indicated he had some papers regarding ownership of the automobile at the time of the traffic stop, Trooper Layfield testified defendant had no proof of ownership. Sergeant Shumaker testified that on February 2, 1990, he ran a check on the license plates, and the plates were registered under someone else’s name.

In addition, Sergeant Shumaker testified that the body tag number located on the engine provides helpful information regarding the ownership identification. There was no evidence Shumaker’s search was not limited to parts of the automobile which would provide identification information. Consequently, regardless of any underlying motives, the search and seizure of the cannabis under the hood of defendant’s automobile was permissible, and thus, defense counsel’s failure to file a motion to suppress the evidence would not have likely changed the outcome of defendant’s trial.

The instant case is distinguishable from People v. Reincke (1980), 84 Ill. App. 3d 222, 405 N.E.2d 430, where the appellate court affirmed the portion of the trial court’s order granting that defendant’s motion to suppress evidence seized from a warrantless search of his automobile under the pretext of an inventory search of an impounded automobile. The Reincke court concluded the search was for investigation purposes, rather than to inventory the contents of that defendant’s automobile. The evidence at that trial indicated the State Police policy was to inventory the contents of the automobile at the scene, and not as done there, two hours after the automobile had been impounded. Unlike the instant case, the warrantless search of that defendant’s automobile was objectively unreasonable there because the evidence indicated the search was contrary to police policy, and not permissible under the inventory search doctrine. Here the warrantless search of defendant’s automobile was permissible to determine ownership.

In Reincke, the court wrote that “[a] crucial factor in determining the validity of an inventory search is whether the search is actually a pretext for concealing an investigatory motive.” (Reincke, 84 Ill. App. 3d at 225, 405 N.E.2d at 432.) To the extent that Reincke stands for the proposition that an otherwise appropriate inventory search could be deemed unreasonable and inappropriate because the police officers had an investigatory motive when they conducted the inventory search, we decline to follow it. Such a holding is inconsistent with the directive of the United States Supreme Court in Scott that a challenged search should be examined “under a standard of objective reasonableness -without regard to the underlying intent or motivation of the officers involved.” (Scott, 436 U.S. at 138, 56 L. Ed. 2d at 178, 98 S. Ct. at 1723.) In other words, an otherwise lawful search cannot be rendered unlawful because of the motives of the police in conducting it.

In so holding, we find helpful and persuasive the following analysis from a recent decision of the Texas court of criminal appeals in Garcia v. State (Tex. Crim. App. 1992), 827 S.W.2d 937, 942, quoting United States v. Causey (5th Cir. 1987), 834 F.2d 1179, 1184 (en banc), wherein that court held that “[‘jwhere police officers are objectively doing what they are legally authorized to do ... the results of their investigations are not to be called in question on the basis of any subjective intent with which they acted,[’]” and explained that holding as follows:

“[Tjwo of the primary reasons why the objective approach clearly makes more sense, and is more reasonable in terms of application, than is an attempt to determine an officer’s subjective reasons for a ‘pretext’ detention [are the following].

First, an objective evaluation of the facts and circumstances surrounding a stop or arrest comports with the federal exclusionary rule and its deterrence rationale. The exclusionary rule was designed to prevent unlawful police conduct, and our Fourth Amendment jurisprudence has evolved around this core concept. ‘[T]he reason lies in the purpose of [the exclusionary] rule: to deter unlawful actions by police. Where nothing has been done that is objectively unlawful, the exclusionary rule has no application and the intent with which [police officers] acted is of no consequence.’ [(United States v. Causey (5th Cir. 1987), 834 F.2d 1179, 1185.)] Expanding the exclusionary rule to cover pretext arrests

[‘]would be defensible only if we felt it important to deter policemen from acting lawfully but with the plan — the attitude of mind — of going further and acting unlawfully if the lawful conduct produces insufficient results. We might wish that policemen would not act with impure plots in mind, but I do not believe that wish a sufficient basis for excluding, in the supposed service of the [F]ourth [A]mendment, probative evidence obtained by actions — if not thoughts — entirely in accord with the Fourth Amendment^’]

[Citation.]

It makes little sense to maintain the pretext arrest doctrine solely to deter the subjectively bad intentions of law enforcement personnel when these intentions do not ultimately manifest themselves in any objectively ascertainable Fourth Amendment violations. Thus, as long as the facts and circumstances show a valid and legal detention, it serves no actual Fourth Amendment function to attempt to unearth the subjective reasons for such detention.

Second, application of the subjective ‘pretext arrest’ doctrine espoused in Amador-Gonzalez v. United States, 391 F.2d 308 (5th Cir.1968), et al., presupposes the ability to successfully determine a police officer’s state of mind at the time of the detention. But the subjective intent of a police officer is neither easily nor consistently ascertained by courts:

[‘S]urely the catch is not worth the trouble of the hunt when courts set out to bag the secret motivations of police in this context. A subjective purpose to do something that the applicable legal rules say there is sufficient objective cause to do can be fabricated all too easily and undetectably. Motivation is, in any event, a self-generating phenomenon: If a purpose to search for heroin can legally be accomplished only when accompanied by a purpose to search for a weapon, knowledgeable officers will seldom experience the first desire without a simultaneous onrush of the second.[’]”

[Citation.] (Emphasis in original.) Garcia, 827 S.W.2d at 943-44.

Furthermore, the instant case is distinguishable from People v. Brinson (1980), 80 Ill. App. 3d 388, 399 N.E.2d 1010, where the appellate court held that, where the identification evidence was weak and there was evidence that defendant’s confession was coerced, defense counsel’s failure to file a motion to suppress the identification evidence and the confession constituted ineffective assistance of counsel. Here, unlike Brinson, the likelihood of the success of a motion to suppress the cannabis was remote.

Defendant also challenges his counsel’s failure to call as a witness the State’s forensic scientist who examined the fingerprints found on the plastic bag containing the cannabis. The report of the forensic scientist revealed 27 latent impressions suitable for comparison. Comparison of 15 of the 27 to defendant’s fingerprints did not reveal any identifications. Palm prints of defendant would have been required for comparison of the remaining 12 prints. The State never took defendant’s palm prints and did not call the forensic scientist to testify.

Defendant claims defense counsel’s failure to call the forensic scientist or any other witness in an effort to introduce the evidence concerning the results of the fingerprint tests was ineffective representation when considered together with defense counsel's alleged other omission. We disagree. The jury was aware by Sergeant Shumaker’s testimony that fingerprint powder was on the outside of the plastic bag which contained the cannabis, and that it was State Police policy to check for fingerprints. The forensic scientist who examined the content of the plant material found in the plastic bag testified she turned the exhibits over for fingerprint examination. In closing argument, defense counsel noted defendant was fingerprinted and that the State had the burden of proving his fingerprints were identified as those found on the plastic bag.

Failure to interview and call witnesses at trial, particularly when the witnesses are known to trial counsel and their testimony may be exonerating, may indicate actual incompetence. (People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203.) Here, the testimony of the latent fingerprint examiner would not have been exonerating. He would not have been able to testify definitively that none of the latent prints found on the plastic bag matched defendant’s fingerprints. Consequently, the defense counsel could reasonably have concluded as a matter of trial strategy that it was best to leave the jury to make the inference that the State would have introduced fingerprint evidence if the results had been incriminating.

Defendant also maintains that his counsel’s failure to make an opening statement at trial was constitutionally deficient. While ordinarily an opening statement is important in providing the jury with a clear understanding of the theory of the case, there can be strategic reasons for waiving the opening statement. Any evaluation of counsel’s conduct cannot properly extend into areas involving the exercise of judgment, discretion or trial tactics. (People v. Mitchell (1984), 105 Ill. 2d 1, 12, 473 N.E.2d 1270, 1275.) The defendant in the instant case did not speak English well and defense counsel could have reasonably concluded that the best strategy was to allow for flexibility. Defendant was the key witness for the defense, and variances between an opening statement and defendant’s testimony would have been noticed by the jury. In any event, under the circumstances here, an opening statement would not likely have changed the outcome of the trial.

Last, defendant claims defense counsel’s failure to impeach Trooper Layfield’s testimony further exacerbated counsel’s foregoing omissions. Defendant maintains that if counsel had properly impeached Layfield it may have tipped the scales in his favor. The record indicates that there was conflicting testimony regarding whether defendant had posted bond for the traffic arrest at the scene, or whether Trooper Layfield transported him and his two passengers to the McLean County building to post bond. Trooper Layfield testified that defendant was taken to the McLean County sheriff’s office after his arrest and released from there after posting $100 bond. Defendant testified he posted bond at the scene and Jerry Brimmer gave him a ride to a nearby gas station.

Trooper Layfield’s police report indicated that defendant was arrested for the traffic violations and that he posted bond and was taken to the “Union 76.” Defense counsel did not use this police report to impeach Trooper Layfield’s testimony. However, defense counsel presented the testimony of David Goldberg, chief deputy of the McLean County sheriff’s department, who testified that there was no record of defendant being “booked” into the McLean County jail on February 1, 1990.

The subject matter of the impeachment here concerns an immaterial aspect of the case. If the police report had been used to prove a discrepancy with Trooper Layfield’s trial testimony, the jury could reasonably have concluded Trooper Layfield made an honest mistake based on attempt to remember an event that took place more than one year before the trial. Accordingly, defense counsel’s failure to attempt to impeach Trooper Layfield with her police report would not likely have changed the outcome of the trial.

Based on the foregoing discussion, we conclude that none of the defendant’s allegations of ineffective assistance of trial counsel prejudiced the outcome of his trial and he has therefore failed to meet the requirements set forth in Strickland.

We note in passing that much of defendant’s argument regarding ineffective assistance of counsel concerns speculation about defendant’s trial counsel’s failure to take certain actions at the trial level that defendant’s appellate counsel asserts should have been taken. Defendant argues that his trial counsel’s omissions were due either to counsel’s inability to understand the issues or his confusion on the law because, defendant claims, no competent counsel could fail to do the things at trial that defendant’s trial counsel failed to do. However, as we consider defendant’s arguments, we do not have the benefit of any explanation from defendant’s trial counsel regarding these omissions. In People v. Kunze (1990), 193 Ill. App. 3d 708, 725-26, 550 N.E.2d 284, 296, this court addressed another defendant’s claim of ineffective assistance of counsel and wrote the following:

“Where, as here, consideration of matters outside of the record is required in order to adjudicate the issues presented for review the defendant’s contentions are more appropriately addressed in proceedings on a petition for post-conviction relief. (Ill. Rev. Stat. 1987, ch. 38, pars. 122 — 1 through 122 — 8.) We therefore decline to adjudicate in this direct appeal [defendant’s] contentions concerning the alleged incompetence of [his] trial counsel. An adjudication of a claim of ineffective assistance of counsel is better made in proceedings on a petition for post-conviction relief, when a complete record can be made and the attorney-client privilege no longer applies.”

Although we have here adjudicated defendant’s claim of ineffective assistance of counsel, we reaffirm our earlier holding in Kunze that, for the reasons stated therein, claims of this kind are better adjudicated in proceedings on a petition for post-conviction relief. We find further support for this view in Mitchell, where the court wrote the following:

“Specifically, defendant contends that her trial counsel erred by failing to object in an appropriate and timely manner or to raise several readily apparent legal questions during trial. Initially, we note that any evaluation of counsel’s conduct cannot properly extend into areas involving the exercise of judgment, discretion or trial tactics. Counsel is entitled to great deference in this court’s evaluation of his conduct.” (Mitchell, 105 Ill. 2d at 12, 473 N.E.2d at 1275.)

Without any explanation from defendant’s trial counsel on the record before us, it is extraordinarily difficult to conclude, as defendant now asks us to do, that defendant’s trial counsel’s trial level omissions do not constitute areas “involving the exercise of judgment, discretion or trial tactics,” the evaluation of which we are prohibited from engaging in under Mitchell.

Accordingly, for the aforementioned reasons, we affirm.

Affirmed.

STEIGMANN and KNECHT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
      In re ESTATE OF NICHOLAS FRANK GIGANTI, Deceased (Robert Carl Giganti, Petitioner-Appellant, v. Hilda Giganti, Ex’r, Respondent-Appellee).
    Fourth District
    No. 4—91—0916
    Opinion filed June 29, 1992.

      Michael W. Ochoa and Robert Weiner, both of Springfield, for appellant.
    Francis J. Giganti, of Morse, Giganti & Appleton, of Springfield, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Sangamon County, holding that a death benefit payable by the State Employees’ Retirement System of Illinois (Retirement System) for Nicholas Frank Giganti (decedent) belonged to Hilda Giganti as the person nominated by written direction to the Retirement System, rather than to Hilda Giganti in her capacity as trustee under the will of decedent.

Facts

The decedent had been an employee of the State of Illinois and a member of the Retirement System. On August 15, 1989, he changed the beneficiaries of death benefits payable from the Retirement System from his parents to his sister-in-law, Hilda Giganti. On November 21, 1989, Nicholas executed a will naming Hilda executor of his estate and trustee of his net estate. The trust was for the benefit of Robert Carl Giganti (Carl), decedent’s only child. Decedent died on November 28, 1989. The Retirement System death benefit totaled $64,782.79 and was paid to Hilda.

A petition for direction was filed, asking whether Hilda held the funds for her own use or as trustee for the benefit of Carl. The trial court ruled that the funds belonged to “Hilda Giganti *** in her personal capacity and not as trustee.”

The evidence at the hearing indicated that Hilda was the wife of Nicholas’ brother and had been for 35 years. Both Hilda and the brother had helped decedent when he was in college. Carl was born March 31, 1973, and his father and mother subsequently divorced. Argument was made that the facts should create a presumption that death benefits from the Retirement System were intended to be part of the trust.

The applicable provision of the Illinois Pension Code (Code) is section 14 — 117, which provides:

“Nonoccupational death benefit — Death after retirement. Upon death of a retired member, unless a reversionary annuity, widow’s annuity or survivors annuity is payable, a death benefit shall be payable to such person as the member shall have nominated by written direction duly acknowledged and filed with the board or if no such nomination, to the estate of the member. Such benefit shall consist of the excess, if any, of the member’s accumulated contributions plus credited interest still remaining in the system at the time of retirement, over the total amount of all retirement annuity payments received by the member prior to death subject to a minimum payment of $500.” Ill. Rev. Stat. 1989, ch. 1081/2, par. 14 — 117.

Section 4 — 5 of the Probate Act of 1975 (Act) provides, in relevant part:

“Insurance and death benefits payable to testamentary trustee. A person having the right to designate a beneficiary of benefits payable under any insurance, annuity or endowment contract (including any agreement issued or entered into by an insurance company in connection therewith, supplemental thereto or in settlement thereof), or the right to designate the beneficiary of benefits payable upon or after the death of a person under any pension, retirement, death benefit, deferred compensation, employment, agency, stock bonus or profit sharing contract, plan, system or trust, may designate as a beneficiary a trustee named or to be named in his will whether or not the will is in existence at the time of the designation. The benefits received by the trustee shall be held and disposed of as part of the trust estate under the terms of the will.” Ill. Rev. Stat. 1989, ch. 1101/2, par. 4 — 5.

However, there is no evidence that the direction to the Retirement System made any reference to Hilda as trustee. Section 4 — 5 of the Act was, thus, not applicable because there was no designation to a “trustee,” the designation being to Hilda, without limitation.

We do not find section 4 — 5 of the Act to be ambiguous. It applies where insurance polices, annuity contracts, endowment contracts, and pension, retirement, and other benefits specifically listed provide for payments to beneficiaries designated as trustees. The title to the paragraph is “Insurance and death benefits payable to testamentary trustee.” We hold that an interpretation of this section as including a trustee status when not so specified in the policy or pension agreement would be a strained one.

We also find no reason to give a strained interpretation to section 14 — 117 of the Code. The benefit gives to the “person” nominated by written direction, or to the member’s estate. To bring section 4 — 5 of the Act into play, the named beneficiary under section 14 — 117 of the Code must be referred to in the designation as “testamentary trustee” or “trustee.”

The authorities cited by both petitioner and respondent fail to provide substantial assistance in resolving this matter. It may well be that this is the first time the problem has arisen concerning a section 14 — 117 of the Code benefit.

We have some concern because there is an absence of authority furnished our court as to the possibility of extrinsic evidence justifying changing the designation of the section 14 — 117 beneficiary. Petitioner does cite In re Estate of Reiman (1983), 115 Ill. App. 3d 879, 450 N.E.2d 928. That case states the following:

“The rules governing the admission of extrinsic evidence to aid in the construction of a will are well settled in this State, the crucial determination in each case being whether as a matter of law the will is ambiguous, necessitating extrinsic evidence.” (Reiman, 115 Ill. App. 3d at 885, 450 N.E.2d at 932.)

This same rule applies to contracts. See Chicago Investment Corp. v. Dolins (1981), 93 Ill. App. 3d 971, 418 N.E.2d 59; 12A Ill. L. & Prac. Contracts §265 (1983).

However, there is no ambiguity in either the death benefit nomination or in the will. The death benefit nomination is specific and says nothing about the estate or testamentary trust. The will is specific, the executor is named, the trust is established, and there is no reference to the Retirement System death benefit.

Under the facts before us, we hold that it would have been improper for the trial court to speculate what the decedent intended. The designation of beneficiary to the Retirement System controls.

Affirmed.

GREEN, P.J., and McCULLOUGH, J., concur.


author: PRESIDING JUSTICE GREEN JUSTICE COOK, JUSTICE STEIGMANN,

text:
    DEBORAH WILSON, Plaintiff-Appellee, v. THE FRANKLIN LIFE INSURANCE COMPANY, Defendant-Appellant.
    Fourth District
    No. 4—91—0768
    Opinion filed June 25, 1992.
    COOK, J., specially concurring.
    STEIGMANN, J., concurring in part and dissenting in part.
    Lee Humphrey and Matthew J. Maddox, both of Hinshaw & Culbertson, of Springfield, for appellant.
    Traub, Weeks & Brueker, Ltd., of Fairbury, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On August 7, 1990, plaintiff Deborah Wilson brought suit against defendant Franklin Life Insurance Company (Franklin) in the circuit court of Livingston County to recover benefits under a life insurance policy issued by defendant on the life of decedent Kenneth A. Niesmann, Jr. Wilson is the beneficiary under the policy and contends the policy was in force on the date of Niesmann’s death. Defendant maintains no benefit is owed under the policy, because the policy lapsed prior to Niesmann’s death for failure to pay premiums. On September 17, 1991, following cross-motions for summary judgment, the trial court entered judgment in favor of plaintiff and against the defendant in the amount of $108,717.20 plus costs and denied defendant’s motion for summary judgment. Defendant has appealed both the granting of plaintiff’s motion and the denial of its motion for summary judgment. We reverse the summary judgment for plaintiff but affirm the denial of defendant’s request for summary judgment. We remand for further proceedings.

The record upon which the motions for summary judgments were based consisted of the pleadings, plaintiff’s response to defendant’s request to admit facts, affidavits, and depositions. The parties concede the existence of certain facts as follows: (1) Niesmann applied to defendant for a life insurance policy in the amount of $58,717.20 with a $50,000 rider on May 4, 1989; (2) the policy was effective June 15, 1989; (3) the annual premium was $959.04, but the policy was sold on a salary allotment plan whereunder Niesmann authorized his employer, Technical Metals, to deduct $20 per week from his paycheck for payment of his premium; (4) under the salary allotment plan, payments were received by Franklin every two weeks; (5) under the plan, on the 15th of each month, the sums sent to Franklin were credited as payments of a monthly premium which were due on that date; (6) in this manner, premiums were applied to pay for coverage at least until August 15, 1989; (7) on August 5, 1989, Niesmann terminated his employment with Technical Metals; and (8) on February 24, 1990, Niesmann died as a result of injuries received in an automobile collision.

Significant to our decision here is the operation of section 234(1) of the Illinois Insurance Code (Code), which states:

“No life company doing business in this State shall declare any policy forfeited or lapsed within six months after default in payment of any premium installment or interest or any portion thereof, nor shall any such policy be forfeited or lapsed by reason of nonpayment when due of any premium, installment or interest, or any portion thereof, required by the terms of the policy to be paid, within six months from the default and payment of such premium, installment or interest, unless a written or printed notice stating the amount of such premium, installment, interest or portion thereof due on such policy, the place where it shall be paid and the person to whom the same is payable, shall have been duly ad dressed and mailed with the required postage affixed, to the person whose life is insured, or the assignee of the policy, (if notice of the assignment has been given to the company) at his last known post office address, at least fifteen days and not more than forty-five days prior to the day when the same is due and payable, before the beginning of the period of grace ***.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 73, par. 846(1).

The supreme court has stated:

“Considering the terms of section 234(1), we hold that though an insurance company fails to provide the premium-due notice required by section 234(1), when the policy has remained in default for six months plus any period of extended coverage made possible by the policy’s provisions, as was the case here, the policy is subject to forfeiture.” (First National Bank v. Mutual Trust Life Insurance Co. (1988), 122 Ill. 2d 116, 122, 522 N.E.2d 70, 72.)

Thus, section 234(1) of the Code not only prohibits a declaration of the forfeiture or lapse of a life insurance policy before the completion of the six-month period unless notice as required has been given but also allows a forfeiture after that period without any such notice having been served. Here, the parties agree no notice conforming to the requirements of section 234(1) was ever served on Niesmann. Thus, a crucial question here is whether Niesmann’s death occurred after the expiration of the six-month period.

Undisputedly, monthly premiums had been paid to Franklin on Niesmann’s behalf in advance to cover the period up to August 15, 1989. As Niesmann died on February 24, 1990, six months and nine days had elapsed from August 15, 1989, when another premium was due, until Niesmann’s death. However, in the deposition of Marge Clinton, Franklin’s claims supervisor, she testified that after Niesmann’s employment with Technical Metals was terminated an additional payment of $46.66 was received by Franklin and credited to a “special billing holding account” where it remained until March 2, 1990, six days after Niesmann’s death, at which time the $46.66 was credited to a “special billing suspense account.” Shirley Adams, another Franklin employee, testified in her deposition that the purpose of the “special billing suspense account” was to hold funds concerning monthly group policies in which a problem existed. Undisputedly, Franklin mailed a check for $46.66 to a representative of Niesmann’s estate on March 8, 1990, and that tender was refused.

The insurance policy which is the subject of this suit stated in part:

“This policy is based upon the payment of premiums annually and in advance. However, premiums may be paid semi-annually or quarterly in advance. At the option of the company, premiums may be paid monthly in advance, or in any other manner made available by the company.”

Page 2 of the policy sets forth a schedule for premiums indicating an annual premium of $959.04, a semiannual premium of $496.58, or a quarterly premium of $252.41.

Plaintiff maintains and the circuit court agreed that by acceptance of the $46.66 and retaining it until after Niesmann’s death, Franklin impliedly agreed to a lesser premium period which covered that portion of a month that $46.66 bore to the monthly premium. This would have extended the period for which premiums were paid for more than nine days and would have prevented the six-month period of section 234(1) of the Code from expiring before Niesmann died.

A motion for summary judgment should only be granted when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c); see also Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867.) In deciding whether to grant summary judgment, a court shall construe the pleadings, affidavits, depositions, admissions, and exhibits strictly against the movant and liberally in favor of the opponent. When this is done and the record indicates all the evidence is before the court and no judgment for the respondent to the motion could ever stand, the court should grant the motion for summary judgment. (Barnes v. Washington (1973), 56 Ill. 2d 22, 305 N.E.2d 535; Fooden v. Board of Governors of State Colleges & Universities of Illinois (1971), 48 Ill. 2d 580, 272 N.E.2d 497.) The record here does not justify a summary judgment for either side.

In addition to the evidence previously recited, most of the evidence presented came from the deposition of Michael Lorch, an independent agent for Franklin. He testified (1) he attempted to contact Niesmann on August 30, 1989, September 20, 1989, and October 17, 1989, in regard to the insurance policy; (2) as early as October 17, 1989, he informed Niesmann that his policy was “no longer in force” since Niesmann had left Technical Metals; (3) he then informed Niesmann that his personal payment of $40.01 was required to pay the past-due premium; (4) Niesmann indicated he wanted to keep the policy in force but did not have the money to pay the past-due premium; (5) he told Niesmann he would not be covered under the policy until the past-due premiums were paid; and (6) Niesmann then asked him to set up a salary deduction procedure for the payment of premiums with Niesmann’s new employer.

In his deposition, Lorch further testified that (1) he attempted to set up a deduction procedure with Niesmann’s new employer but was not able to do so; (2) in a conversation with Niesmann on January 2, 1990, he told Niesmann that Niesmann was not covered by the policy; (3) on January 20, 1990, he saw Niesmann in a bar and attempted to arrange a meeting with the new employer concerning a deduction procedure; and (4) from August to December 1989 he was frequently contacted by Franklin concerning the need for Niesmann to pay his premiums.

In an affidavit filed in opposition to defendant’s motion for summary judgment, plaintiff stated that, if sworn as a witness, she would testify she was present at a meeting on October 17, 1989, between Niesmann, Lorch, and a person named Bob Ruder, and at no time during the meeting did Lorch or Ruder state that the insurance policy had lapsed or was not in force. Moreover, we note that if Lorch had told Niesmann the policy had lapsed or was not in force, he would have been incorrect. Niesmann was in default on his premium payments, but the policy remained in force at least until February 15, 1990, in that, had Niesmann died anytime before that date, the policy would clearly have been in force pursuant to the provisions of section 234(1) of the Code as no notice required by that section had been served. In her deposition, Marge Clinton admitted that after Niesmann died, a computer check of the records concerning the policy indicated that the policy was “in force.” This could have been a mistake, but the conclusion the policy was “in force” was entirely consistent with plaintiff’s theory that the $46.66 was accepted as a payment for a short premium period.

While the record clearly showed great confusion by Franklin’s agents as to the status of the policy, we cannot determine, as a matter of law, that plaintiff was entitled to recover. The record does not indicate the only inference to be drawn from the confusion was that Franklin had agreed that premiums may be paid for portions of a month even for one time. If Franklin had not so agreed, no premium payment had been made covering a period after August 15, 1989, and the six-month period of section 234(1) of the Code had expired before Niesmann died.

Relying on Evaluation Systems, Inc. v. Aetna Life Insurance Co. (N.D. Ill. 1982), 555 F. Supp. 116, plaintiff maintains the mere “acceptance of the partial premium” by Franklin created coverage for the portion of the premium period covered by the partial premium. There, a life insurer was alleged to have refused to pay on a life insurance policy under specific circumstances. Damages were sought for vexatious and unreasonable failure to pay. The district court held the allegations were sufficient to support recovery. The insured had sent in a premium payment less than the premium for a full year. The insurer accepted the payment but attempted to notify the insured of the need for further funds to pay the full premium. However, the insured did not receive the notice. The insured died before the premium year was three-fourths over, and the portion of the premium paid was well in excess of three-fourths of that required.

The Evaluation Systems policy provided that premiums could be paid annually, semiannually or quarterly or, with the insurer’s consent, monthly. Unlike here, the policy further provided that a “ ‘change to [a different] frequency will take effect when [the insurer] accepts the premium for the changed frequency.’ ” (Evaluation Systems, 555 F. Supp. at 119.) The Evaluation Systems court stated:

“It is certainly arguable from the Policy terms that once Aetna ‘accepts’ a partial premium payment that exceeds a quarterly premium, it is contractually bound to provide coverage for the corresponding portion of the Policy year. Controlling Illinois authorities have all inferred acceptance from the following circumstances:
1. retention of the premium check for three or more weeks;
2. eventual cashing of the check; and
3. only a later refunding of the payment.” (Emphasis added.) Evaluation Systems, 555 F. Supp. at 121.

The Evaluation Systems court’s emphasis upon policy terms concerning payment of a partial premium seems to indicate that court felt that acceptance by Aetna of less than the full yearly premium constituted an acceptance of a shorter premium period measured by the portion of the year to which the payment could be allocated. However, the opinion then states that theory is untenable because, under the policy, the premium periods to which a switch could be made would have to be either quarterly or semiannually and the sums paid by the insured were not of an amount allocable to any such period. Thus, in rendering its decision, the court was not relying upon the policy provision in regard to change of frequency for payment of premium. Accordingly, the decision is supportive of plaintiff’s contention here in that the court approved a theory that even without a special policy provision, acceptance of a partial premium extends the policy for a portion of the premium period measured by the portion of the required premium paid with allowance for the value to the insurer of earlier receipt of premiums.

The reference in Evaluation Systems to controlling Illinois authority in regard to acceptance of premiums payments is somewhat confusing. Apparently, the reference is not to acceptance of partial premium payments, because no cases speaking to that point have been called to our attention by either side. In any event, we do not deem Evaluation Systems to be sufficient authority to uphold a summary judgment for plaintiff here.

We hold that the question of whether, under the terms of the insurance policy, Franklin “made available” to Niesmann a different manner of premium payment than that earlier agreed upon is a question of fact for the trier of fact. This involves consideration of all of the evidence, including (1) the manner in which Franklin retained the $46.66, crediting it to a “special holding account” but having the use of the cash; (2) the nature of the agreement between the parties whereby payments were made to Franklin every two weeks; (3) the conversations between Niesmann and Franklin’s agents; and (4) the computer record indicating the policy was “in force” at the time of Niesmann’s death.

Franklin argues that no valid agreement by it and Niesmann could be inferred from the conduct of the parties because, when an express agreement exists, a different agreement may not be inferred by us from the circumstances. The cases of Stone v. City of Arcola (1989), 181 Ill. App. 3d 513, 536 N.E.2d 1329, and City of Marshall v. City of Casey (1989), 177 Ill. App. 3d 1065, 532 N.E.2d 1121, are cited. Those cases deal with the inconsistency of having an express agreement and an implied one at the same time. They do not concern the possible modification of an express agreement by subsequent action of the parties giving rise to an implied agreement. Here, the policy provided for certain premium periods but then stated that Franklin could make “available” other “manner” of payment.

Plaintiff maintains we should uphold the judgment of the circuit court on the basis that Franklin’s retention of the $46.66 worked an estoppel on or a waiver by Franklin to deny coverage under the policy. Neither has been pleaded and, thus, cannot be considered at this stage.

Accordingly, we affirm the judgment appealed to the extent it denied a summary judgment to defendant but reverse the summary judgment awarded to plaintiff. We remand the cause to the circuit court of Livingston County for further proceedings.

Affirmed in part; reversed in part and remanded.

JUSTICE COOK,

specially concurring:

I concur. In my view the evidence favoring plaintiff, although very strong, is not so overwhelming that a contrary verdict could never stand. See Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14; Fooden, 48 Ill. 2d at 586, 272 N.E.2d at 500.

Kenneth Niesmann terminated his employment August 5, 1989. Payroll deductions during his employment had paid his life insurance through August 15, 1989. A few days after August 15, Niesmann’s former employer sent defendant insurer a final payroll deduction check, in the amount of $46.66, which was not enough for a full month’s premium. Instead of returning the check, defendant cashed it and held the proceeds almost seven months, until Niesmann’s death February 24, 1990. On March 8, 1990, defendant attempted to return the proceeds to Niesmann’s estate. There is no evidence that defendant, or Niesmann, desired to terminate the policy before Niesmann’s death. Defendant wanted Niesmann to pay the balance of the premium through September 15, $40.01, after which defendant would begin to bill him directly or through a new employer. Niesmann wanted to continue the policy, but was experiencing financial difficulties. At issue in this case is whether defendant manifested its intention to afford coverage for a portion of a month by accepting the $46.66 check.

Statements of intention made after the risk for which insurance was sought has transpired or after the risk period has ended, whether made by the insured or by the insurer, are inherently self-serving and suspect. The most convincing evidence consists of the actions taken by the parties before the outcome was apparent. It is not particularly significant that the proceeds here were held in a “special billing account,” in a “special billing suspense account,” or in some other account. The inaccurate statements by the independent insurance agent, Lorch, as he attempted to persuade Niesmann to continue the policy in force, provide little indication of defendant company’s intent as to the application of the partial payment. The strongest evidence in this case is that defendant received the check for the partial premium, cashed it, and made no attempt to return the proceeds for almost seven months.

The cashing of an insured’s check and retention of the proceeds has been held an acceptance of premium in cases where the facts were much more favorable to the insurer than here. In Van Hulle v. State Farm Mutual Automobile Insurance Co. (1969), 44 Ill. 2d 227, 254 N.E.2d 457, a premium check to reinstate an automobile insurance policy was sent to the insurer after an accident in which one of the insureds was killed. The insurer was separately notified of the accident, but nevertheless held the check for 22 days, eventually cashed the check, then attempted to make a refund three days later. The supreme court affirmed a declaratory judgment for the insured, noting that the cashing of a check is significant and indicates acceptance. In Krumwiede v. Bankers Life & Casualty Co. (1981), 95 Ill. App. 3d 861, 420 N.E.2d 745, the insured sent a reinstatement form and a check on July 8, which the insurer received July 18. The insured had emergency surgery, which would have been covered by the policy, on July 22. On August 15 the company advised it could not reinstate the policy, but on August 17 the insurer cashed the check, then attempted to make a refund on September 26. The appellate court overturned a jury verdict for the insurer, holding that under Van Hulle, as a matter of law, the insurer had accepted the check. The fact that neither one of these cases involved a partial premium is not significant. What is important is that these cases involved disputed premium payments, and in both cases the cashing of the check and retention of the proceeds was held to constitute an acceptance of the premium. Based on these two cases, the United States District Court in Evaluation Systems (555 E Supp. at 121) held that an insurer accepted a $563.25 premium check (rather than the $613.50 called for by the policy) by cashing it immediately and retaining the proceeds for some three months before attempting to refund the payment. Evaluation Systems did involve the retention of a partial premium.

The policy in this case provided that “[a]t the option of the company, premiums may be paid monthly in advance, or in any other manner made available by the company.” I view that language as so similar to the policy language in Evaluation Systems that the reasoning of that case, which I find persuasive, should be followed here. Even if the policy were silent as to the power of defendant to accept partial premiums, the parties could, by their conduct if nothing else, agree that such payments could be accepted. An insurance contract is not a contract for the sale of goods, but the language of section 2— 208(1) of the Uniform Commercial Code — Sales is informative: “any course of performance accepted or acquiesced in without objection shall be relevant to determine the meaning of the agreement.” (Ill. Rev. Stat. 1989, ch. 26, par. 2—208(1).) A contract can be modified by mutual agreement, or by estoppel, and the two are sometimes difficult to distinguish. See Nagle v. General Merchandising Corp. (1978), 58 Ill. App. 3d 344, 348, 374 N.E.2d 1137, 1141.

In response to the insurer’s argument that the Van Hulle decision outlined a formula for defrauding insurance companies, the supreme court in that case observed the problem could be easily overcome by an adjustment in the insurer’s procedure for handling lapsed policies. The same is true in this case. Defendant can easily avoid undesired extension of coverage by not holding, cashing, or retaining the proceeds of premium checks which are in incorrect amounts. Insurance companies, of course, are in the business of covering risks, not returning premium checks, and it is not to be expected that they would refuse a check where there is a possibility of coverage being continued.

JUSTICE STEIGMANN,

concurring in part and dissenting in

part:

Although I concur with that portion of the majority opinion that reverses the summary judgment awarded to plaintiff, I respectfully dissent from that portion which affirms the trial court’s denial of summary judgment to defendant. For the reasons that follow, I believe that this court should remand the cause to the circuit court with directions to enter summary judgment for defendant.

The majority opinion states that “the policy provided for certain premium periods but then stated that Franklin could make ‘available’ other ‘manner’ of payment.” (231 Ill. App. 3d at 838.) Although the majority opinion is correct in so noting, this record contains no evidence at all that the parties agreed to a “manner of payment” of less than one month, which is what this case is all about.

In my judgment, the parties agreed to monthly payments, and as a convenience to decedent, Franklin accepted payments every two weeks that had been deducted from decedent’s paycheck. Franklin’s accommodation of decedent in this fashion did not render the premium payment period into 24 separate periods, with 15-day merements of insurance coverage, for purposes of section 234(1) of the Code.

In my view, no genuine issues of material fact exist in this case regarding how decedent paid his insurance premiums or how they were handled by Franklin. As a matter of law, the conduct of the parties in this case after the insurance policy was written did nothing to alter the terms of that policy that “premiums [were to] be paid monthly.” (Emphasis added.) Defendant is entitled to summary judgment.


author: PRESIDING JUSTICE GREEN JUSTICE STEIGMANN,

text:
    STATES LAND IMPROVEMENT CORPORATION, Plaintiff-Appellant, v. THE ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellee.
    Fourth District
    No. 4—91—0365
    Opinion filed June 25, 1992.

      STEIGMANN, J., specially concurring.
    James I. Rubin and Kevin J. O’Brien, both of Butler, Rubin, Newcomer, Saltarelli, Boyd & Krasnow, of Chicago, and Frederick C. Prillaman, of Mohan, Alewelt, Prillaman & Adami, of Springfield, for appellant.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and John A. Morrissey, Assistant Attorney General, of Chicago, of counsel), for appellee.
    Katherine D. Hodge, of Hodge & Dwyer, of Springfield, for amicus curiae.

   PRESIDING JUSTICE GREEN

delivered the opinion of the court;

On May 23, 1990, plaintiff States Land Improvement Corporation (States Land) filed suit for issuance of a common law writ of certiorari in the circuit court of Sangamon County against defendant Illinois Environmental Protection Agency (IEPA) thereby challenging an action by IEPA which placed a closed landfill site owned by States Land on IEPA’s “State Remedial Action Priorities List” (SRAPL). (See 35 Ill. Adm. Code §860.210, at 3100 (group 4) (1991).) On May 1, 1991, the circuit court allowed the IEPA’s motion to dismiss in bar of action. States Land has appealed. We reverse and remand with directions.

Both parties recognize that a common law writ of certiorari is an available means of judicial review of final decisions of agencies exercising quasi-judicial functions, if . the agency’s enabling statute does not expressly adopt the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3—101 et seq.) as a means of judicial review, (Smith v. Department of Public Aid (1977), 67 Ill. 2d 529, 367 N.E.2d 1286; City of Wood Dale v. Illinois State Labor Relations Board (1988), 166 Ill. App. 3d 881, 520 N.E.2d 1097.) The Environmental Protection Act (Act) (Ill. Rev. Stat. 1989, ch. 1111/2, par. 1001 et seq.), under which the IEPA purported to act in providing for the SRAPL, makes no provision for judicial review of an order such as that on review here.

Although the question is a close one, we hold that in placing States Land’s property on the SRAPL, the IEPA was performing a quasi-judicial function which had sufficient finality to make it subject to judicial review by common law certiorari. We also hold that IEPA lacked the power to create the SRAPL, at least in the manner in which it was done, under its statutory powers and its past and current rules.

The IEPA contends its action in placing States Land’s sites on the SRAPL was a legislative or executive function and not a quasi-judicial function subject to judicial review by common law certiorari and, moreover, even if its action was subject to such review, its action was proper and authorized by its valid regulations. The circuit court held the action was not quasi-judicial in nature and the common law certiorari did not lie, and therefore did not pass upon the propriety of the action by the IEPA.

The IEPA asserts that the SRAPL is authorized by regulations enacted by it pursuant to provisions of the Act. These regulations are found in the Illinois Administrative Code (Code) (see 35 Ill. Adm. Code (Code), §§860.100 through 860.300 (1991)). Section 860.100 thereof provided as follows:

“a) The purpose of the State Remedial Action Priorities List (SRAPL) is primarily to serve as an informational tool for use by the Agency in identifying sites that appear to present a significant risk to public health, welfare or the environment.
b) The initial identification of a site on a SRAPL is intended primarily to guide the Agency in determining which sites warrant further investigations designed to assess the nature and extent of the public health and environmental risks associated with the site and determine what State-financed remedial action, if any, may be appropriate.
c) Inclusion of a site on the SRAPL does not establish that the Agency necessarily will undertake remedial action at the site.
d) The listing of a site on the SRAPL does not require any action of any private party, nor does it determine the liability of any party for the cost of the clean-up of the site.” 35 Ill. Adm. Code §860.100, at 1091 (1986 Supp.).

Section 860.130 provided that new sites are added, if necessary, to the existing SRAPL by annually amending title 35, section 860.210 (35 Ill. Adm. Code §860.210 (1986 Supp.)) of the Code, which contains the actual list of sites, if there are sites that meet the criteria of section 860.200 (35 Ill. Adm. Code §860.200 (1986 Supp.)). (35 Ill. Adm. Code §860.130, at 1092 (1986 Supp.).) Section 860.200 of the IEPA’s rules provided as follows:

“a) Except as provided in paragraph (b), the Agency shall list on the SRAPL those sites which:
1) Are eligible under 35 Adm. Code 750 or Section 22.2 of the Act for listing on the SRAPL; and
2) Score greater than or equal to 10.0, but less than 28.5, using the federal Hazard Ranking System (HRS) (40 CFR 300, Appendix A, as such rule existed on July 19, 1985, and does not include any later amendments).
b) The Agency shall not list a site on the SRAPL if the Agency determines, through site evaluation, that there is no release or substantial threat of a release into the environment of any hazardous substance, or any pollutant or contaminant which may present an imminent or substantial danger to public health or welfare.” 35 Ill. Adm. Code §860.200, at 1092 (1986 Supp.).

Section 860.300 of the IEPA’s rules further states:

“The Agency shall delete a site from the SRAPL if the Agency determines, through site evaluation, that there is no release or substantial threat of a release into the environment of any hazardous substance, or any pollutant or contaminant which may present an imminent or substantial danger to public health or welfare.” 35 Ill. Adm. Code §860.300, at 1093 (1986 Supp.).

These rules were adopted by the IE PA in 1985 -under the statutory authority of sections 4 and 22.2(a) (Ill. Rev. Stat. 1983, ch. 1111/2, par. 1022.2(d)) (9 Ill. Reg. 12276 (eff. July 24, 1985)), and the SRAPL — section 860.210 of IEPA’s rules — has since been revised (amended at 10 Ill. Reg. 4226, 4230 (eff. February 26, 1986); amended at 11 Ill. Reg. 12232, 12236-37 (eff. July 9, 1987); amended at 12 Ill. Reg. 16074, 16076-77 (eff. September 23, 1988); amended at 14 Ill. Reg. 5776, 5778-79 (eff. April 9, 1990) (adding States Land Improvement site No. 1, among others)).

On October 17, 1989, the IEPA sent a letter to the president of States Land notifying him, “As a potential responsible party” of States Land, that its site No. 1 was listed as an amendment to the proposed SRAPL, which was going to be published in the Illinois Register on October 20, 1989 (see 13 Ill. Reg. 16252 (proposed October 20, 1989)). The letter stated “the purpose of the SRAPL is primarily to serve as an informational tool for use by the Agency in identifying sites that appear to present a significant risk to public health, welfare or the environment.” The IEPA’s letter included a notice of proposed amendments which showed site No. 1 as an amendment to SRAPL. (See 13 Ill. Reg. 16252, 16255-56 (proposed October 20, 1989).) The notice invited written comment to be submitted to the IEPA "within 45 days after receiving notice.

States Land submitted written comments to the IEPA’s notice of proposed amendment, denying site No. 1 released or posed a substantial threat of releasing hazardous substances into the environment. These comments were included in the IEPA’s written evaluation of all comments on the proposed rule during the first notice period, as well as the IEPA’s responses to States Land’s comments. On April 17, 1990, the IEPA sent another letter to the president of States Land notifying him that site No. 1 was listed on SRAPL, and an amended final rule would be published in the Illinois Register on April 20, 1990. See 14 Ill. Reg. 5776, 5780 (eff. April 20,1990).

The case of Monsanto Co. v. Pollution Control Board (1977), 67 Ill. 2d 276, 367 N.E.2d 684, concerned judicial review of a variance granted by the Pollution Control Board (PCB). The question of the requirements for issuance of a common law writ of certiorari was not involved. However, in determining the proper standard of review, the question arose as to whether the PCB’s actions were rulemaking or quasi-judicial in nature. The supreme court concluded the decision as to whether to grant a variance was essentially quasi-judicial, involving specific findings of fact, but the setting of conditions on the variance involved rulemaking. The determination of conditions was described as “one manifestation of the power granted the Board to act as the policy-making body” and rulemaking, “in the sense that its focus is on future conduct and its efficacy depends upon agency expertise.” Monsanto, 67 Ill. 2d at 290, 367 N.E.2d at 689.

In maintaining the listing of sites on the SRAPL is not quasi-judicial action, the IEPA points out that inclusion of a site therein “does not mandate state-financial remedial action for that site nor does it require any private action by the site owner. 35 Ill. Admin. Code §860.100(c), (d) (1986 Supp).” Rather, the IEPA maintains that the SRAPL supplies information to it and establishes its practices for dealing with hazardous waste. Because the SRAPL is keyed to possible future action by the IEPA, it maintains the listing of the sites is more analogous to rulemaking than to making a quasi-judicial decision. We also note that because no remedial action necessarily accompanies the placement of a site on the SRAPL, the placement lacks the finality ordinarily necessary for judicial review of agency action. See City of Quincy v. Carlson (1987), 163 Ill. App. 3d 1049, 517 N.E.2d 33.

In addition to its discussion of quasi-judicial activity of administrative agencies in Monsanto, the supreme court also touched upon the subject in In re Proposed Incorporation of Liberty Lakes (1988), 119 Ill. 2d 179, 518 N.E.2d 132, while determining that the General Assembly had not unlawfully delegated judicial power in creating a particular method of incorporating a village. The court stated that action by a county board which “calls for the application of law to a set of particular facts” is a “classic adjudicative function.” (Liberty Lakes, 119 Ill. 2d at 183, 518 N.E.2d at 134.) Here, the placement of a site on a SRAPL calls for the application of the Act to the facts surrounding a particular site. The procedure used had other adjudicatory aspects in that States Land was given notice by the IEPA and was afforded an opportunity to be heard by written response to the proposed action. Following the Monsanto distinction between quasi-judicial conduct and policy or rulemaking, the IEPA’s determination of the factual situation at the site was more like ruling on whether a variance should be granted (and thus quasi-judicial) than deciding about the conditions of a variance (which would be policy making).

As the IEPA points out, any damage to States Land, if the listing is wrong, is indirect, as States Land is neither required to take any action in regard to the site nor prohibited from making any use of the site because of its listing on the SRAPL. Rather, the damage would be to the reputation of the site, the ability of States Land to sell or rent it or surrounding land, and the ability to obtain financing in regard to those properties. The problems confronted by site owners are compounded because, as the parties agree, the IEPA purposefully gives wide publicity to the SRAPL.

We are reluctant to hold that agency action which has interlocutory aspects and. which, if in error, does not cause direct damage is subject to judicial review. (See City of Quincy, 163 Ill. App. 3d at 1053, 1056, 517 N.E.2d at 35, 37 (actual controversy requirement not met in challenge to application of statutory notice of potential liability for release of hazardous substances in violation of Act).) However, placement of a site on the SRAPL is a legal determination of its status. While section 860.300 of IEPA’s rules directs the agency to remove a site from the SRAPL when substantial threat of release of hazardous substance from that site no longer exists, we are unaware of any regulation which gives a site owner a procedure whereby it can prove the site is no longer such a threat. Thus, the action of placing a site on the SRAPL has strong elements of permanence and finality from which judicial review must be granted.

Both sides call our attention to City of Wood Dale (166 Ill. App. 3d 881, 520 N.E.2d 1097), where a party sought to review by common law certiorari a labor board action certifying a group as an appropriate unit for representation. This court held the writ should not issue, pointing out that the legislation involved envisioned that ultimate review was obtainable in proceeding before the labor board, if a losing party raised the issue by defying the ruling and committing an unfair labor practice. The decision did not involve the question of whether an action was quasi-judicial.

For the stated reasons, we hold that the act of the IEPA in putting a site on a SRAPL is a quasi-judicial act subject to judicial review. As no provision is made in the Act for such review, common law certiorari is the appropriate remedy.

We thus come to the question of whether the action of placing site No. 1 on the SRAPL was improper because the regulations upon which the SRAPL was based were beyond the power of the IEPA. This issue was not passed upon by the circuit court as it determined the close question as to whether certiorari was an appropriate remedy in favor of the IEPA. We could remand the cause back to the circuit court for its decision on that question, but conclude that judicial economy dictates we now decide the matter.

Nothing in the Act expressly authorizes the IEPA to make the regulations we have shown which purport to provide for the SRAPL. Section 4(s) of the Act authorizes the IEPA “to take whatever preventive or corrective action is necessary or appropriate *** for removal or remedial action, whenever any hazardous substance or pesticide is released or there is a substantial threat of such a release into the environment.” (Ill. Rev. Stat. 1989, ch. HV-k, par. 1004(s).) Section 4(u) of the Act authorizes the agency to adopt regulations necessary to impose_administrative citations against operators of landfills. (Ill. Rev. Stat. Í989, ch. 1111/2, par. 1004(u).) Section 2(b) of the Act states a legislative intent “to establish a unified, statewide program *** to restore, protect and enhance the quality of the environment, and to assure that adverse effects upon the environment are fully considered and borne by those who cause them.” (Ill. Rev. Stat. 1989, ch. lll1^, par. 1002(b).) Section 22.2(d) of the Act (Ill. Rev. Stat. 1989, ch. lll1^, par. 1022.2(d)) authorizes IEPA to deposit 90% of receipts of certain fees collected to the credit of the Hazardous Waste Fund and provides for expenditure of those funds but does not provide for the procedure about which States Land complains here.

We recognize the general rule that “[w]here there is an express grant of authority there is likewise a clear and express grant of power to do all that is reasonably necessary to execute the power or perform duties specifically conferred by the enabling statute.” (Illinois Federation of Teachers v. Board of Trustees (1989), 191 Ill. App. 3d 769, 774, 548 N.E.2d 64, 66-67.) Here, however, we are unwilling to infer from the rulings or statutory language we have quoted that the IEPA has the implied power to enact the regulations creating the SRAPL which impose such dire consequences upon a site owner without opportunity to be heard as to when the site must be removed from the SRAPL.

Accordingly, we reverse the judgment of the circuit court and remand the cause to the circuit court with directions to issue the writ of certiorari and to enter an order declaring the regulations purporting to authorize the SRAPL void and directing that States Land be expunged from the SRAPL.

Reversed and remanded with directions.

COOK, J., concurs.

JUSTICE STEIGMANN,

specially concurring:

My views on this case can best be explained by presenting the following imaginary newspaper article. (Note — I apologize in advance to the personnel of the Illinois Department of Revenue, but some agency had to be selected in order to make the points that follow.)

“SPRINGFIELD — Paul Bunyan Builder Supplies, Inc., a wholesale and retail lumber and builder supplies company with nine stores located throughout Illinois and revenues exceeding several million dollars annually, filed suit today in Sangamon County Circuit Court against the Illinois Department of Revenue. Bunyan alleged in its sufy that the Department had unfairly and improperly placed Bunyan on the Department’s Let’s-Be-Sure-To-Investigate-This-Case-When-We-Can-Get-Around-To-It List, commonly known as the LEISURE List, and that this placement seriously hurt Bunyan’s business.
The Department’s public relations officer explained that departmental regulations authorized the creation of the LEISURE List, whose purpose ‘is primarily to serve as an informational tool for use by the Department to identify taxpayers who appear to present a significant risk of having misstated or underpaid their State tax.’
The Department’s spokesman further explained that the initial identification of a taxpayer on the LEISURE List ‘is intended primarily to guide the department in determining which taxpayers warrant further investigation designed to assess if in fact those taxpayers have misstated or underpaid their State tax, and, if they have, the extent to which they have done so.’
The spokesman added that inclusion of a taxpayer on the LEISURE List also assisted the Department in determining what remedial action would be appropriate if the Department were to find that the taxpayer had misstated or underpaid his State tax.
Bunyan claims that its inclusion on the LEISURE List could bankrupt it because potential lenders and customers will view such inclusion as proof that Bunyan engages in questionable business practices. In addition, Bunyan alleges that the possibility the Department might impose tax liens upon its assets has already seriously affected its ability to do business on a day-today basis. As an example, Bunyan points out that one of Illinois’ largest banks has terminated the half-million dollar line of credit that Bunyan had enjoyed for over 15 years. Further, some of Bunyan’s material suppliers now ask for payment up front to avoid possible litigation with the Department over tax liens.
Asked to comment on these claims, the Department’s spokesman pointed out that Bunyan’s inclusion on the List does not require it to take any action nor prohibit it from continuing with ‘business as usual.’ The spokesman sniffed that any alleged harm to Bunyan is indirect and none of the Department’s doing, although the spokesman conceded that the Department ‘purposefully gives wide publicity to the LEISURE List.’
When asked why the Department publicized the LEISURE List, the spokesman explained that the public is ‘rightly concerned about tax scofflaws’ and neéds assurance that the Department is checking into cases like Bunyan’s, where the Department has received credible tips that a taxpayer may have misstated or underpaid his State taxes.
The spokesman conceded that prior to Bunyan’s placement on the LEISURE List, Bunyan was given an opportunity to respond to these allegations and vigorously disputed all of them. However, the spokesman stated, ‘that response is to be expected.’ The spokesman added that to be totally fair to Bunyan, the Department included Bunyan’s response as appendix H3/ 2Y(b) to regulation 91-7(3).G95j, thereby making the response easily available for anyone who might wish to read it.
The spokesman added that the Department found that creating and publishing the LEISURE List more efficiently communicated departmental interests and concerns throughout the State to Department employees and investigators than using old-fashioned means of communication, such as interoffice memos, fax messages, or telephone calls. The spokesman stated, ‘This way not only can we get our message to all our employees, but the public can see how hard we are working as well.’
When asked if Bunyan or any other taxpayer placed on the LEISURE List could do anything to remove its name therefrom and whether the Department had any limit on how long a taxpayer’s name could remain on the List without further action being taken by the Department, the spokesman explained that there was nothing a taxpayer could do to force the Department to remove its name from the LEISURE List. He added that he viewed the Bunyan lawsuit as a frivolous attempt to get the circuit court improperly involved in overseeing the Department’s internal procedures.
As to how long a taxpayer might remain on the LEISURE List, the spokesman emphasized that no taxpayer will remain on the List ‘any longer than necessary.’ He explained that ‘just as soon as we can get around to fully investigating a case such as Bunyan’s to determine whether to file any civil or criminal charges, you can be assured that we will do so.’ ‘In the meantime,’ he oozed, ‘Trust us — we’re from the government and we’re here to help.’ ”

Upon reading the above imaginary newspaper article, one would be tempted to think it a parody of modern bureaucratic doublethink. Unfortunately, that is not true. Instead, the case before this court proves the old saw that the work of the modern satirist has become increasingly difficult because no matter how hard the satirist tries, real world events are fully as ridiculous as any the satirist can envision.

Although I have changed the names in my hypothetical newspaper story from the IEPA to the Department of Revenue (to protect the guilty), this hypothetical story fully applies to the present case, and the position of States Land is fully equivalent to that of the hypothetical Paul Bunyan Builder Supplies. I used the device of the hypothetical newspaper article in order to best convey to the reader the full extent of the outrageous conduct in which the IEPA has engaged in this case.

At oral argument, counsel for the IEPA argued that the agency needs SRAPL to enable it to determine how to expend its limited investigative resources and to receive citizen input in the process. However, despite repeated requests from the bench, counsel could not explain why those goals, to the extent that they are desirable and appropriate, could not be achieved without SRAPL, just as the hundreds of investigative, policing, and prosecutorial departments or agencies operating in Illinois routinely achieve those same goals.

The record shows that the IEPA has in effect found States Land guilty of violating the Act and might very well choose to let the matter lie forever in its current state of limbo, thereby denying States Land any semblance of due process. The regulation at issue and the IEPA’s utilization of it in this case are truly right out of the novels of Franz Kafka.

By these remarks, I do not intend to give comfort to polluters nor to deprive the IEPA of its statutory duty to investigate any complaints it receives about polluters. (See Ill. Rev. Stat. 1989, ch. 1111/2, par. 1030.) I only ask that the agency behave responsibly, just as every other investigative and prosecutorial agency is required to behave, as it investigates allegations of misconduct.

One of the hallmarks of prosecutorial discretion is confidentiality. Sometimes, despite the best efforts of investigators, an investigation into allegations of misconduct becomes public. On other occasions, leaks regrettably occur from the police, prosecutor’s offices, or grand juries about ongoing investigations. However, such leaks are the exception to the rule, and the behavior of prosecutors during the investigative stage is subject to ethical restraints. See Standards for Criminal Justice §§3 — 1.1 through 3 — 6.2 (1986).

What I find so shocking about the IEPA’s promulgation and utilization of SRAPL in this case is that it constitutes nothing less than institutionalizing prosecutorial abuse.

I concur fully in the majority opinion.


author: JUSTICE HAASE

text:
      In re J.O., a Minor (The People of the State of Illinois, Petitioner-Appellant, v. J.O., Respondent-Appellee).
    Third District
    No. 3—91—0845
    Opinion filed July 15, 1992.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Joseph C. Polito, of Joseph C. Polito, Ltd., of Joliet, for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

A juvenile petition was filed charging the respondent, J.O., with seven counts of criminal damage to property (Ill. Rev. Stat. 1991, ch. 38, par. 21 — l(l)(h)). A supplemental petition was filed alleging one count of mob action (Ill. Rev. Stat. 1991, ch. 38, par. 25 — 1(a)(1)). The respondent subsequently moved to suppress his admissions. The trial court granted the respondent’s motion, and the State appeals.

The record reveals that on July 14, 1991, at approximately 3:30 a.m., police spotted the 12-year-old respondent carrying a can of spray paint near a recently sprayed building. The police stopped the respondent and noticed that he had spray paint on his hand. He was subsequently informed of his rights, arrested, and taken to the police station, where he was allowed to call his parents.

The respondent’s parents arrived at the station sometime between 4:05 and 4:45 a.m. However, the police testified that because the respondent’s parents did not ask to talk to the respondent, they were not taken to see him. Instead, they waited in the police station lobby. The respondent was then interrogated, taken by police to other areas that had been spray painted, booked, and fitted with a monitoring device. He was finally released to see his parents at approximately 7 a.m.

The trial court concluded that there was no evidence that the police coerced the statement from the respondent. However, the court found that the respondent’s admissions to the police should be suppressed for several reasons, including the fact that his parents were not given access to him. Accordingly, the court granted the respondent’s motion.

On appeal, the State argues that the basis for the court’s decision was that the respondent’s parents were not allowed to see him. It contends that the trial court erred because there is no per se rule that juveniles must be given the opportunity to consult with their parents prior to questioning.

We agree with the State that there is no per se rule that juveniles must be allowed to consult with their parents prior to questioning. (People v. Arias (1989), 179 Ill. App. 3d 890, 535 N.E.2d 89; People v. Smith (1989), 178 Ill. App. 3d 976, 533 N.E.2d 1169.) However, it is well settled that the voluntariness of a juvenile’s confession is to be determined by the totality of the circumstances. In re Bertrand (1978), 65 Ill. App. 3d 703, 382 N.E.2d 660.

In handing down its ruling in the instant case, the trial court expressly stated:

“You know, had he been 16, a totally different question would be presented. But when you find a young kid, twelve years of age, arrested in the middle of the night, his parents come to the police station, and they have difficulty with the language, and they cannot get to see their son[.] *** [I]t was frequently brought forth that they didn’t ask to see their son. That kind of sophistry cannot be tolerated. For what other reason would they come down in the middle of the night ***?”

Thus, it is apparent that the trial court was considering the totality of the circumstances rather than following a per se rule that juveniles must be allowed to consult with their parents prior to questioning. In handing down its ruling, the trial court considered the respondent’s age, the fact that the arrest and questioning occurred in the middle of the night, the parents’ difficulty with the language, and the fact that they were denied access to him.

A juvenile’s age and the fact that the interrogation occurred in the middle of the night may properly be considered in evaluating the voluntary nature of a confession. (Haley v. Ohio (1948), 332 U.S. 596, 92 L. Ed. 224, 68 S. Ct. 302.) Additionally, if parents have indicated an interest by their presence, then they should be allowed to confer with their children before any questioning begins, as well as be present when any questioning occurs. (In re S.D.S. (1982), 103 Ill. App. 3d 1008, 431 N.E.2d 759.) The presence or absence of a parent is a factor in evaluating the voluntary nature of a confession under the totality of the circumstances test. (In re S.D.S. (1982), 103 Ill. App. 3d 1008, 431 N.E.2d 759.) Accordingly, because the trial court’s ruling was based on the totality of the circumstances and the court considered proper factors in making its determination, we affirm its granting of the motion to suppress.

The judgment of the circuit court of Will County is affirmed.

Affirmed.

BARRY, P.J., and McCUSKEY, J., concur.