text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARRION ANDERSON, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—1901
    Opinion filed August 31, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Lisa S. Ottenfeld and Bruce Landrum, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Veronica X. Calderon, and Catherine A. Hufford, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

A jury convicted defendant Marrion Anderson of the murder of decedent Maurice Leveston, possession of a stolen motor vehicle and robbery. The circuit court sentenced defendant to 60 years’ imprisonment. Defendant appeals his conviction and sentence arguing that (1) he was not proven guilty beyond a reasonable doubt; (2) the voluntary manslaughter instruction violated his due process rights by erroneously stating the burden of proof on the findings of unreasonable belief of self-defense and sudden intense passion; (3) his fourteenth amendment rights were violated when the circuit court barred decedent’s former roommate’s testimony; (4) the circuit court improperly admitted photographs of decedent and his organs; (5) the State argued facts not in evidence, improperly shifting the burden of proof and usurping the jury’s function by referring to decedent as “victim” after the circuit court’s admonishment not to do so; (6) the circuit court abused its discretion in sentencing him to an extended term of 60 years; (7) the State violated his due process rights by failing to inform him of lost evidence; and (8) he was denied effective assistance of counsel because defense counsel failed to request an instruction regarding the inference of the State losing evidence.

Prior to trial, the State moved to preclude the testimony of the decedent’s former roommate. Defendant indicated that the former roommate would testify that decedent had, on previous occasions, invited young males to his apartment, taken them into his bedroom and shut the door. The circuit court granted the State’s motion in limine to bar this testimony.

David Carroll testified on behalf of the State that he was a coworker of decedent. Carroll testified that decedent was scheduled to work on March 26 and 27, 1986. Decedent did not come to work on either of those days. After several unsuccessful attempts to reach decedent, Carroll contacted decedent’s brother, Bobby Leveston. Carroll also explained that he had been at decedent’s apartment the previous Saturday and it had been neat, clean and organized. Carroll further testified that he had never seen anyone but decedent drive decedent’s Cadillac. Carroll acknowledged that he was aware of decedent’s homosexuality.

Next, Bobby Leveston testified that on March 25, 1986, at approximately 6 p.m., he telephoned decedent and invited him over to dinner. Decedent had declined, stating that he was going to stay at home and relax. Later that same evening, Leveston tried unsuccessfully to contact decedent by telephoning his home 15 to 20 times. On the morning of March 27, 1986, Carroll informed Leveston that decedent had not reported to work. Leveston went to decedent’s apartment, but no one answered the door. Leveston told his aunt, Airlane Jedkins, who raised decedent, about the situation.

Robert Haynes, an engineer at Granville Beach Condominiums, testified that on March 26, 1987, at about 11 a.m., he received a telephone call from Jedkins. Jedkins stated that she had not heard from her son, decedent. Haynes testified that he and Bert Castillo, the building janitor, went to decedent’s apartment. Haynes did not notice anything unusual in the hallway or around decedent’s apartment door. When Haynes entered decedent’s apartment, he observed the apartment was in disarray and some clothing covering someone in the middle of the living room. Haynes crossed the living room and shut a window. Then, Haynes said, “Hey, buddy, don’t you think you ought to get up.” After receiving no response, Haynes noticed a pillow over the person’s head and a brown robe around the waist area. The body was naked. Haynes testified that decedent’s hands were tied behind his back and full of excrement, as was the robe. Also, there was a wire tied to one leg. Haynes lifted the pillow off decedent’s head and saw a belt around decedent’s mouth and a bruise on his forehead. Since Haynes did not detect any signs of life, he replaced the pillow, locked the apartment and telephoned the police. Castillo’s testimony corroborates this testimony.

Detective David Ryan arrived at the scene and found it as described above. Ryan notified decedent’s brother, Fred Brown, who informed him that decedent parked his Cadillac at 6030 North Sheridan Road. Ryan went to the garage, and the manager told him that decedent’s car was gone. All police in the city and the suburbs were given a description of the car along with the registration information.

Officer Susan Sherran testified that while on duty on March 29, 1986, she was on 30th Street and Kedzie Avenue and observed a four-door silver Cadillac approaching. Sherran recalled the description of decedent’s car so she followed the Cadillac. The Cadillac pulled into a gas station. The Cadillac’s license plate matched that of decedent’s car. Sherran identified defendant as the driver of the Cadillac. The four occupants of the car were arrested.

Detective Thomas Sappanos testified that on March 29, 1986, he read defendant his Miranda warnings in an Area 6 interview room and that defendant indicated that he understood them. Defendant told Sappano that his girl friend, Linda Stevenson, who lived at 6141 North Sheridan Road, gave him the car as a reward for having sex. There was no building at 6141 North Sheridan Road nor was Linda Stevenson listed as a tenant at any building near the “fake” address. Sappanos then drove to 6171 North Sheridan Road, and using the keys which were taken from defendant at the time of his arrest, opened the door of decedent’s apartment.

Herman Kluth, a fingerprint identification expert for the Chicago police department testified that on April 17, 1986, he compared the latent evidence from decedent’s car to defendant’s inked fingerprint impressions. Defendant’s fingerprints were found on the car door, and his right palm print was found on the car. On April 24, 1986, Kurth identified defendant’s fingerprints on the General Electric clock and a white plastic container found in decedent’s apartment.

Dr. Barry Lifschultz performed the post-mortem examination on decedent on March 28, 1986. Lifschultz testified that there was bruising on the insides of decedent’s lips, which was consistent with the pressure from the belt being tied around the face, but Lifschultz could not rule out the possibility that the bruising was caused by a punch. Decedent, however, was alive when he sustained the lip injury. There was also an abrasion on decedent’s right forehead and on the left chin. Decedent’s hands were tied behind his back with an electrical cord, which resulted in minimal hemorrhaging. Lifschultz could not rule out the possibility that the reason there was minimal hemorrhaging around the wrists and ankle was because they were bound after decedent was dead. There was hemorrhaging in the lining of the voice box and into the muscles covering the voice box. There was a bite mark on the tongue, which is often caused by strangulation, and hemorrhaging under the surface of the tongue. Further, Lifschultz determined that the cause of decedent’s death was strangulation. To cause death in this manner, pressure would have had to be applied against the veins in the neck for approximately three to five minutes. Lifschultz also testified that there was no evidence that decedent had been sexually assaulted.

Assistant State’s Attorney Patrick McNerney testified that on March 30, 1986, he had a conversation with defendant after his Miranda rights had been given to him. McNerney testified that defendant told him that he first met decedent on Friday, March 21, 1986, in the vicinity of Clark and Lake Streets when decedent honked his horn and called defendant over to the car. Defendant got into decedent’s Cadillac, they went and purchased alcohol and then went to decedent’s apartment. At the apartment, decedent and defendant drank the alcohol and talked, after which decedent drove defendant back to the corner of Clark and Lake Streets. Defendant gave his telephone number to decedent, and decedent gave him $10.

McNerney also testified that defendant told him that on March 25, 1986, decedent telephoned defendant and they made arrangements for decedent to pick him up at the corner of Clark Street and Lake Street. After picking defendant up, decedent bought beer, then took defendant to his apartment. Defendant claimed that he and decedent drank the beer, smoked marijuana and discussed sex. Decedent asked defendant if he would have sex with him. Defendant consented to decedent performing oral sex on him three different times. Then, decedent went into the bathroom and returned wearing no pants and his hands full of petroleum jelly. Decedent requested defendant engage in anal sex with him; defendant agreed. Decedent put jelly on defendant’s penis and on his own anus. Defendant said that he put his penis half way into decedent’s anus and they began having sex. Defendant stated to McNerney that he withdrew his penis because he did not think it was healthy to place his penis into decedent’s anus. Defendant told McNerney that decedent became upset and angry when defendant removed his penis. Decedent turned so that he was face to face with defendant. Then, decedent put his hands around defendant’s waist in a hugging-type manner. Defendant explained that he began to choke decedent. Defendant managed to get behind decedent and choke him from behind. Defendant stated that he choked decedent until decedent collapsed.

After decedent fell to the ground, defendant searched the entire apartment for the keys to the Cadillac. Defendant told McNerney that when he saw decedent move, he grabbed an electrical cord and tied decedent’s hands behind his back. Then, defendant took a telephone cord and bound decedent’s feet. Next, defendant strapped a belt around decedent’s mouth. When McNerney questioned defendant regarding the fecal matter on decedent’s hands, defendant stated that at one point he noticed fecal matter on his penis and hands so he wiped himself off with a towel.

First, defendant argues that he was not proven guilty of murder beyond a reasonable doubt because the State failed to disprove self-defense beyond a reasonable doubt. Self-defense is an affirmative defense which defendant may raise only if he presents some evidence of each element of the defense or if the State’s evidence raises it. (People v. Guzman (1990), 208 Ill. App. 3d 525, 531, 567 N.E.2d 500, 505.) Such a defense is raised when (1) force is threatened against a person; (2) the person threatened is not the aggressor; (3) the danger of harm is imminent; (4) the person threatened must actually believe (a) that a danger exists, (b) the use of force is necessary to avert the danger, and (c) the kind and amount of force which he uses is necessary; and (5) the above beliefs are reasonable. (Guzman, 208 Ill. App. 3d at 531, 567 N.E.2d at 505.) The use of deadly force is limited to those situations in which the threatened force will cause death or great bodily harm or the force threatened is a forcible felony. People v. Ross (1981), 100 Ill. App. 3d 1033, 427 N.E.2d 955.

The State argues that defendant did not set forth some evidence of each element of self-defense. We agree. Testimony pertaining to defendant’s statement to a police officer indicates that an unarmed, 5-foot SVa-inch naked man weighing 140 pounds, who had three times previously performed fellatio on defendant the night of the killing and requested and engaged in anal sex with defendant, got angry and upset with defendant when defendant discontinued having anal sex. According to defendant’s statement, decedent turned, faced defendant and put his arms around defendant’s waist in a hugging-type manner. Defendant explained that then, he began to choke decedent and got behind decedent while he was still choking him. Even if we agree with defendant that the “hug” is some evidence of force, there is no evidence that the danger of harm was imminent. Moreover, defendant’s alleged beliefs that a danger existed and that deadly force was necessary because the alleged threatened force might cause defendant death or great bodily harm were not “reasonable” beliefs. Defendant was 5 feet 9 inches tall and weighed 173 pounds at the time of the murder. Decedent was a man of substantially smaller stature than defendant, he was unarmed and naked. There is no evidence that it was reasonable for defendant to believe that choking decedent to death was necessary. Decedent putting his arms around defendant in a “hugging-type” manner is not evidence that defendant could have reasonably believed that decedent was threatening to do great bodily harm or cause defendant to die. As a matter of law, therefore, self-defense was not raised because defendant failed to present some evidence of each of the elements of the affirmative defense. Guzman, 208 Ill. App. 3d 525, 567 N.E.2d 500.

Notwithstanding the above, defendant’s argument also fails because the jury need not accept as true the evidence in favor of self-defense. (People v. Johnson (1988), 172 Ill. App. 3d 371, 377, 526 N.E.2d 611, 614-15.) There was medical testimony that decedent had not been sexually assaulted. This evidence tends to discredit the account which defendant gave to the police. A reviewing court should not disturb the jury’s decision regarding self-defense unless the evidence is so improbable or unsatisfactory as to raise a reasonable doubt of guilt. (Johnson, 172 Ill. App. 3d at 377, 526 N.E.2d at 614.) We do not make such a finding. In fact, after reviewing the evidence in a light most favorable to the State, we find that any rational trier of fact could have found the essential elements of murder beyond a reasonable doubt. See People v. West (1990), 137 Ill. 2d 558, 584, 560 N.E.2d 594.

Second, defendant argues that the jury was improperly instructed in light of People v. Redidick (1988), 123 Ill. 2d 184, 526 N.E.2d 141. The Illinois Supreme Court held that when the voluntary manslaughter instructions (Illinois Pattern Jury Instructions, Criminal, Nos. 7.04, 7.06 (2d ed. 1987) (herein after IPI Criminal 2d)) and the murder instruction (IPI Criminal 2d No. 7.01) are given together, they misstate the State’s burden of proof regarding the mental state necessary to reduce a murder charge to voluntary manslaughter. (Reddick, 123 Ill. 2d at 194, 526 N.E.2d at 146.) Reddick applies retroactively, but does not mandate an automatic reversal of convictions arising from trials in which the above instructions were given. (People v. Shields (1991), 143 Ill. 2d 435, 575 N.E.2d 538.) In determining the effect of the above-given instructions on the validity of defendant’s conviction, the instructions must be considered in light of the whole record, including the evidence and arguments presented. (Shields, 143 Ill. 2d at 445-46, 575 N.E.2d at 543.) Further, constitutional errors may be deemed harmless beyond a reasonable doubt. Shields, 143 Ill. 2d at 446, 575 N.E.2d at 543; Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.

As previously discussed, there was no evidence that defendant believed he was in imminent danger of sustaining great bodily harm or death and defendant’s statement to the police is discredited in large measure by the physical evidence. Although the Reddick error did occur, the evidence in support of the murder conviction is so clear and convincing that the jury’s verdict would not have been different had the correct instructions been given. (People v. Austin (1989), 133 Ill. 2d 118, 124, 549 N.E.2d 331, 332-33; see Shields, 143 Ill. 2d at 450, 575 N.E.2d at 545.) We, therefore, hold that the Reddick error was harmless beyond a reasonable doubt.

Third, defendant argues that the circuit court erred in barring the testimony of decedent’s former roommate regarding the frequency of decedent inviting young males to his apartment, taking these males into his bedroom and shutting the door. After hearing argument, the circuit court granted the State’s motion in limine to bar the above testimony. The State argued that the former roommate’s testimony was irrelevant because he had no knowledge of the incident involving defendant and the roommate’s testimony would not resolve any issue in dispute. Defendant argued that the testimony was relevant to prove he was invited to decedent’s apartment.

Contrary to defendant’s argument, whether or not defendant was invited to the apartment is irrelevant. The test for relevancy is whether the evidence offered tends to prove or disprove a disputed issue. (People v. Molsby (1978), 66 Ill. App. 3d 647, 657-58, 383 N.E.2d 1336, 1344.) .There was no dispute regarding how defendant gained entry into decedent’s apartment.

Relying on People v. Berry (1988), 175 Ill. App. 3d 420, 529 N.E.2d 1001, defendant also argues on appeal that decedent’s former roommate’s testimony should have been allowed to show decedent’s aggressive and violent character because the issue of self-defense was disputed. Defendant, however, made no offer of proof that decedent’s former roommate would testify that decedent displayed an aggressive and/or violent demeanor toward the males he invited to his apartment. Moreover, the State did not challenge defendant’s theory that decedent had invited him over for sex. Since the testimony of decedent’s former roommate did not tend to prove or disprove any issue in dispute, it was irrelevant, and the circuit court did not err in barring it.

Fourth, defendant argues that the circuit court improperly allowed the jury to view photographs of decedent’s internal organs. Defendant has waived this issue by failing to preserve it for appellate review. It is well-settled law in Illinois that in order to preserve an issue for review, both a contemporaneous trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1131.) Defendant failed to include this issue in his written post-trial motion; therefore, he has waived review of it.

Fifth, defendant argues that the State’s closing argument was not based on the evidence and was beyond reasonable inference, thereby depriving him of a fair trial. Defendant did not object during trial to the State’s argument nor did defendant include this issue in the written post-trial motion; consequently, defendant also waived this issue. See Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1132.

Sixth, relying on People v. Giangrande (1981), 101 Ill. App. 3d 397, 428 N.E.2d 503, defendant contends that the State shifted the burden of proof, thus violating his constitutional rights when the State argued: “that is the best defendant can give you a year and-a-half [sic] later.” Giangrande is distinguishable from the case at bar. In Giangrande, the State argued, “Now where’s the evidence that the defendant didn’t do it?” (Emphasis omitted.) (Giangrande, 101 Ill. App. 3d at 402, 428 N.E.2d at 507.) This comment clearly addressed the central premise of our legal system, that one is innocent until proven guilty. The comment shifted the burden of proof because in essence it conveyed that defendant is guilty by virtue of being charged with the crime, and that during trial he must prove that he did not commit the crime.

In the present case, the comment was directed at the credibility and strength of defendant’s evidence of self-defense. Defendant objected to this comment, and the circuit court, determining it was improper argument, promptly sustained the objection. Any prejudice which may have occurred because of the State’s argument was cured by the circuit court immediately sustaining defendant’s objection.

Seventh, defendant argues that the State usurped the jury’s function as trier of fact by referring to decedent as the “victim.” Defendant objected twice to the State’s use of the word “victim” when referring to decedent. The circuit court sustained those objections. Defendant argues that the State was attempting to use the word “victim” to play on the sympathies and prejudices of the jury. A close reading of the record shows that this was not the case. It is evident that the State and McNerney were using the term “victim” because it was easier than reciting decedent’s name, just as they used the term “defendant.” After the circuit court admonished the State and McNerney to use decedent’s name, they did so. This admonishment and later usage of decedent’s name cured any prejudice which may have been caused by the alleged improper term. See People v. Trask (1988), 167 Ill. App. 3d 694, 713, 521 N.E.2d 1222, 1235.

Eighth, defendant contends that the circuit court abused its discretion when it sentenced him to 60 years’ imprisonment. Defendant argues that he did not qualify for an extended term because the State failed to demonstrate that the crimes were accompanied by brutal and heinous behavior.

The circuit court’s sentencing decision is entitled to great deference and weight. (.People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) The circuit court has a better opportunity to consider such factors as defendant’s credibility, demeanor, general moral character, mentality, social environment, habits and age along with the nature and circumstances of the crime. (People v. Requena (1982), 105 Ill. App. 3d 831, 435 N.E.2d 125.) Therefore, absent an abuse of discretion by the circuit court, a sentence will not be altered on review. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) A reviewing court may not substitute its judgment for that of the circuit court merely because it would have balanced the appropriate factors differently had the task of sentencing been its responsibility. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

In the present case, at the sentencing hearing, regarding aggravating factors, the circuit court judge cited defendant’s previous record of armed robbery, and the facts that defendant tightly bound decedent’s mouth with a belt, bound decedent’s hands and feet and the manner of strangulation as evidence that defendant was “an exceptionally brutal person, a person that does not have regard for others, a person whose total behavior could easily be and has been one that will inflict wanton cruelty upon other people.” The judge also took into account mitigating factors such as defendant had sought education and had a loyal family. The judge, however, believed that defendant was not “cognizant of his family and did not take advantage of their loyalty.” Thereafter, the judge determined that defendant qualified for an extended sentence. Defendant’s 60-year term is within the permissible range pursuant to section 5 — 8—2(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—2(1)). There is no evidence that the circuit court abused it discretion; thus, we affirm defendant’s extended sentence.

Ninth, defendant contends that his due process rights were violated when the State failed to disclose that evidence was lost. Prior to trial, in answering discovery, the State claimed to have produced all of the medical examiner’s reports and laboratory reports. The documents produced did not contain any information that Lifschultz had taken swabs of decedent’s anus and mouth. Lifschultz testified that he took the swabs because cases of strangulation are frequently associated with sex crimes. Lifschultz, however, testified that there were no signs of sexual assault. Further, the State was not aware of the existence of any swabs until defense counsel discovered that they had been taken.

In order to establish a discovery violation which would warrant a new trial, defendant must show (1) that the evidence was favorable to him; (2) that the State failed to disclose the evidence after a specific request; and (3) the evidence was material. (People v. Flax (1986), 147 Ill. App. 3d 943, 498 N.E.2d 667.) Since defendant did not establish that the State knew about the swabs, it would have been impossible for the State to disclose that the swabs were lost. In addition, defendant did not show that this evidence was favorable to him. Defendant’s due process rights were not violated.

Lastly, defendant argues that he was denied effective assistance of counsel because defense counsel failed to request an instruction regarding the loss of evidence. To sustain a claim of ineffective assistance of counsel, defendant must show actual incompetency on the part of the attorney that resulted in substantial prejudice, such that the result of the trial would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.) If there is a lack of sufficient prejudice to defendant, we do not need to determine whether counsel’s performance was deficient. (People v. Albanese (1984), 104 Ill. 2d 504, 525-27, 473 N.E.2d 1246, 1256.) Defendant has the burden of showing actual prejudice. (People v. Puente (1984), 125 Ill. App. 3d 152, 158, 465 N.E.2d 682, 687.) To establish prejudice, defendant must demonstrate “not simply a possibility of prejudice, but that the claimed error worked to his actual and substantial disadvantage.” (People v. Owens (1989), 129 Ill. 2d 303, 318, 544 N.E.2d 276, 282.) When determining whether a reasonable probability exists that but for counsel’s error, the result of defendant’s trial would have been different, an appellate court must review the totality of the evidence presented to the jury. People v. Moore (1990), 208 Ill. App. 3d 515, 522, 567 N.E.2d 466, 471.

Defendant contends that if the swabs would have indicated the presence of semen or petroleum jelly, it would have corroborated defendant’s account of the killing. Sex, consensual or nonconsensual, is irrelevant to defendant’s murder conviction. Actually, the State never disputed defendant’s theory that he had sex with decedent. Furthermore, defendant still admitted to choking decedent until he was unconscious and binding decedent in the manner in which decedent was found. The evidence clearly and convincingly shows that defendant killed decedent. As for defendant’s self-defense theory, the evidence of semen or petroleum jelly would not tend to prove that decedent was or was not aggressive or that deadly force was necessary. Defendant failed to establish that he was prejudiced by the lack of defense counsel’s argument or an instruction concerning the swabs. Consequently, defendant has not established a claim for ineffectiveness of counsel.

For the foregoing reasons, the conviction and sentence of the circuit court of Cook County are affirmed.

Affirmed.

CAMPBELL and MANNING, JJ., concur.


source: Caselaw Access Project

author: JUSTICE TULLY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ADRIAN MITCHELL et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 1—89—1668, 1—89—1795 cons.
    Opinion filed September 2, 1992.

      Rita A. Fry, Public Defender, of Chicago (Mary C. Arundel, Assistant Public Defender, of counsel), for appellant Adrian Mitchell.
    Michael J. Pelletier and Michael Katten, both of State Appellate Defender’s Office, Mark W. Solock, and Barry A. Spector, all of Chicago, for appellant Rafael Mendez.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William Pistorius, and Joseph P. Roddy, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE TULLY

delivered the opinion of the court:

Defendants Adrian Mitchell and Rafael Mendez were indicted and charged with murder, armed violence, attempted burglary, attempted armed robbery, attempted robbery and unlawful use of a firearm by a felon. Following a bench trial, defendants were convicted of murder, unlawful use of a firearm by a felon and armed violence. Each defendant received a sentence of 50 years’ incarceration in the Illinois Department of Corrections. Defendants appeal both their convictions and sentences.

This case examines the 1988 shooting death of Theresa Demerin, who worked as a nurse at St. Mary’s of Nazareth Hospital (the hospital) in the City of Chicago. On the evening of February 25, 1988, Theresa completed her shift at the hospital and then walked to her car, which was parked in the northwest section of hospital parking lot “B.” When Theresa did not arrive home by 1 a.m. as usual, her husband, Deolido, alerted hospital personnel. Around 4:15 a.m. on February 26, 1988, hospital security guards found Theresa’s lifeless body slumped over on the front seat of her red Escort.

Hospital security guard Alan Grelyek testified he was working the evening of February 25, 1988. While monitoring security cameras, Grelyek observed a black man with a “Jewel” shopping bag looking into a parked car in lot “B.” Around 1:15 a.m. another security guard, Shanen Beltran, observed a similar man looking into a red Escort in parking lot “B.” The following day Beltran identified the man as defendant Adrian Mitchell.

Another hospital employee, Caridad Quidayan, recounted how she left the hospital around 12:10 a.m. As she exited the northwest corner of parking lot “B” she heard something which sounded like rocks hitting the back and side doors of her van. The next day, she discovered four bullet holes in the doors of the van.

Jesse Boone was in a nearby apartment on the night in question with Otis Mitchell, defendant Adrian Mitchell’s uncle, when he heard several gunshots between 11 p.m. and 12 midnight. He and Otis Mitchell later observed defendants Adrian Mitchell and Rafael Mendez sitting in a parked car in the vicinity of the hospital. Both defendants were talking and laughing. They told Boone “there is a dead lady in the park” and that if Boone and Otis Mitchell wanted “money or something” they could take it. Mendez then commented they would read about it in the morning paper.

The following day, Boone told Officer Kusinski about the conversation with Adrian Mitchell and “a white guy with glasses.” Boone then identified this other man as Rafael Mendez in a police photograph book. Boone also made in-court identifications of both defendants.

Prior to trial, Mendez motioned to quash his arrest and to suppress statements made while in police custody. Officer Paul Kusinski testified at the hearing on this motion that he was assigned to canvass the buildings surrounding the parking lot where the victim’s body was found. Kusinski recovered several .22 caliber shell casings at the entrance to 2248 West Potomac. He later learned that Otis Mitchell told other officers that his nephew Adrian resided in a second-floor apartment of that building and that there might be a rifle in his apartment. After entering a rear unlocked door to the apartment, Kusinski discovered several more .22 caliber shell casings and a .22 rifle wrapped in a bed sheet. Kusinski also noticed that the apartment’s windows faced southward in the direction of the parking lot where the victim was shot.

Later that day, Kusinski interviewed Jesse Boone about his conversation with Adrian Mitchell and a “light-skinned Puerto Rican” the previous night. After learning that Adrian Mitchell had been arrested a few days previously with Rafael Mendez, Kusinski presented Boone with a police photo book containing Mendez’ photograph. Boone identified Mendez as the man he spoke with the previous evening, who had been laughing and talking with Adrian Mitchell. Kusinski then prepared two supplementary arrest reports, wherein he failed to mention the photographic identification of Mendez and the recent joint arrest of Mitchell and Mendez.

During the hearing, the trial court referred to this as “slipshod” police work, but believed that Kusinski had in fact performed a photographic identification of Mendez. The trial court also noted that the arresting officer had probable cause to arrest Mendez, since Mendez appeared apprehensive and responded “Oh, no” when the officer approached him about the “death of a nurse.” The motions to quash the arrest and suppress this evidence were both denied. Defense counsel then orally motioned to suppress the photographic identification as being suggestively presented. This motion was also denied.

Defendant Adrian Mitchell motioned to suppress statements made to Assistant State’s Attorney David Lavin. Mitchell testified that Lavin promised he would not be charged with murder but with “reckless something.” Mitchell then gave a full statement to Lavin in the presence of a court reporter. When asked whether he had been promised any leniency for his statement, Mitchell responded he had not.

According to Mitchell, both he and Mendez were shooting a rifle from the window of his apartment. They aimed the rifle at people in the nearby hospital parking lot in order “to scare them.” The defendants alternated shooting the rifle. Mitchell saw a woman enter the lot and approach a small red car. When she was about three feet from the car Mitchell shot toward the car. The woman then opened the car door and disappeared from view. Mitchell admitted he thought she was “probably dead.” He and Mendez then attempted to search the woman’s body for jewelry, but the car was locked. They later returned with a screw driver to pry open the car door but were prematurely stopped by hospital security guards.

Although this is a consolidated appeal, we will consider the issues raised by each defendant separately. First, defendant Mitchell contends that his pretrial motion to suppress his statement should have been granted. In support thereof, Mitchell claims he gave the statement only after Assistant State’s Attorney Lavin promised to charge him with “reckless [homicide]” instead of murder.

After hearing the testimony of defendant Mitchell, Assistant State’s Attorney Lavin and Detective Raymond Schalk, the trial court concluded that Mitchell’s statement had been voluntarily given. The trial court’s finding as to the voluntariness of a confession will not be reversed unless it is contrary to the manifest weight of the evidence. (People v. Davis (1983), 97 Ill. 2d 1, 452 N.E.2d 525.) The trial judge must decide whether the will of the defendant was overcome, given the totality of the circumstances. People v. Baine (1980), 82 Ill. App. 3d 604, 403 N.E.2d 57.

Detective Ray Schalk was present when Assistant State’s Attorney Lavin interviewed Mitchell. According to Schalk, Mitchell stated that he understood his Miranda rights prior to discussing the death of Theresa Demerin. The discussion lasted 15 to 20 minutes. Several hours later, Schalk and Lavin met again with Mitchell, who repeated his confession in the presence of a court reporter. This discussion lasted about 10 minutes. Under oath, Mitchell stated he had not received any promises of leniency in exchange for his confession. After the written report was prepared, Mitchell read and initialled it.

The trial judge weighed the testimony and credibility of Schalk, Lavin and the defendant, in finding the confession was voluntary. The record indicates an absence of any evidence of physical or mental abuse or coercion. Under the totality of the circumstances, we cannot agree that the finding of the trial court was against the manifest weight of the evidence presented.

Mitchell also argues that his murder conviction should be reduced to involuntary manslaughter. However, Mitchell failed to raise this issue at trial or in his written post-trial motion. Therefore, this issue has been waived and we need not consider it on review. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

In any case, it is difficult to fathom how the calculated actions of the defendant in this case could be deemed mere recklessness. This is not a case of youthful indiscretion such as rock throwing at passing cars or even taking “pot-shots” with a “BB” gun. Defendant loaded and aimed a .22 caliber rifle toward the parked car of Theresa Demerin, when he could clearly see that Mrs. Demerin was a mere three feet from the car. Certainly, a 19-year-old young man knew that pulling the trigger created a “strong probability of death or great bodily harm” to Mrs. Demerin. (See Ill. Rev. Stat. 1989, ch. 38, par. 9— l(a)(2) (for the definition of “murder” in Illinois).) Moreover, instead of shock and dismay as to the result of his “recklessness,” defendant walked to the car where Mrs. Demerin lay lifeless, in the hope of finding jewelry or other valuables. Defendant would have us excuse as “reckless” actions which ended the life of Theresa Demerin, a 25-year-old registered nurse with a husband and a four-year-old son. Under the circumstances, we decline to do so.

Defendant next contends that his prior felony convictions were improperly introduced to show his propensity to commit crime. Mitchell was charged with the unlawful use of a firearm by a felon. In Illinois, it is unlawful for a person to knowingly possess a firearm if he has been convicted of a felony under the law of Illinois or any other jurisdiction. (Ill. Rev. Stat. 1989, ch. 38, par. 24—1.1(a).) We find that defendant’s prior convictions were properly admitted to prove that he was a convicted felon at the time he possessed a firearm.

Finally, Mitchell requests that we reduce his sentence of 50 years’ imprisonment for murder, given his rehabilitative potential and genuine remorse for the crime. We cannot disturb the sentence of the trial court absent an abuse of discretion. (People v. Cabrera (1987), 116 Ill. 2d 474, 508 N.E.2d 708.) On review, the proper question is not what we think the sentence should have been, but whether the trial court properly weighed the relevant factors and rendered a decision which was within the statutory limits for the crime committed.

In arguing for an extended term of natural life imprisonment, the State presented the juvenile record, including two prior robbery convictions, of Mitchell. The State further alluded to the heinousness of the crime, describing it as a cold-blooded “thrill kill” without any motive.

In mitigation, Charles Rankin, a teacher at the Cook County jail school, testified on behalf of Mitchell. Rankin noted that Mitchell had passed the GED examination and was “very gifted academically.” Rankin also explained how Mitchell played a major role in presenting “Project Inside Out,” a theatrical program which links jailhouse youths with high school students. The defense also presented exhibits of various ballads and poems written by Mitchell for the theater project.

Before imposing the sentence, the trial judge explained that he had read and considered all of the evidence presented on Mitchell’s behalf. After evaluating all of the evidence, the trial court imposed a sentence of 50 years’ imprisonment, which falls within the parameters of the sentencing statute. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—l(a)(l).) We, therefore, find no basis for reducing defendant Mitchell’s sentence.

We now turn to the appeal of defendant Rafael Mendez. Prior to trial, Mendez motioned to quash his arrest and suppress evidence, alleging that the police lacked probable cause to arrest him. Because there were no police reports verifying that a photographic identification of Mendez was made prior to the arrest of Mendez, the defense asserts that no such identification took place. At the pretrial hearing on the motion, Officer Kusinski testified that he interviewed a neighbor, Jesse Boone, who saw Adrian Mitchell laughing and talking to a “light-skinned Puerto Rican” about the shooting of a nurse in the nearby hospital parking lot. After checking police records, Kusinski learned that Mitchell had been arrested a few days prior with a man named Rafael Mendez. He then showed Boone several pages of photographs, one of which contained Mendez’ picture. Boone positively identified Mendez. All of this information was then relayed to arresting Officer Martin, who also knew the license plate number and description of Mendez’ car. Martin stated that when he approached Mendez, he was working on his car and he identified himself as Rafael Mendez. Martin told Mendez he wanted to question him about the recent death of a nurse. Mendez responded, “Oh, no. Can I put my tools away ?” Mendez was then taken into custody for questioning. Mendez testified that he only told Martin his name, whereupon Martin put him in the back seat of an unmarked police car and drove him to the station, where he was read his Miranda rights.

The trial court weighed the testimony of Officers Kusinski and Martin against that of Defendant Mendez and concluded that there existed sufficient probable cause to arrest Mendez. Thus, Mendez’ motion to quash his arrest and suppress evidence was denied.

On review, the decision of the trial court on a motion to suppress will be sustained unless it is against the manifest weight of the evidence. (People v. Reynolds (1983), 94 Ill. 2d 160, 445 N.E.2d 766.) Although the trial court commented on the “slipshod” police work of Officer Kusinski, who failed to record the photographic identification in his police reports, the court believed that the identification had taken place. Because this finding turns upon the credibility of the witnesses, we defer to the decision of the trial court in this matter. Moreover, even without the photo identification, the description of Mendez by Boone, the police information records and Mendez’ reaction to arresting Officer Martin provided sufficient probable cause for his arrest. We also note that the subsequent trial testimony of Jesse Boone corroborated the claims of Officer Kusinski as to the photographic identification of Mendez.

Secondly, Mendez contends that the photographic identification by Boone was prejudicially suggestive. Four pages of photographs were shown to Boone, containing a total of nine Hispanic individuals and five black individuals. According to Kusinski, five were “light-skinned.” Boone testified that he had described Mitchell’s accomplice as a 19- or 20-year-old “white guy with glasses.” During cross-examination by defense counsel, Boone revealed that there was only one picture of a white male wearing glasses on three of the four pages of photographs he examined. There was no clear testimony as to the photographs on the remaining page.

Prior to trial, defense counsel made an oral motion to suppress the photographic identification as suggestive, but did not submit a written motion until after trial began. Defendant claims the trial court improperly denied this motion without a hearing and requests that we remand for a hearing on the matter. Motions to suppress must be made in writing prior to trial. (Ill. Rev. Stat. 1989, ch. 38, pars. 114—11, 114—12.) However, fundamental fairness may dictate otherwise, such as where defense counsel did not have adequate notice of the grounds for the motion. People v. Johnson (1967), 38 Ill. 2d 399, 402-03, 231 N.E.2d 447.

During pretrial discovery, defense counsel requested any information regarding the photographic identification of Mendez. The State did not produce any information prior to the hearing on Mendez’ motion to quash his arrest, wherein Officer Kusinski described the photo album he presented to Jesse Boone. After the trial court denied this motion, defense counsel orally motioned to suppress the photographic identification as prejudicially suggestive, indicating that a written motion would be prepared. Judge Strayhom denied the oral motion and said that a written motion would be denied as well. On the following morning, defense counsel presented its written motion, which was denied. During trial, the State then introduced into evidence the police photo album which was used by Officer Kusinski. Defense counsel objected on the basis that the admission of such evidence was a violation of the discovery rules and, moreover, defense counsel was never granted a hearing on his motion to suppress the photo album as being suggestive.

While we find that the trial court erred in denying defense counsel a hearing on the motion to suppress, we need not necessarily remand this cause for a hearing. Photographic lineups are not per se impermissibly suggestive where the defendant’s photo is distinguishable from the other pictures or where, as in this case, the defendant is the only subject wearing glasses. (See People v. Kubat (1983), 94 Ill. 2d 437, 447 N.E.2d 247; People v. Bryant (1983), 94 Ill. 2d 514, 447 N.E.2d 301.) In addition, even if the photographic arrangement was impermissibly suggestive, the subsequent in-court identification by Jesse Boone was based upon independent knowledge sufficient to overcome the taint of the photographic lineup. (Stovall v. Denno (1967), 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967.) Boone testified that he lived next door to Mendez for approximately one year and during that time he saw him between 5 and 10 times per month.

Mendez also requests that his sentence be reduced due to rehabilitation potential and genuine remorse for the crime. The trial judge considered the mitigating factors presented on behalf of Mendez, including the fact that Mendez did not actually fire the rifle. Nevertheless, the trial court concluded that Mendez was “equally culpable” for the death of Theresa Demerin. Under the circumstances, we find no basis for reducing the sentence of defendant Mendez.

Lastly, both defendants request that we remand this matter to the trial court to correct errors in the mittimus to reflect the proper judgment of the trial court. The mittimus incorrectly states that defendants were convicted of six counts of murder, three counts of armed violence and two counts of unlawful use of a firearm by a felon. Pursuant to Supreme Court Rule 615, this court may correct the mittimus without remanding to the trial court. (134 Ill. 2d R. 615(b)(l).) Therefore, we order that the mittimus be corrected to reflect a sentence of 50 years’ imprisonment for each defendant on one count of murder. The remaining counts of murder, armed violence and unlawful use of a firearm by a felon shall be vacated.

Based upon the foregoing, the judgment of the Cook County circuit court is hereby affirmed in all other respects.

Affirmed in part; vacated in part.

RIZZI and CERDA, JJ., concur.


author: JUSTICE SCARIANO

text:
    PAUL EVANS, Plaintiff-Appellant, v. HERBERT KOSHGARIAN et al., Defendants-Appellees (Commonwealth Edison Company, Defendant).
    First District (2nd Division)
    No. 1—91—1992
    Opinion filed September 8, 1992.
    Roger D. Rudich, Ltd., of Chicago (Roger D. Rudich and Martha Garcia, of counsel), for appellant.

      Kralovec, Marquard, Doyle & Gibbons, Chartered, of Chicago (Nancy J. Arnold and Sara T. Wiggs, of counsel), for appellees.
   JUSTICE SCARIANO

delivered the opinion of the court:

Paul Evans (plaintiff) appeals from the trial court’s granting of summary judgment in favor of Herbert Koshgarian (Koshgarian), lessor of the premises at issue in this cause, and Hinsdale Motor Cars, Inc., d/b/a Jack Winters Hinsdale Motor Cars (Hinsdale), lessee of the premises (collectively, defendants).

On the night of June 22, 1987, and the early morning of June 23, 1987, while in the employ of J.P. Building Maintenance, plaintiff was cleaning defendants’ building and facilities located at 300 East Ogden Avenue. At approximately 3 a.m., plaintiff had completed work and was proceeding to his car parked along the south curb of Ogden Avenue. He crossed the sidewalk and was walking in the grassy parkway between the sidewalk and the roadway when his foot caught on a piece of curved metal, causing him to fall and sustain injuries.

On June 23, 1989, plaintiff filed a complaint sounding in negligence against defendants, as well as against Commonwealth Edison Company, Illinois Bell Telephone Company, and Continental Cable-vision, Inc., but the latter two parties were subsequently dismissed by plaintiff. In the two counts against the remaining defendants he asserts that they

“[njegligently and carelessly[: 1] maintained and inspected the said parkway; [2] *** permitted a metal bar to be installed on the aforesaid parkway creating an unreasonably dangerous condition; [3] *** failed to warn the plaintiff of the existence of an unreasonably dangerous condition along and upon the said parkway; and [4] *** failed to inspect the aforesaid premises for unreasonably dangerous conditions.”

On October 18, 1990, defendants moved for summary judgment, Koshgarian asserting that he did not possess an ownership interest in the parkway in question and therefore owed no duty to plaintiff. Hinsdale also claimed that it owed no duty to plaintiff because (1) it was merely Koshgarian’s tenant, and as such, it did not possess an ownership interest in the parkway; and (2) it neither “maintained [n]or permitted to be installed the metal object in question.” On May 21, 1991, the court granted the defendants’ motions and made a finding that there was no just cause to delay enforcement or appeal of its order. Commonwealth Edison had also filed a motion for summary judgment, but the record does not indicate the disposition, if any, thereof. On June 18,1991, plaintiff filed a timely notice of appeal.

Plaintiff maintains that the trial court’s granting of summary judgment in favor of defendants was erroneous because they had voluntarily undertaken the duty to reasonably maintain the parkway; they were “in possession and in control of [the parkway and i]t is the maintaining, possessing, and controlling [of] the parkway which created the duty upon the defendants to act in a careful manner.” In attempting to show possession and control of the parkway, plaintiff relies on the fact that (1) Hinsdale voluntarily hired “porters” to maintain and mow the grass in the parkway, and that (2) Hinsdale had knowledge of the existence of the metal bar.

Plaintiff further suggests that Smith v. Rengel (1981), 97 Ill. App. 3d 204, is analogous to the instant case and should control its outcome. The plaintiff in Rengel, a guest of the defendant’s tenant, sustained injuries while removing a refrigerator from his host’s apartment. The plaintiff had backed his pickup truck partially onto a parkway to facilitate the removal, and as he and two others were carrying the refrigerator across the parkway to the truck, he stepped off the sidewalk and into a hole in the parkway. There was evidence in the record to indicate that the defendant-landlord’s wife and son had “mowed the grass in the boulevard, had shoveled snow from it, and had filled with dirt any holes found in it,” thus creating a “duty in law on the adjacent landowner to use ordinary care to maintain the boulevard in a reasonably safe condition for his tenants and their invitees and social guests.” Rengel, 97 Ill. App. 3d at 206.

Summary judgment is appropriate when all the evidence on file, the pleadings, depositions, admissions and affidavits, strictly construed against the moving party, present no genuine issue of material fact. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005; Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 380.) Whether one party owes a duty to another, however, is a question of law which is to be determined by the court. (Marshall v. City of Centralia (1991), 143 Ill. 2d 1, 6; Cunis v. Brennan (1974), 56 Ill. 2d 372, 374; Dodd v. Cavett Rexall Drugs, Inc. (1988), 178 Ill. App. 3d 424, 432.) “Accordingly, a trial court will grant summary judgment if under the pleadings, depositions, admissions, and affidavits, it appears that the defendant owes no duty to the plaintiff.” Dodd, 178 Ill. App. 3d at 432.

We disagree with plaintiff, for we believe that the trial court was correct in holding that defendants owed no duty to him. It has recently been held that the duty owed by an owner or occupier of land abutting a city-owned parkway is no different than the duty owed if the premises in question were a city-owned sidewalk (Burke v. Grillo (1992), 227 Ill. App. 3d 9, 17); we therefore apply to the case at bar those authorities dealing with the duty owed by one whose property abuts a public sidewalk.

“In general, an abutting owner [or occupier] is not held liable for personal injuries incurred on a public sidewalk under the control of a municipality.” (Repinski v. Jubilee Oil Co. (1980), 85 Ill. App. 3d 15, 21; Dodd, 178 Ill. App. 3d at 432; Schuman v. Pekin House Restaurant & Lounge (1981), 102 Ill. App. 3d 532, 534.) This rule is inapplicable, however, where (1) the abutting landowner or occupier appropriates the property for its own business purpose (Dodd, 178 Ill. App. 3d at 432; McDonald v. Frontier Lanes, Inc. (1971), 1 Ill. App. 3d 345, 352; Cooley v. Makse (1964), 46 Ill. App. 2d 25); or where (2) there is evidence that the dangerous condition on the sidewalk abutting his property was directly occasioned by him, that is, where he caused or contributed to the defective condition of the public sidewalk. (Burke, 227 Ill. App. 3d at 17; Thiede v. Tambone (1990), 196 Ill. App. 3d 253, 261, appeal denied (1990), 133 Ill. 2d 574; Repinski, 85 Ill. App. 3d at 21-22.) On appeal, plaintiff does not argue that defendants caused or contributed to the defective condition which caused his fall; rather, he argues only that

“by voluntarily maintaining adjacent non-owned property, [defendants] impose[d] a duty upon [themselves] to perform the maintenance in a reasonable manner, including warning the public of a hidden danger or in the alternative removing said danger when such removal could be accomplished with relative ease.”

In the instant case no evidence exists that defendants appropriated the property for their own business purpose. This fact situation is neither like that in McDonald, where the defendant had used the sidewalk for parking, thus blocking it and preventing its normal use, nor like that in Cooley, in which the sidewalk’s only purpose was to provide access to the front door of the tavern, and thus the defendants had appropriated it for their own use by “assuming] the right to use, enjoy and employ the sidewalk as a necessary adjunct of their possession, control and ownership of the tavern building.” Cooley, 46 Ill. App. 2d at 30.

Defendants here did not take any affirmative steps to appropriate the parkway such as blocking it, parking on it, using it to display goods, or otherwise preventing the public from using it in its ordinary manner (Dodd, 178 Ill. App. 3d at 433); and an abutting landowner does not assume control over a parkway merely because the majority of users of it may have been customers (Dodd, 178 Ill. App. 3d at 433), or because he gratuitously sweeps (Schuman, 102 Ill. App. 3d at 534-35), shovels or salts it (Dodd, 178 Ill. App. 3d at 433). Defendants hired porters merely to mow the grass and otherwise keep the parkway looking neat. Neither did they use it for means of ingress or egress for either their employees or their patrons, since they provided a parking lot for employee and customer parking in order that persons frequenting Hinsdale need not traverse the parkway.

We also decline to follow Rengel, which, as noted earlier, plaintiff relies upon. Instead, we agree with the holding in Burke, in which the court recently criticized Rengel. The facts in Burke reflect that a 72-year-old woman sued both the City of Elgin and the defendant Grillo for injuries incurred “when she fell onto a sidewalk because of a defective condition of the sidewalk,” in that there existed “a large difference in grade between the grass and the sidewalk.” (Burke, 227 Ill. App. 3d at 11-12.) The plaintiff relied on Rengel for the proposition that Grillo “owed her a duty to keep and maintain this area in a reasonably safe condition even though it was just beyond the premises actually owned by [him],” because he cut the grass and shoveled the sidewalk in front of his apartment building. (Burke, 227 Ill. App. 3d at 14.) Citing Dodd and Schuman favorably, the Burke court declined to follow the Rengel court’s conclusion that merely because a landowner mows the grass in a boulevard, shovels snow from it, and fills with dirt any holes found in it, he had established a duty to maintain the property, even though it belongs to the city. Rather, it concluded that the Rengel court “interpreted our decisions in Cooley and McDonald too broadly” (Burke, 227 Ill. App. 3d at 16), and held that Grillo’s merely cutting the grass and shoveling the sidewalk in front of the apartment building was not evidence enough to show that he had “affirmatively appropriated the public sidewalk or the city-owned area beside it for his own use.” (Burke, 227 Ill. App. 3d at 17.) We, too, conclude that defendants have not affirmatively appropriated the public parkway for their own use merely because they occasionally mow it.

For the above-stated reasons, we hold that the trial court was correct in granting summary judgment in favor of defendants.

Affirmed.

HARTMAN, P.J., and DiVITO, J., concur.

      In his brief plaintiff admits as much, stating that “¡ajlthough, owned by the municipality, Defendant, HINSDALE MOTOR CARS, INC., regularly assigned its porters to mow the grass on the parkway.” (Emphasis added.)

      The record reflects that in the deposition of Kenneth Lysne, one of the porters previously employed prior to plaintiff, the existence and location of the metal bar was known to the porters with whom he worked, but not to others.


author: JUSTICE O’CONNOR

text:
      In re PETITION FOR ANNEXATION OF UNINCORPORATED TERRITORY TO THE VILLAGE OF PALATINE (Thomas E. Klein, Objector-Appellant, v. James A. Hastings et al., Petitioners-Appellees (The Village of Palatine, Intervenor-Appellee)).
    First District (1st Division)
    No. 1—91—0916
    Opinion filed September 8, 1992.

      Law Offices of R. Burke Kinnaird, of Chicago (R. Burke Kinnaird and Timothy J. Klein, of counsel), for appellant.
    Arnstein & Lehr, of Chicago (Arthur L. Klein, Everette M. Hill, and Carol McHugh, of counsel), for appellee Village of Palatine.
    Walter J. Kendall III, of Chicago, for other appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Thomas E. Klein is the nonresident owner of property included in a larger, unincorporated area which was the subject of an annexation action involving the Village of Palatine. Klein attempted to raise objections to the annexation action pursuant to a petition for intervention (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 408). The petition having been denied, Klein appeals.

Annexation proceedings were instituted on November 15, 1990, when the petition was filed. (See Ill. Rev. Stat. 1989, ch. 24, par. 7— 1 — 2.) Notice of that filing was published in the December 1, 1990, issue of the Daily Herald, the Village of Palatine’s principal local newspaper. (See Ill. Rev. Stat. 1989, ch. 24, par. 7 — 1—2.) On December 17, 1990, an order wag entered in the circuit court, directing that the question of annexation be submitted for action to the corporate authorities of the Village of Palatine, the annexing body. (See Ill. Rev. Stat. 1989, ch. 24, par. 7 — 1—4.) That order recited that no objections had been filed opposing the annexation.

On January 14, 1991, Klein filed his petition to intervene, which revealed his concerns with the annexation. Despite opposition by the Village of Palatine, Klein previously had sought successfully to have his property rezoned from residential to commercial use for purposes of operating an automotive service center. Klein feared his right to so use the property would be in jeopardy if the annexation was realized.

Klein’s petition acknowledged that he had not objected to the annexation action within the time prescribed in the Municipal Code. However, he attempted to explain that failure on the lack of proper notice by those seeking annexation.

The Village of Palatine subsequently filed objections to Klein’s petition.

Klein’s petition to intervene was denied on February 15, 1991, and he filed a notice of appeal from that order 28 days later on March 15,1991.

A large part of Klein’s argument on appeal is addressed to the propriety of intervention as a means to object to the annexation petition and the timeliness of his action. The answer to both questions lies in an understanding of how the Code of Civil Procedure facilitates the right to object provided by the Municipal Code for annexation proceedings.

Section 2 — 408 of the Code of Civil Procedure provides for both intervention as of right and permissive intervention. A party seeking to intervene in a particular action may do so as of right when a statute upon which the action is predicated “confers an unconditional right” to do so. (Ill. Rev. Stat. 1989, ch. 110, par. 2—408(a).) Section 2—408 also confers such right on two other conditions without reference to statute. Ill. Rev. Stat. 1989, ch. 110, par. 2—408(a).

The right to intervene based on statutory language can be found, in some circumstances, in the Code of Civil Procedure itself and, in other instances, as is relevant here, in the specific act relied upon for relief. (4 R. Michael, Illinois Practice §29.7 (1989).) For example, in a Torrens registration action any person claiming a right to the subject property who “oppose[s]” the registration may intervene. (Ill. Rev. Stat. 1989, ch. 30, par. 62; 4 R. Michael, Illinois Practice §29.7 n.9, at 52 (1989).) Similarly, under the Workers’ Compensation Act, an employer may intervene in an employee’s third party action for damages under language permitting the employer to “join in” that action to protect a lien interest for amounts paid to the employee under the act. (Ill. Rev. Stat. 1989, ch. 48, par. 138.5(b); 4 R. Michael, Illinois Practice §29.7 n.9, at 52 (1989).) Intervention as of right under section 2 — 408 in those instances is recognized despite the absence of the term “intervention” in either statute.

Where a statute confers the right to a nonparty to enter into an action, it is section 2—408 which provides the procedural basis for doing so. As illustrated above, where intervention as of right is based on a specific statute which provides the basis for relief, courts must look to that specific statute, not section 2 — 408, for any particular manner or any condition limiting that right to enter.

The right to intervene in annexation actions is conferred under section 7—1—3 of the Municipal Code. (Ill. Rev. Stat. 1989, ch. 24, par. 7—1—3.) That section permits “any interested person” to file with the “circuit clerk” four particular types of objections to a pending petition for annexation. (Ill. Rev. Stat. 1989, ch. 24, par. 7— 1—3.) That filing is proper only “after the filing of the petition” for annexation and cannot take place “less than 5 days prior to the date fixed for the hearing.” (Ill. Rev. Stat. 1989, ch. 24, par. 7—1—3.) The circuit court must fix the date for the hearing by order which date “shall be not less than 20 nor more than 30 days after the filing of the petition or ordinance.” (Ill. Rev. Stat. 1989, ch. 24, par. 7 — 1—2.) The Municipal Code requires that notice of the annexation petition must be given “not more than 30 nor less than 15 days before the date fixed for the hearing.” (Ill. Rev. Stat. 1989, ch. 24, par. 7—1—2.) The notice is satisfied through publication in a newspaper published in the annexing municipality. Ill. Rev. Stat. 1989, ch. 24, par. 7—1—2.

At oral argument, Klein’s attorney conceded that the notice in the present case was in “technical compliance” with the Municipal Code. The record bears out that concession.

The notice in the Daily Herald was published 16 days before the court-ordered hearing date of December 17, 1990, which was the 30th day following the filing of the petition. (See Ill. Rev. Stat. 1989, ch. 1, par. 1012.) The hearing was held on that date, and the circuit court submitted the question of annexation to the Village of Palatine. The record indicates that, later on December 17, 1990, the village board of trustees adopted an ordinance annexing the property into the municipality, effective January 16,1991.

Klein’s petition to intervene, filed January 14, 1991, simply was not filed within the proper time period before the hearing as required by section 7 — 1—3 of the Municipal Code. As stated, that section required objections to be filed not “less than 5 days prior to the date fixed for the hearing.” (Ill. Rev. Stat. 1989, ch. 24, par. 7—1—3.) The hearing date was set for December 17, 1990. Accordingly, Klein’s “objections” should have been filed no later than December 12, 1990. (See Ill. Rev. Stat. 1989, ch. 24, par. 7—1—3.) At the time Klein filed his petition, the annexation action was complete because an order directing the annexation question to be submitted to the authorities of the annexing municipality is a final order for purposes of appeal. (See Ill. Rev. Stat. 1989, ch. 24, pars. 7—1—4, 7—1—5.) Leave to intervene in a suit must be sought during the pendency of the suit. (In re Estate of Reemts (1943), 383 Ill. 447, 50 N.E.2d 514; Ackmann v. Clayton (1976), 39 Ill. App. 3d 1013, 350 N.E.2d 824.) Moreover, our supreme court has indicated that where an annexation is complete, the only relief available to an individual seeking to attack the annexation is in the form of quo warranto. In re Petition of the Village of Kildeer to Annex Certain Territory (1988), 124 Ill. 2d 533, 530 N.E.2d 491.

Because Klein’s petition was not filed within the time limitations established by the Municipal Code, the circuit court correctly denied the petition, and its order is affirmed.

Affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.

      In the two additional instances where section 2 — 408 confers the right to enter without reference to statute (Ill. Rev. Stat. 1989, ch. 110, par. 2—408(a)), courts must look to the language of sections 2 — 408(e) and (f), and to cases construing the terms of those provisions, for the manner and limits to these conditions.