author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH BLIEY, Defendant-Appellant.
    First District (4th Division)
    No. 1—88—2389
    Opinion filed July 30, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Elizabeth Burke and Jeffrey Howard, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Jean Quinn, Special Assistant State’s Attorney, and Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendant, Kenneth Bliey, was convicted of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(a)) and attempted murder (Ill. Rev. Stat. 1985, ch. 38, pars. 8 — 4(a), 9 — 1(a)) following a jury trial in the circuit court of Cook County. The trial judge sentenced defendant to a prison term of natural life on the murder conviction and a concurrent prison term of 30 years on the attempted murder conviction.

Defendant appeals, contending the trial judge: (1) erred by denying defendant’s motion to suppress evidence; (2) denied defendant a fair trial by admitting evidence that he previously sold drugs to the victims; (3) incorrectly admonished defendant before allowing him to represent himself; (4) denied defendant his right to the assistance of counsel during voir dire and opening statements; (5) erred by denying defendant’s motion for the appointment of counsel other than the public defender; and (6) erred by denying defendant’s motion for a continuance. Defendant also contends: (7) the State failed to prove him guilty beyond a reasonable doubt, and (8) defendant’s sentence was improper and excessive.

We affirm the judgment of the trial court.

Background

The record contains the following pertinent facts. On December 5, 1986, defendant was charged in a 10-count indictment with offenses stemming from the shooting death of Anthony Jones and the shooting of Ronald Nelson.

A

On December 9, 1987, the trial court held a hearing on defendant’s motion to quash the arrest and suppress evidence. Defendant’s evidence was essentially as follows.

On the evening of October 28, 1986, defendant was in his mother’s second-floor apartment in a two-flat building located at 5546 West Adams Street in Chicago. Defendant’s grandfather resided in the first-floor apartment and defendant resided in the basement. Defendant had been in his mother’s apartment since 9:45 p.m. At approximately 11 p.m., defendant and his mother heard knocking from the building’s front door. Defendant went downstairs to investigate. Chicago police officers had broken the lock on the outer door and were trying to break open the inner door.

Defendant opened the door. Several police officers asked defendant whether he was Kenneth Walker; defendant identified himself. Some police officers ran past defendant upstairs; others stayed with him on the first floor and handcuffed him to a railing. Police searched the apartment of defendant’s mother. The officers returned and questioned defendant. They then led defendant, in handcuffs, out of the building. A squad car was parked in front of the building. Cassandra Burress and a man in civilian clothes were in the car. Defendant overheard one police officer say to another: “The guy doesn’t know, he said he didn’t think so; the girl is hysterical but she says it could be.” The other officer responded: “We’H take him in anyway.”

The police returned to the apartment of defendant’s mother and again searched it. They then went to the basement apartment where defendant lived. The basement door had a lock on it, but the lock was broken at that time. Defendant had lived in the basement for over a year. Defendant’s mother never entered the basement without defendant’s permission because it was his exclusive and private living area.

The police searched the basement. They seized a reversible jacket, a pair of black pants, and a set of keys. On the day of his arrest, defendant did not wear those items. Also, the police did not have an arrest or a search warrant. Neither defendant nor his mother gave consent to the police to search his basement apartment.

The State’s evidence was essentially as follows. On the night of October 28, 1986, Chicago police officer Robert McGoon and his partner, Officer Donald Johnson, were on duty. In response to a radio call, Officers McGoon and Johnson went to 24 South Central Avenue, where they saw the two victims. At the scene, Cassandra Burress approached Officer McGoon and told him that she saw a man named Ken shoot Anthony Jones. She described Ken as male, black, in his thirties, approximately six feet tall and 150 pounds, and wearing dark clothes. Burress further stated that Ken lived in the 5500 block of West Adams Street, about IV2 blocks from the scene of the crime.

Officers McGoon and Johnson, with Burress, drove to the 5500 block of West Adams Street. They asked passersby where a man named Ken lived; the officers were directed to the Bliey residence.

Officers McGoon and Johnson knocked on the door that leads to the second-floor apartment. Burress remained in the squad car. Defendant came downstairs and answered the door. Defendant appeared nervous and upset. McGoon asked defendant his name and if defendant lived there. Defendant refused to identify himself. However, he assented to the officers’ request that he walk outside and answer questions. Up to this time, defendant had not been handcuffed. When defendant accompanied the police outside of the residence, he was not handcuffed and was free to leave.

Defendant accompanied the officers to the squad car containing Burress. She identified defendant as the shooter. Burress was emotionally upset immediately prior to her identification; when she saw defendant, she was “kind of frantic and yelling.” It was at that point that the police arrested defendant, handcuffed him, and placed him in another squad car.

Officers McGoon and Johnson returned to the residence and spoke with defendant’s mother. She said that the building was her home. The officers asked defendant’s mother if they could search her home for a weapon. She consented and accompanied the officers through the building and down to the basement. The basement was a wide-open room that contained a couch, chair, dresser, and possibly a bed. The officers did not search the dresser. In the basement, the officers observed a man’s reversible jacket, a pair of black pants, and a set of keys, all resting on a chair. Other than the door to the basement, there were no other doors in the area where the clothes were found. Based on Burress’ description of the shooter’s clothing, the officers seized the clothes and keys, and showed them to Burress. She identified them as the clothes defendant wore during the shooting.

The trial court denied defendant’s motion to quash the arrest and suppress evidence. The trial judge ruled that the police had probable cause to arrest defendant, based on Burress’ description and identification. The trial judge also ruled that defendant’s mother gave a valid consent to the police to search the basement. The judge found that she did, in fact, consent to the search and, further, that she had the authority to do so. The trial judge also found that the search was reasonable.

B

On June 13, 1988, defendant requested a continuance. He also requested another attorney, other than an assistant public defender, or, alternatively, to proceed pro se. Up to that point, defendant had been represented by an assistant public defender. However, defendant explained that he had joined a class action against the Cook County public defender’s office; he had lost confidence in his attorney due to the attorney’s discussion of a guilty plea; and communication with his attorney had ceased. Defendant’s attorney stated that he was prepared to represent defendant.

The trial court denied defendant’s motion for a continuance and for an attorney other than the assistant public defender appointed to represent him. However, the court allowed defendant to proceed pro se. Prior to ruling on defendant’s motion, the trial court, pursuant to Supreme Court Rule 401(a) (134 Ill. 2d R. 401(a)), advised defendant, inter alia, that the penalties for murder ranged from 20 years to a death sentence. The assistant public defender remained available to assist defendant, but was warned not to interfere with defendant’s representation of himself.

Voir dire took place that afternoon. Defendant represented himself, but consulted with the assistant public defender on the selection of a few jurors.

The next day, defendant sought a 90-day continuance, which the trial judge denied. The State then entered a nolle prosequi on five of the indictment’s 10 counts. The trial judge then advised defendant that the penalties he faced on the remaining charges ranged from 20 to 80 years.

The trial proceeded to opening statements. Defendant addressed his statement, not to the merits of the case, but rather to his objection to proceeding to trial without a lawyer of his own choosing. After opening statements, defendant informed the trial judge that defendant wanted the assistant public defender to represent him. Defense counsel immediately moved for a mistrial because defendant participated in voir dire and opening statements without assistance of counsel. The trial judge denied the motion. Defense counsel made a motion in limine to exclude testimony on drug dealing by defendant. The judge denied the motion, ruling that drug transactions between defendant and Nelson showed identity and motive.

C

Without repeating the evidence presented at the suppression hearing, the State’s evidence at trial was essentially as follows. Ronald Nelson had known defendant for one or two years prior to the shooting. An admitted narcotics user, Nelson bought cocaine from defendant three or four times weekly, either on the street or in defendant’s home.

At approximately 8:30 p.m. on October 28, 1986, Nelson visited his friend Anthony Jones at 24 South Central Avenue. Jones shared an apartment with his fiancee, Cassandra Burress. Nelson and Jones injected cocaine. At approximately 9:30 p.m., they left the apartment. As they walked down the front steps of Jones’ apartment building, defendant approached them. He carried a shopping bag. Defendant came within two feet of Nelson and Jones. The lighting was adequate; a streetlight stood in front of Jones’ residence.

Defendant asked Nelson and Jones for a cigarette; Jones gave one to defendant. Defendant then asked them for $5. Nelson said that he did not have any money, and he walked to his automobile parked in front of Jones’ residence. Jones remained standing on the sidewalk. Defendant then declared that he would take the money. He produced from the shopping bag a .12 gauge, pump-action, sawed-off shotgun. Defendant pointed the weapon at Jones, who begged defendant not to shoot. Defendant shot Jones twice, once in each leg.

Nelson was in his car approximately 25 feet from defendant and Jones. Nelson was trying to start his car. After defendant shot Jones, defendant approached Nelson’s car. Nelson looked up and saw defendant approximately two feet away; defendant held a handgun aimed at Nelson’s face. Defendant shot Nelson in the face; the bullet entered the lower lip and exited the right cheek. Nelson “played dead” by dropping his head to the steering wheel. Defendant then returned to where Jones lay. Defendant shot Jones with the shotgun twice more.

Nelson looked up and saw defendant walking toward the car. Nelson got out of the car and ran. Defendant chased Nelson and fired at him once more with a handgun. Nelson waved at an approaching squad car. The car stopped and a police officer exited the car and chased an unidentified person. Nelson returned to his car. Police subsequently arrived and took Nelson to the hospital. At the hospital, Nelson gave police a description of the shooter. Nelson required surgery on his bottom jaw and hospitalization for several weeks. At trial, Nelson identified defendant as the shooter.

Cassandra Burress knew defendant as “Ken” and saw him once or twice weekly during the previous year. Also, earlier that evening, she saw defendant with another man.

After defendant’s first two shotgun blasts at Jones, Burress looked out of the front window of her apartment. She saw defendant chasing Nelson around his car and firing a handgun at Nelson. She also saw Jones lying under a bush in a vacant lot next to her residence. Burress telephoned police and met them upon their arrival.

At the time of defendant’s arrest, at his home, Burress identified the clothes that defendant wore at the time of the shooting. When she identified defendant, she observed that he had changed his clothes after the shooting.

At the time of the shooting, Chicago police officer Joseph Lombardi was driving his squad car in the vicinity of the shooting. The car windows were down. Officer Lombardi heard three shotgun blasts and, seconds later, two more shotgun blasts. He stopped his car and got out with his pistol drawn. He was approximately 50 to 60 feet from where the shooting occurred. He described the scene as a commotion; many bystanders were running in all directions.

While standing by his squad car, Officer Lombardi heard pellets strike the rear of the car. He radioed for assistance and then chased and stopped a possible suspect. After questioning the bystander, Officer Lombardi returned to the crime scene. He found Nelson bleeding from his face and Jones, still alive, lying in a vacant lot under a bush. Several spent shotgun shells were found within seven or eight feet of Jones.

Jones died that night of multiple shotgun wounds. The instrument of death was a .12 gauge, pump-action shotgun.

Without repeating the evidence presented at the suppression hearing, defendant’s evidence at trial was essentially as follows. On the night of the shooting, defendant was talking with a friend near Burress’ residence. Defendant saw Burress and greeted her. Defendant was wearing a red hat and pants, a red and black sweater, and a gray jacket. After speaking with his friend, defendant went home at approximately 8 p.m. He went upstairs and announced his arrival to his mother. He then returned to the basement and watched television. In addition to his mother, defendant’s sister &nd nephew were also in the second-floor apartment.

At 9 p.m., defendant’s friend arrived at defendant’s home. At approximately 9:30 p.m., defendant was walking upstairs when he heard shots. Defendant remained upstairs and played with his nephew. Approximately 45 minutes after hearing the shots, the police arrived.

Defendant recently argued with Nelson prior to the shooting. Nelson visited defendant at his home to buy narcotics. Defendant turned Nelson away because defendant is not a drug dealer.

At the close of the trial, the jury convicted defendant as charged. Specifically, the jury convicted defendant of the murder of Jones, the attempted murder and aggravated battery of Nelson, and armed violence.

At the sentencing hearing, the trial judge denied defendant’s post-trial motion. At the close of the hearing, the trial judge found that Jones’ murder was accompanied by exceptionally brutal and heinous conduct indicative of wanton cruelty. (See Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(1)(b).) The trial judge sentenced defendant to a prison term of natural life on the murder conviction and a concurrent prison term of 30 years on the attempted murder conviction. Defendant appeals.

Opinion

I

Defendant first claims that the trial judge erred by denying defendant’s motion to suppress evidence. Defendant contends the search of his room by the police was invalid because his mother’s consent to the search was invalid. Defendant alternatively argues that his mother: (A) did not consent to the search, (B) lacked common authority over his room, and (C) could not consent to the search because he was present at the scene.

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

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

A

Defendant initially argues that his mother did not consent to the search of his room. Defendant points to her testimony to that effect at the suppression hearing. However, Officer McGoon testified that defendant’s mother consented to the search. Thus, the evidence of whether defendant’s mother consented to the search was merely conflicting. “Under these circumstances, the resolution of the question is left to the trial court whose decision will be accepted on review unless clearly unreasonable.” People v. Howard (1984), 121 Ill. App. 3d 938, 946, 460 N.E.2d 432, 438.

Defendant asserts that “it is not likely that she [his mother] would have allowed this search.” However, there are several reasons why defendant’s mother may have consented to the search, e.g., to show that neither she nor defendant had anything to hide, or to simply cooperate with the police. This was a question of fact for the trial court. We cannot say that the trial court’s finding that defendant’s mother voluntarily consented to the search was clearly unreasonable. See Howard, 121 Ill. App. 3d at 946, 460 N.E.2d at 438.

B

Defendant next argues that his mother lacked common authority over his room. The standard which determines the validity of a third-party consent is the common authority test. Under that test, consent to search may be given by persons having joint access to, or control of, the searched premises. Where the defendant lives with a parent or other close relative, and the relative consents to a search of defendant’s bedroom, a court presumes that the relative has sufficient common authority over the bedroom to authorize the consent to search. Howard, 121 Ill. App. 3d at 946-47, 460 N.E.2d at 438 (and cases cited therein).

However, the presumption of common authority may be overcome by evidence that defendant had exclusive possession of the searched premises. Two factors indicative of exclusive possession are whether the room was locked in defendant’s absence and whether defendant gave explicit instructions not to allow anyone into the bedroom. Where the evidence fails to establish these two factors, the attack on the third-party consent to search fails. Howard, 121 Ill. App. 3d at 947, 460 N.E.2d at 438-39.

After carefully reviewing the record, we conclude that the evidence fails to establish defendant’s exclusive possession of his room. The record does not contain evidence that the basement door was locked; the record also lacks evidence that defendant explicitly instructed his mother not to allow anyone into the bedroom. We hold that defendant’s mother was authorized to consent to the search. See People v. Baske (1978), 66 Ill. App. 3d 590, 598, 383 N.E.2d 1322, 1328-29.

C

Defendant also argues that his mother could not consent to the search of his room because he was present at the scene. We disagree. The right of defendant’s mother to consent to the search was separate and distinct from that of defendant and could be exercised at any time. Thus, so long as defendant’s mother was authorized to consent to the search, which she was, she could do so whether defendant was present or absent. (See Callaway, 167 Ill. App. 3d at 880, 522 N.E.2d at 342-43.) We hold that the third-party consent of defendant’s mother to search defendant’s room was valid.

II

Defendant next claims that the trial judge denied defendant a fair trial by admitting evidence that he previously sold narcotics to the victims. The record shows that defense counsel moved in limine to exclude the evidence and objected to Nelson’s testimony on the issue at trial.

However, the record also shows that defendant failed to include the issue in his post-trial motion; thus, the issue is waived. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) Further, after carefully reviewing the record, we conclude that this alleged error does not rise to the level of plain error. See 134 Ill. 2d R. 615(a); People v. Sanders (1981), 103 Ill. App. 3d 700, 710-11, 431 N.E.2d 1145, 1153-54.

Ill

Defendant claims the trial judge incorrectly admonished defendant prior to allowing him to represent himself. The record indisputably shows that the trial judge incorrectly advised defendant of the maximum sentence possible. The trial judge advised defendant that the maximum sentence he could face was an extended prison term of 80 years. The trial judge did not tell defendant that he could face a prison sentence of natural life, which the trial judge eventually imposed. Thus, defendant argues, his waiver of counsel was not knowing or intelligent and, therefore, he is entitled to a new trial.

Supreme Court Rule 401(a) requires the trial court to advise a defendant of the nature of the charges against him, the minimum and maximum sentences possible, and his right to counsel. (134 Ill. 2d R. 401(a).) The purpose of the rule is to provide a procedure that eliminates any doubt that the defendant understands the charges against him and its consequences before a trial court accepts his waiver of the right to counsel, and to preclude a defendant from waiving the right to counsel without full knowledge and understanding. (People v. Smith (1985), 133 Ill. App. 3d 574, 578, 479 N.E.2d 24, 28; People v. Vaughn (1983), 116 Ill. App. 3d 193, 196, 451 N.E.2d 898, 901.) It is now settled that a trial court must strictly comply with Rule 401(a); substantial compliance is not sufficient. People v. Crittenden (1986), 149 Ill. App. 3d 121, 124-25, 500 N.E.2d 678, 679-80; Smith, 133 Ill. App. 3d at 579, 479 N.E.2d at 28-29.

However, it is equally settled “that where a defendant proceeds to trial with the ‘technical assistance’ of an attorney, he has not waived counsel. In such a situation, the defendant need not be given the full admonishments of Supreme Court Rule 401(a).” Smith, 133 Ill. App. 3d at 579, 479 N.E.2d at 29.

Courts reason that a defendant who seeks to defend himself with the advice of counsel partakes of the freedom of defendant himself in addition to the expertise of an advisor with legal training. A defendant who wishes to act pro se desires to stand alone, but this does not occur if a lawyer assists him at trial. Thus, a defendant who receives such legal advice should not be heard to complain on appeal of improprieties pertaining to admonishments about proceeding pro se or of apparent deficiencies that relate to the defendant’s waiver of legal assistance. Smith, 133 Ill. App. 3d at 579, 479 N.E.2d at 29, citing People v. Hite (1983), 115 Ill. App. 3d 66, 69, 450 N.E.2d 416, 418.

In the case at bar, the trial judge sua sponte asked the public defender assigned to represent defendant to remain as standby counsel. This distinguishes the present case from Crittenden, where the defendant “was not represented or assisted by counsel.” (Crit- tenden, 149 Ill. App. 3d at 124, 500 N.E.2d at 679.) “Requiring [a] defendant to proceed pro se with standby counsel is not a waiver within the meaning of Rule 401(a), and thus the admonitions of the rule were not required when the case proceeded to trial as scheduled.” Vaughn, 116 Ill. App. 3d at 197, 451 N.E.2d at 901.

We note that in People v. Derra (1981), 92 Ill. App. 3d 1106, 416 N.E.2d 688, and People v. Brown (1980), 80 Ill. App. 3d 616, 399 N.E.2d 1374, this court held that Rule 401(a) admonishments were required even though those defendants had the benefit of standby counsel. In each of those cases, the defendant did not request standby counsel himself. Rather, the trial court sua sponte appointed standby counsel, who was “inactive” or “virtually silent” during the proceedings while the defendant conducted his own defense. The courts in those cases reasoned that the inactive standby counsel did not provide the defendants with the technical assistance of counsel. Since those defendants were representing themselves, they should have been given the Rule 401(a) admonishments. Derra, 92 Ill. App. 3d at 1109-10, 416 N.E.2d at 690-91; Brown, 80 Ill. App. 3d at 626-27, 399 N.E.2d at 1380-81. See Smith, 133 Ill. App. 3d at 580, 479 N.E.2dat29.

However, our supreme court has specifically held that it is not relevant whether or not a defendant actually chooses to avail himself of the services of standby counsel, or the extent to which standby counsel actually participated in the proceedings. (People v. Johnson (1987), 119 Ill. 2d 119, 136, 518 N.E.2d 100, 108.) Rather, our supreme court has held that a “[defendant's refusal to heed the advice or employ the services of appointed counsel did not necessitate that the circuit court admonish defendant in accordance with Rule 401(a).” (People v. Myles (1981), 86 Ill. 2d 260, 269, 427 N.E.2d 59, 63.) These holdings of our supreme court contradict the reasoning in Brown and Derra, and we question the authority of those cases on this issue.

In the case at bar, the trial court sua sponte appointed as standby counsel the assistant public defender assigned to represent defendant. Counsel assisted defendant during a portion of voir dire and gave defendant all of the information that counsel had accumulated on the case. Defendant refused to employ the services of his standby counsel to any greater extent. For this reason, we conclude that defendant need not have been given the full admonishments of Rule 401(a). We reach this conclusion even though the procedure was initiated by the court, and even though standby counsel was mostly silent during voir dire and opening statements. (See Smith, 133 Ill. App. 3d at 581, 479 N.E.2d at 30.) Therefore, we hold that defendant was not denied a fair trial on this ground.

IV

Defendant next claims that the trial judge erred by denying: (A) defendant’s right to the effective assistance of counsel during voir dire and opening statements; (B) his motion for the appointment of counsel other than the public defender; and (C) his motion for a continuance.

A

Defendant argues that he was denied the effective assistance of counsel during voir dire and opening statements. He points to the obvious fact that he was not represented by counsel during those proceedings. He contends that his waiver of counsel was ineffective because he did not receive the full admonishments of Rule 401(a). Therefore, defendant argues, he was “denied” his constitutional right to the effective assistance of counsel.

We earlier concluded that defendant need not have been given the full admonishments of Rule 401(a) because he received standby counsel, whose services defendant refused to employ. In Myles, our supreme court held that where a defendant refuses to cooperate with appointed counsel, the fact that defendant did not receive adequate assistance is attributable solely to himself. Thus, the defendant is estopped to assert the incompetence of counsel. (Myles, 86 Ill. 2d at 269-71, 427 N.E.2d at 63-64.) We hold that the trial judge did not deny defendant the right to the effective assistance of counsel.

B

Defendant also argues that the trial judge erred by denying his motion for the appointment of counsel other than the public defender. Defendant based his motion on the class action, of which he is a party, against the Cook County public defender’s office.

An indigent defendant has the constitutional right to have counsel appointed, but that does not include the right to select counsel for appointment. (People v. Hall (1986), 114 Ill. 2d 376, 403, 499 N.E.2d 1335, 1345.) In Illinois, an indigent defendant does not have the right to appointed private counsel absent a showing of prejudice to the defendant’s rights. Hall, 114 Ill. 2d at 401-03, 499 N.E.2d at 1344-45.

In the present case, defendant has failed to show that the representation of his trial counsel — the assistant public defender-prejudiced his rights. Defendant’s trial counsel did not labor under any per se conflict of interest based on the class action in which he was not specifically named. (See People v. Banks (1987), 121 Ill. 2d 36, 520 N.E.2d 617.) Further, defendant cannot be heard to complain of prejudice since the claim arose from his own conduct. (See Myles, 86 Ill. 2d at 269-71, 427 N.E.2d at 63-64, cited in Hall, 114 Ill. 2d at 404, 499 N.E.2d at 1346.) We find no error in the trial judge’s denial of defendant’s motion for the appointment of private counsel.

C

Defendant also argues that the trial judge erred by denying defendant’s motion for a continuance once he decided to represent himself. The decision to grant or to deny a motion for a continuance rests within the trial court’s sound discretion and will not be disturbed on review unless the trial court exceeded its discretion. People v. Friedman (1980), 79 Ill. 2d 341, 347-48, 403 N.E.2d 229, 233; People v. Hayes (1972), 52 Ill. 2d 170, 175, 287 N.E.2d 465, 467.

In the case at bar, defense counsel was appointed in ample time to prepare a defense. “ ‘Since defendant utterly refused to cooperate with his counsel, he cannot now be heard to complain that the denial of the motion for continuance embarrassed his defense or prejudiced his rights.’ ” (Myles, 86 Ill. 2d at 270, 427 N.E.2d at 63, quoting People v. Solomon (1962), 24 Ill. 2d 586, 590, 182 N.E.2d 736, 738.) We cannot say that the trial court exceeded its discretion in denying defendant’s motion for a continuance.

V

Defendant next claims that the State failed to prove beyond a reasonable doubt his guilt. He essentially attacks the sufficiency of the evidence against him.

Of course, the State carries the burden of proving beyond a reasonable doubt each element of the offense and defendant’s guilt. On appeal, however, a reviewing court, considering all of the evidence in the light most favorable to the prosecution, must determine whether any rational fact finder could have found beyond a reasonable doubt the essential elements of the crime. A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory as to create a reasonable doubt of the defendant’s guilt. People v. Eyler (1989), 133 Ill. 2d 173, 191, 549 N.E.2d 268, 276; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276-77.

We have carefully reviewed the entire record in the case at bar. We cannot say that the evidence was so improbable or unsatisfactory as to create a reasonable doubt of defendant’s guilt.

VI

Defendant lastly claims that his prison sentence of natural life was improper and excessive. It is true that Supreme Court Rule 615(b)(4) authorizes this court to reduce a criminal sentence. (134 Ill. 2d R. 615(b)(4).) However, a sentencing decision is a matter of considerable judicial discretion, and we will not exercise our power to reduce a sentence unless the trial court exceeded its discretion. People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883.

Defendant was convicted of murder. Absent aggravating factors that qualify a defendant for the death penalty, murder normally carries a sentence of 20 to 40 years. However, if a trial judge “finds that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty,” the trial judge may sentence a defendant to a prison term of natural life. Ill. Rev. Stat. 1985, ch. 38, pars. 1005 — 8—1(a)(1)(a), (b).

A

We initially address defendant’s argument that Unified Corrections Code section 5 — 8—1(a)(1)(b) is unconstitutional. Defendant argues that the provision denies due process and equal protection. Defendant posits that a trial judge, based on a finding of brutal or heinous behavior, has unbridled discretion to sentence a defendant to a prison term of natural life rather than an extended term of years. (Compare Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8— 1(a)(1)(b), with Ill. Rev. Stat. 1985, ch. 38, pars. 1005 — 5—3.2(b)(2), 1005 — 8—2(a)(1).) This court has repeatedly rejected this argument and we do so again. See, e.g., People v. Abernathy (1989), 189 Ill. App. 3d 292, 317-18, 545 N.E.2d 201, 218-19; People v. Burke (1987), 164 Ill. App. 3d 889, 899-900, 518 N.E.2d 372, 378-79.

B

Defendant also assigns error to the trial judge’s finding that defendant’s behavior was exceptionally brutal or heinous. “Brutal” behavior includes conduct that is grossly ruthless, devoid of mercy or compassion, or cruel and cold-blooded. “Heinous” behavior includes conduct that is hatefully or shockingly evil, grossly bad, and enormously and flagrantly criminal. A finding that the defendant inflicted upon the victim torture or unnecessary pain is not a prerequisite to finding that the defendant’s behavior was brutal or heinous. Abernathy, 189 Ill. App. 3d at 316, 545 N.E.2d at 217; People v. Wade (1989), 185 Ill. App. 3d 898, 902, 542 N.E.2d 58, 61.

After carefully reviewing the record, we cannot say that the trial judge exceeded his discretion. The record shows that the victims were unarmed and defenseless, and did not provoke defendant’s behavior. Defendant shot Jones twice at close range with a shotgun. Defendant then shot Nelson in the face with a handgun. Defendant then returned to where Jones lay and shot him twice more with a shotgun. Defendant shot the victims casually and methodically. We uphold the trial judge’s finding that defendant’s behavior was exceptionally brutal or heinous. See, e.g., People v. Taylor (1987), 164 Ill. App. 3d 938, 944, 518 N.E.2d 409, 412-13; People v. Walker (1985), 136 Ill. App. 3d 177, 182, 483 N.E.2d 301, 305.

C

Defendant lastly argues that his sentence was excessive. He posits that the trial judge: (1) did not adequately consider the mitigating evidence presented at the sentencing hearing, and (2) based his sentence “upon irrelevant and prejudicial considerations.”

However, the record shows that the trial judge considered all of the evidence and many different factors prior to imposing sentence. The trial judge did not arrive at the sentence arbitrarily; we cannot say that he exceeded his discretion. We uphold defendant’s prison sentence of natural life.

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

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE McNULTY

license: Public Domain

text:
    MELVIN S. BORNSTEIN et al., Plaintiffs-Appellees and Cross-Appellants, v. FIRST UNITED et al., Defendants (Nathan Grossgold, Defendant-Appellant and Cross-Appellee; First Chicago Trust Company of Illinois, Counter-plaintiff-Appellant; Melvin S. Bornstein et al., Counterdefendants-Appellees).
    First District (5th Division)
    No. 1—90—3368
    Opinion filed July 31, 1992.
    Rehearing denied August 28, 1992.

      Michael B. Susman and Jonathan L. Loew, both of Spitzer, Addis, Sus-man & Krull, of Chicago, for appellant First Chicago Trust Company of Illinois.
    Beermann, Swerdlove, Woloshin & Barezky, of Chicago (Miles N. Beer-mann, Howard A. London, and Joel M. Horwich, of counsel), for appellees Melvin S. Bornstein, Roy A. Tosch, Barmel Enterprises Ltd. Pension Trust Fund, and Barmel Enterprises Ltd. Profit Sharing Trust Fund.
    J. Timothy Eaton and Shelley Rice Weinberg, both of Coffield, Un-garetti, Harris & Slavin, of Chicago, for Nathan Grossgold.
    Edward J. Halper and Randall J. Gingiss, both of Levenfeld, Eisenberg, Janger, Glassberg, Samotny & Halper, of Chicago, for amicus curiae.

   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

This action arises from a dispute between the beneficiaries of an Illinois land trust over the power to direct the land trustee. On appeal, we will consider whether the trial court correctly ruled that beneficiary Nathan Grossgold acted improperly in revoking the power of direction given to beneficiary Melvin Bornstein but that the trustee, First Chicago Trust Company, acted properly in refusing to honor Bornstein’s power of direction. We will also consider whether the trial court properly assessed to Grossgold the attorney fees owed to the trustee.

The relevant facts follow. In 1969, plaintiffs Melvin Bornstein and Roy Tosch purchased approximately 116 acres of vacant real property in McHenry County, Illinois, known as Ridgewood Estates. In 1970, defendant Nathan Grossgold purchased one-sixth interest in the Ridgewood Estates property from Bornstein. On February 21, 1972, Grossgold, Bomstein and Tosch entered into a trust agreement forming land trust No. 241 at Mount Prospect State Bank, to hold title to the real property. First Chicago Trust Company later succeeded Mount Prospect Bank as trustee and is the current trustee. The trust agreement vests the power of direction in the trust beneficiaries.

On February 21, 1975, Grossgold, Bornstein and Tosch executed a power of direction, authorizing Bornstein to act as “their sole agent with the power of direction to conduct business for the benefit of the beneficiaries.” All parties acknowledge that this 1975 power of direction was revocable.

On March 1, 1978, Grossgold collaterally assigned his beneficial interest in the land trust to the Barmel Pension Trust Fund and Bar-mel Profit Sharing Trust Fund (the Barmel Funds) to secure payment of a loan from the Barmel Funds. Bornstein was trustee of Barmel Funds. The Barmel Funds and Grossgold executed a loan agreement providing that Grossgold would execute a power of direction that would enable Bornstein to “withdraw from any proceeds of Ridge-wood Station due and owing to [Grossgold], the sums of $70,000 plus future advances, plus interest, until paid in full.” The loan agreement also provided that Barmel Funds would reassign Grossgold’s one-sixth beneficial interest to him upon payment of the loan obligation. To give Bornstein this power of direction, the parties executed an assignment which contained the following language:

“This assignment is being made as and for collateral security only. The power of direction shall be vested in Melvin S. Born-stein on behalf of assignees, until the obligation secured by this assignment is paid in full.”

Copies of the loan agreement and assignment were duly lodged with the trustee on March 8, 1978. The record reveals that while the loan has not been repaid, Grossgold is not in default.

Grossgold claims that in early 1989, while preparing his tax returns, he learned that he had incurred capital gains on transactions involving the trust property of which he had been completely unaware. He began an investigation into Bornstein’s activities. The trustee, at Grossgold’s request, furnished Grossgold with a list of transactions in the trust property. The list of transactions showed several conveyances of trust property out of the trust and to Bornstein and Tosch individually. Grossgold asserts he had no knowledge of any of these transactions.

On December 14, 1989, Grossgold wrote to First United Trust Company and revoked his February 21, 1975, authorization to Born-stein to exercise the power of direction for the land trust. Grossgold requested that he receive written notice of all future transactions.

On December 26, 1989, Bornstein submitted a direction to convey to First United Trust Company requesting that the trustee deed the corpus of the trust to Melvin Bornstein and Roy Tosch. This direction to convey was executed by Bornstein and Tosch, as well as Barbara Bornstein, Bornstein’s spouse. It was not executed by Grossgold.

In accordance with Grossgold’s December 14, 1989, letter, First United Trust Company notified Grossgold that it had received this direction to convey from Bornstein. Upon receipt of this notice from the trustee, Grossgold objected to this conveyance of the land trust assets to Bornstein and Tosch individually. On January 2, 1990, Grossgold notified the trustee of his objection by stating that:

“This letter will serve to advise your bank that *** Bornstein and Tosch are converting property from the above Trust without my knowledge and consent, which includes my beneficial ownership. I have no knowledge, books or records of this transaction, except for your notification, nor am I advised of the disposition of any of its proceeds ***.
You are hereby directed not to convey any property of the Trust to *** Bornstein and Tosch in respect to their ‘Direction to Convey’ dated December 26,1989.”

The trustee, by letter of January 9, 1990, acknowledged Grossgold’s objection and indicated it would take no further action until the dispute between the beneficiaries was resolved.

On January 30, 1990, plaintiffs Bornstein, Tosch and the Barmel Funds brought this suit, seeking a declaratory judgment, injunctive relief and damages against First Chicago and Grossgold. In count I, plaintiffs sought a declaratory judgment compelling the trustee to honor Bornstein’s power of direction. In count II, plaintiffs requested a judgment for damages against the trustee for its refusal to honor Bornstein’s power of direction and against Grossgold for the steps he took to prevent the trustee from so acting.

On March 12, 1990, First Chicago filed a complaint for inter-pleader pursuant to section 2 — 409 of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 409.) The trustee offered to deliver the corpus of the trust to the trial court or elsewhere as it would direct, and prayed that it be discharged from liability to the beneficiaries for all claims arising therefrom. The trustee also sought reimbursement from the beneficiaries for its attorney fees and litigation costs.

On April 11, 1990, First Chicago filed its motion for summary judgment as to the issues of interpleader and damages. On July 19, 1990, the trial court granted First Chicago’s motion as to the issue of interpleader and instructed the trustee to continue to hold the trust property pending further order of the court. The trial court reserved ruling on the issues of damages and attorney fees until it resolved the dispute among the beneficiaries at trial.

At a bench trial, Bornstein and Tosch testified that they undertook a plan to improve the trust property. In 1989, Bornstein and Tosch purchased three additional acres at a cost of $20,000. They placed the title to this property in the land trust, along with title to the other approximately 117 acres. Grossgold did not contribute any money for the purchase of this additional land.

Bornstein testified that pursuant to the plan of improvement, the trust property was divided into separate lots or phases. Each phase was to be developed and sold individually as improved property. The first three phases were developed and sold according to this plan, and First Chicago conveyed title upon Bornstein’s direction to convey. In each case, First Chicago honored Bornstein’s direction to convey without any question. However, as to the fourth phase, Bornstein was refused financing from First Chicago. Bornstein was eventually granted financing from the State Bank of Woodstock. However, Born-stein testified that as part of the deal, the State Bank of Woodstock required that title would have to be conveyed to the bank as the new land trustee. Accordingly, Bornstein testified that he directed First Chicago to convey the property to enable him to establish the Woodstock trust and receive the necessary financing. (Bornstein, however, directed First Chicago to convey the trust property to Bornstein and Tosch individually. It was only after litigation began that Bornstein offered to convey the property to Woodstock bank, as trustee.)

At the conclusion of trial, the court found that Grossgold assigned 100% of his beneficial interest in the trust to secure a loan from the Barmel Funds and that this assignment vested Grossgold’s power of direction in Bornstein until Bornstein was paid in full. The court found that because the loan remained outstanding, Bornstein continued to control Grossgold’s power of direction and Grossgold had no right to object to the direction to convey. The trial court further found that while Grossgold acted wrongfully by directing the trustee not to convey without his consent, the trustee acted properly in refusing to convey pending resolution of the dispute between the beneficiaries. Accordingly, the trustee was dismissed as a party defendant and the trial court entered judgment in its favor as to count II of the complaint, (Count II of the complaint remains pending in the trial court against Grossgold alone.) In addition, the trial court ruled that the trustee is entitled to its reasonable attorney fees and costs and because Grossgold’s conduct was wrongful, Grossgold alone was required to satisfy such fees and cost. Lastly, the trial court ordered the trustee to convey the corpus of the trust to Bornstein, notwithstanding the fact that the trustee’s attorney fees had yet to be satisfied. (The trustee has voluntarily dismissed its appeal of this issue.)

We will first consider whether the trial court erred in finding Grossgold’s objection to Bomstein’s direction to convey wrongful. It is clear that the 1975 power of direction gave Bornstein a broad power of direction which authorized Bornstein to enter into transactions with the trust assets, that Grossgold had the right to revoke the 1975 power of direction and that when Grossgold wrote to the trustee on December 14, 1989, he did in fact revoke the 1975 power of direction. Therefore, we need only address whether the 1978 power of direction, executed in conjunction with the collateral assignment, gave Bornstein the broad power to direct the trust assets and was irrevocable until Grossgold paid the loan back in full. The 1978 assignment executed in connection with the loan agreement provided:

“This assignment is being made as and for collateral security only. The power of direction shall be vested in Melvin S. Born-stein on behalf of assignees, until the obligation secured by this assignment is paid in full.”

Grossgold contends that this collateral assignment did not give Born-stein the broad power to direct the trust assets, but instead gave Bornstein the limited power of direction to withdraw proceeds from trust assets due to Grossgold until the loan was paid off. Bornstein, in contrast, contends that the 1978 power of direction assigned to the Barmel Funds all of Grossgold’s beneficial interest in the land trust, which entitled Bornstein to conduct all business on behalf of the beneficiaries. Bornstein contends that he will retain Grossgold’s power of direction for as along as the loan remains outstanding, and until the loan is paid in full, Grossgold is powerless to revoke his assignment.

Reading the assignment alone, either Grossgold or Born-stein’s interpretation of the 1978 power of direction seems legitimate. However, after reviewing the loan agreement executed at the same time as the power of direction, it is apparent that Bornstein was given only a limited power of direction to withdraw the proceeds in order to satisfy the loan. Bornstein was not given the broad power to direct the trust assets. The loan agreement provided that Grossgold would execute a power of direction that would enable Bornstein to “withdraw from any proceeds of [the trust property] due and owing to [Grossgold], the sums of $70,000 plus future advances, plus interest, until paid in full.” The loan agreement and the assignment were executed as part of the same loan transaction and must therefore be considered together and construed with reference to each other. As the court explained in Tepfer v. Deerfield Savings & Loan Association (1983), 118 Ill. App. 3d 77, 80, 454 N.E.2d 676, 679:

“The general rule is that in the absence of evidence of a contrary intention, where two or more instruments are executed by the same contracting parties in the course of the same transaction, the instruments will be considered together and construed with reference to one another because they are, in the eyes of the law, one contract. *** This is true whether or not the instruments were executed simultaneously; if executed at different times as parts of the same transaction they will be construed together. [Citation.]
‘Construing contemporaneous instruments together means simply that if there are any provisions in one instrument limiting, explaining, or otherwise affecting the provisions of another, they will be given effect.’ [Citation.]”

Accordingly, construing these documents together, it is our opinion that the 1978 power of direction only authorized Bornstein to withdraw proceeds from the trust property and apply it to Grossgold’s loan. It did not provide Bornstein with the power to transact business with the trust assets. Therefore we reverse the trial court’s finding that Grossgold acted wrongfully in directing the trustee not to convey without his consent. When Grossgold revoked the 1975 power of direction, Bornstein no longer had a right to direct the trust property.

Because of the ambiguity of the 1978 power of direction, we also find that the trustee acted properly in refusing to convey the trust property to Bornstein individually. Where there are multiple beneficiaries named in a trust, a trustee is under a duty to deal impartially with each of them. (Comtrade, Inc. v. First National Bank (1986), 146 Ill. App. 3d 1069, 497 N.E.2d 527.) If there are conflicting claims between beneficiaries, a trustee who ignores the demand of one beneficiary in order to comply with the demands of another can be held liable for resulting damages. (McBride v. Commercial Bank (1981), 101 Ill. App. 3d 760, 428 N.E.2d 739.) When faced with these conflicting claims, a trustee is not required to make a determination as to the rights of the beneficiaries, but instead should file an inter-pleader action. In re Estate of Szorek (1990), 194 Ill. App. 3d 750, 551 N.E.2d 697.

The trustee here was faced with conflicting directions by the beneficiaries of the trust. Bornstein and Tosch ordered the trustee to deed the corpus of the trust directly to them, while Grossgold informed the trustee that Bornstein and Tosch sought to defraud him and the trustee should not allow Bornstein to direct the trust corpus without Grossgold’s approval. The trustee therefore complied -with its duty to treat each beneficiary impartially by interpleading the parties and letting the trial court adjudicate their conflict.

The next issue before the court concerns whether the trial court erred in holding Grossgold solely responsible for the trustee’s attorney fees. The trial court assessed Grossgold with the trustee’s attorney fees and costs incurred in connection with the dispute between the beneficiaries because of Grossgold’s “wrongful objection to the conveyance *** and wrongful revocation of his 1978 power of direction.” The trial court stated that the “language of the trust deals with the unusual and ordinary expenses of the transactions, not the costs of litigation.” Not only do we disagree with the trial court that Grossgold’s actions were wrongful, but we find that in reaching its decision that Grossgold is solely responsible for the trustee’s attorney fees, the trial court disregarded the express language of the land trust agreement. The land trust agreement provides:

“In case said trustee shall make any advances of money on account of this trustee or shall be made a party to any litigation on account of holding title to said real estate or in connection with this trust, or in case said trustee shall be compelled to pay any sum of money on account of this trust, whether on account of breach of contract, injury to personal property, fines or penalties under any law or otherwise, the beneficiaries hereunder do hereby jointly and severally agree that they will pay on demand to said trustee, with interest thereon at the rate of 7% per annum, all such disbursements or advancements or payments made by said trustee, together with its expenses, including reasonable attorney’s fees ***.” (Emphasis added.)

Therefore, the trust agreement specifically provides that when the trustee is made a party to any litigation involving the trust, the beneficiaries will be jointly and severally liable for the trustee’s attorney fees and not merely for the transactional charges. Moreover, the trust agreement imposes the obligation on all of the beneficiaries, without distinguishing between beneficiaries who have greater or lesser culpability.

Here, the terms of the trust agreement are clear and unambiguous, and it was the trial court’s obligation to enforce the terms of this contract as written. It is well settled that the rules of contract construction apply to trust agreements. (Northern Trust Co. v. Tarre (1981), 86 Ill. 2d 441, 427 N.E.2d 1217.) These rules provide that the parties to a contract are presumed to have intended what their language clearly imports. (National Acceptance Co. v. Exchange National Bank (1968), 101 Ill. App. 2d 396, 243 N.E.2d 264.) The trial court therefore has no discretion to require the parties to accept any terms other than those in their contract. (Village of Grandview v. City of Springfield (1984), 122 Ill. App. 3d 794, 461 N.E.2d 1031.) In conclusion, we note that the beneficiaries are jointly and severally liable not only for the trustee’s attorney fees incurred during the litigation below, but they are also liable for those fees the trustee has incurred in defending this appeal. In re Estate of Szorek (1990), 194 Ill. App. 3d 750, 760-61, 551 N.E.2d 697, 704.

Accordingly, the decision of the trial court is reversed in part and affirmed in part.

Affirmed in part; reversed in part.

LORENZ and MURRAY, JJ., concur.