text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SEYMOUR SCHLAGER, Defendant-Appellant.
    Second District
    No. 2—92—0027
    Opinion filed August 2, 1993.

      Sherman C. Magidson and John L. Sullivan, both of Magidson & Sullivan, Beigel & Sandler, and Allan A. Ackerman, of Law Offices of Allan A. Ackerman, P.C., all of Chicago (Thomas A. Decker, of counsel), for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Seymour Schlager, was found guilty by a jury of the attempted murder of his wife. (Ill. Rev. Stat. 1989, ch. 38, pars. 8—4(a), 9—1(a).) The circuit court of Lake County sentenced defendant to 13 years’ incarceration. On appeal, defendant argues for reversal because (1) the evidence was insufficient to support a conviction and (2) he received ineffective assistance of counsel requiring a new trial. We affirm.

On February 12, 1991, defendant returned home from his work as a medical director at Abbott Laboratories. After greeting his wife, Diane, he went to their bedroom in order to take a nap. At 7 p.m., Diane woke him for dinner. Their teenage children, Jason and Carin, had already eaten dinner, so defendant and his wife ate alone. Defendant told his children to go to bed at 10 p.m. After watching the news, he and Diane retired to the master bedroom and Diane took a shower. Defendant also took a shower and then began to pace from the bedroom to the bathroom. Diane asked defendant why he was pacing, and defendant responded that he was nervous, that she should not pay any attention to it, and that she should go to sleep. Later in the evening, Diane awoke because defendant had been getting in and out of the bed. She testified that she heard a “crackling noise and a crinkling” and that she noticed a pillow which was covered with plastic lying on the floor on defendant’s side of the bed. Diane asked defendant what the pillow was intended for. Defendant responded, “You don’t want to know.”

Defendant then left the room and Diane fell back to sleep. When she awoke, defendant was no longer in the room. Diane found defendant in the living room and asked defendant if anything was wrong. Defendant told her to go back to bed. Defendant returned to the bedroom, lay down in the bed and began to cry, and stated that he was depressed. Diane suggested that they call a psychiatrist or a hospital. Defendant responded that he could handle it himself and that he did not want anybody to help him. Defendant proceeded to climb on top of Diane, holding her down with his weight, and continued crying and saying that he was having a nervous breakdown. Diane agreed and again suggested that they get someone to help him. Diane continued to console him after he rolled off of her, but defendant told her not to touch him. Diane dozed and awoke again sometime after 4 a.m. to see defendant sitting on his edge of the bed. At this time, defendant reached down for the plastic-covered pillow on the floor, jumped onto Diane, who had been lying on her back, and forced the pillow over her face.

Diane struggled and managed to turn onto her stomach. Defendant continued pushing her face down into the mattress, reached around her head, and clamped her nose shut with his fingers. Diane testified that the struggle lasted between three and four minutes before defendant fell off her, knocking a lamp to the floor. Diane began to scream to her children to call 911. Defendant stated “What am I doing? What am I doing? You’re my wife. I love you.”

Diane ran past defendant into the foyer and attempted to open the front door in order to trigger the household security system which would call the police. Defendant had followed Diane into the foyer and pushed the proper code on the alarm in order to deactivate it. Defendant repeatedly stated, “Don’t call, don’t call.” Diane ordered defendant out of the house, but he refused. Diane then obtained a knife from the kitchen and directed defendant to be seated in the family room, until the police arrived.

At interviews conducted after his arrest, defendant stated that he had been under stress for the past several months and had not slept for more than 30 to 45 minutes in the past two days. He indicated that he intended to use the plastic bag on himself in order to commit suicide. His written statement indicates that his attempt to suffocate his wife with the pillow was brought on by a violent recurring dream he had been having in which he was being attacked by a number of people.

The arresting officer testified that he asked defendant to relate what had occurred. Defendant responded that he had experienced a violent dream and that he woke up standing in the kitchen facing his screaming wife. Another officer testified that defendant stated, “I have ruined my life, I can’t believe I tried to kill my wife. I tried to kill my wife.” Defendant gave the following written statement to the police:

“I have been under tremendous emotional stress for the past two to three months — this has become accentuated in the past 48 hours during which I have not slept more than 30-45 min. Last night was another sleepless night. I was very depressed and stayed up most of the night talking about my depression with my wife. She was extremely supportive [and] loving, offering several solutions to help me. During the night, I contemplated suicide [and] told my wife about this. I was not thinking clearly [and] even attempted to harm myself by burying my face in a pillow lined with plastic — I also told my wife about this. Finally, at around 4:15 A. M., I dozed off and dreamt a recurring dream I have had over the past week — a dream wherein I am being choked and pulled by several people none of whom I recognize. I awoke in fear, anger [and] panic [and] threw the pillow lying on my side of the bed onto my wife. We struggled for 10-15 seconds [and] her screams [and] the fact that we rolled off the bed stopped my efforts. This was a spur of the moment effort to harm my wife with no realization on my part as to why — my efforts were directed against my wife but were brought on by sleepless exhaustion. My aggression would have been exerted toward anyone lying next to me. My attempts to suffocate the person next to me were brought on by my sleepless state [and] the dream I had just had. I am deeply sorry for the actions I took which could have caused my wife’s death, and I am fully willing to seek professional help for my psychological problems.”

At trial, defense counsel’s opening statement attempted to put defendant’s actions in the context of a lifetime of studious, hardworking, and nonviolent behavior. The opening statement attempted to illustrate how certain stresses accumulated during the months prior to the incident which, taken together, established that defendant did not intend to take his wife’s life. Among these stresses, defense counsel listed an affair defendant had undertaken with a 24-year-old coworker named Melinda. Defense counsel explained that defendant was having difficulties terminating his relationship with Melinda and that he handled the affair in a “foolish” manner. Defense counsel explained that the extramarital affair caused defendant great emotional trauma, which put him in a state of exhaustion.

In addition, defense counsel explained that defendant had been experiencing great stresses at his job at Abbott Laboratories. Defense counsel also explained that defendant’s health had been deteriorating, that he had become hypertensive, and that he began taking a drug for his condition. This drug, Calan, allegedly caused defendant to experience sleep disfunctions and violent dreams. Defense counsel argued that the accumulation of these various stresses caused defendant to suffer a nervous breakdown on the night of the murder attempt. As a result, defendant obtained a plastic dry cleaner’s bag from the closet and attempted to kill himself with it. Defense counsel then argued that defendant, in response to a violent dream and without conscious intent, found himself trying to kill his wife by placing a pillow over her face. After a lamp crashed to the floor, defendant began to realize what he had been doing, awoke, and did not attempt to harm her further. Defense counsel also told the jury that it would hear from an expert who would testify that defendant’s violent dreams were related to his ingestion of Calan. Thus, defense counsel presented the theory that, taken in this context, defendant could not be said to have consciously and intentionally attempted to take his wife’s life.

The prosecution submitted as evidence a tape recording that defendant sent to his children sometime after the incident. The prosecution sought to admit a portion of the tape which reflected, in defendant’s own words, the nature of his relationship with Melinda in order to show motive.

Defense counsel at trial argued against the admission of this tape because of its personal nature, its minimal relevance and its prejudicial impact. Defense counsel explained that the fact of the affair had been stipulated and evidence of the same should not be unnecessarily accentuated during trial. The trial court allowed the tape into evidence because it demonstrated the nature of defendant’s relationship with Melinda. In the alternative, defense counsel argued that, if the tape were to be presented to the jury, it should not be limited to the particular sections identified by the State. Thus, defense counsel suggested that the entire tape should be played.

In the tape defendant addresses Jason and Garin. It is apparent from the contents of the tape that defendant is responding to a letter he received from Jason. This letter is an expression of Jason’s anger, concerns, fear, and doubts towards and about defendant. In the tape, defendant attempts to address all of these issues. The duration of the tape is approximately 45 minutes. Defendant expresses a variety of emotions throughout the tape.

Defendant initially addresses Jason’s financial concerns. .Defendant then discusses his present and future job prospects in light of his felony charge. Defendant’s comments then turn toward the topic of his relationship with Melinda. Defendant attempts to provide an explanation for his activities with her in relation to his dedication to his wife, Diane. Defendant describes, at some length, the reasons he became involved with Melinda, his negative feelings towards her, Melinda’s desire to become engaged, and the fears he experienced as a result of the danger the relationship posed to his professional status.

Defendant also describes at some length the methods he used to extract himself from his relationship with Melinda. First, he explains that he gave her one of Diane’s rings. Defendant asserts that this allowed Melinda to tell co-workers that she was engaged to someone other than defendant. Defendant also fabricated a story and informed Melinda that his wife suffered from Hodgkin’s disease thus preventing him from ending his marriage. In the tape, defendant also unequivocally denied having admitted to committing the crime and denied having ever entertained a thought to harm his wife.

At the end of the prosecution’s case, counsel for defendant motioned for a directed finding on the ground that the State failed to prove beyond a reasonable doubt that defendant consciously intended to kill his wife. The trial court denied the motion determining that a reasonable trier of fact, based upon the evidence, could return a verdict as to the charge. Defense counsel then indicated that the defense rested. The State rested, and proofs were closed. After discussing proposed jury instructions, the following exchange took place:

“THE COURT: Mr. Schlager, I want to put something on the record and I’m not directing this to Mr. Schlager. Mr. Gillespie, it was indicated to me at the conclusion of evidence that’s been borne that you were going to have a conference with your client in terms of how to proceed in the case, is that correct?
MR. GILLESPIE: That’s correct, your Honor. We did spend a great deal of time and preparation for this trial with the possibility of Mr. Schlager testifying. That was our plan. We listened to the prosecution’s case. When they rested, we then discussed over two hours I think you gave us for lunch yesterday, whether or not we were going to proceed or put the prosecution to their proof and we decided that — Mr. Schlager was actively involved in that decision making process — that we would rest our case and put the prosecution to its proof.
THE COURT: He hasn’t indicated any dissatisfaction with that decision, is that correct?
MR. GILLESPIE: Not that I know of. Are you satisfied, sir?
MR. SCHLAGER: No, no, I’m not dissatisfied.”

Following defendant’s conviction, defendant filed a motion for a judgment notwithstanding the verdict on the ground that he was not proved guilty beyond a reasonable doubt or, in the alternative, for a new trial due to ineffective assistance of counsel. The trial court subsequently conducted hearings on these matters.

Defendant proceeded to present a series of psychologists, mental health experts, and pharmaceutical experts, in order to illustrate his innocence and point out trial counsel’s failure to establish a proper defense by failing to adequately investigate these experts and call them at trial. In essence, this defense sought to establish that defense counsel failed to properly investigate and put forth the defense regarding the effects of Calan and the impact of confusional arousal on defendant’s actions during the night of the crime.

According to one expert (Dr. Berenbaum), confusional arousal is a specific kind of sleep disorder in which the person, awakened from deep sleep as a result of a violent dream, will become disoriented and harm himself or those around him in response to the dream. Berenbaum indicated that confusional arousal was closely related to another sleep disorder called night terrors or sleep terrors. These terrors involve violent dreams on the part of an individual who, upon awakening, believes he is still threatened and thrashes out or performs a violent act in response. Berenbaum expressed the opinion that defendant suffered from these problems. According to Berenbaum, a person suffering from these disorders is functioning without complete consciousness and would have only a fragmentary memory of the acts he perpetrated and would wonder why he committed those acts. Berenbaum expressed the opinion that defendant was experiencing a state of confusional arousal on the night in question and could not form the intent to kill his wife.

Other experts defendant called at his post-trial hearing testified that defendant’s confusional arousal, as well as his depression, insomnia, and exhaustion, could have been exacerbated by an abrupt withdrawal of Calan ingestion. Defendant allegedly had been taking the drug for hypertension prior to the crime. Defendant’s use of the drug was not prescribed. Defendant took the drug on his own and claimed he had access to the drug through samples he had received.

In ruling that defendant was not denied the effective assistance of counsel, the trial court was of the opinion that the scientific principles asserted by witnesses pertaining to the Calan defense were not solid and were subject to substantial questions regarding weight and validity. The court noted that the proposed experts lacked a reasonable scientific basis for arriving at their opinions. Moreover, the court questioned the evidence’s weight and credibility because defendant had prescribed the medicine for himself, acquired it without prescription, and did not document the nature, time and extent of its use. Additionally, in the absence of defendant’s testimony at trial, the trial court attributed little weight to the confusional arousal defense. Thus, the trial court determined that the failure to present these defenses did not render defense counsel ineffective and did not render the verdict unjust.

The trial court also discussed defendant’s decision not to testify and asserted that trial counsel was not ineffective for failing to put defendant on the stand. The trial court highlighted, in this regard, the many avenues in which defendant’s testimony could be challenged and discredited in terms of his propensity for telling the truth. In the trial court’s opinion, defense counsel’s performance fell within “not only a wide range of reasonable, professional assistance, but within a wide range of high [sic] reasonable, professional assistance.” In this regard, the trial court highlighted the manner in which defense counsel conducted his pretrial motions, his opening statement, his cross-examination of witnesses, his decision to seek out lesser included offense instructions, and the quality of his closing arguments.

In the trial court’s opinion, defense counsel’s decision to conduct the trial somewhat differently from his opening statement amounted to a strategic decision in which defendant participated and concurred. Therefore, the trial court denied defendant’s motion for judgment n.o.v. and defendant’s motion for a new trial.

Defendant first argues that the evidence was insufficient to support the verdict of attempted first degree murder. The general rule is that a criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261.) Collins indicates that the question on review is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Collins, 106 Ill. 2d at 261, citing Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) Collins further dictates that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. (Collins, 106 Ill. 2d at 261, citing Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) We cannot overturn a guilty verdict unless the proof is so unsatisfactory and unconvincing that it raises a serious doubt of defendant’s guilt in light of all the evidence. (People v. Bennett (1991), 222 Ill. App. 3d 188.) Viewing the present case in the context of these principles, we conclude that there is sufficient evidence to support the jury’s verdict. In the light most favorable to the prosecution, we are not convinced that there is a serious doubt of defendant’s guilt.

A person commits the offense of attempted murder when, with intent to commit murder, he does any act which constitutes a substantial step towards the commission of murder. (Ill. Rev. Stat. 1989, ch. 38, pars. 8—4(a), 9—1(a).) Thus, a defendant must have intended to commit a murder and must have completed an act which constituted a substantial step towards that end. In the present case, both of these conditions were met. The substantial steps defendant took towards the commission of murder, along with his immediate appreciation of the criminality of his acts following the failed attempt, provide sufficient evidence of defendant’s intent to support the verdict below.

Viewing the evidence in the light most favorable to the prosecution, defendant came to bed that evening prepared to commit the crime. He obtained the plastic dry cleaner’s bag from a closet, placed it over a pillow on the floor next to the bed, and waited for his wife to fall asleep before forcing it upon her face. Defendant’s efforts persisted even in light of his wife’s struggles, and he sought to manually restrict her airflow by reaching around and pinching her nose shut after she had successfully avoided being smothered by the pillow by rolling over. A jury could view these acts as substantial steps toward the commission of murder and as evidence of an individual’s intent to commit murder. Although defendant argued that his actions were in response to a violent dream he had been experiencing, a jury could reasonably infer that one does not come prepared to meet attackers in a dream by taking a plastic-covered pillow to bed.

In our view, a rational trier of fact could determine that an individual responding to attackers in a dream would not be so quick to recognize the criminality and consequences of his acts which he perpetrated while he was unconscious. For example, after it was apparent that defendant’s acts to quietly suffocate his wife had failed, defendant immediately attempted to exonerate himself. As Diane began to scream, defendant stated, “What am I doing? What am I doing? You’re my wife. I love you.” In addition, as Diane attempted to trigger a security alarm which would notify the police, defendant, aware of his guilt, deactivated the mechanism. Thus, a rational trier of fact could determine that defendant acted consciously and intentionally at all times before, during and after the murder attempt. Moreover, defendant tendered conflicting statements to the police regarding the point at which defendant awoke from the violent dream, thus making his story less credible.

A jury could also reject the proposition that defendant obtained the plastic dry cleaner’s bag with the intention of using it upon himself to commit suicide. Defendant’s explanation of how he intended to kill himself with the plastic dry cleaner’s bag is highly incredulous. The oddity of choosing this method of committing suicide is greatly enhanced by the coincidence that he should use this same plastic bag and pillow, in a manner which required some dexterity, in order to fend off the attackers he encountered in his dream. It defies reason and understanding how a sleeping individual could contrive such an elaborate response, which by mere chance happens to prevent his “dream-state attackers” from screaming out for help. Therefore, we determine that a rational trier of fact could have found beyond a reasonable doubt that defendant took substantial steps towards the commission of murder with the intent to commit murder.

Defendant next argues that he requires a new trial because he was denied the effective assistance of counsel. To succeed on a claim that counsel’s assistance was so defective as to require reversal of a conviction, defendant must show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064; see also People v. Chandler (1989), 129 Ill. 2d 233, 242.) The purpose of the effective assistance guarantee of the sixth amendment is to ensure that criminal defendants receive a fair trial. Strickland, 466 U.S. at 683, 80 L. Ed. 2d at 690-91, 104 S. Ct. at 2062.

The Strickland test is a benchmark used to determine whether a defendant received a fair trial. Defendant must overcome a strong presumption of outcome reliability and show that “counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 80 L. Ed. 2d at 692-93, 104 S. Ct. at 2064.

According to Strickland, “a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.” (Strickland, 466 U.S. at 696, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.) It is the “confidence in” and “reliabplity of]” the outcome that is in question. (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 697-98, 104 S. Ct. at 2068.) In making this inquiry, Strickland dictates that we must consider the “totality of the evidence before the judge or jury.” (Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2069.) Moreover, scrutiny of a trial counsel’s performance must be highly deferential, and there is a strong presumption that counsel’s conduct is within the wide range of reasonable professional assistance. (People v. Hrobowski (1991), 216 Ill. App. 3d 711, 724.) This deference will extend to the trial counsel’s exercise of judgment, discretion, and trial strategy. Hrobowski, 216 Ill. App. 3d at 724.

Applying the standard set out in Strickland in the context of all the evidence before the trial court, we determine that defendant was not denied a fair trial, that his trial counsel’s performance was not defective and that the findings at the trial level would not have been affected had trial counsel acted as defendant claims counsel should have.

Defendant’s principal assertion in this regard is that, in opening remarks, trial counsel promised the jury that defendant and several experts would take the stand in order to establish that defendant did not intentionally attempt to murder his wife because he suffered from violent dreams brought on by exhaustion, depression, stress, and the influences of Calan and confusional arousal. Defendant asserts that defense counsel failed to fulfill his promise to the jury by resting after the prosecution had presented its case. We determine that trial counsel’s decisions were a matter of trial strategy and that the proposed defense would not have altered the outcome of the case.

During the course of defense counsel’s lengthy opening statement, the following statements were made:

“Because of the stress with his work at Abbott and the side practice, his health started to deteriorate and he became hypertensive. He was diagnosed as suffering from severe hypertension as a result of the stress. And he started taking a medicine. And you’re going to have to consider this medication as well when you consider that one-minute period on February 13. He was taking Calan. And you’re going to hear come into this courtroom an expert who is going to come up here and talk to you about Calan and talk to you about what this drug, which is a relatively new drug on the market, talk to you about the side effects of it.
The doctor is going to tell you, Dr. Ehrenpreis, one of the foremost experts in the field of pharmacology in the country, if not the world, he’s going to tell you that this drug Calan causes very, very severe problems in the area of sleep, very severe sleep dysfunctions [sic\, insomnia, violent, terrible dreams. He is going to show you documentation in the literature about these violent, terrible dreams that people can suffer as a side effect from Calan.”

On appeal, defendant argues that defense counsel’s failure to fulfill his promises in his opening remarks results in per se prejudice under Strickland, and amounts to reversible error as a matter of law. We cannot agree with this position. Viewed as a whole, de-. fense counsel’s actions were not so serious that they deprived defendant of a fair trial.

Defendant cites People v. Ortiz (1922), 224 Ill. App. 3d 1065, to support his argument. In Ortiz, defense counsel’s opening statement promised the jury that it would hear evidence intended to show that someone other than defendant committed the crime. Defense counsel failed to bring forth this evidence at trial. On appeal, the court reversed the aggravated battery conviction and found that defense counsel was ineffective. The court determined that defense counsel’s failure to fulfill his promise in his opening statement created sufficient prejudice to justify the reversal. The court also noted that defense counsel lacked an understanding of fundamental rules concerning witness examination. Moreover, the court asserted that absent these errors there was a reasonable probability that the result of the trial would have been different. Ortiz, 224 Ill. App. 3d at 1072-73.

Thus, the test is not whether defense counsel fulfilled all the promises he made during his opening remarks but, rather, whether defense counsel’s errors were so serious that, absent those errors, the result of the proceeding would likely have been different. Viewed in this manner, we do not believe that defense counsel’s actions in the instant case warrant a reversal. Moreover, defense counsel in the present case did not exhibit a misunderstanding of the fundamental rules of civil procedure, nor did defense counsel fail to subject the State’s witnesses to meaningful adversarial testing, nor did defense counsel’s trial strategy contain flawed legal arguments. See Ortiz, 244 Ill. App. 3d 1065; Chandler, 129 Ill. 2d 233.

Indeed, following the post-trial hearing even the trial court was of the opinion that the scientific principles asserted by witnesses pertaining to the Calan defense were not solid and were subject to substantial questions of validity. The trial court also believed that there was a lack of any reasonable scientific basis for the experts arriving at their opinions. We agree, and, thus, defense counsel did not err by deciding not to present the proposed defense. Moreover, it was a valid strategy to let the evidence stand as it was presented without asking the jury to believe a theory that defendant had a rare reaction to a self-prescribed drug whose procurement and ingestion were uncorroborated.

The mere fact that a defense existed with respect to defendant’s sleep disorder does not mean that the presentation of that defense was mandated. As revealed by the evidence brought out at the post-trial hearing, valid reasons existed for trial counsel’s strategic decision to alter the defense theory as the trial proceeded.

We note that, by the trial’s end, defense counsel had become all too aware of defendant’s credibility problem. For example, at the post-trial hearing, defense counsel stated:

“Well, another thing that I recall was that there was a great deal of evidence that his Honor Judge Tonigan kept out in your case in chief that would come back and that he would revisit or reconsider should Mr. Schlager get on the witness stand and testify such as a false internal medicine certificate, such as false statements that he made to numerous co-workers about somebody getting killed in a car accident and that’s how his nose got broken when actually he went in for a rhinoplasty, such as a false appraisal on a ring that he gave to [Melinda]. All of those items I thought, according to my understanding and recollection of His Honor’s decision, he would revisit whether or not those items could be introduced or the defendant could be confronted with them concerning his truth or veracity.”

In light of this credibility problem, defense counsel strategically chose defensive theories which would not require defendant’s testimony. For example, according to defense counsel’s testimony at the post-trial hearing, the decision was made during the course of the trial that the strategy should be one which asserts the State’s failure to prove its case beyond a reasonable doubt and possibly risk a lesser-included offense rather than one which presents a defense based upon questionable facts subject to assured impeachment. Trial counsel testified that defendant agreed with this defense strategy.

Furthermore, once defendant decided not to testify, the experts’ opinions lacked the proper foundation to support the conclusion that defendant experienced Calan withdrawal symptoms because evidence of defendant’s ingestion of the drug was based primarily on defendant’s own testimony. Defendant had no prescriptions to establish his use of the drug, and the medicine he allegedly took was obtained through drug company samples. Thus, defense counsel strategically chose to forego the Calan defense.

In addition, defense counsel strategically chose to forego the sleep disorder defense because its validity rested primarily upon the truth of defendant’s own statements, and, if defendant had taken the stand to testify about his sleep disorder, he would have been subject to damaging cross-examination. The expert testimony regarding defendant’s sleep disorders would also have been in jeopardy because it, too, substantially relied upon defendant’s testimony or testimonial descriptions.

Defense counsel also stated that the defense in the case was to establish that defendant’s actions were not intentional. This strategy was evidenced by defense counsel’s cross-examination and argumentation before and after trial. Defendant was portrayed as a provider and a dedicated family man who would never intentionally harm his wife. Thus, defense counsel decided that the tape containing defendant’s statements regarding his innocence was the best defense evidence available because it allowed defendant to assert his innocence without risking damaging cross-examination.

In our view, this is a valid trial strategy which was adequately presented with defendant’s consent. We note that the evolution of this trial strategy was concluded at closing, when counsel explained why defendant did not take the stand and that defendant, at most, committed an assault or a battery but did not intend to commit murder.

We determine that counsel’s defense was sufficient under Strickland and that there was no showing the verdict would have been different but for counsel’s representation of defendant.

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

Affirmed.

INGLIS, P.J., and QUETSCH, J., concur.


source: Caselaw Access Project

author: JUSTICE TULLY PRESIDING JUSTICE GREIMAN JUSTICE SCARIANO,

license: Public Domain

text:
    SUSAN J. McDUNN, Petitioner-Appellee, v. JAMES H. WILLIAMS, Respondent-Appellant (The Board of Election Commissioners for the City of Chicago et al., Respondents).
    First District (3rd Division)
    No. 1—92—1109
    Opinion filed September 30, 1992.

      GREIMAN, P. J., concurring in part and dissenting in part.
    SCARIANO, J., concurring in part and dissenting in part.
    William J. Harte, Ltd., and Richard Flowers, both of Chicago (William J. Harte, Richard Flowers, Joseph E. Tighe, and Cortney C. Nottage, of counsel), for appellant.
    Lavelle, Holden & Juneau, Ltd., of Oak Park (Michael E. Lavelle, of counsel), for appellee.
   JUSTICE TULLY

delivered the opinion of the court:

This is the second time this case is presented to this court for review. The facts leading to the first appeal were previously set out in McDunn v. Williams (1990), 204 Ill. App. 3d 332, 562 N.E.2d 255 (McDunn I). In that case, we reversed Judge Joseph Schneider’s ruling that Susan J. McDunn, the petitioner, had not timely filed her election contest petition and remanded the case to the trial court for further proceedings. We will set out the additional pertinent facts which have occurred since the first appeal.

After this court reversed the trial court on September 28, 1990, in McDunn I, respondent, James H. Williams, filed a petition for leave to appeal with the Illinois Supreme Court which was denied on October 24, 1990. (McDunn v. Williams (1990), 135 Ill. 2d 558, 564 N.E.2d 839.) On October 30, 1990, the parties returned to the trial court before Judge Michael J. Murphy, who had been assigned to the case. On that date, Judge Murphy ordered the parties to prepare for argument on a motion to dismiss McDunn’s complaint filed by Williams pursuant to section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—615), as well as to prepare for trial in the event the motion was denied. On October 31, 1990, the trial court found that McDunn’s complaint was sufficient in law and denied the motion to dismiss. Accordingly, the trial court ordered that McDunn would present her case on November 2, 1990. On November 5, 1990, McDunn closed her case and the matter was continued to November 19, 1990, for Williams to present his evidence.

On November 5, 1990, the eve of the general election, the ballots had been printed with Williams’ name as the unopposed candidate of the Democratic Party for the office of judge of the circuit court, Cook County judicial district, to fill the vacancy of Judge Roger J. Kiley, Jr. On that date, the trial court entered an order that provided, inter alia:

“The election to fill the vacancy of Roger Kiley shall proceed. The results of the election shall be suppressed by the [Chicago Board of Election Commissioners (CBEC)] until further order of court. The suppression shall enjoin the CBEC from preparing an abstract to be forwarded to any party or governmental agency without order of court. The CBEC may tabulate the results during the counting period, on election night, but shall not issue any announcement as to the winner until further order of court.”

However, no order was ever entered directing the CBEC to rescind its March 1990 and April 1990 declarations of Williams as the winner of the Democratic primary or to strike his name from the ballot.

On November 6, 1990, the general election was held. There were no write-in candidates. On November 13, 1990, the CBEC filed its statement of the results of the canvass of the election returns with the clerk of the circuit court of Cook County indicating, inter alia, that 163,022 people in the City of Chicago had voted a straight Democratic Party ticket. However, in the CBEC’s statement, instead of listing a winner for the Kiley vacancy, it stated: “PROCLAMATION WITHHELD DUE TO COURT ORDER.”

On November 20, 1990, Harry G. Comerford, chief judge of the circuit court of Cook County, sent Williams a letter congratulating him on his election as a judge of the circuit court of Cook County and instructing him where to take the oath of office. On November 26, 1990, Governor James R. Thompson and Secretary of State Jim Edgar executed and issued their proclamation of the election of judges wherein Williams was proclaimed, subject to litigation, the person elected to fill the Kiley vacancy. On December 3, 1990, Williams presented himself before Chief Judge Comerford and executed an oath of office.

On December 7, 1990, the trial court issued a memorandum decision ordering a full recount of all the ballots in the March 1990 Democratic primary election. It was not until November 15, 1991, that the CBEC filed a complete and revised “STATEMENT OF THE RESULTS OF THE CITY-WIDE RECOUNT FOR THE JUDGE OF THE CIRCUIT COURT-HON. ROGER J. KILEY, JR. VACANCY.” The CBEC, in conducting its recount, could not locate ballots for eight precincts in the City of Chicago. Consequently, the CBEC was forced to rely upon precinct reports, not the actual ballots from those eight precincts, in order to tabulate its results.

The recount results showed that Williams received a total of 106,473 votes and McDunn received a total of 106,274 votes. These figures included both votes from the missing eight precincts and ballots uninitialed by election judges in violation of election laws. The precinct reports from the eight missing precincts showed the vote totals to be 302 for Williams and 279 for McDunn. The uninitialed ballots totaled 1,519 for Williams and 1,153 for McDunn. If the uninitialed ballots are subtracted, Williams is left with 104,954 votes and McDunn is left with 105,121 votes. It is important to note that both parties stipulated that there were no allegations of fraud before the trial court. However, Williams did not admit to the propriety of the vote totals for the eight missing precincts.

On March 23, 1992 Judge Murphy entered a memorandum decision and order ruling in favor of McDunn on the issue of the uninitialed ballots, and declared her to be the winner of the March 1990 Democratic primary election, and ordered her name to appear on the November 3, 1992, general election ballot as the Democratic Party’s nominee to fill the Kiley vacancy. It is from that memorandum decision and order that Williams appeals to this court.

On appeal, Williams contends: (1) petitioner’s election contest arising out of the March 1990 primary election was mooted by the November 1990 general election, where respondent ran unopposed, and by respondent’s execution of the oath of office as an elected judge; (2) petitioner’s election contest was not timely; (3) the doctrine of laches bars petitioner’s election contest; (4) the trial court erred when it refused to count the uninitialed ballots cast by voters in the March 1990 primary election when,.in the absence of fraud, those ballots were not initialed by the election judges as prescribed by the Election Code; (5) the trial court erred when it found in favor of petitioner on petitioner’s election petition when the actual ballots for eight precincts could not be found; (6) the trial court was without the power to order that the petitioner’s name be placed upon the November 3, 1992, general election ballot; and (7) the trial court’s refusal to recognize the effect of the November 1990 general election deprived respondent and those who voted for him of their constitutional rights of suffrage by nullifying their votes cast in that general election.

I. MOOTNESS

We first consider whether McDunn’s election contest was mooted by the November 1990 general election, where Williams ran unopposed, and by his execution of the oath of office. “A case is considered moot when it ‘presents or involves no actual controversy, interests or rights of the parties, or where the issues have ceased to exist.’ ” People v. Boclair (1987), 119 Ill. 2d 368, 373, 519 N.E.2d 437, 439, cert, denied (1987), 484 U.S. 950, 98 L. Ed. 2d 367, 108 S. Ct. 340, quoting People v. Redlich (1949), 402 Ill. 270, 278-79, 83 N.E.2d 736, 741.

Williams’ basic argument is that McDunn’s appeal is moot because (1) it is now over V-k years since the November 1990 general election in which he was elected and (2) he has been sworn into office. Thus, the outcome of this case has no effect because Williams has already taken office.

For this proposition, Williams relies upon Harris v. Education Officers Electoral Board of Community Consolidated School District 110 (1990), 203 Ill. App. 3d 917, 561 N.E.2d 204, and Bartos v. Chicago Board of Elections (1989), 191 Ill. App. 3d 937, 548 N.E.2d 431. However, we believe such reliance is misplaced.

In Harris, the trial court upheld the decision of the election board to place a candidate’s name on the ballot for election to the school board. The election took place, the candidate was elected and took office. Accordingly, the Harris court ruled that any decision it might render “would have no practical effect on the parties or the controversy between them.” Harris, 203 Ill. App. 3d at 920, 561 N.E.2d at 206.

In Bartos, the plaintiff attempted to file an intent to be a write-in candidate of the Solidarity Party for the office of mayor of the City of Chicago at a special mayoral election. The CBEC denied Bartos’ request on the basis of its untimeliness. Bartos then filed a petition in the circuit court of Cook County seeking review of the CBEC’s action. The trial court dismissed Bartos’ petition. Subsequently, the election was held and the winner was installed as mayor. Consequently, the Bartos court held that no relief could be granted to the plaintiff and dismissed his appeal.

In the present case, unlike the situations in either Harris or Barios, the trial court enjoined the CBEC from preparing an abstract and issuing any announcement of a winner. No such order was in place in either Harris or Bartos. The elections in those cases pressed forward unencumbered by the litigation. While it is true that the November 1990 general election was held, the trial court’s suppression of the election results maintained the status quo and prevented Williams from being elected and assuming office. Thus, Williams’ execution of an oath of office, while not enjoined by the trial court’s order, was without effect as he was never unequivocally declared to be the winner of the election. (See Welch v. Johnson (1992), 147 Ill. 2d 40, 588 N.E.2d 1119 (removal of candidate’s name from ballot not a moot issue as no one had been both elected and qualified for the office); see also City of Pekin v. Industrial Comm’n (1930), 341 Ill. 312, 173 N.E. 339.) Accordingly, the trial court properly concluded McDunn’s election contest was not moot.

II. TIMELINESS OF ELECTION PETITION

Williams’ next contention is that McDunn’s election contest was not filed timely. Williams argues that this court’s decision in McDunn I decided solely the issue of whether McDunn’s initial petition filed on April 19, 1990, was timely filed and did not address whether McDunn’s amended petition was timely or permissible.

We need not reach this issue as “[i]t is settled that no question which was raised or which could have been raised in a prior appeal on the merits can be urged on a subsequent appeal. *** [Wjhere a question was open to consideration in a prior appeal and it could have been presented but was not, the question will be deemed to be waived.” (Turner v. Commonwealth Edison Co. (1978), 63 Ill. App. 3d 693, 698, 380 N.E.2d 477, 481. See also Kazubowski v. Kazubowski (1970), 45 Ill. 2d 405, 259 N.E.2d 282, cert, denied (1970), 400 U.S. 926, 27 L. Ed. 2d 186, 91 S. Ct. 188.) Williams had the opportunity to bring this question before this court in McDunn I but did not do so. Consequently, it is deemed waived and barred by the doctrine of res judicata.

III. LACHES

Williams also raises the question of whether the doctrine of laches bars McDunn’s election contest. In support of this proposition, Williams relies solely upon the holding of the Illinois Supreme Court in Tully v. Illinois (1991), 143 Ill. 2d 425, 574 N.E.2d 659, wherein the court found:

“Laches is an equitable doctrine which precludes the assertion of a claim by a litigant whose unreasonable delay in raising that claim has prejudiced the opposing party. [Citation.] The doctrine is grounded in the equitable notion that courts are reluctant to come to the aid of a party who has knowingly slept on his rights to the detriment of the opposing party. [Citation.] Two elements are necessary to a finding of laches: (1) lack of diligence by the party asserting the claim and (2) prejudice to the opposing party resulting from the delay.” Tully, 143 Ill. 2d at 432, 574 N.E.2d at 662.

In Tully, plaintiff Tully and defendant White asserted in the trial court that each was entitled to the same seat on the First District of the Illinois Appellate Court based on the results of the general election held on November 6, 1990. White’s 10-year term, to which he was elected, was scheduled to expire December 3, 1990. The Compulsory Retirement of Judges Act provides, in pertinent part, that “[a] judge is automatically retired at the expiration of the term in which the judge attains the age of 75.” (Ill. Rev. Stat. 1989, ch. 37, par. 23.71.) White attained the age of 75 in 1989. Nevertheless, Wliite sought to be retained, contending that the compulsory retirement of judges was unconstitutional and in violation of the Federal Age Discrimination in Employment Act (29 U.S.C. §621 et seq. (1988)) and timely filed his declaration of candidacy for retention. In December 1989 the State Board of Elections accepted nominating petitions from candidates, including Tully, who sought to run for White’s seat in the primary elections, which was vacant due to White’s mandatory retirement. Thereafter, Tully’s name and others were placed on the primary election ballot. Tully was elected the Democratic Party’s nominee to fill the White vacancy in the primary election held on March 20, 1990. In August 1990 the State Board of Elections directed both that White’s name be placed on the judicial retention ballot and that Tully’s name be placed on the judicial election ballot at the general election to fill the vacancy created by White’s retirement.

On October 4, 1990, after learning of these facts, Tully filed an action in the circuit court of Cook County seeking to have White declared ineligible to be retained for another term. The circuit court entered an order to maintain the status quo. In the November 1990 election, White was retained and Tully was elected to fill the White vacancy.

Thereafter, White answered Tully’s complaint and filed an affirmative defense asserting that the mandatory retirement of judges was unconstitutional. The circuit court held in favor of White on the constitutional issue and declared that Tally’s election was null and void. Tully appealed directly to the Illinois Supreme Court.

On appeal, the supreme court reversed the circuit court, without reaching the constitutional issue, and held that White could not challenge Tally’s election to the appellate court pursuant to the doctrine of laches. The Tully court focused on (1) the fact White was aware that candidates were running to fill a vacancy caused by his mandatory retirement and did not raise any objection to their candidacies until after the election and (2) that those candidates were expending considerable time, energy, and money on their campaigns.

We believe that none of the facts present in Tully are similar or analogous to those of this case. McDunn timely filed her contest petition 10 days after the State Board of Elections canvass. McDunn then timely filed her first appeal with this court after her case was dismissed in the trial court, and the mandate of this court, reversing the trial court, came down on September 28, 1990, after which the trial court proceeded to hear evidence. The record is devoid of any facts that suggest McDunn has exhibited a lack of diligence. In fact, both sides to this controversy have demonstrated nothing but capable and zealous advocacy of their respective positions. Accordingly, the first element of Tully has not been met and, therefore, we do not find McDunn guilty of laches.

IV. UNINITIALED BALLOTS

We next consider whether the trial court erred when it refused to count the uninitialed ballots cast by voters in the March 1990 primary election when, in the absence of fraud, those ballots were not initialed by the election judges. Section 7 — 44 of the Election Code (Ill. Rev. Stat. 1989, ch. 46, par. 7—44) provides, in pertinent part:

“[An election judge in a primary] shall give to [a voter] one, and only one, primary ballot of the political party with which he declares himself affiliated, on the back of which such primary judge shall endorse his initials in such manner that they may be seen when the primary ballot is properly folded.”

Sections 19—9 and 24A—10.1 of the Election Code impose this requirement on absentee ballots. (Ill. Rev. Stat. 1989, ch. 46, pars. 19—9, 24A — 10.1.) Section 7—51 of the Election Code requires that “[n]o primary ballot, without the endorsement of the judge’s initials thereon, shall be counted.” (Ill. Rev. Stat. 1989, ch. 46, par. 7—51.) Section 24A — 10.1 of the Election Code further requires:

“The judges of election shall [after the closing of the polls] examine all ballot cards and ballot card envelopes which are in the ballot box to determine whether the ballot cards and ballot card envelopes contain the initials of a precinct judge of election. If any ballot card or ballot card envelope is not initialed, it shall be marked on the back ‘Defective’, initialed as to such label by all judges immediately under the word ‘Defective’ and not counted.” Ill. Rev. Stat. 1989, ch. 46, par. 24A—10.1.

The Illinois Supreme Court and the appellate court have held that the Election Code’s ballot-initialing requirements are mandatory and that a ballot not meeting those requirements shall not be counted. Pullen v. Mulligan (1990), 138 Ill. 2d 21, 49, 561 N.E.2d 585, 596-97; Craig v. Peterson (1968), 39 Ill. 2d 191, 194, 233 N.E.2d 345, 347; Morandi v. Heiman (1961), 23 Ill. 2d 365, 368, 178 N.E.2d 314, 319-20; Tuthill v. Rendelman (1944), 387 Ill. 321, 330, 56 N.E.2d 375, 381; Snow v. Natzke (1986), 140 Ill. App. 3d 367, 369, 488 N.E.2d 1077, 1078; Goble v. Board of Education of luka Community Consolidated School District No. 7 (1980), 83 Ill. App. 3d 284, 285, 404 N.E.2d 343, 345.

However, in Pullen and Craig the supreme court has held the Election Code’s ballot-initialing provisions are directory, rather than mandatory, with regards to some uninitialed absentee ballots and has allowed such ballots to be counted. Pullen, 138 Ill. 2d at 52, 561 N.E.2d at 598; Craig, 39 Ill. 2d at 201-02, 233 N.E.2d at 351.

In Pullen, the seminal decision in this area of the law, the supreme court applied the holding of Craig, which established a two-prong test for when uninitialed absentee ballots are allowed to be counted. “Under Craig, uninitialled absentee ballots may be counted only if: (1) the absentee ballots can be identified and distinguished from in-precinct ballots; and (2) the initialling requirement does not contribute to the integrity of the election process.” (Emphasis added.) Pullen, 138 Ill. 2d at 52, 561 N.E.2d at 598.

In the case at hand, all of the ballots were paper ballots. There is no evidence in the record to suggest that any of the uninitialed ballots were, in fact, absentee ballots. While it is true that some of them may have been absentee ballots, it remains uncontroverted that the absentee ballots cast in the March 1990 primary were indistinguishable from and commingled with those ballots cast in the precinct. Thus, the two-prong test is inapplicable here.

Nevertheless, Williams urges that the holdings of Pullen and Craig should be expanded to allow the counting of all uninitialed ballots cast by voters in the absence of allegations of fraud. The argument is that in the absence of fraud, the initialing requirement lends nothing to the electoral process and serves only to disenfranchise voters who, through no fault of their own, have their ballots go uncounted due to the innocent error of an election judge.

We believe the Pullen court drew a distinction between in-precinct ballots and distinguishable absentee ballots, and recognized the policy concerns underlying the ballot-initialing requirements when it stated:

“Applying the initialling requirement to in-precinct ballots is certainly necessary to preserve the integrity of the election, because the initials provide the only means by which the election officials can identify and separate the legally cast from the illegally cast in-precinct ballots. Thus, here, as in Craig, application of the initialling requirement to in-precinct ballots prevented fraudulent practices, such as stuffing the ballot box.” Pullen, 138 Ill. 2d at 53, 561 N.E.2d at 599.

Moreover, the initialing requirement also serves a preventative function in that an individual who is tempted to stuff a ballot box knows that such efforts would prove fruitless as the precinct election judges check each ballot for their initials and would, pursuant to the statutory scheme, refuse to count a ballot without such initials. Accordingly, we are unwilling to carve out an exception to the Election Code’s initialing requirement and find that the trial court did not err in refusing to count the uninitialed ballots.

V. MISSING BALLOTS

Williams next argues that the trial court erred when it found in favor of McDunn on her election petition when the ballots for eight precincts could not be found. Williams asserts that as the ballots for eight precincts could not be found, the recount ordered by the trial court could not be properly or accurately accomplished. Accordingly, there is no way to determine with any surety whether all of the ballots in those eight precincts were properly counted and initialed by the judges of election and, therefore, there is no way McDunn can say she is, in fact, the winner of the March 1990 primary.

For his argument that all ballots must be recounted in order for there to be a full valid recount, Williams relies on Hennessy v. Porch (1910), 247 Ill. 388, 93 N.E. 290. However, in Hennessy, unlike the situation in the present case, all of the actual ballots were available to the trial court and were recounted. The Hennessy court never addressed the issue of whether precinct reports or other substitute evidence could be used in a recount.

Illinois courts have been confronted with the issue of ballots which could not be located or properly preserved in a way to ensure against tampering. (See Pullen, 138 Ill. 2d 21, 561 N.E.2d 585; Talbott v. Thompson (1932), 350 Ill. 86, 182 N.E. 784; see also Armbrust v. Starkey (1954), 3 Ill. 2d 131, 119 N.E.2d 910; MacWherter v. Turner (1964), 52 Ill. App. 2d 270, 201 N.E.2d 325.) Addressing this issue, the Pullen court stated:

“The returns of the election officials are prima facie evidence of the result of the election. The ballots, however, are the original evidence of the votes cast. In an election contest, the court may accept the ballots at the election as better evidence of the result than the election returns if those ballots have been properly preserved. [Citations.] The contestant, as the moving party, bears the burden of proving that the ballots have been kept intact. [Citation.] If the evidence discloses that the ballots were exposed to the reach of unauthorized persons, and the returns are not likewise discredited, the ballots will not be regarded as better evidence of the result of the election. If the evidence shows that there was no reasonable opportunity for tampering with the ballots, however, they are the best evidence of the results of the election.” Pullen, 138 Ill. 2d at 72, 561 N.E.2d at 607-08.

In the present case, the ballots for eight precincts could not be located. Thus, it is impossible to demonstrate that the ballots from those precincts were properly preserved and are, therefore, the best evidence of the election results. Since there was no evidence presented at trial to cast doubt upon the returns for those eight precincts, the trial court correctly concluded that those returns are prima facie evidence of the votes cast in the missing precincts. The fact that some ballots in other precincts were uninitialed by election judges is insufficient to show that the ballots, upon which the missing eight precincts were based, were also not initialed. Accordingly, the precinct returns from the missing eight precincts were properly admitted as evidence of the votes cast in those precincts.

VI. SECTION 7-63 OF THE ELECTION CODE

Williams argues that the trial court was without the power to order McDunn’s name to be placed upon the November 3, 1992, general election ballot. Williams claims there is no express statutory authority for the trial court to have ordered a special election.

We disagree. Section 7 — 63 of the Election Code expressly grants a court the power to “make such orders and enter such judgment as justice may require.” (Ill. Rev. Stat. 1989, ch. 46, par. 7—63.) Had the State legislature intended to delineate or limit the relief a court could order in an election contest, it surely would have done so explicitly within the context of as comprehensive a scheme as the Election Code. Clearly, the remedy ordered by the trial court was within the broad scope of power granted to it by the General Assembly. Were we to hold that the trial court did not possess the power to order McDunn’s name placed on the November 3, 1992, general election ballot, we would, in effect, be ruling that a trial court could only render advisory opinions in election contests and that candidates similarly situated to McDunn have no remedy.

VII. EQUITABLE RELIEF

Williams finally argues that the refusal by the trial court to recognize the effect of the November 1990 general election deprived Williams and those who voted for him in that election of their constitutional rights of suffrage by nullifying their votes cast in that general election. As we have concluded that Williams’ name was incorrectly placed on the ballot in the first place, it logically follows that he and other voters had no right, constitutional or otherwise, to vote for him as the duly qualified candidate of the Democratic party. However, because of the extenuating circumstances present in this case and in fairness to all parties, including the voters of Cook County, we will further examine this issue.

Section 7 — 63 of the Election Code, as well as Supreme Court Rule 366(a)(5), empowers this court to fashion a remedy in the interests of fairness and equity to the parties engaged in an election dispute. (107 Ill. 2d R. 366(a)(5); see generally Harriss v. Elliott (1991), 207 Ill. App. 3d 384, 565 N.E.2d 1041; Leckrone v. City of Salem (1987), 152 Ill. App. 3d 126, 503 N.E.2d 1093; Hebb v. Beegle (1985), 135 Ill. App. 3d 157, 481 N.E.2d 846; Steward v. Yoder (1980), 86 Ill. App. 3d 223, 408 N.E.2d 55; George F. Mueller & Sons, Inc. v. Volpe (1979), 74 Ill. App. 3d 879, 394 N.E.2d 51.) Although a strict application of the election rules would declare petitioner the winner in this contest, we cannot ignore the fact that Williams actually received a larger number of votes than McDunn. Moreover, respondent’s name was thereafter placed upon the ballot in the November 1990 general election. The voters of Cook County then cast their votes for respondent, believing him to be the validly elected winner of the Democratic primary.

We cannot now deny the electorate of Cook County basic and fundamental right to vote post facto. In Kluk v. Lang (1988), 125 Ill. 2d 306, 317, the Illinois Supreme Court described the right to vote most accurately when it stated:

“The essence of the democratic voting right is that it is equally and separately vested in each member of the electorate. The right to vote is not a common right of the public. *** Rather, the voting right is by definition capable of being exercised individually by each voter; indeed, this is its genius. The right to be represented is intertwined with the right to vote and is likewise personal to each voter.”

The failure of the electoral and legal systems in this instance to expeditiously resolve this dispute prior to the general election should neither be imputed to the electorate nor to the respondent. The election laws were not intended to deprive the voters of their rights but to protect the propriety and dignity of the election process. It is in this spirit of the law that we now choose to fashion an equitable remedy.

While it is the duty of this court to insure the integrity of the election process, it is also our duty to guarantee the individual and constitutional rights of the electorate. We therefore order that James H. Williams shall continue to serve in the office of judge of the circuit court of Cook County until his resignation, retirement or failure to be retained, while simultaneously ordering the placement of Susan J. McDunn’s name on the November 3, 1992, general election ballot to fill the judicial vacancy of the Honorable Roger J. Kiley, Jr.

The decision of the circuit court of Cook County is hereby affirmed.

Affirmed.

PRESIDING JUSTICE GREIMAN

concurring in part and dissenting in part:

I concur with the majority regarding the issues of the timeliness of election petition (part II of the majority opinion), laches (part III), uninitialed ballots (part IV), missing ballots (part V), and section 7— 63 of the Election Code (part VI). However, I must respectfully dissent from the majority’s conclusions relating to mootness (part I) in determining who shall succeed to the judicial vacancy which is the subject matter of this appeal.

The Illinois General Assembly has provided that an election judge’s initials shall be endorsed upon each ballot (Ill. Rev. Stat. 1989, ch. 46, par. 7—44), that ballots without such endorsement shall not be counted (Ill. Rev. Stat. 1989, ch. 46, par. 7—51), and that in examining the ballots at the close of the polls, the election judges shall mark each uninitiated ballot as being “defective” (Ill. Rev. Stat. 1989, ch. 46, par. 24A—10.1). The majority notes that there is a clear line of authority which seemingly holds the ballot-initialing requirement to be mandatory and that an uninitiated ballot will not be counted.

The majority, however, observes that in Pullen and Craig the supreme court held that the initialing requirement was directory rather than mandatory if the ballots in question could be identified and distinguished from other ballots so that other factors might be considered in determining the integrity of the election process. Pullen v. Mulligan (1990), 138 Ill. 2d 21, 561 N.E.2d 585; Craig v. Peterson (1968), 39 Ill. 2d 191, 233 N.E.2d 345.

Pullen carves out an exception to the statute as to uninitiated absentee ballots distributed from the central election department of the county clerk and identified differently than in-precinct ballots, so that the integrity of the election process could be preserved even if uninitiated absentee ballots were counted.

The cutting edge of Pullen was the court’s recognition of the proper purpose of the mechanics of election and giving effect to the voters’ will in certain instances even though there had not been strict compliance with statutory provisions of the Election Code.

In the instant case, the parties have stipulated that no fraud was present and none alleged. Moreover, the record, as well as the majority opinion, indicates that the parties acted in good faith and attempted to have their rights litigated in a timely fashion.

In the 1990 general election, Williams was elected by more than 163,000 votes. However, the trial court on the eve of election ordered the Chicago Board of Election Commissioners to suppress the results of the election and at the time of the proclamation of the results stated: “PROCLAMATION WITHHELD DUE TO COURT ORDER.”

Shall we disenfranchise hundreds of thousands of people that voted in the general election because of the technical errors of a few election clerks during the primary with reference to a tiny percentage of the ballots counted? We must weigh the rights of the voters in the general election with those interests of the voters in the primary.

Judicial offices are at the “bottom” of the ballot. Can we imagine what the majority’s decision might be if the election involved the governor of our State? At the same 1990 primary election, then Secretary of State Jim Edgar was opposed in the Republican primary. Had the Secretary of State and his primary opponents been engaged in the same kind of vote count as the parties here, can anyone imagine that the then Secretary of State Edgar and Attorney General Neil Hartigan, the nominees of the Republican and Democractic parties respectively, would have each spent $8 million or $9 million in the promotion of their candidacies where the court might determine afterwards that it was all an exercise in futility?

Bartos v. Chicago Board of Elections (1989), 191 Ill. App. 3d 937, 548 N.E.2d 431, provides us with the precise kind of treatment these issues might receive if the office were at the “top” of the ballot rather than the “bottom” of the ballot. In Bartos, plaintiff sought to file an intent to be a write-in candidate of the Solidarity Party for the office of mayor of the City of Chicago at the 1989 special mayoral election. The Board of Election Commissioners denied the request based on its untimeliness and the plaintiff appealed. While the case pended in the appellate court, the 1989 mayoral primary election passed, as did the 1989 mayoral general election and the winner of that election was proclaimed and installed as mayor.

The appellate court in Bartos held that the plaintiff’s right to have his filings accepted for the February 28, 1989, primary had ceased to exist after the election was held and that his cause was then moot. The majority here answers Bartos by suggesting that it is the trial court’s suppression of the announcement by the Board of Election of the election results that takes the case at bar out of the deep well of mootness. Just as the Bartos court was unwilling to order a new mayoral election to allow Mr. Bartos to assert his candidacy, we should similarly lay this matter to rest.

For the reasons expressed, I would carve out an additional exception to that provided in Pullen. In the absence of fraud or bad faith and where the record does not reveal that the adverse party has delayed the process, I believe the results of the general election should be given effect in order not to disenfranchise hundreds of thousands of voters in that election, notwithstanding the technical defects in a few primary ballots.

If the parties are innocent victims of the process, where does fault lie? As with Brutus, fault lies not in our stars but in ourselves. (William Shakespeare, Julius Caesar act I, sc. 2.) Illinois primaries are held 71/2 months before the general election, which should be ample time for our election tribunals and our courts to resolve primary election contests.

Consider that some States have a mere seven weeks between primary and general elections. Whether by new legislative initiatives or supreme court rule, we should consider development of summary and expedited procedures to insure that the will of the electorate is not again frustrated.

I appreciate the effort to guarantee individual and constitutional rights of each voter by giving de jure recognition to James H. Williams to continue to serve in the office of judge of the circuit court of Cook County until resignation, retirement or failure to be retained and I concur as to part VII providing equitable relief.

JUSTICE SCARIANO,

concurring in part and dissenting in part:

Although I concur in Justice Tully’s decision to affirm the judgment of the trial court in this cause, I respectfully dissent from the majority’s determination to enact what may very well become known, if the majority’s modification of Judge Murphy’s decision is upheld, as the “Judges’ Full Employment Bill of 1992,” for unless I suffer from a cramped reading of our State Constitution, the creation of judicial offices clearly and unmistakably belongs to the General Assembly. Judge Kiley must feel enormously vindicated by the majority’s action in this case, a tribute he well deserves, yet the judicial article in my copy of our State Constitution fails to provide that a single vacancy may be filled simultaneously by two persons. With all due deference and respect to my colleagues, the only conclusion I can reach in attempting to comprehend the “equitable relief” they award in this case is to attribute it to the infectious virulence of the current presidential election campaign where the core issue is the national unemployment problem; but, like the monk who would eat steak only after baptizing it “cod,” the majority renames its attempt at legislation “equitable relief.”

       In the 1990 general election, voters elected two other judicial officers from the same geographical area as this contested vacancy. In those races, the Democratic candidates averaged 446,000 votes each. Illinois State Board of Elections, Official Vote Cast at the General Election November 6, 1990.