author: PRESIDING JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BERNARD IVORY, Defendant-Appellant.
    Second District
    No. 2 — 90—0047
    Opinion filed August 22, 1991.

      G. Joseph Weller and Francine Harrison, both of State Appellate Defender’s Office, of Elgin, and Ronald D. Haze, of Chicago, for appellant.
    Charles R. Hartman, State’s Attorney, of Freeport (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Bernard Ivory, was charged in the circuit court of Stephenson County with armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2(a)). Following a jury trial, defendant was convicted of robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 1(a)) and sentenced to a term of four years’ imprisonment. Defendant filed a post-trial motion contending only that the State failed to prove him guilty beyond a reasonable doubt and that the verdict was contrary to the evidence. The motion for a new trial was denied.

The central issue raised on appeal is whether the trial court erred in instructing the jury over defendant’s objection on the lesser-included offense of robbery where the defense was based on an alibi and misidentification. As a secondary issue, defendant contends that his trial counsel’s failure to preserve the jury instruction issue in the post-trial motion constituted ineffective assistance of counsel.

The only witness to the robbery was Dennis Hunziker, an employee at the Super Valu store in Freeport, Illinois. He testified that when the robber entered the store shortly after 3 a.m. on April 23, 1989, he was wearing a white scarf or towel wrapped around his head, a black jacket, black pants, and a skintight shirt with a silver or gold object on it in the “high belt buckle area.” The robber said, “Give me your money” and “Don’t give me no shit. I got a .22 automatic.” Hunziker saw only the handle of a gun sticking out of the robber’s pocket. It had wood grain grips and was lined with blue steel. He never saw the whole gun. Hunziker took the drawers out of the cash register and the robber grabbed the $10 and $20 bills. Four hundred and fifty dollars was taken from the drawer.

As the robber fled, he attempted to exit the wrong door. Officer Robert Smith of the Freeport police department testified that prints taken from the door did not match defendant’s prints. The robber eventually left the store and walked backward out the parking lot and fled. Hunziker thought he knew the robber and that he went to high school with him. Testimony later established that defendant and Hunziker were in high school together. Although Hunziker was “not 100 per cent” certain when he initially identified defendant as the robber, when he identified defendant in court, he was “100 per cent certain.”

During the late hours of April 22 and early morning hours of April 23, 1989, defendant was seen at the Silver Knight’s Club. Defendant was wearing black denim pants, a black or turquoise shirt, a medallion and a brown leather jacket. According to Clyde Butler, who was working as security at the club, defendant was also wearing an unusual, large belt buckle which had something to do with truck driving. Butler testified that he had a conversation with defendant about the belt buckle. However, defendant denied having such a conversation and testified that the belt buckle was a small, square cowboy belt buckle.

Kevin Wade, who had walked to the club, met defendant there. Defendant and Wade left the club in a van borrowed from Wade’s stepbrother. They then drove to Thomas Herron’s house and later proceeded to Terry Collins’ home. On the way to Collins’ home, Wade and defendant met two men walking along the street. The two men were William Sperry and Darren Ross. Both testified that they were intoxicated. Sperry and Ross did not know defendant and Wade. Sperry and Ross entered the van and proceeded to the Super Valu store.

According to defendant, they arrived at the Super Valu at about 2 a.m. However, Hunziker testified that they arrived at 3 a.m. Only Wade and Sperry entered the store. Because Ross and defendant stayed in the van, Hunziker did not see them. Sperry attempted to write a check for an amount over the purchase price. However, the store’s limit for overwriting was $5. Wade and Sperry returned to the van. Sperry was upset because he could not get more cash. A short conversation arose about robbing the store.

They then left the store. Sperry and Ross were dropped off at Sperry’s house around 3 a.m., according to Sperry. Defendant testified that they also stopped at Collins’ home. Defendant and Wade then returned to the Super Valu. Wade went into the store and purchased two packs of cigarettes. Defendant remained in the van.

When Wade returned, defendant and Wade had a discussion regarding who would drive the van. Apparently neither Wade nor defendant had a driver’s license. Defendant then drove the van across the street and parked next to a Honda dealership. Defendant and Wade were still arguing about who would drive the van. Defendant then exited the van and told Wade, “I’m going to get ready to leave and stay over here by the van. I’ll be back.”

Defendant testified that he then went behind the Honda dealership building to relieve himself. As he was walking behind the building, he continued to talk to Wade about driving but heard no response. According to defendant, when he returned to the van, Wade was gone. Defendant called for Wade, then drove to Collins’ home and arrived there a few minutes before Wade.

Wade testified that when defendant went to the back of the building, he left the van and walked across a field toward Collins’ home. When he got halfway across the field, he heard defendant call his name and saw defendant drive towards Collins’ home. He arrived at Collins’ home shortly after defendant.

Collins testified that defendant and Wade arrived at his home at 2:30 a.m. Defendant arrived before Wade. He got dressed and drove them to Herron’s house and dropped them off. The van was left at Collins’ home. According to Collins, he returned to Herron’s and picked him up at about 4:30 or 5 a.m.

At the jury instructions conference, the State offered instructions on the uncharged, lesser-included offense of robbery. The State contended that the evidence presented could have shown that defendant committed robbery but not armed robbery. Defendant’s counsel objected to these instructions but did not raise the issue in the post-trial motion.

Defendant contends that the trial court erred by instructing the jury at the State’s request and over his objection on the lesser-included offense of robbery. Defendant claims that, because his theory of defense was alibi and misidentification, he was either guilty of armed robbery or not guilty of any offense. Defendant claims we should review this issue under the plain error doctrine because the error denied him a fair and impartial trial. The State contends that the propriety of giving the lesser-included offense instruction depends on the evidence adduced at trial. The State contends that because the evidence could have allowed the jury to convict defendant of robbery, the instruction was proper.

Under Supreme Court Rule 451(c) (134 Ill. 2d R. 451(c)), “substantial defects [in instructions in criminal cases] are not waived by failure to make timely objections thereto if the interests of justice require.” This exception to the waiver rule is restricted to “grave errors” or to situations where the case is close factually and fundamental fairness requires that the jury be properly instructed. People v. Huckstead (1982), 91 Ill. 2d 536, 544, 440 N.E.2d 1248.

Although typically it is the defendant who seeks instructions on the lesser-included offense (see, e.g., People v. Rodarte (1989), 190 Ill. App. 3d 992, 547 N.E.2d 1256; People v. Willis (1988), 170 Ill. App. 3d 638, 524 N.E.2d 1259; People v. Caplinger (1987), 162 Ill. App. 3d 74, 514 N.E.2d 1221), in this case the State sought the instruction. The rule in the former cases is clear, namely, that an instruction on a lesser-included offense will be given upon a defendant’s request if there is slight evidence showing the offense, even if the instruction conflicts with the defendant’s theory (People v. Creamer (1986), 143 Ill. App. 3d 64, 69, 492 N.E.2d 923), but will not be given if the jury could only rationally find the defendant guilty of the greater offense or not guilty of any offense (People v. Moore (1990), 206 Ill. App. 3d 769, 774, 565 N.E.2d 154). However, the rule in cases such as this where the State requests the lesser-included offense instruction is not well defined.

It is settled that, if the evidence admits of but one conclusion which is that the accused, if guilty at all, is guilty of the crime charged, it is error to give an instruction authorizing a conviction for a lesser-included offense, and a defendant has a right to keep the jury from receiving instructions on an uncharged, lesser-included offense where, for example, the defense is alibi or mistaken identity. (People v. Falkner (1985), 131 Ill. App. 3d 706, 710, 475 N.E.2d 964.) The rationale that defendant has a right to refuse a lesser-included offense instruction is that such an instruction prejudices the defendant by inviting the jury to return a compromise verdict rather than continue to debate defendant’s innocence. (People v. Keagle (1967), 37 Ill. 2d 96, 102, 224 N.E.2d 834; 75 Am. Jur. 2d Trial §878 (1974).) However, it is misleading to speak of the “right” to require a jury to pass only upon a defendant’s guilt or innocence of the greater offense. (People v. Taylor (1967), 36 Ill. 2d 483, 488-89, 224 N.E.2d 266.) In dicta, our supreme court in People v. Taylor (1967), 36 Ill. 2d 483, 224 N.E.2d 266, stated, in the context of murder/manslaughter verdicts, the following:

“If a jury trial is waived, the judge determines from the evidence whether the defendant is guilty of murder or of some lesser included offense, and the defendant has no ‘right’ to restrict the judge’s determination to the question of his guilt or innocence of murder. (See, e.g., People v. Green, 23 Ill. 2d 584.) And if the evidence would support a verdict of manslaughter, a defendant will not be heard to complain that a manslaughter instruction was given, even though he did not request it, ‘Where the record contains evidence upon which a verdict of manslaughter may be returned, the fact that the evidence would have justified the jury in finding the defendant guilty of murder is not a matter of which he can complain.’ (People v. Beil, 322 Ill. 434, 440; see also People v. White, 311 Ill. 356). ***
*** So it has been said, ‘The general statement contained in the cases, that a manslaughter instruction should be given where there is evidence justifying it, must be understood in the sense the duty exists when such instruction is offered by either side, when the circumstances justify it, but does not apply to cases where no instructions for manslaughter are offered in the case.’ ” Taylor, 36 Ill. 2d at 488-89, 224 N.E.2d at 269-70, quoting People v. Weisberg (1947), 396 Ill. 412, 422, 71 N.E.2d 671, 677.

Defendant relies on People v. Rangel (1982), 104 Ill. App. 3d 695, 432 N.E.2d 1141, to support his contention that the trial court committed grave error by instructing the jury on the offense of robbery. In Rangel, the defendant was charged with burglary. The State sought instructions on the lesser-included offense of attempted burglary, and the instructions were given. All the evidence on both sides showed that the defendant entered the house without authority. However, defendant contended that he did not have criminal intent because he was intoxicated. The appellate court held that, because the case was an “all-or-nothing” case, meaning the defendant was guilty of burglary or not guilty of any offense, the trial court erred by giving attempted burglary instructions. Rangel, 104 Ill. App. 3d at 701, 432 N.E.2d at 1145.

Rangel is not controlling here because the present case is not an “all-or-nothing” case. Unlike Rangel, all the evidence on both sides did not show that the robber was armed.

In People v. Nicholson (1978), 61 Ill. App. 3d 621, 377 N.E.2d 1063, a case very similar to this one, the defendant was indicted for armed robbery, but the State sought instructions on the lesser-included offense of robbery. The instructions were given over the defendant’s objection. During trial, the victim testified that the defendant was armed with what “appeared to be a small knife.” (Nicholson, 61 Ill. App. 3d at 623, 377 N.E.2d at 1065.) In affirming the trial court, the appellate court held that, although an instruction on the lesser-included offense of robbery is considered to be improper where the evidence shows that the accused is either guilty of the higher offense of armed robbery or not guilty of any offense, this principle is not controlling if the evidence raises a factual issue. (Nicholson, 61 Ill. App. 3d at 624, 377 N.E.2d at 1067.) The court concluded that because the jury could have reasonably interpreted the victim’s statement as indicating that the defendant was not armed, and it is not necessary for a defendant to directly challenge the State’s evidence to raise a factual issue, the trial court did not err in instructing the jury on the lesser-included offense of robbery. Nicholson, 61 Ill. App. 3d at 625, 377 N.E.2d at 1067.

We believe Nicholson is controlling in this case. Hunziker testified that he saw only the handle of the gun. He never saw the whole gun. Wade testified he did not see defendant or anyone else with a gun that evening. Further, defense counsel questioned Hunziker as to whether the gun handle could be confused with a screw driver thereby implying a factual question on this issue. The evidence raised a factual issue as to whether defendant was armed which was one of the elements of the crime of armed robbery which the State had the burden to prove. Therefore, the trial court did not err by instructing the jury on the lesser-included offense of robbery. Because it was not error to give the instruction, there was no grave error.

Defendant next contends that his trial counsel’s failure to preserve the issue of the jury instructions constituted ineffective assistance of counsel. Because it was not error to instruct the jury on the offense of robbery, trial counsel’s failure to preserve the issue did not deprive defendant of a fair trial.

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

Affirmed.

BOWMAN and NICKELS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HOWERTON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GENE H. ARNETT, Defendant-Appellant.
    Fifth District
    No. 5 — 88—0558
    Opinion filed June 18, 1991.
    Rehearing denied September 25, 1991.

      Daniel M. Kirwan and Michelle A. Zalisko, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    William Haine, State’s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

A Madison County jury convicted Gene Arnett, defendant, of first-degree murder for the Interstate 270 shotgun shooting of Todd Scrum. He was sentenced to 40 years’ imprisonment.

Defendant, while riding as a passenger in his own car, fired a shotgun out of the passenger window and hit Scrum, who was driving alongside defendant on Interstate 270.

Four days after the shooting, while investigating the scene of a residential burglary, officers from the Madison County Sheriff’s Department spotted a car parked in a secluded area near railroad tracks, 100 yards from a burglarized house. Because the car appeared to have been abandoned in connection with the burglary, the officers went to the car to investigate. They found both its doors unlocked, its hood, engine, and radiator still warm; it had no license plates or lieense-applied-for sticker.

The officers initially and cursorily searched the car, checking the glove box to determine ownership, finding only a Venture receipt with a license number on it. The officers ran the license number and it came back to a person who lived in Godfrey, Illinois. The officers had the car towed to a local truck stop, where it sat for approximately two weeks. No inventory search of the car was conducted. The deputies were unable to contact the apparent owner.

Later, the Illinois Department of Criminal Investigation (DCI) informed the Madison County Sheriff’s Department that the car was needed in a murder investigation. The DCI took custody of the car and, pursuant to a warrant, searched and found a spent shotgun shell in the car. The DCI also took paint samples, which connected the car to Scrum’s murder. After this second search, the sheriff’s department discovered that the apparent owner had sold the car to defendant’s father and that defendant’s father had given defendant the car. Defendant was arrested and charged with first-degree murder.

Defendant claims: (1) the initial warrantless seizure of his car violated his fourth amendment rights; (2) the circuit court erred in refusing to instruct the jury on second-degree murder and involuntary manslaughter; (3) the State failed to prove him guilty of first-degree murder beyond a reasonable doubt; (4) he was denied effective assistance of counsel as guaranteed by the sixth amendment to the United States Constitution; and (5) the circuit court erred in refusing to grant his motion to quash the jury array. We affirm.

I. THE SEIZURE OF THE CAR

Defendant moved to suppress the spent shotgun shell and paint samples seized by DCI during the second search claiming that the sheriff’s initial search and seizure of defendant’s car violated his fourth amendment rights (U.S. Const., amend. IV; Ill. Const. 1970, art. I, §6), making the second search of his car, though pursuant to a warrant, illegal. (Wong Sun v. United, States (1963), 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407.) The circuit court denied defendant’ motion.

The fourth amendment protection against unreasonable government search and seizure extends only to individuals who have a reasonable expectation of privacy in the place searched or property seized. (Rakas v. Illinois (1978), 439 U.S. 128, 143, 58 L. Ed. 2d 387, 401, 99 S. Ct. 421, 430.) In determining whether a reasonable privacy expectation exists, the court examines the totality of the circumstances and may consider whether defendant was legitimately present in the area searched, had a possessory interest in the area or property seized, had used the area searched or property seized, had the ability to control or exclude others from using the property, and had a subjective expectation of privacy in the property. (People v. Johnson (1986), 114 Ill. 2d 170, 499 N.E.2d 1355, citing United States v. Lochan (1st Cir. 1982), 674 F.2d 960, 965; Rawlings v. Kentucky (1980), 448 U.S. 98, 65 L. Ed. 2d 633, 100 S. Ct. 2556.) Thus, we must consider the scope of the search, the manner in which it was conducted, the justification for initiating it, and the place in which it was conducted. Bell v. Wolfish (1979), 441 U.S. 520, 559, 60 L. Ed. 2d 447, 481, 99 S. Ct. 1861, 1884.

Defendant argues that the sheriffs testimonial concession that the car could have been towed, irrespective of the burglary investigation, requires reversal. Defendant’s argument sidesteps the fact that if the seizure is proper in the first instance, other circumstances, which might make it improper, are merely hypothetical. We are not persuaded that testimony of what might or could have been is dispositive of the officer’s reasons for towing the car.

An automobile is deemed to be abandoned if the possessor makes a hurried departure on foot, leaving it behind. (See 1 W. La-Fave, Search & Seizure §2.5(a) (2d ed. 1987).) As stated by the Arkansas Supreme Court:

“Sometimes an automobile takes on the characteristics of a man’s castle. Other times an automobile takes on the characteristic of an overcoat — that is, it is movable and can be discarded by the possessor at will. If appellant in his endeavors to avoid the clutches of the law had discarded his overcoat to make his flight more speedy, no one would think that an officer was unreasonably invading his privacy or security in picking up the overcoat and searching it thoroughly. In that situation most people would agree that the fleeing suspect had abandoned his coat as a matter of expediency as well as any rights relative to its search and seizure. What difference can there be when a fleeing burglar abandons his automobile to escape the clutches of the law? We can see no distinction and consequently hold that when property is abandoned officers in making a search thereof do not violate any rights or security of a citizen guaranteed under the Fourth Amendment.” Thom v. State (1970), 248 Ark. 180, 182, 450 S.W.2d 550, 552.

In the case at bar, the officers had probable cause to believe that a car, located within 100 yards of a recent burglary, with its doors unlocked and its engine warm, was a “getaway” car. The search of the glovebox to determine ownership and the subsequent seizure and impounding of the vehicle were proper under these circumstances. See California v. Greenwood (1988), 486 U.S. 35, 100 L. Ed. 2d 30, 108 S. Ct. 1625; Abel v. United States (1960), 362 U.S. 217, 4 L. Ed. 2d 668, 80 S. Ct. 683; Hester v. United States (1924), 265 U.S. 57, 68 L. Ed. 898, 44 S. Ct. 445.

The proper approach for evaluating compliance with the fourth amendment is to objectively assess the officer’s actions in light of the facts and circumstances before him at the time without regard to his underlying intent or motivation. (Scott v. United States (1978), 436 U.S. 128. 135-38, 56 L. Ed. 2d 168. 176-78. 98 S. Ct. 1717. 1722-23.) The record supports the theory that the police had a reasonable belief that defendant’s car was abandoned incident to the burglary. Under the totality of the circumstances, a police officer who finds a car with a warm engine, the doors unlocked, no license plates, and no license-applied-for sticker, in an isolated area, could reasonably believe the car was abandoned incident to a burglary only 100 yards away.

Further, defendant, by leaving his car on a secluded gravel road, unlicensed, unregistered, and along the railroad tracks, had no expectation of privacy. Abandoned property may be examined and impounded constitutionally by the police, because justifiable expectation of privacy vanishes with abandonment. Probable cause is not required to examine abandoned property. (Abel v. United States (1960), 362 U.S. 217, 4 L. Ed. 2d 668, 80 S. Ct. 683; Hester v. United States (1924), 265 U.S. 57, 68 L. Ed. 898, 44 S. Ct. 445.) There was nothing unlawful in the government’s initial search of the car to determine ownership, and the subsequent search of that property was pursuant to a warrant. (Abel v. United States (1960), 362 U.S. 217, 4 L. Ed. 2d 668, 80 S. Ct. 683.) The seizure and subsequent search of the abandoned automobile were proper and did not violate defendant’s fourth amendment rights, and the evidence found therein properly was introduced at trial.

II. THE INSTRUCTIONS

A. SECOND-DEGREE MURDER

Defendant argues that he was denied a fair trial because the circuit court refused to instruct the jury on second-degree murder.

A defendant is entitled to a second-degree murder instruction if evidence exists in the record which, if believed, would reduce.the charge from murder to manslaughter. (People v. Proper (1979), 68 Ill. App. 3d 250, 385 N.E.2d 882.) Such an instruction should not be given, however, when the evidence demonstrates that the homicide was murder. Proper, 68 Ill. App. 3d at 254, 385 N.E.2d at 885.

A person commits second-degree murder when one of two statutory factors mitigates the killing:

“(1) At the time of the killing [the defendant] is acting under a sudden and intense passion resulting from serious provocation by the individual killed ***; or
(2) At the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.” Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 2(a)(1), (a)(2).

There is no evidence of self-defense in this case. The only question is whether there is any evidence that the victim, Todd Scrum, seriously provoked defendant. Serious provocation is defined as “conduct sufficient to excite an intense passion in a reasonable person.” Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(b).

Scrum was killed by a shotgun blast to the left temple, while he was driving on Interstate 270 between 12:30 a.m. and 1 a.m. on October 24, 1987. The only evidence of serious provocation comes from witnesses who testified that defendant had told them that Scrum had run into defendant’s car, that he and the driver of the car pursued Scrum and attempted to force him to stop, that Scrum “flipped defendant the finger,” and defendant “blew his doors off.”

Acts recognized as constituting serious provocation are substantial physical injury or assault, mutual quarrel or combat, illegal arrest, and adultery with the offender’s spouse, but do not include mere words or gestures or trespass to property. People v. Chevalier (1989), 131 Ill. 2d 66, 544 N.E.2d 942.

To reduce murder to second-degree murder, the manner of the defendant’s retaliation must have been proportionate to the degree of provocation. (See People v. Baggett (1983), 115 Ill. App. 3d 924, 450 N.E.2d 913.) Defendant’s retaliation was clearly out of proportion to Scrum’s alleged acts: there is no proof that the collision between the cars was anything but accidental, and we refuse to elevate “flipping the finger” into the sort of act that justifies killing.

We have reviewed the record and find no evidence of serious provocation by Scrum. The circuit court correctly refused defendant’s tendered jury instruction for second-degree murder.

B. INVOLUNTARY MANSLAUGHTER

Next, defendant argues the circuit court erred when it refused to instruct the jury on involuntary manslaughter.

Involuntary manslaughter is defined as killing a human being by acts which “are likely to cause death or great bodily harm *** and [which are] performed] *** recklessly.” Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3(a).

A person acts recklessly when he “consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow.” Ill. Rev. Stat. 1987, ch. 38, par. 4 — 6.

When there is evidence in the record which, if believed by the jury, would reduce the crime of murder to manslaughter, an instruction defining the lesser crime should be given. (People v. Ward (1984), 101 Ill. 2d 443, 463 N.E.2d 696; People v. Cannon (1971), 49 Ill. 2d 162, 273 N.E.2d 829.) However, an involuntary manslaughter instruction should not be given where the evidence shows that the homicide was murder, not manslaughter. (People v. Simpson (1978), 74 Ill. 2d 497, 384 N.E.2d 373.) A manslaughter instruction can only be given if there is some evidence which shows the defendant killed unintentionally by the reckless performance of acts which caused the victim’s death. (People v. Whitt (1986), 140 Ill. App. 3d 42, 487 N.E.2d 1246.) We examine the record for that evidence.

Defendant’s girlfriend, called as a State’s witness, was cross-examined:

“Q. *** —Miss Cleveland, when Gene was talking to you in the car on the 24th,—
A. Uh-huh.
Q. —and he first relates to you the shooting, did he tell you that he intended to kill the driver of that car?
A. He never said at that time. But whenever I talked to him on the phone the night I seen it on the news, he told [sic] that he didn’t mean to kill the guy. He just meant to blow his windshield out.” (Emphasis added.)

This is the sum total of evidence that defendant acted recklessly and unintentionally. The girlfriend’s testimony of defendant’s intent is insufficient to justify the giving of an involuntary manslaughter instruction. It is true that very slight evidence upon a given theory of a case will justify the giving of an instruction, but it is also true that we must be wary so as not to permit a defendant to demand unlimited instructions based upon the merest factual reference or witness’ comment. (People v. Everette (1990), 141 Ill. 2d 147, 157, 565 N.E.2d 1295, 1299, citing People v. Bratcher (1976), 63 Ill. 2d 534, 541, 349 N.E.2d 31, 34.) Defendant’s “mere statement that he did not intend to hurt or kill *** does not provide a sufficient basis to warrant giving an involuntary-manslaughter instruction.” People v. Whitt (1986), 140 Ill. App. 3d 42, 49, 487 N.E.2d 1246, 1251; see also People v. Cannon (1971), 49 Ill. 2d 162, 273 N.E.2d 829; People v. Latimer (1966), 35 Ill. 2d 178, 220 N.E.2d 314.

Furthermore, the circumstances surrounding the killing do not support defendant’s assertion that his actions were reckless and not intentional. By defendant’s own statements he either intended to blow the doors off or blow the windshield out of Scrum’s car. “In cases where a defendant voluntarily and wilfully commits an act which has a natural tendency to cause death or great bodily harm, an involuntary manslaughter instruction is not warranted.” [People v. Whitt (1986), 140 Ill. App. 3d 42, 49, 487 N.E.2d 1246, 1251.) Firing a shotgun with intent to either blow the doors off or blow the windshield out of an automobile traveling down an interstate has a natural tendency to cause death or great bodily harm.

The circuit court did not err in refusing the tendered instruction.

III. REASONABLE DOUBT

Defendant argues that the State failed to prove him guilty of first-degree murder beyond a reasonable doubt because the evidence showed that he did not act with an intent to kill or do great bodily harm.

The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

Defendant’s intent to commit murder logically is inferred from this evidence: he pointed a gun and fired it at Scrum, and this inference can be made despite defendant’s testimony that he did not intend to kill anyone. People v. Cannon (1971), 49 Ill. 2d 162, 273 N.E.2d 829.

Evidence established that defendant had taken a .20-gauge shotgun from his brother’s house around the time of the shooting, and others saw a shotgun in defendant’s possession. The DCI found a spent .20-gauge shotgun shell in the back seat of defendant’s car and wadding from a shotgun shell on the floorboard. It was determined that the shot recovered from Scrum’s head and the wadding found in Scrum’s car were consistent with the spent shell found in defendant’s car.

Another man who drove a different car testified that only minutes before Scrum was shot, he, too, was shot and wounded by a shotgun blast on Interstate 270. This man testified that a “green-puke colored car” kept pulling up and back next to his car, and as he reached for his cigarette lighter, the next thing he remembered was seeing bits and pieces of himself all over his car. He gave the police officers a general description of a mid-70’s car, dull green color, with rust on the bumper, and this description closely matched defendant’s car.

A woman testified that on a different day she was driving towards Interstate 270 when she was approached by a car that pulled up alongside her. The passenger, who was less than three feet away from her, pointed a shotgun at her, she braked, and the shot barely missed her windshield. She identified defendant as the man who shot at her.

Defendant was proven guilty beyond a reasonable doubt.

IV. EFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues he was denied effective assistance of counsel when his attorney failed to give a closing argument.

To establish ineffective assistance of counsel, defendant must show that representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for his counsel’s unprofessional errors, the result of trial would have been different. Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.

Defense counsel tendered instructions on second-degree murder and involuntary manslaughter, which the circuit court refused. When asked to give his closing argument, defense counsel responded, in front of the jury:

“Your Honor, from the start of this case it’s tried on the basis that the [SJtate could not prove beyond a reasonable doubt, that Todd Scrum was either intentionally or knowingly killed, but instead that it was a reckless act. In view of the Court’s ruling today, I have no closing argument.”

The competency of counsel will not generally extend to the exercise of judgment, discretion, trial tactics, or trial strategy even if appellate counsel or the reviewing court might have handled the matter differently. People v. Barfield (1989), 187 Ill. App. 3d 190, 543 N.E.2d 812.

Counsel restated his basic strategy to the jury one last time before resting. Counsel’s decision was a tactical one which, in retrospect, proved unsuccessful, but does not demonstrate incompetence. From the record we see that this defense attorney zealously and capably defended his client.

We, therefore, find no ineffectiveness of counsel under Strickland.

V. MOTION TO QUASH THE JURY ARRAY

Finally, defendant argues that the circuit court erred in refusing to grant defendant’s motion to quash the jury array where the array was composed solely from Illinois drivers who defendant maintains were potential victims.

Section 2 of “An Act in relation to jury commissioners ***” (Ill. Rev. Stat. 1987, ch. 78, par. 25) provides that jury commissioners “shall prepare a list of all legal voters or if they desire it may include the Illinois driver’s license holders of each town or precinct of the county.” Ill. Rev. Stat. 1987, ch. 78, par. 25.

To successfully challenge the selection of a jury array, the challenging party must prove: (1) a deviation from the statute; and (2) that defendant suffered an actual and substantial injustice because of the error charged. Ill. Rev. Stat. 1987, ch. 78, par. 35.

All the jurors chosen stated during voir dire that, even if they had heard about the highway shooting, they could recall no details of the incident. None had formed an opinion of defendant’s guilt or innocence. They all stated that they could be fair and impartial. Defendant has failed to demonstrate actual and substantial injustice resulting from selecting the jury from a list of Illinois drivers.

In addition, defendant’s argument, if upheld, would have serious ramifications on the ability of the State to provide a jury for the defendant in any “victim at random” crime. Any criminal choosing victims at random, as did defendant, could then successfully argue that no one could be a juror because all had been potential victims. Absurd. The law abhors an absurdity. That abhorrence justifies denial of defendant’s claim.

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

Affirmed.

LEWIS and GOLDENHERSH, JJ., concur.


author: JUSTICE WELCH

text:
    JAVAN PARSONS, Plaintiff-Appellant, v. CARBONDALE TOWNSHIP, Defendant-Appellee.
    Fifth District
    No. 5 — 90—0556
    Opinion filed August 6, 1991.
    Rehearing denied September 19, 1991.

      R. Courtney Hughes & Associates, of Carbondale, for appellant.
    Thomas E. Jones and Leslie G. Offergeld, both of Walker & Williams, P.C., of Belleville, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Plaintiff, Javon Parsons, was involved in a motor vehicle collision on Reed Station Road in Carbondale Township at approximately 1 a.m. on May 6, 1988. The motorcycle on which he was traveling, in a northerly direction, was struck by a southbound automobile driven by Curtis Taets just past the crest of a hill located on Reed Station Road. Plaintiff brought suit against defendant, Carbondale Township, to recover damages alleged to have been caused by the negligent installation and maintenance of a road-warning sign. Taets was not made a party to this lawsuit. Plaintiff appeals from the entry of summary judgment in favor of defendant by the circuit court of Jackson County on August 1,1990.

Plaintiff raises the following issues for our consideration in this appeal:

(1) Whether defendant owed a duty of reasonable care to plaintiff in maintaining, erecting, and placing a traffic control or warning sign, after electing to erect a warning sign near the hill;

(2) Whether defendant breached the above-stated duty by failing to construct and install the sign according to the Illinois Manual of Uniform Traffic Control Devices for Streets and Highways and Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95x/2, par. 1 — 100 et seq.) provisions; and

(3) Whether the circuit court erred in finding as a matter of law that installation of the road sign by defendant was not the proximate cause of plaintiff’s injuries or negligence.

For reasons stated as follows, we reverse.

Excerpts of the discovery depositions taken of plaintiff and Curtis Taets were attached to defendant’s motion for summary judgment. Therefore, the following factual evidence was before the court when it ruled on defendant’s motion for summary judgment. Curtis Taets, a student at Southern Illinois University at Carbondale, had been studying for final examinations on the evening of May 5, 1988. He testified that he ingested no prescriptive or illegal drugs within 24 hours of the time of the accident. Taets invited three of his friends to take a break from their studying about 11:30 that evening and go for a ride in Taets’ father’s car. They had no particular destination in mind and just wanted to drive around and relax. Taets testified that he had never driven on Reed Station Road prior to that night.

Taets testified that except for stop signs in the city of Carbondale, he did not remember seeing any road signs after leaving the city limits. He was traveling on Reed Station Road, a tar and gravel road without lane markings, at approximately 55 miles per hour. The head lamps on his vehicle allowed visibility of at least 500 feet in front of the car and illuminated the road and shoulder ahead. Taets testified that although he did not see the subject road sign warning of the dangerous hill, he could see that there was a hill ahead which he was approaching. Taets did not apply the brakes as his car traveled up the hill. At approximately the crest of the hill, Taets noticed a single headlamp in the center of the road at the bottom of the other side of the hill. Taets braked his vehicle but it slid into the motorcycle driven by plaintiff.

Plaintiff testified in his deposition that he was not in the middle of the roadway as Taets had contended and that Taets had lost control of his vehicle as it crested the hill.

Plaintiff alleged in his complaint, inter alia, that prior to May 6, 1988, defendant, by and through its duly authorized agent Vernell Bloodworth, the Carbondale Township highway supervisor, had knowledge that a portion of Reed Station Road, approximately one mile north of Illinois Route 13, constituted a hazard to motorists and had been the scene of numerous accidents as a result of a “dangerous” hill. The complaint further alleged that the steep grade of this hill caused motorists to lose control of their vehicles when driving over the crest of this hill at speeds below the 55-mile-per-hour speed limit established for automobiles on roads outside urban districts where no other applicable speed limit has been posted. Plaintiff alleged that Bloodworth caused to be erected two traffic control signs mounted on a single pole on the north side of said hill, facing the southbound traffic on the west side of said roadway. Plaintiff further alleged that having made the initial decision to erect the traffic control signs, defendant had a duty to use reasonable care and caution in erecting said signs in such a manner as to warn the public of the “dangerous” condition so that motorists could be advised of the approaching hazard and reduce their speed accordingly. The complaint alleged that this duty was breached because the Township:

“(a) improperly erected a regulatory speed limit sign on the same pole as the warning sign in violation of Sections 2A— 21 and 2C — 35 of the Illinois Manual on Uniform Traffic Control Devices for Streets and Highway[ ] (hereinafter, ‘State Manual’), and in violation of Ill. Rev. Stat. 1987, ch. 951/2, par. 11— 304;
(b) failed to post a ‘Speed Zone Ahead’ sign, together with a corresponding advisory speed plate in advance of the regulatory speed limit sign used in conjunction with the warning sign, in violation of Section 7 — 1(a) of Chapter 7 of the Policy on Establishing and Posting Speed Limits and in violation of Ill. Rev. Stat. 1987, ch. 95V2, par. 11-304;
(c) failed to construct the traffic control warning sign of reflectorized material or otherwise illuminate said sign in violation of Section 2C — 2 of the State Manual and in violation of Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 304;
(d) failed to use the properly shaped diamond traffic control warning sign in violation of Section 2C — 2 of the State Manual and in violation of Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 304;
(e) improperly mounted said traffic control sign, used in conjunction with the regulatory speed sign, too low to the ground, and too close to the edge of the roadway in violation of Section 2A — 21 of the State Manual and in violation of Ill. Rev. Stat. 1987, ch. 95V2, par. 11-304;
(f) failed to use the appropriate wording on said traffic control warning sign in violation of Sections 2A — 14, 2C — 26 and 2C — 27 of the State Manual and in violation of Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 304; [and]
(g) improperly placed said traffic control warning sign too close to the hazard, and thereby failed to give motorists sufficient advance notice so that motorists could be advised of the approaching hazard and reduce their speed accordingly.”

In defendant’s answer it denied each of the above-stated allegations and alleged as an affirmative defense that based on plaintiff’s complaint, Carbondale Township possessed an absolute immunity for the asserted claim.

Defendant conceded at the hearing on its motion for summary judgment that municipalities which undertake to erect road signs must do so nonnegligently. However, defendant contended that in order for Carbondale Township to be liable, plaintiff must show that the erection of that particular sign created an unreasonably dangerous condition or misled the public. Defendant further contended that even if it could be considered negligent for the erection of this sign because it should have put up a different type of sign, its action could not have been the proximate cause of plaintiff’s accident because Taets testified that he did not see the sign and therefore could not have been misled thereby. Defendant further argued that Taets was obliged in any event under Elinois law to reduce his speed as he approached a hill but elected to proceed at a speed of 55 miles per hour.

Plaintiff argued in response to the motion for summary judgment that defendant had a duty, after electing to install the warning sign, to install that sign in a nonnegligent manner. Plaintiff contended that as the sign which was installed did not conform to State regulations concerning reflectorization, size, location, message on the sign, and proximity to the hazard, defendant breached that duty. Plaintiff argued that although Taets had testified that he did not see the particular sign which was placed there, he did not make a statement that had the sign been properly installed and reflectorized, he would not have seen it and had, in fact, affirmatively testified in his deposition that had he seen the sign which was there, he would have slowed down. Plaintiff concluded that there were significant issues of fact for the jury to determine and so summary judgment was inappropriate.

The court found, however, that there was no indication from the depositions that had Taets seen the sign he would have acted differently because, as he stated, he was aware of the approaching hill. The court concluded that plaintiff’s argument, that the fact that Taets did not see the sign erected did not mean that he would not have seen a properly constructed sign, was pure speculation. The court acknowledged that it had previously found in its order denying defendant’s motion to dismiss that defendant owed a duty to install the warning sign in a nonnegligent manner. However, the court determined that neither causation nor negligence could be found on defendant’s part where it did not create the hazardous condition which was the immediate proximate cause of the injuries sustained by plaintiff. Accordingly, the circuit court found that defendant was entitled to judgment as a matter of law.

Summary judgment shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005.) A motion for summary judgment is properly granted where no triable issue of fact exists. (Waite v. Chicago Transit Authority (1987), 157 Ill. App. 3d 616, 619, 510 N.E.2d 1176, 1179.) Although defendant is not required to disprove plaintiffs case, it may meet its burden in moving for summary judgment by establishing the absence of a genuine issue of material fact. (Waite, 157 Ill. App. 3d at 619, 510 N.E.2d at 1178.) In such case, if what is contained in the pleadings and affidavits would have constituted all of the evidence before the court and upon such evidence there would be nothing left to go to a jury, and the court would be required to direct a verdict, then a summary judgment should be entered. Waite, 157 Ill. App. 3d at 619, 510 N.E.2d at 1178, citing Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500.

In a cause of action alleging negligence, the plaintiff must establish the existence of a duty, a breach of that duty, and an injury proximately resulting from the breach of that duty. (Wojdyla v. City of Park Ridge (1991), 209 Ill. App. 3d 290, 293, 568 N.E.2d 144, 145.) Motions for summary judgment properly address issues of duty. (Wojdyla, 209 Ill. App. 3d at 293, 568 N.E.2d at 145.) The relevant duty of municipalities is set forth in section 3 — 102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act):

“(a) Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition.” (Ill. Rev. Stat. 1989, ch. 85, par. 3— 102(a).)

Section 3 — 102 of the Tort Immunity Act codifies the common law duty of a local public entity to maintain its property. (Greeson v. Mackinaw Township (1990), 207 Ill. App. 3d 193, 203, 565 N.E.2d 695, 701.) This includes the duty to maintain public highways within its boundaries in a reasonably safe condition. (Smith v. County of White (1989), 191 Ill. App. 3d 569, 575, 548 N.E.2d 19, 23.) The Act creates no new duties but simply articulates the common law duty to which the other immunities, subsequently delineated in the sections of the Act following section 3 — 102, apply. Greeson, 207 Ill. App. 3d at 203, 565 N.E.2d at 701.

One of the delineated immunities is that neither a public entity nor a public employee is liable under this Act “for an injury caused by the failure to initially provide regulatory traffic control devices, stop signs, yield right-of-way signs, speed restriction signs, distinctive roadway markings or any other traffic regulating or warning sign, device or marking, signs, overhead lights, traffic separating or restraining devices or barriers.” (Ill. Rev. Stat. 1989, ch. 85, par. 3— 104.) Moreover, a local public entity is not liable under sections 3 — 101 to 3 — 310 “for an injury caused by the adoption of a plan or design of a construction of, or an improvement to public property where the plan or design has been approved in advance of the construction or improvement by the legislative body of such entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved.” (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 103(a).) However, this section further provides that the local public entity is liable “if after the execution of such plan or design it appears from its use that it has created a condition that it [sic] is not reasonably safe.” Ill. Rev. Stat. 1989, ch. 85, par. 3 — 103(a).

Further, under common law a municipal corporation acts judicially or exercises discretion when it selects and adopts a plan in the making of public improvements such as constructing sewers or drains; but as soon as it begins to carry out that plan, it acts ministerially and is bound to see that the work is done in a reasonably safe and skillful manner. (Greeson, 207 Ill. App. 3d at 201-02, 565 N.E.2d at 701, citing City of Chicago v. Seben (1897), 165 Ill. 371, 378, 46 N.E. 244, 246.) Discretionary acts are those which are unique to the particular public office and not merely ministerial in nature, while ministerial acts are those which a person performs on a given state of facts in a prescribed manner, in obedience to the mandate of legal authority, and without reference to the official’s discretion as to the propriety of the act. (Greeson, 207 Ill. App. 3d at 201, 565 N.E.2d at 700, citing Larson v. Darnell (1983), 113 Ill. App. 3d 975, 448 N.E.2d 249.) We have recently held that the act of maintaining existing highways is ministerial in nature and accordingly municipalities would not enjoy immunity from suit for the negligent performance of that act. Long v. Friesland (1988), 178 Ill. App. 3d 42, 52, 532 N.E.2d 914, 920.

Plaintiff’s complaint does not challenge the township highway supervisor’s failure to post a warning sign but alleges that the sign which was posted near the dangerous hill was installed in violation of the Illinois Manual on Uniform Traffic Control Devices for Streets and Highways (State Manual) and the Illinois Vehicle Code. Those violations allegedly included erecting the warning sign and speed limit sign on the same pole, failing to construct the sign of reflectorized material, mounting the sign too low to the ground, failing to use appropriate wording or use a properly shaped diamond traffic control warning sign, failing to post a “speed zone ahead” in conjunction with the warning sign, and placing the warning sign too close to the hazard. Section 11 — 304 of the Illinois Vehicle Code provides:

“Local authorities and road district highway commissioners in their respective maintenance jurisdiction shall place and maintain such traffic-control devices upon highways under their maintenance jurisdiction as are required to indicate and carry out the provisions of this Chapter and local traffic ordinances or to regulate, warn, or guide traffic. All such traffic control devices shall conform to the State Manual and Specifications and shall be justified by traffic warrants stated in the Manual. Placement of traffic-control devices on township or road district roads also shall be subject to the written approval of the County Superintendent of Highways.” (Ill. Rev. Stat. 1989, ch. 951/2, par. 11-304.)

We find that installation of traffic control devices is an integral part of the municipality’s common law duty to maintain its public highways in a reasonably safe condition. The construction and placement of such road signs are statutorily controlled by specifications stated in the State Manual. Accordingly, the alleged failure on the part of the Carbondale Township highway supervisor to comply with the requirements of the State Manual as required by section 11 — 304 of the Illinois Vehicle Code could subject defendant to liability for negligent performance of a ministerial duty. (See Greeson, 207 Ill. App. 3d at 202, 565 N.E.2d at 701.) We therefore hold that, having undertaken to install the road sign by the dangerous hill, defendant’s duty of reasonable care included installation of a sign which conformed to the specifications set forth in the State Manual and such placement and maintenance of the sign as is required to regulate, warn, or guide traffic. Moreover, defendant’s answer denying the alleged violations of the State Manual specifications created issues of fact as to whether the aforesaid duty was breached; accordingly, summary judgment was not proper on either the issue of the existence of a duty or the issue of the breach thereof.

Defendant argues and plaintiff agrees, however, that the true basis for summary judgment in its favor was the circuit court’s finding that there was no proximate cause. While proximate cause is ordinarily a question of fact for the jury, the court can decide it as a question of law where reasonable minds could not differ as to inferences to be drawn from undisputed facts. (Newsome v. Thompson (1990), 202 Ill. App. 3d 1074, 1081, 560 N.E.2d 974, 979.) We note that plaintiff admits that there are no indisputable facts with regard to the proximate cause issue. Therefore, if the circuit court correctly ruled as a matter of law that installation of the road sign could not have been the proximate cause of plaintiffs injuries, summary judgment in defendant’s favor was proper.

The court determined that there could be no causation or negligence where the installation of the road sign did not create the hazardous condition which was the immediate proximate cause of plaintiff’s injuries. As noted earlier, section 3 — 103(a) of the Tort Immunity Act delineates an exception to a municipality’s immunity from tort liability for an injury caused by the adoption of a plan or design of a construction of, or an improvement to, public property where the use of such plan or design has created an unreasonably unsafe condition. Again, this provision is consistent with the common law, which holds that where the municipality by implementation of a plan for public improvement creates a hazardous condition and someone is injured as a consequence, it must respond in damages. (Baran v. City of Chicago Heights (1969), 43 Ill. 2d 177, 181, 251 N.E.2d 227, 229.) In Baran the plaintiff had alleged that the glare created by the improper location of street lighting and plaintiff’s automobile headlamps caused plaintiff to drive past a dead end street and into a tree. The court stated that where a city undertakes to provide lights, it is liable for injuries which result from deficient or inadequate ones. The rationale behind the court’s decision in Baran is that while the court will not review an allegedly negligent exercise of a discretionary governmental function such as a plan for the location of the street lighting, the court will review the plan once put into operation where it leaves the city’s streets in a dangerous condition for public use. Baran, 43 Ill. 2d at 180-81, 251 N.E.2d at 227.

However, common law also recognizes that where it was not the municipality which created the hazardous condition but the danger was created by the actions of others on its property, which the municipality had taken repeated steps to try to curtail, the municipality is not liable for negligence. (See Harding v. Chicago Park District (1975), 34 Ill. App. 3d 425, 430, 339 N.E.2d 779, 783.) In Harding, defendant maintained and controlled a strip of roadway which was repeatedly used for “drag racing.” The evidence indicated that defendant knew of this problem and took steps on five different occasions to curtail the drag racing, including installing barricades and barriers some of which vandals later removed. Plaintiff’s decedent was killed when he was struck by a drag racer, but in plaintiff’s wrongful death action against the park district, the court found that the hazardous condition was caused by the actions of others on the roadway it controlled. Harding, 34 Ill. App. 3d at 430, 339 N.E.2d at 783.

As noted by the court in Ross v. City of Chicago (1988), 168 Ill. App. 3d 83, 522 N.E.2d 215, the distinction between the two lines of cases is that only where the action of the defendant created a hazardous condition to the roadway itself, endangering normal traffic or foreseeable deviations therefrom, will the defendant municipality be liable. (Ross, 168 Ill. App. 3d at 89, 522 N.E.2d at 219.) We agree with the court below that this distinction, whether or not defendant’s actions created the hazardous condition, is also dispositive of the proximate cause issue. To establish proximate cause, the plaintiff must demonstrate with reasonable certainty that a defendant’s alleged acts or omissions caused the injury for which plaintiff seeks recovery. Waite v. Chicago Transit Authority (1987), 157 Ill. App. 3d 616, 619, 510 N.E.2d 1176, 1178.

Proximate cause is defined as that cause which produces an injury through a natural and continuous sequence of events unbroken by any effective intervening cause. (Durbin v. St. Louis Slag Products Co. (1990), 206 Ill. App. 3d 340, 356-57, 564 N.E.2d 242, 253.) Defendant’s negligence will not constitute a proximate cause of plaintiff’s injuries if some intervening act supersedes the defendant’s negligence, but if the defendant could reasonably foresee the intervening act, that act will not relieve the defendant of liability. (Bentley v. Saunemin Township (1980), 83 Ill. 2d 10, 15, 413 N.E.2d 1242, 1245.) This is so because, as Prosser notes, “[foreseeable intervening forces are within the scope of the original risk, and hence of the defendant’s negligence.” (Prosser, Torts §44, at 273 (4th ed. 1971).) To escape liability, a defendant must demonstrate that the intervening event was unforeseeable as a matter of law. Durbin, 206 Ill. App. 3d at 357, 564 N.E.2d at 253.

We must conclude that installation of a road sign intended to warn motorists of a dangerous hill and to reduce their speed to avoid a possible accident caused by driving too fast for conditions, which by its nonconforming construction makes it unlikely that it would be seen by motorists at night, creates a hazardous highway condition. We must also take judicial notice that the specifications set forth in the State Manual were devised in order to effectively regulate, warn, and guide traffic in this State and that these regulations are to be applicable and uniform throughout the State of Illinois. (See Ill. Rev. Stat. 1989, ch. 951/2, pars. 11 — 207, 11 — 304.) We further find that it is reasonably foreseeable that a motorist driving at night could have failed to see the nonconforming warning sign and thus fail to reduce his speed and lose control of his car. We note the allegation of plaintiffs complaint that this portion of the township highway was the scene of numerous accidents.

Defendant agrees that a violation of a statute designed to protect human life or property is prima facie evidence of negligence; however, it maintains that the presence of the road sign allegedly in violation of section 11 — 304 of the Illinois Vehicle Code and the State Manual had nothing to do with the cause of the accident since there was no evidence that Taets saw the sign. Defendant argues that the allegedly negligently erected sign did not cause Taets to act any differently than he would have if the sign had not been there at all. We believe defendant misses the point. The installation of a warning sign which does not conform with specifications set forth in the State Manual effectively rendered the sign less visible at night thus creating a hazardous condition on the highway. We also disagree with defendant and the court below that it was speculative whether Taets would have seen a properly constructed reflectorized sign at a point in relation to the hill to allow for braking of his vehicle.

The determination of comparative negligence under Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, requires consideration not only of plaintiffs and defendant’s fault, but that of nonparty tortfeasors as well. (Bofman v. Material Service Corp. (1984), 125 Ill. App. 3d 1053, 1060, 466 N.E.2d 1064, 1069; see also Illinois Pattern Jury Instructions, Civil, No. 45.05 Comment (3d ed. 1991).) Therefore the failure of Taets to reduce his speed when he approached the hill will properly be considered by the jury in assessing comparative negligence and apportioning blame for plaintiff’s injuries. However, there may be more than one proximate cause of an injury. (Bentley, 83 Ill. 2d at 17, 413 N.E.2d at 1246.) We cannot say that the actions of Curtis Taets were the sole proximate cause of this accident, and we therefore hold that the court below erred in finding as a matter of law that defendant’s action or omission was not the proximate cause of plaintiff’s injury.

The summary judgment order in the instant case was also based on a finding as a matter of law that there was no negligence. Summary judgment is a remedy to be awarded with caution so as not to preempt any litigant from presenting the full factual basis for his cause of action. (West v. Kirkham (1990), 201 Ill. App. 3d 1051, 1054, 560 N.E.2d 632, 634.) However, where a plaintiff fails to establish an element of the cause of action through the pleadings, depositions, admissions, and affidavits filed, summary judgment for defendant is proper. (Taylor v. Hocker (1981), 101 Ill. App. 3d 639, 641, 428 N.E.2d 662, 664.) We have previously found that installation of traffic control devices in a reasonably safe manner is part of a municipality’s duty to maintain its public highways in reasonably safe condition and that failure of such device installed by the municipality to comply with specifications stated in the State Manual could result in a breach of that duty. Further, there is no contention before this court, nor was there before the trial court, that plaintiff was not injured in this accident; defendant argued instead that the construction and installation of this traffic control sign could not have been the proximate cause of plaintiff’s injuries. However, we have also found that the risk of a driver being unable to brake his vehicle to avoid an accident on the dangerous hill because of his inability to see the nonconforming warning sign at night would be one of the foreseeable consequences of constructing and installing a traffic warning sign which did not meet State Manual specifications and could have been one of the proximate causes of plaintiff’s injury. Therefore, we hold that the court below erred in finding as a matter of law that there was no negligence on defendant’s part and so defendant was entitled to judgment as a matter of law, because plaintiff has pled sufficient facts to establish a cause of action in negligence. Because the record indicates that the facts pled are in dispute, summary judgment is additionally improper in that issues of material fact remain to be determined.

Accordingly, the August 1, 1990, summary judgment order of the circuit court of Jackson County is reversed, and this cause is remanded for further proceedings.

Reversed and remanded.

RARICK, P.J., and CHAPMAN, J., concur.


author: JUSTICE CHAPMAN JUSTICE HOWERTON,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY WAYNE BRANHAM, Defendant-Appellant.
    Fifth District
    No. 5 — 88—0693
    Opinion filed August 20, 1991.
    HOWERTON, J., dissenting.
    Daniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Don Sheafor, State’s Attorney, of Vandalia (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Terry Wayne Branham was charged with escaping from the custody of an employee of the Fayette County jail while at the Fayette County Hospital. (Ill. Rev. Stat. 1987, ch. 38, par. 31 — 6.) Defendant claimed that it was legally necessary for him to escape for two reasons. First, during a prior imprisonment, defendant had been attacked by five men at Shawnee Correctional Center for refusing to perform homosexual acts. Second, he was afraid he would be harmed if convicted and sent to either Menard or Shawnee Correctional Center.

The State moved in limine to prohibit defendant from presenting this evidence, arguing that in escape cases necessity is restricted to situations where a prisoner is under threat of immediate harm, and the defense was therefore unavailable to defendant because he had not been under an immediate threat of harm when he escaped since he was not incarcerated in either Menard or Shawnee Correctional Center at the time. The circuit court granted the State’s motion and held that defendant’s offer of proof was insufficient to raise the defense of necessity.

The jury convicted defendant of escape, and he appeals. We affirm.

The affirmative defense of necessity is defined as follows:

“Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct.” (Ill. Rev. Stat. 1987, ch. 38, par. 7 — 13.)

Necessity involves a choice that can only be made between two admitted evils, other options being unavailable. (People v. Krizka (1980), 92 Ill. App. 3d 288, 290, 416 N.E.2d 36, 37.) Slight evidence of the forcing of this choice is sufficient to make the defense an issue for the jury. People v. Blake (1988), 168 Ill. App. 3d 581, 587, 522 N.E.2d 822, 826.

Factors to be considered in assessing claims of necessity in escape cases are:

“(1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future;
(2) There is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory;
(3) There is no time or opportunity to resort to the courts:
(4) There is no evidence of force or violence used towards prison personnel or other ‘innocent’ persons in the escape; and
(5) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat.” (People v. Unger (1977), 66 Ill. 2d 333, 342, 362 N.E.2d 319, 323.)

All of these factors, however, need not be present to establish necessity, and the absence of one or more does not necessarily prohibit the assertion of the defense. Unger, 66 Ill. 2d at 342, 363 N.E.2d at 323.

It is talismanic that both the accused and the prosecution have the right to present their theory of the case and their version of the facts, so that a jury can decide wherein the truth lies. (Washington v. Texas (1967), 388 U.S. 14, 19, 18 L. Ed. 2d 1019, 1023, 87 S. Ct. 1920, 1923.) Motions in limine, therefore, should be used with caution, and this is particularly so in criminal cases. (People v. Brumfield (1979), 72 Ill. App. 3d 107, 113, 390 N.E.2d 589, 593-94.) However, we do not believe the trial judge abused his discretion in granting the motion in limine in this case.

Defendant made no contention that there was no time for a complaint to the authorities or that there was no time or opportunity to resort to the courts. While there was no evidence of force or violence used towards prison personnel or other “innocent” persons in the escape, it is also true that defendant did not immediately report to the proper authorities when he had attained a position of safety from the immediate threat. The hearing on the motion in limine made clear that defendant was only arguing the first factor set forth in Unger.

Defense counsel argued that, if permitted to present testimony at trial, he would prove that the defendant was faced with specific threats of sexual attack or substantial bodily injury in the immediate future. The record reveals that the threats made at Menard were made after defendant’s escape. The defendant could have been concerned about the possibility of further attacks if he returned to Shawnee, but the trial court specifically found that the threats made to him at Menard could not have played any part in his decision to escape.

The record shows that at the time of escape the defendant was being held in custody on a charge for which he had failed to post bond. He had not yet been tried, convicted, or sentenced, and he was still cloaked with the presumption of innocence. Under these circumstances we find that the circuit court did not abuse its discretion in granting the State’s motion in limine.

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

Affirmed.

WELCH, J., concurs.

JUSTICE HOWERTON,

dissenting:

I respectfully dissent. Granting the motion in this case goes too far too soon.

There are at least two uses made of motions in limine. In one use, inadmissible evidence is excluded. In the other, a whole theory of a case is precluded. The former use serves a most salutary, prophylactic purpose — preventing a jury from hearing and perhaps considering evidence that may range from the most innocuous irrelevancy to that which is poisonous to a fair verdict. The latter use, however, does not involve assessing the evidence, excluding some, allowing other; instead, the latter excludes all evidence of whatever character on the hypothesis that that evidence cannot support a theory. The latter, therefore, chokes off a defense, and it is rudimentary that a motion in limine should not be used to choke off a valid defense in a criminal case. Kansas v. Quick (1979), 226 Kan. 308, 597 P.2d 1108, overruled on other grounds Kansas v. Jackson (1989), 244 Kan. 621, 772 P.2d 747.

It is one thing to grant a motion in limine the effect of which is to prohibit a criminal defendant from producing evidence in support of an affirmative defense. It is quite another to allow the evidence to be presented, but to rule at the close of defendant’s case that the evidence is insufficient to make the defense as a matter of law. In the former, the court has choked off the right of defendant to attempt to make the defense. In the latter, the court has allowed the defense to proceed, but has ruled the evidence insufficient to make a jury question. I realize in this case that such a ruling might amount to an exercise in futility: i.e., the evidence may comport strictly with the offer of proof, and the court might well withdraw the defense of necessity at the close of the proof. However, in my own experience as a trial lawyer and trial judge, I must note that defense counsel may not fully appreciate the significance of evidence until it has been presented in the context of the actual trial. Significance of evidence to some degree is a function of the personality of the witness, how the jury has accepted the testimony, the “magic of each fleeting moment” of trial. This significance may-best be fully apprehended where instincts have been fully engaged, and instincts are more likely to be fully engaged by a trial than by a motion. The less experienced the trial lawyer, perhaps the more true these general observations are. Under these circumstances, I believe it error to enter an order in limine that prevented defendant from presenting the evidence in an attempt to raise the affirmative defense, and it is irrelevant whether the trial court, or this court, would find later that the defendant had not introduced sufficient evidence to generate a jury question. Commonwealth v. Hood (1983), 389 Mass. 581, 596, 452 N.E.2d 188, 197 (Liacos, J., concurring).

The State relies upon United States v. Bailey (1980), 444 U.S. 394, 416-17, 62 L. Ed. 2d 575, 594-95, 100 S. Ct. 624, 637-38, in which the Supreme Court expressed a fear that if in limine proceedings were not used, every escape trial would be converted into a hearing on the current state of the Federal penal system. Bailey is distinguishable on two grounds. In Bailey, there were multiple defendants. One defendant’s case was severed. The case involving the other defendants was tried first, and their evidence of necessity and duress was presented in trial but ruled insufficient to raise those defenses. The severed defendant’s case then was tried to a jury with the same trial judge presiding. To prove necessity and duress, the defendant whose case had been severed wanted to present the same evidence the others had presented in their trial. Under those circumstances, the Supreme Court found that it was proper to bar the evidence in limine. The two grounds that distinguish Bailey are: (1) Bailey did not decide any issue of constitutional law, and therefore, does not bind a State court; and (2) in Bailey, the evidence had been presented, albeit in an earlier trial, while in the case at bar, the evidence never had been presented.

Furthermore, there is no reason to believe that Illinois courts are encountering a large number of prisoners who convert their own hearings into a debate about prison conditions, as was a problem noted by the United States Supreme Court in Bailey. Hence, there is no practical reason for foreclosing an attempt to make a defense.

This is a criminal case, not a civil case. The full power of the State is deployed against the defendant. The government, at least, ought to give him a shot at winning.

I would reverse and remand.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEROME FLAGG, Defendant-Appellant.
    Fifth District
    No. 5 — 90—0194
    Opinion filed August 21, 1991.
    Daniel M. Kirwan and Stanley P. Stasiulis, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.

      William R. Pearcy, State’s Attorney, of Nashville, and Raymond L. Beck, of Chicago (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

The parole officer knocked on the door. With him were the Washington County sheriff, a deputy, and also his own brother, who was an agent.

Defendant opened the door. The parole officer said, “Jerome, can I talk to you a minute?”

“Yeah,” said defendant.

“We got a call from a confidential source that you have some stolen guns and some stereo equipment, can I come in?”

“Yes,” defendant replied.

The parole officer, his brother, the sheriff, and the deputy went inside the house. Defendant did not own this house in Ashley, Illinois; he had “paroled” there, living for a while with his girlfriend and her two children, but they had argued, and he had moved out. He was there that day, babysitting the children.

The parole officer immediately walked through the living room and into the kitchen with defendant, because the informant said the guns might be in the living room. The deputy stayed in the living room; the sheriff and the parole officer’s brother followed them to the kitchen.

“Jerome, we have a right to search this house,” the parole officer said; then he told defendant that he was going to search the house, but would rather have defendant’s permission.

“The gun above the bed is not mine,” defendant said.

The parole officer told his brother to check. The brother checked. The gun was there. Defendant was handcuffed and arrested.

The officers searched the house. After most of the search had been completed and the evidence seized, the parole officer gave defendant a consent-to-search form to sign. Defendant signed it.

Charged with unlawful possession of the firearms found in the warrantless search, defendant moved to suppress the evidence. The circuit court refused, ruling that, based on the information supplied by the informant, the parole officer and the police had reason to investigate, and defendant had invited them in and had consented to the search. Defendant was convicted on two counts of unlawful possession of a weapon by a felon (Ill. Rev. Stat. 1987, ch. 38, par. 24— 1.1) and appeals on four grounds. We need only address one: whether the search and seizure was prohibited by the fourth amendment to the United States Constitution. U.S. Const., amend. IV.

The State makes three attempts to protect the search and seizure from constitutional attack. It argues: (1) a parole officer has the right to search a parolee’s house without a warrant if there are reasonable grounds; (2) defendant consented to the search; and (3) there was no search because the gun was in plain view.

We reverse and remand.

The State maintains that the parole officer had a right to visit defendant at his house and conduct a search without a warrant, arguing that defendant, as a parolee, does not have the same expectation of privacy as other citizens and is not entitled to the same degree of constitutional protection from searches and seizures. The State relies on Griffin v. Wisconsin (1987), 483 U.S. 868, 97 L. Ed. 2d 709, 107 S. Ct. 3164, which held that a probation officer may search a probationer’s home without a warrant where there are reasonable grounds to do so under administrative rules authorizing such conduct. Griffin is distinguishable because Wisconsin’s parole regulations expressly permit a warrantless search of a probationer’s home. In Griffin, the Court focused on a Wisconsin Department of Social Services regulation that allowed a probation officer to search a probationer’s home without a warrant “as long as his supervisor approves and as long as there are ‘reasonable grounds’ to believe the presence of contraband.” (Griffin, 483 U.S. at 871, 97 L. Ed. 2d at 715, 107 S. Ct at 3167.) The Court held that the State regulation satisfied the fourth amendment, because the information possessed by the officer satisfied Federal “reasonable grounds” standards. In the case at bar, however, there is no such regulation. In Illinois, conditions of parole are governed by the Unified Code of Corrections. (Ill. Rev. Stat. 1989, ch. 38, par. 1001 — 1—1 et seq.) Three sections are relevant here.

Section 3 — 3—7(b)(6) states:

“(b) The Board may in addition to other conditions require that the subject:
* * *

(6) permit the agent to visit him at his home or elsewhere to the extent necessary to discharge his duties.” Ill. Rev. Stat. 1989, ch. 38, par. 1003-3-7(b)(6).

Section 3 — 3—7(c) states:

“The conditions under which the parole *** is to be served shall be communicated to the person in writing prior to his release, and he shall sign the same before release.” Ill. Rev. Stat. 1989, ch. 38, par. 1003-3-7(c).

Section 3 — 3—7(d) states:

“[T]he Prisoner Review Board may modify or enlarge the conditions of parole *****.” (Ill. Rev. Stat. 1989, ch. 38, par. 10&3-3 — 7(d).)

Defendant’s conditions of parole were given to him in writing and signed by him. These conditions did not contain permission to search his house without a warrant, and the Prisoner Review Board neither enlarged nor modified the conditions of defendant’s parole to include the warrantless search of his house. The Prisoner Review Board could have imposed as a condition of parole that defendant permit a parole officer to visit him at his home “to the extent necessary to discharge [the parole officer’s] duties,” but did not. Griffin, therefore, does not apply.

We then are presented with the question whether the warrantless search of defendant’s house was prohibited by the fourth amendment. The Wisconsin Supreme Court in State v. Griffin (1986), 131 Wis. 2d 41, 388 N.W.2d 535, held that the fourth amendment did not bar a search of a probationer’s house, a holding perhaps properly characterized as one more chunk of ice thrown into the gathering, rapidly moving, and deeply chilled current of cases that lap at freedom’s bank; but the United States Supreme Court refused to allow itself to be pulled into that current. It stayed on the bank, pointing out that the Wisconsin analysis made new constitutional law, and instead based its own holding on the State regulation. As the Supreme Court stayed on shore, we likewise do, for we are not so intrepid as to jump to the iceflow eschewed by the Supreme Court. In our refusal, we note that all must concede that if defendant had not been on parole, this warrantless entry and search would have been dismissed out of hand. But merely because defendant is a parolee does not mean that he has forfeited all his constitutional rights. Griffin, 483 U.S. at 872, 97 L. Ed. 2d at 717, 107 S. Ct. at 3168.

We hold that the status of a parolee is insufficiently different from the status of an unconvicted citizen to warrant allowing the government to ignore the sanctity of hearth and home, intrude at will, and pry into the secrets therein. We are aware of no case from Runnymede, in 1215, to Ashley, Illinois, in 1991, that holds such a doctrine. Had there been such a case we are confident that Mr. Justice Scalia would have found it, cited it, and used it in Griffin instead of branding the proposition “a new principle of law.” Griffin, 483 U.S. at 872, 97 L. Ed. 2d at 717, 107 S. Ct. at 3168.

The State argues, secondly, that defendant consented to the search. We disagree. The fourth amendment and article I, section 6, of the Illinois Constitution (U.S. Const., amend. IV; Ill. Const. 1970, art. I, §6) prohibit unreasonable searches and seizures. With few exceptions, warrantless searches are generally unreasonable and unconstitutional; one such exception is a search pursuant to valid consent. (See People v. Bayles (1980), 82 Ill. 2d 128, 411 N.E.2d 1346.) Consent is a question of fact for the trial court, and a reviewing court will not disturb that ruling unless it is clearly erroneous. (People v. DeMorrow (1974), 59 Ill. 2d 352, 320 N.E.2d 1.) We examine defendant’s consent.

Here, defendant answered the door of his girlfriend’s house where he was babysitting, finding as he did, his parole officer, the parole officer’s brother, and two uniformed policemen. The parole officer told defendant he had heard that defendant had some guns and some stolen stereo equipment and asked if he could come in. Once in the house, the parole officer told defendant that they had a right to search the house for guns and were going to search the house for guns, seeking defendant’s permission, in effect, only as an unnecessary courtesy. Faced with that, the defendant replied, “The gun above the bed is not mine.” At this point, the police searched the house.

More than mere acquiescence to a claim of lawful authority must be shown to establish voluntary consent. (People v. Johnson (1981), 99 Ill. App. 3d 863, 425 N.E.2d 1215, citing Bumper v. North Carolina (1968), 391 U.S. 543, 20 L. Ed. 2d 797, 88 S. Ct. 1788.) The search conducted here was done before consent was given. We have found no case — and we think none can be found — that permits a warrantless search to be ratified by signing a consent-to-search form after the search has, for the most part, been completed.

Furthermore, it is axiomatic that consent must be voluntary. The State argues that telling defendant that they had a right to search and were going to search did not amount to coerced consent. The State relies on: People v. Magby (1967), 37 Ill. 2d 197, 226 N.E.2d 33, which held a consent valid where the police told defendant that if he did not permit the search, they would get a warrant; People v. Zynda (1977), 53 Ill. App. 3d 794, 368 N.E.2d 1079, which held a consent valid where police told defendant that things would go easier on him if he permitted the search; and People v. Holliday (1983), 115 Ill. App. 3d 141, 450 N.E.2d 355, which held a consent valid where the police told defendant that a judge was about to sign a search warrant. These cases have no application to the facts in the case at bar, because the search in this case was conducted before consent was given. The parole officer told defendant, in essence, that his consent did not matter, and gave defendant a consent form to sign only after the house had been searched, the evidence seized, and defendant placed in handcuffs and forced to sit at the kitchen table.

The State argues lastly that no search occurred because the the parole officer’s brother saw the gun in plain view. The State argues that defendant had all but directed the parole officer’s brother to the bedroom where the gun was found by pointing to the direction of the bedroom when he said, “The gun above the bed is not mine,” and that the parole officer’s brother merely looked into the bedroom, saw the gun, and seized it. We are unpersuaded. The parole officer testified that he directed his brother to go to the bedroom to see if a gun was there. This was done immediately after defendant said the gun was not his. Plain view, an exception to the warrant requirement (see People v. Hebel (1988), 174 Ill. App. 3d 1, 527 N.E.2d 1367), does not apply to these facts, because the view must take place from an area where the officer has a lawful right to be. (See People v. Testa (1984), 125 Ill. App. 3d 1039, 466 N.E.2d 1126.) Although here the parole officer’s brother had a right to be in the house — since he arguably had been invited in — he moved at the direction of his brother to an area of the house where he had no permission to go, no lawful right to be, and it was from this place that he saw the gun. See People v. Freeman (1984), 121 Ill. App. 3d 1023, 460 N.E.2d 125.

The circuit court is reversed, and this cause is remanded to the circuit court for entry of an order suppressing the evidence and for a new trial.

Reversed and remanded.

WELCH and HARRISON, JJ., concur.

      We express no opinion whether this condition would carry with it the power to search or whether a search incident to such a condition would withstand the demands of the fourth amendment.


author: JUSTICE CHAPMAN

text:
    WILLIAM A. ROSE, Plaintiff-Appellee, v. RUTH POTTS, Defendant-Appellant (In re Marriage of William A. Rose, Plaintiff, and Connie L. Rose, now Connie L. Saffle, Defendant-Appellee; In re Custody of Stacey Marie Rose, a Minor).
    Fifth District
    No. 5 — 90—0238
    Opinion filed August 21, 1991.
    William K. Thomas, of Robinson, for appellant.

      Mark Shaner, of Law Offices of Price & Shaner, of Robinson, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The circuit court of Crawford County awarded custody of Stacey Marie Rose (hereinafter Stacey) to her mother, Connie Rose, now Connie Saffle (hereinafter Connie), over the claims of Stacey’s father, William Rose (hereinafter William), and her paternal grandmother, Ruth Potts (hereinafter Ruth). Only Ruth has appealed. She alleges that the trial court erred in applying the presumption that custody in the natural parent serves the best interest of the child and that even if this presumption was applicable, the trial court’s finding that she had not overcome it was against the manifest weight of the evidence. The relevant facts will be set forth below chronologically.

In 1983 Connie, at age 17, gave birth to her first child, Michael. Connie and Michael lived with Connie’s parents in Wichita, Kansas, for one year. Connie then obtained a court order placing legal custody of Michael with her parents and joined the United States Army. Shortly thereafter, on February 25, 1984, she married William, who was also a member of the United States Army. Michael remained with Connie’s parents. On December 12, 1985, Connie gave birth to Stacey, and on February 16, 1986, William delivered Stacey to Ruth in West York, Illinois. Connie and William separated on February 19, 1986, and were divorced on April 2, 1986. The decree awarded custody of Stacey to William and provided liberal visitation for Connie. Connie was also ordered to pay $41.50 in monthly child support. The record reveals that Connie did not contest the custody proceedings.

After being discharged from the army in June of 1986, Connie moved back to her parents’ home. In September of 1986 she was convicted and sentenced to 60 days in the county jail and three years’ probation for writing “bad checks.” After being released from jail, Connie worked at her parents’ daycare center earning $75 a week. Connie paid no rent while living with her parents. Also, the record indicates that Connie began receiving disability payments in the amount of $236 in February of 1987. Connie moved out of her parents’ home in November of 1987 and married Mike Saffle on December 1, 1987. Michael remained in the care and custody of Connie’s parents, and Stacey continued to live with Ruth.

In the summer of 1988 William informed Ruth that he intended to take Stacey to live with him in Germany. Ruth sought guardianship rights over Stacey and told Connie of William’s intentions. Thereafter, Connie, William, and Ruth filed petitions seeking permanent custody of Stacey. In September 1989 Connie gave birth to her third child, Joshua.

Connie and Mike Saffle and their son, Joshua, live in Hutchinson, Kansas, approximately 50 miles from Connie’s parents. Mike Saffle is an unemployed school teacher, but he makes $700 a month as a Wendy’s management trainee. Connie no longer works, but she has two years of college education and eventually hopes to return to college and become a schoolteacher. Connie and Mike Saffle have changed residences six times in the last two years, but they have recently made an offer to purchase a home.

The record reveals that during the four years that Ruth has cared for Stacey, Connie has paid only $420 to Ruth for Stacey’s support. While she called Stacey once a month and sent cards on birthdays and holidays, she visited Stacey for only portions of 17 days during this four-year period. Connie admitted that Ruth did not prevent her from visiting Stacey.

Ruth worked for two years as a secretary at Crawford’s Sand and Gravel before Stacey was left with her on February 16, 1986. She quit working to care for Stacey. During the first seven months that Stacey lived with Ruth, Dennis Potts, Ruth’s ex-husband, was the sole means of financial support. From March 1987 through September 1989, Ruth and Dennis received a monthly military allotment from the army through William in the sum of $275. In September 1989, Ruth and Dennis were divorced. Dennis does not provide financial support to Ruth. Ruth and Stacey now live with Ruth’s sister, Rose Beatty, and her two children. Rose’s husband passed away in 1986. Ruth pays no rent, but instead cleans the house for Rose. Ruth currently earns $100 a week cleaning and ironing. She does not receive any support from Connie or William. She intends to seek full-time employment in the future.

The undisputed testimony at trial was that Stacey was happy and well taken care of by Ruth. Stacey refers to Ruth as “Mommy.” The guardian ad litem recommended that custody of Stacey be awarded to Ruth.

Ruth initially asserts that the trial court erred in applying the superior-right doctrine after she had met the standing requirements of section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 601(b)(2)). This section provides:

“§601. Jurisdiction — Commencement of Proceeding. ***
(b) A child custody proceeding is commenced in the court:
* * *
(2) by a person other than a parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in the physical custody of one of his parents.”

Ruth argues that once she fulfilled the statutory rights, she and the natural parent were on equal ground, and the superior-rights doctrine was inapplicable. We disagree.

“In child-custody disputes it is an accepted presumption that the right or interest of a natural parent in the care, custody and control of a child is superior to the claim of a third person. The presumption is not absolute and serves only as one of several factors used by courts in resolving the ultimately controlling question of where the best interests of the child lie.” (In re Custody of Townsend (1981), 86 Ill. 2d 502, 508, 427 N.E.2d 1231,1234.)

The trial court need not find that the natural parent is unfit or has forfeited her custodial rights before awarding custody to a nonparent if the best interests of the child will be served. (People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, 208-09, 247 N.E.2d 417, 422.)

“[A] third party seeking to obtain or retain custody of a child over the superior right of the natural parent must demonstrate good cause or reason to overcome the presumption that a parent has a superior right to custody and further must show that it is in the child’s best interests that the third party be awarded the care, custody and control of the minor.” Townsend, 86 Ill. 2d at 510-11, 427 N.E.2d at 1236.

The above-cited cases indicate that Ruth’s compliance with section 601(b)(2) did not place her on equal ground with Connie. Connie was entitled to the presumption that awarding her custody would serve the best interests of Stacey. However, while we conclude that the trial court applied the correct principle of law and while we recognize that in viewing the judgment of a trial court respectful weight must be given the consideration that the trial court had the opportunity of observing the witnesses (People ex rel. Edwards v. Livingston, 42 Ill. 2d at 210, 247 N.E.2d at 422), we conclude that the trial court’s finding that Ruth had not overcome the presumption was against the manifest weight of the evidence.

“Whenever the court is called upon to determine whether custody of a minor child should be awarded to the father of the child or his grandparentsf,] the ‘best interests of child’ doctrine stands for the proposition that custody be awarded in accordance with the best interest of the child regardless of the fitness of the father. We agree with appellant that there is a presumption that custody by the father will be in the best interest of the child and ordinarily the natural right of a father will prevail in a contest between him and the grandparents where both parties are equally fit to care for the child. However, the rule is applicable only when the father is not chargeable with laches or forfeiture as having left the child with the other party for a long period of time[,] and further the rule always yields to the best interest of the child. [Citation.] In a particular case the forces of environment may be so strong as to compel the court, in the best interests of the child, to deny the natural right of the father even when he is a perfectly fit person to have custody of the child.” (Emphasis in original.) (Look v. Look (1974), 21 Ill. App. 3d 454, 458, 315 N.E.2d 623, 626.)

While the fact that the nonparent has had physical custody of the child for a substantial length of time does not neutralize the superior-right doctrine, it may, in a given case, be the determining factor in the custody decision. Townsend, 86 Ill. 2d at 515, 427 N.E.2d at 1238.

In this case it is not disputed that Stacey was left with Ruth at the age of two months and has been raised by Ruth for nearly four years. Under Townsend, this fact alone would not overcome the presumption that custody should be placed with Connie. However, in this case it is also not disputed that Connie paid virtually no support to Ruth for her daughter’s support. Moreover, while she called Stacey once a month and sent cards on birthdays and holidays, she has only visited Stacey for portions of 17 days in four years. She asserted that she could not visit Stacey because of the considerable distance between them. However, she never attempted to bring Stacey into her home. She only sought custody of Stacey after being informed by Ruth that William was intending to take Stacey to Germany. We also cannot ignore the fact that Connie’s seven-year-old son, Michael, has spent nearly his entire life with his maternal grandparents. While Connie asserts that he is now spending summers with her, it is undisputed that legal custody of Michael remains with her parents.

We are certainly cognizant of the fact that Ruth’s circumstances are not ideal. However, as indicated earlier, it is not disputed that Stacey is happy and well cared for by Ruth. In addition, Ruth will be entitled to child support from Connie and William which will further improve her situation.

We cannot and will not speculate with the life of a child, and we must accept that which is apparent. (See Giacopelli v. Florence Crittenton Home (1959), 16 Ill. 2d 556, 566, 158 N.E.2d 613, 618.) Connie’s past conduct fails to inspire any degree of confidence in her ability to properly care for Stacey. The trial court’s decision to award permanent custody of Stacey to Connie was against the manifest weight of the evidence.

While we conclude that the interests of Stacey would have been best served by continuing her custody in Ruth, in view of the fact that Stacey has now lived with Connie for a period of time, we believe that Ruth should not now be awarded permanent custody of Stacey, but only temporary custody. We reverse the judgment and remand the cause to the circuit court of Crawford County for the entry of a decree awarding temporary custody and control of Stacey to Ruth. We direct also that the order should provide for reasonable visitation privileges in favor of Connie and William. See People ex rel. Edwards v. Livingston, 42 Ill. 2d 201, 247 N.E.2d 417.

Reversed and remanded with directions.

RARICK and GOLDENHERSH, JJ., concur.