author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD SHRINER, Defendant-Appellant.
    Second District
    No. 2—88—0227
    Opinion filed June 15, 1990.
    Rehearing denied July 16, 1990.

      G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Michael Shevick, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Edward Shriner, was indicted in the circuit court of Du Page County on two counts of home invasion (Ill. Rev. Stat. 1985, ch. 38, par. 12—11), two counts of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18—2(a)), two counts of unlawful restraint (Ill. Rev. Stat. 1985, ch. 38, par. 10—3(a)), four counts of armed violence (Ill. Rev. Stat. 1985, ch. 38, par. 33A—2), and two counts of residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19—3(a)). The residential burglary and armed violence counts were nol-prossed, and, following a jury trial, defendant was found guilty of all counts of home invasion, armed robbery, and unlawful restraint. Defendant was determined to be a habitual criminal (Ill. Rev. Stat. 1985, ch. 38, par. 33B—1 et seq.) and was sentenced to natural life imprisonment on the home invasion and armed robbery convictions.

On appeal, defendant raises the following issues: (1) whether the trial court abused its discretion in excluding the testimony of an alibi witness as a sanction for defendant’s violation of the discovery rules; (2) whether one of defendant’s home invasion convictions should be vacated because defendant committed only one illegal entry; (3) whether the habitual criminal statute is unconstitutional; and (4) whether defendant’s previous conviction under a Federal armed bank robbery statute constitutes a prior offense for purposes of the habitual criminal statute.

The relevant facts are as follows. On April 1, 1986, at about 8 to 8:30 p.m., the victims, Salvador and Darlene Barrocas, were at home in Medinah, Illinois, when they heard a car pull into their driveway. Mr. Barrocas went to the front door while his wife turned on the outside and foyer lights. The Barrocases observed two men, one they identified in court as defendant, on their front sidewalk. After a brief conversation with the men, Mrs. Barrocas reentered the house and wrote down the license plate number, JXL 258, of the car driven by the men. The younger man, not the defendant, asked Mr. Barrocas to write down some directions to a particular address in the subdivision, which Mr. Barrocas entered his lighted garage to do. The younger man and defendant entered the garage, drew handguns, and ordered the Barrocases into a utility room, which was lighted. While in the utility room, the Barrocases were able to see the men’s uncovered faces.

The men then placed the victims in the bathroom. They observed both men again when the men removed Mr. Barrocas to help them unlock a gun cabinet. Again, when the men took him into the bedroom, Mr. Barrocas had another opportunity to view defendant. Both men left at about 9:45 p.m. after taking numerous items of personal property and money.

The Barrocases gave descriptions of both men to the police and described the perpetrators’ car as a blue compact with license plate number JXL 258. Later, the Barrocases picked defendant and William DeBusk from two separate photo arrays as the men who entered their home on the evening of April 1, 1986. They also separately picked defendant and DeBusk out of two separate lineups on April 3,1986.

On April 2, 1986, at approximately 1 p.m., the police stopped a blue, Ford Escort with license plate number JXL 258. This vehicle was leased to Terrence Maloney, who informed the police, and later testified, that he had leased the vehicle for his friend, defendant, who used the car and paid him for the rental. Defendant was driving the car, and DeBusk and another person were passengers. After removing all three occupants from the vehicle, the police observed a handgun protruding from an athletic bag in the car. Further examination revealed a second handgun in the bag. The three occupants were then taken to the police station, and the vehicle was driven to the police garage.

At the station, defendant was searched and $217.24 was found on his person, including a $100 bill and a $2 bill. Additionally, a ladies’ watch was removed from defendant’s pants’ pocket. Mrs. Barrocas identified the watch as hers and stated that it had been missing since April 1, 1986. According to the Barrocases, they habitually carried a $100 bill in their billfolds and that both billfolds were missing as of April 1. Their son’s $2 bill collection was also missing. Furthermore, numerous items seized from the vehicle driven by defendant were identified as property owned by the victims and missing from their home following the April 1 home invasion.

During trial and prior to the State’s final witness’ testimony, the prosecutor advised the court that he had talked to an “alibi witness” provided by defendant pursuant to discovery, who indicated that she had mailed a notarized affidavit summarizing her potential testimony to defendant and his defense attorney about one year earlier. The prosecutor then orally requested the affidavit. Defense counsel denied receiving such an affidavit, and defendant volunteered that the affidavit had been mailed to him at a time when he had elected to defend himself with only the assistance of standby counsel. A copy of the affidavit was then given to the prosecutor by defendant. The prosecutor indicated to the court that he would pursue the matter after presenting his last witness.

The matter regarding the affidavit was again taken up after the State rested. At that time, defense counsel indicated that he had interviewed the affiant and that she had indicated she would not testify to an exact time when defendant left her residence on the evening of April 1 but only that it was dark. The affidavit states that defendant left between 8:30 p.m. and 9 p.m. The trial court ruled that it would not allow the affiant to testify regarding an alibi.

Following further argument by both defense counsel and the prosecutor, the court allowed voir dire of the affiant, Jean Woody. Woody acknowledged preparing the affidavit at defendant’s request. She then stated that defendant and DeBusk arrived at her residence in Dixmoor, Illinois, at around 4 p.m. on April 1, 1986. She further stated that defendant and DeBusk left at about 8:30 p.m. or 9 p.m. According to Woody, she recalled the time because she ended up cooking out on her grill after dark because of the two men interrupting her original dinner plans and that after she had eaten, the 10 p.m. news was about to come on. Woody stated on cross-examination that she mailed a copy of the affidavit to both defendant and his trial counsel, but stated on redirect that she mailed a copy to trial counsel at a downtown Chicago address. The trial court acknowledged that trial counsel has never had a downtown Chicago office.

The trial court found Woody’s proposed testimony to constitute an alibi defense and again ruled that Woody would not be able to testify as an alibi witness.

DeBusk testified on behalf of defendant. According to DeBusk, on the evening in question, he and defendant went to Jean Woody’s residence near Blue Island, Illinois, at about 4 p.m. and he and defendant left at about 7:45 p.m. He and defendant then drove to defendant’s residence, he borrowed defendant’s blue Escort and, along with someone named Kenny, committed the offenses at the Barrocases’ residence. At about 12:10 a.m., DeBusk and someone named Wedlake picked up defendant, and the trio spent the night at a Holiday Inn. The following morning, DeBusk and Wedlake tried to pawn some of the jewelry. DeBusk gave defendant a ladies’ watch taken from the Barrocases’ residence to give to defendant’s girlfriend.

Officer Thomas Vosburgh of the Du Page County sheriff’s office testified in rebuttal that DeBusk told him in an interview on April 2, 1986, that he had been with defendant continuously between Tuesday afternoon, the day of the offense, and the time he and defendant were arrested.

We first address defendant’s contention that the trial court abused its discretion in refusing to allow Jean Woody to testify to an alibi defense. We begin by determining that Woody’s proposed testimony, based on her affidavit and her testimony during voir dire, constituted an alibi defense. According to her affidavit and her testimony during the voir dire, defendant did not leave her residence until 8:30 p.m. or 9 p.m. Mrs. Barrocas testified that defendant and the other man arrived at her house sometime between 8 p.m. and 8:30 p.m.. As defendant clearly could not be in two places at once, Woody’s proposed testimony constituted an alibi defense. (See People v. Fritz (1981), 84 Ill. 2d 72, 76-77, 417 N.E.2d 612.) Defendant’s failure to timely furnish Ms. Woody’s affidavit to the State, as defendant concedes on appeal, was a violation of Rule 413(d)(i) (107 Ill. 2d R. 413(d)(i)). We further believe that defendant’s failure to submit the affidavit to the State also constituted a violation of Rule 413(d)(iii), as that rule requires defendant to provide if he “intends to prove an alibi, specific information as to the place where he maintains he was at the time of the alleged offense.” (107 Ill. 2d R. 413(d)(iii).) The affidavit here clearly contains information regarding the specific place he maintained he was at and should, therefore, have been provided to the State.

Supreme Court Rule 415(g)(i) provides:

“(g) Sanctions.
(i) If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other order as it deems just under the circumstances.” 107 Ill. 2d R. 415(g)(i).

In Taylor v. Illinois (1988), 484 U.S. 400, 98 L. Ed. 2d 798, 108 S. Ct. 646, the United States Supreme Court addressed the propriety, under the sixth amendment to the Federal Constitution, of excluding a defense witness from testifying as a sanction for failure to disclose that witness pursuant to Illinois’ criminal discovery rules. In holding that exclusion did not violate the compulsory process clause of the sixth amendment, the Court rejected defendant’s contention that exclusion could never be an appropriate sanction regardless of the egregiousness of the discovery violation. (Taylor, 484 U.S. at 416, 98 L. Ed. 2d at 815, 108 S. Ct. at 656.) Rather, the Court held that, where there is evidence that a defendant’s discovery violation is wilful and blatant, it does not offend the sixth amendment to exclude the evidence which defendant had a duty to disclose pursuant to the appropriate discovery rule. (Taylor, 484 U.S. at 417, 98 L. Ed. 2d at 815-16, 108 S. Ct. at 656-57.) The Court further emphasized that in Illinois the sanction of preclusion is limited to only the most extreme cases of discovery violations. Taylor, 484 U.S. at 417 n.23, 98 L. Ed. 2d at 816 n.23, 108 S. Ct. at 657 n.23, citing People v. Rayford (1976), 43 Ill. App. 3d 283, 356 N.E.2d 1274; see also People v. Carrasquillo (1988), 174 Ill. App. 3d 1023, 1032-33, 529 N.E.2d 603.

We turn then to the facts of this case. Here, there is no indication that the trial judge ever determined that defendant or his attorney wilfully or blatantly violated discovery by failing to submit Woody’s affidavit to the State. Moreover, on this record, we find no evidence that the failure to give the State a copy of the affidavit was in any way wilful and blatant. Defense counsel stated that he never knew of the affidavit’s existence until the State’s Attorney brought it up during trial. Although Woody stated she sent a copy to defense counsel at his downtown Chicago address, the trial judge acknowledged that defense counsel never has had a Chicago office. While defendant himself did possess a copy of the affidavit, we cannot say that a defendant, unversed in the complexities of the discovery rules, would recognize the need to submit the affidavit to the State. Moreover, there is no evidence that defendant withheld the affidavit intentionally to gain some tactical advantage or to disrupt the proceedings. Absent a showing of wilful and blatant violation in failing to submit the affidavit to the State, the exclusion of Woody as an alibi witness impinged on defendant’s sixth amendment right to compulsory process and constituted a clear abuse of discretion in this case.

It is also important to note that defendant did indicate Woody as a potential alibi witness by submitting his amended answer to discovery three weeks prior to trial. In the amended answer, he listed three potential witnesses, one of whom was Woody. Furthermore, he indicated in the amended answer that he would present an alibi witness. While his amended answer does not contain the specific information regarding his alibi defense to be testified to by Woody, it does belie any suggestion that defendant wilfully and blatantly failed to submit Woody’s affidavit. Although the State suggested to the trial judge that it had no duty to interview defendant’s witnesses listed in his amended answer anytime prior to when it did, which was during trial, it is equally clear that had the State interviewed Woody prior to trial it would have been aware of the affidavit’s existence prior to trial and presumably in time to have investigated properly the assertions contained therein.

Finally, we think it worthy to note that the trial judge, in considering whether to exclude Woody’s alibi testimony, apparently never gave proper consideration to other alternative sanctions such as a continuance. From our review of the record, the assistant State’s Attorney’s primary concern with the timing of submission of the affidavit was that he would have no opportunity to investigate Woody’s statements contained therein concerning her verification of the date in question. The affidavit indicates that Woody checked with her school to verify her class schedule and that she was not at school on the evening in question. We do not perceive such information to be so difficult for the State’s Attorney’s office to investigate as to render a continuance impractical or inconvenient, particularly where the State was nearly finished with its case in chief. Furthermore, we do not believe it would have been necessary for the State to have conducted a criminal records check of Woody at that point as she had been revealed as a potential defense witness three weeks prior to trial, which presumably gave the State adequate time to investigate her background and assess her credibility generally. Under the circumstances of this case, it was a clear abuse of discretion to have excluded Woody’s alibi testimony as a discovery sanction.

Although the trial judge abused his discretion and denied defendant his sixth amendment right to compulsory process, we believe such error to be harmless in this case. Even though error of constitutional magnitude occurred in this case, we may consider whether such error was harmless. Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824; see People v. Mahaffey (1989), 128 Ill. 2d 388, 434, 539 N.E.2d 1172; People v. Crews (1988), 122 Ill. 2d 266, 288, 522 N.E.2d 1167; see also People v. Echols (1986), 146 Ill. App. 3d 965, 972-73, 497 N.E.2d 321 (exclusion of defense witness as sanction for discovery violation is harmless error in light of overwhelming evidence of defendant’s guilt).

Here, the evidence implicating defendant in the crimes charged was overwhelming. Both victims had numerous opportunities to view defendant during the commission of the crime, close-up and under good lighting conditions. Both victims gave fairly detailed descriptions of defendant, and Mrs. Barrocas wrote down the license plate number of the vehicle used which matched that of the vehicle driven by defendant. Furthermore, both victims selected defendant’s photograph from separate photo arrays, chose defendant from two separate lineups, and identified defendant in court. When police stopped a vehicle bearing the license plate number written down by Mrs. Barrocas, defendant was driving and had in his pants’ pocket a ladies’ watch taken from the Barrocases’ home on April 1, 1986. Defendant also had a $100 bill and a $2 bill in his possession, those particular denominations having been taken from the Barrocases’ residence. Additionally, numerous other items taken from the Barrocas home were found in defendant’s vehicle shortly after his arrest. While we are cognizant of defendant’s right to present alibi defense witnesses and note that William DeBusk testified in that regard, we believe that this evidence was so overwhelming that the error in excluding Woody’s alibi testimony was harmless beyond a reasonable doubt.

We next address defendant’s contention that one of his home invasion convictions must be vacated under People v. Parker (1988), 166 Ill. App. 3d 123, 519 N.E.2d 703. The State concedes that defendant is entitled to vacatur of one of his home invasion convictions. We agree that one of his home invasion convictions must be vacated as he only entered one home even though two victims were present. (People v. McDarrah (1988), 175 Ill. App. 3d 284, 300-01, 529 N.E.2d 808; People v. Parker (1988), 166 Ill. App. 3d 123, 129-30, 519 N.E.2d 703; People v. Yarbrough (1987), 156 Ill. App. 3d 643, 646, 509 N.E.2d 747.) We therefore vacate defendant’s home invasion conviction and sentence as alleged in count II of the indictment.

We next consider defendant’s contention that the habitual criminal statute is unconstitutional. In this regard, defendant maintains that the statute is unconstitutional because: (1) it was enacted in violation of article IV, section 8(d), of the Illinois Constitution (Ill. Const. 1970, art. IV, §8); (2) it violates due process and the eighth amendment of the Federal Constitution; (3) it violates the separation of powers doctrine of the Illinois Constitution; and (4) it violates the prohibitions against ex post facto laws and double jeopardy contained in both the Federal and State Constitutions. Defendant acknowledges that this court has on two prior occasions rejected the same arguments presented in this appeal and further concedes that he failed to raise these constitutional challenges in the trial court but urges us to review them under plain error.

As this court has, on two prior occasions, considered the same constitutional challenges to the habitual criminal statute presented by defendant here (People v. McDarrah (1988), 175 Ill. App. 3d 284, 529 N.E.2d 808; People v. Westefer (1988), 169 Ill. App. 3d 59, 522 N.E.2d 1381), we again reject these contentions and hold the statute to be constitutional.

Finally, we consider defendant’s contention that he was improperly sentenced under the habitual criminal statute (Ill. Rev. Stat. 1987, ch. 38, par. 33B—1 et seq.). Specifically, he argues that the State failed to prove whether his prior 1975 conviction under section 2113(d), title 18, Crimes and Criminal Procedure (18 U.S.C.A. §2113(d) (West 1984)) was for a completed armed robbery as opposed to an attempted armed robbery. He further maintains that, even if it were proved that he committed armed bank robbery under the Federal statute, such conviction would not satisfy the habitual criminal statute as the Federal statute, which encompasses both attempted armed bank robbery and the completed offense, is not facially equivalent to a Class X felony.

The State initially responds that the issue is waived because defendant never raised a specific challenge pursuant to section 33B—2(c) of the statute, which states:

“(c) Any claim that a previous conviction offered by the prosecution is not a former conviction of an offense set forth in Section 33B—1 because of the existence of any exceptions described in this Act, is waived unless duly raised at the hearing on such conviction, or unless the prosecution’s proof shows the existence of such exceptions described in this Act.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 33B-2(c).)

While section 33B—1(d) arguably provides for such exceptions, none are applicable in this case. Therefore, defendant’s failure to raise any of those exceptions in the trial court does not waive presentation of the issue on appeal.

The State concedes that there was no specific evidence offered below to prove whether defendant was convicted of armed bank robbery or attempted armed bank robbery under the Federal statute but maintains that the certified record of that conviction states it was of the completed offense. Upon examining the certified record of defendant’s conviction under section 2113(d) admitted at the sentencing hearing, we are convinced that the State did establish that defendant was convicted of the completed offense of armed bank robbery. The certified record of conviction states that defendant was convicted of “aiding and abetting in armed bank robbery, in violation of 18 U.S.C. 2 and 2113(d).” On its face, the record of conviction states defendant was convicted of armed bank robbery, not attempted armed bank robbery. Defendant offered no evidence to rebut this, nor does the certified record in any way suggest that he was convicted of attempted armed bank robbery rather than armed bank robbery. The only argument advanced by defendant in the trial court was that the words “aiding and abetting” in the certified record of conviction suggests some other offense than armed bank robbery. The unrebutted evidence establishes that defendant was convicted of armed bank robbery which was properly considered as a qualifying Class X offense for purposes of the habitual criminal statute.

We would further note that as the State established that defendant was convicted of armed bank robbery, we need not consider defendant’s facial equivalency argument. Defendant’s reliance on People v. Cannady (1987), 159 Ill. App. 3d 1086, 513 N.E.2d 118, is misplaced. Cannady merely holds that the critical question is not what name is given to a prior offense, but, rather, whether the prior offense contains the same elements as an offense now classified in Illinois as a Class X felony. (159 Ill. App. 3d at 1090, 513 N.E.2d at 121.) Here, the prior offense, armed bank robbery, contained within section 2113(d), contains essentially the same elements as our armed robbery statute and thus qualifies under our habitual criminal statute. We decline to accept defendant’s attempt to equate “offense” with “statute.”

The judgment of the circuit court of Du Page County is affirmed in all respects except that the conviction and sentence in count II are vacated.

Affirmed in part; vacated in part.

INGLIS and McLAREN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
    VALERIE L. CARRILLO, Plaintiff-Appellant, v. LEO HAMLING, Indiv. and in his Capacity as a Police Officer of the City of Aurora, Defendant-Appellee.
    Second District
    No. 2—89—0907
    Opinion filed June 20, 1990.

      Phillip S. Wood, of Pasky & Wood, of Aurora, for appellant.
    Thomas P. Schreschel, of Querrey & Harrow, Ltd., of Geneva, and Ellyn B. Dorf and Michael Resis, both of Querrey & Harrow, Ltd., of Chicago, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Valerie Carrillo, appeals the trial court’s order dismissing her complaint against defendant, Leo Hamling, the trial court having found that defendant was on duty as a police officer at the time he allegedly inflicted injuries upon plaintiff, a fellow police officer. Thus, the trial court ruled that defendant was immune from plaintiff’s common-law tort claim pursuant to the exclusivity provision of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(a)). On appeal, plaintiff contends that the trial court’s ruling in this regard is erroneous as a matter of law. We agree and therefore reverse the order and remand the cause.

The trial court granted defendant’s motion to dismiss filed pursuant to section 2—619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—619(a)(9)). For purposes of such a motion, the trial court is obliged to accept as true all well-pleaded facts in the complaint, along with all the reasonable inferences which may be drawn therefrom. (Basler v. Webb (1989), 188 Ill. App. 3d 178, 180.) Thus, we may adduce the following facts from plaintiff’s complaint.

Plaintiff, an Aurora, Illinois, police officer, was on duty on December 10, 1986, when she responded to a call for aid at 325 West Downer Place, Aurora. There plaintiff found defendant, a fellow police officer, battering his wife. Plaintiff approached defendant and verbally ordered him to cease the attack. When defendant did not respond, plaintiff attempted to restrain him. However, defendant turned and flung plaintiff onto the cement sidewalk forcefully enough to cause multiple fractures to plaintiff’s left leg, among other injuries.

On February 1, 1988, plaintiff filed a three-count complaint against defendant and various other city officials and employees including the chief of police. In count I, plaintiff named defendant individually, alleging that defendant had negligently caused her injuries; in count II, plaintiff alternatively alleged that defendant had intentionally injured her; in an amended count III, plaintiff charged defendant, the chief of police and other city officials and employees, in their official capacities, with conspiring to cover up defendant’s alleged numerous attacks on other women, thus insulating defendant from arrest and/or departmental discipline. The police chief and the city have been dismissed as defendants by agreement, and they are not parties to this appeal.

Defendant filed an answer and various affirmative defenses, in which he claimed, inter alia, that plaintiff had been awarded worker’s compensation benefits as a result of her worker’s compensation claim for the injuries she sustained on December 10, 1986. Defendant claimed that since plaintiff elected her worker’s compensation remedy, she “has forfeited her right to recover *** from the Defendant, LEO M. HAMLING, a fellow servant and employee, on a common-law claim.” Defendant cited section 5(a) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(a)) in support of this affirmative defense.

Defendant subsequently filed a motion to dismiss plaintiff’s complaint pursuant to section 2—619(a)(9) (Ill. Rev. Stat. 1987, ch. 110, par. 2—619(a)(9)), in which he stated that according to a general order of the Aurora police department, an Aurora police officer “will be considered as being always on duty.” Defendant argued that an injured police officer who receives worker’s compensation benefits for her injuries, such as plaintiff, cannot maintain a separate civil action against a co-worker whose acts allegedly caused her injuries, whether such acts were negligent or intentional. Defendant relied upon Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229, 241, and Fregeau v. Gillespie (1983), 96 Ill. 2d 479, 486.

The trial court heard the parties’ arguments on the motion and concluded, on the basis of the cited general order, that:

“Police officers in the City of Aurora are on duty around the clock. And therefore, the fellow servant rule and the cases cited by [defendant’s counsel] *** are appropriate, and the complaint is dismissed.”

Plaintiff’s timely appeal ensued.

The issue presented in this appeal is whether section 5(a) of the Act, the so-called exclusivity provision (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(a)), precludes plaintiff’s common-law tort action against defendant, a co-worker. Section 5(a) provides, in pertinent part:

“No common law or statutory right to recover damages from the employer, his insurer, his broker *** or the agents or employees of any of them for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act ***.” (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(a).)

Thus an individual who is injured in the course of his employment may not sue his employer or fellow employees for damages.

The supreme court has interpreted this provision in the Act as barring an injured employee’s suit against a co-worker who has inflicted injuries through his negligence (Rylander v. Chicago Short Line Ry. Co. (1959), 17 Ill. 2d 618); through his wilful or wanton conduct (Sjostrom v. Sproule (1965), 33 Ill. 2d 40); and even through his intentional acts (Fregeau v. Gillespie (1983), 96 Ill. 2d 479; Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229). Interestingly, however, the court has held that this section provides for the election of remedies, that is, the injured employee who chooses to pursue his worker’s compensation claim and receives benefits pursuant to the Act forfeits any right to maintain a common-law action, while, apparently, an employee who foregoes his worker’s compensation claim and the attendant benefits may sue the tort-feasor/co-worker. (See Fregeau, 96 Ill. 2d at 485-86; Collier, 81 Ill. 2d at 241-42.) Recently, the appellate court has considered the holdings in both Collier and Fregeau and has held that section 5(a) of the Act does not bar the injured employee’s intentional tort action against a co-worker where the injured employee has filed a compensation claim but has not yet recovered any benefits. (Witham v. Mowery (1987), 161 Ill. App. 3d 322, 324-25.) As the Witham court observed:

“The Fregeau opinion repeated much of the language of Collier and stated that the court still had not determined whether an employee can sue a coemployee for an intentional tort arising in the course of and out of employment. Both decisions were based on the actual receipt of workers’ compensation benefits by the employee claiming to have been intentionally injured. Neither decision is authority for the proposition that the mere filing of a claim for such benefits bars a suit in tort against the coemployee.” 161 Ill. App. 3d at 324.

In the instant cause, it is undisputed that plaintiff has received worker’s compensation benefits for the injuries she sustained when defendant threw her on the sidewalk on December 10, 1986. The trial court determined that, by virtue of his status as an Aurora city police officer, defendant was “on duty around the clock.” The trial court then concluded that plaintiff’s complaint should be dismissed.

In essence, the trial court ruled that plaintiff was barred from maintaining a common-law tort action against defendant because the parties were co-workers who were “on duty” at the time defendant injured plaintiff. The trial court’s order dismissing plaintiff’s complaint relies upon the holdings of Collier and Fregeau, cited by defendant in his motion to dismiss, and upon the Aurora police department’s general orders, which provide that an officer “will be considered as being always on-duty.” We hold that the trial court’s decision that defendant was “on duty” is erroneous as a matter of law; further, we hold that defendant’s mere status as plaintiff’s co-worker does not shield defendant from liability for plaintiff’s injuries which resulted from defendant’s intentional acts. Thus, the judgment of the trial court dismissing plaintiff’s complaint must be reversed.

Defendant’s section 2—619(a)(9) motion to dismiss plaintiff’s complaint relied heavily upon paragraph 12.6.1 of the Aurora police department general orders to establish that defendant was on duty at the time he injured plaintiff. The trial court’s judgment rests squarely on its interpretation and application of this local rule. Although neither party submitted a certified copy of the police department’s general orders, both submitted photocopies purporting to portray the rule at issue. The trial court apparently took judicial notice of the photocopies and issued its order accordingly. This court, too, may take judicial notice of documents under section 8—1002 of the Code of Civil Procedure, which provides that “[ujpon the review of any court of appellate jurisdiction of a judgment or order of a circuit court the court of appellate jurisdiction shall take judicial notice of all matters of which the circuit court was required to take judicial notice.” (Ill. Rev. Stat. 1989, ch. 110, par. 8—1002.) Nevertheless, no court can take judicial notice of a document or ordinance which it does not have before it or to which it does not have access. (People v. Davis (1989), 180 Ill. App. 3d 749, 753.) For purposes of review of the present case only, and because the parties do not dispute this fact, we will consider that the photocopies of the police department rules contained in the record accurately portray their content.

Paragraph 12.6.1 appears in a section entitled “Hours of Duty” and provides in its entirety:

“Each and every member of the Aurora Police Department will be considered as being always on-duty. Although certain hours are allotted the respective members for the performance of duty on ordinary occasions, employees are expected to respond immediately day or night, in an emergency situation, on notice that their services are required.”

Immediately following this paragraph, paragraph 12.6.2 provides, in pertinent part:

“While technically off-duty, officers shall not be relieved from the responsibility of taking proper police action on any matter coming to their attention at any time.”

These paragraphs plainly disclose the Aurora police department’s intention that its officers shall be ready and available to respond to emergencies at any time, regardless of their duty status. In short, Aurora police officers are on call for emergency purposes around the clock. We do not believe, however, that these paragraphs can be read to imply that an off-shift police officer engaged in purely personal activities is “on duty” while performing such activities.

As our supreme court has noted:

“While it is generally true that a peace officer *** is on call 24 hours a day ***, it does not necessarily follow that every injury suffered by a peace officer is compensable. Any injury must still be incidental to one’s employment as a peace officer.” Siens v. Industrial Comm’n (1981), 84 Ill. 2d 361, 364.

See also Wolland v. Industrial Comm’n (1982), 91 Ill. 2d 58, 64.

Taking the allegations of plaintiff’s complaint as true, as we are obliged to do pursuant to section 2—619, defendant was beating his wife when plaintiff attempted to restrain him. Defendant turned and flung plaintiff to the ground, injuring her. Although defendant was undoubtedly subject to being called at the time he injured plaintiff, we cannot accept that defendant’s assault on plaintiff was incidental to his employment as a police officer. Had defendant himself been injured during the altercation, his injuries surely would not have been compensable under the Act as he was engaged in the commission of a crime, admittedly “a diversion totally unrelated to his employment as a police officer” (Wolland, 91 Ill. 2d at 64). The trial court’s finding that defendant was on duty as a police officer at the time he injured plaintiff is unsupported by the facts before the court and flies in the face of logic. We hold that for the purposes of defendant’s section 2—619(a)(9) motion to dismiss, defendant was not on duty at the time in question.

We note that on appeal defendant apparently abandons his contention that he was on duty at the time he injured plaintiff and instead raises, for the first time, the theory that his mere status as plaintiff’s co-worker shields him from liability for plaintiff’s injuries resulting from his intentional acts. As plaintiff correctly observes in her reply brief, the defendant had the opportunity to raise this theory before the trial court and failed to do so. As a general rule, issues not raised in the trial court are deemed waived and may not be presented and argued for the first time on appeal. (In re Marriage of Rodriguez (1989), 131 Ill. 2d 273, 279; Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147.) Nevertheless, because defendant has so clearly misstated the law, we will address his contention that his mere status as plaintiff’s co-worker renders him immune from his common-law tort action.

Defendant argues that the Act does not require a tort-feasor employee to be acting in furtherance of his employment in order to enjoy immunity from a co-worker’s common-law tort action. Defendant further states that there is no case law supporting plaintiff’s theory that she may recover compensation for her work-related injury from both her employer and defendant, the co-employee who caused her injury. To the contrary, we observe, as did the Witham and Collier courts, that' authorities exist which imply that one who commits an intentional tort should not be allowed to take advantage of the Act’s exclusionary provision and should not be permitted to shift his liability for such tortious acts to an innocent employer’s insurance fund. (See 2A A. Larson, The Law of Workmen’s Compensation §§68.12 n.9, 67.22 (1989); see also Jablonski v. Multack (1978), 63 Ill. App. 3d 908, 915.) Larson states:

“It is possible, within the bounds of compensation theory, to make out a case justifying [the] legislative extension of immunity to the coemployee. The reason for the .employer’s immunity is the quid pro quo by which the employer gives up his normal defenses and assumes automatic liability, while the employee gives up his right to common-law verdicts. This reasoning can be extended to the tortfeasor coemployee; he, too, is involved in this compromise of rights. Perhaps, so the argument runs, one of the things he is entitled to expect in return for what he has given up is freedom from common-law suits based on industrial accidents in which he is at fault.
* * *
It must be observed that the immunity attaches to the coemployee only when the coemployee is acting in the course of his employment. This is consistent with the justification for the immunity just described, since the coemployee’s employment status does not increase the risk of his causing nonindustrial injury to his fellow-workers.” (Emphasis added.) 2A A. Larson, The Law of Workmen’s Compensation §§72.22, 72.23 (1989).

In support of the second observation above, Larson cites no less than six Illinois decisions. For example, in Chmelik v. Vana (1964), 31 Ill. 2d 272, 278, the supreme court affirmed the trial court’s order that the plaintiff’s suit against a co-worker was barred by the Act based on its conclusion “that the accidental injury suffered by plaintiff did arise out of and in the course of the employment of himself and his coemployee.” (Emphasis added.) The appellate court reached similar conclusions in Williams v. Country Mutual Insurance Co. (1975), 28 Ill. App. 3d 274, 276-77, where the court held that the Act precludes an employee’s common-law action against a co-employee if the employee’s injury “arises out of and in the course of their employment” (emphasis added), and in Brooks v. Carter (1981), 102 Ill. App. 3d 635, 639, where the court also barred plaintiff’s common-law action against a co-employee. The Brooks court stated, “[t]here is nothing in this record, however, to suggest that either plaintiff or defendant had engaged in any personal deviations from activities incident to their employment.” (102 Ill. App. 3d at 639.) The court concluded that the plaintiff’s injuries were sustained “in an accident the risk of which was clearly contemplated by plaintiff and defendant’s employment.” 102 Ill. App. 3d at 639.

Similarly, we note that the tort-feasor employees in Collier, Fregeau, and Mijatov v. Graves (1989), 188 Ill. App. 3d 792, were all apparently engaged within the scope of their employment at the time they committed intentional acts against the plaintiff employees. Indeed, our research has failed to disclose case law which would support the instant defendant’s contention that the Act precludes plaintiff’s common-law action against him merely because he is her co-worker. We hold that in order to enjoy any such immunity flowing from the exclusivity provision of the Act, the co-employee’s tortious act must have been committed in the course of his employment. To hold otherwise would lead to absurd results, including the possibility that off-duty workers could engage in brawls with their on-duty cohorts with impunity. We do not believe such an approach reflects the public policy embodied in the Act, and we reject it.

In view of the foregoing discussion, we reverse the judgment of the trial court and remand the cause for further proceedings not inconsistent with the views expressed herein.

Reversed and remanded.

McLaren and WOODWARD, JJ., concur.


author: PRESIDING JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LONZA HOLMES, Defendant-Appellant.
    First District (1st Division)
    No. 1—86—2447
    Opinion filed December 4,1989.
    Rehearing denied July 18,1990.

      Randolph N. Stone, Public Defender, of Chicago (Bruce C. Landrum, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Patricia Y. Brown, and Ladren E. Brown, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

The defendant, Lonza Holmes, was indicted in the circuit court of Cook County for murder (Ill. Rev. Stat. 1985, ch. 38, par. 9—1(a)), home invasion (Ill. Rev. Stat. 1985, ch. 38, par. 12—11(a)(2)), robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18—1(a)), armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18—2(a)), and residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19—3). Following a bench trial the defendant was found guilty of voluntary manslaughter (Ill. Rev. Stat. 1985, ch. 38, par. 9—2), and not guilty of home invasion, robbery, armed robbery and residential burglary. Thereafter, the defendant was sentenced to 10 years’ imprisonment in the Illinois Department of Corrections.

On appeal, defendant alleges that: (1) his fourth amendment rights were violated when he was arrested without probable cause; (2) the trial court erred in its finding that the defendant’s statements were voluntary and in its denial of the defendant’s motion to suppress the evidence derived from an illegal arrest; and (3) he was denied a fair sentencing hearing when the trial court improperly considered a “victim impact letter” written by the victim’s mother.

Detective Frank Glynn testified at a suppression hearing that on May 30, 1985, he, along with Detectives George Baslie, Jack Hines and Sammy Lacey, was investigating the death of David Ward (deceased). While at the scene of the murder, which occurred at David Ward’s home, Detectives Glynn and Baslie observed the deceased lying facedown in a pool of blood with head injuries and one of his feet touching the front door. His pockets were turned “inside out,” and he was wearing a smashed watch with the time stopped at 1:10. Detective Glynn also noticed a box of Newport cigarettes and two ashtrays containing Tareyton 100’s and Newport cigarette butts on the couch. Subsequent to examining the scene of the incident, Detective Baslie spoke with Brian Simms and Jack Anderson, neighbors of the deceased, who informed him that they saw the deceased with the defendant at 9 p.m. and 2 a.m., respectively. Detectives Glynn and Baslie then walked to the defendant’s house, where it was verified by the defendant’s mother, Ora Lee Holmes, and his brother, Edward Holmes, that the defendant had been with the deceased on the previous evening. Since the defendant was not at home at that time, Detective Glynn left his card and requested that the defendant either call or come to the police station for questioning. At approximately 9:30 p.m., Detective Glynn received a telephone call informing him that the defendant was now at home. Upon their arrival at the defendant’s home, the detectives explained to the defendant that they were investigating the death of David Ward and asked the defendant to come to the Area 2 police station. The defendant stated that he did not have a ride. Therefore, he accompanied the detectives to Area 2.

Detective Glynn further testified that, while driving to the police station, he did not tell the defendant that he was under arrest nor was the defendant handcuffed. Moreover, he did not tell the defendant that he had to go to the police station. They arrived at the police station on May 30, 1985, at approximately 10 or 10:30 that evening. The defendant was escorted to a large conference room and advised of his Miranda rights. During this period of questioning, which lasted about an hour, Detective Glynn observed that the defendant smoked Tareyton 100’s cigarettes, and the defendant told the detectives that on the previous night he was wearing a “two-tone brown shirt and light brown slacks.” The questioning subsided while the detectives “checked-out” the information provided by the defendant. The questioning resumed at 1 a.m., and the defendant was again given his Miranda rights. When the defendant stood up and reached for his cigarettes, Detective Glynn noticed that the defendant was wearing a pair of tan pants underneath his blue jeans with a bloodstain on the cuff of the left pant leg. When Detective Glynn questioned the defendant about the bloodstains, the defendant stated that the bloodstains resulted from the injury suffered by David Ward on the previous evening when David Ward had injured his nose on his screen door. Thereafter, the detectives asked the defendant to remove his blue jeans in order to see the rest of the tan pants. Upon their removal, the detectives noticed blood splatterings all over the tan pants. Detective Glynn then took the bloodstained pants, sent them to the police crime lab to be analyzed, and told the defendant to put the keys that the defendant had taken from his pocket back into his pocket. The defendant responded, “[Tjhose are not my keys, those are David’s keys.” This line of questioning took about an hour. At approximately 2 a.m. after discovery of the bloodstained pants, Detective Glynn placed the defendant under arrest.

Detective Glynn further testified that prior to 4 a.m. on May 31, 1985, the defendant was never placed in handcuffs nor did the defendant ever ask to leave the police station after his arrival. Detective Glynn also stated, if the defendant had attempted to leave the police station he said he “would have asked him why.” Detective Glynn testified that he could not answer what he would have done since the defendant did not attempt to leave. However, the defendant freely moved in and out of the interview room to use the restroom and get coffee. Additionally, Detective Glynn testified that although the time entered on the consent to search form was 11:45 p.m., the defendant did not sign the form until after 1 a.m. Finally, Detective Glynn testified that he told the defendant that he would remain in custody until he signed the consent to search form in order that the police could look for his shirt.

Detective Jack Hines testified that he prepared the consent to search form at 11:45 p.m. However, since he had other things to do, he did not immediately go to the room where the defendant was located, and the defendant did not sign the form until about 2 a.m.

The defendant moved to quash the arrest and suppress the evidence flowing from that arrest, arguing that he was illegally arrested without probable cause. The trial court denied this motion, reasoning that in light of the defendant’s freedom of movement at the police station, no arrest took place until the defendant’s bloodstained pants were discovered.

The State then proceeded with the defendant’s motion to suppress his statements. Detectives Glynn, Hines, Lacey and Dignan testified that they did not beat, physically abuse, threaten or holler at the defendant. Detective Hines testified that he was present while the defendant was being questioned by Detective Glynn. In addition, at various times during the questioning, Detectives Baslie and Lacy and Lt. Burge were present. After the defendant was placed under arrest, Detective Hines took him to the lock-up for processing and subsequently returned him to the conference room. Detective Hines further testified that as late as 4:15 a.m., when his tour of duty ended, the defendant was not handcuffed.

On May 31, 1985, at approximately 9 a.m., Detectives Dignan and Madigan questioned the defendant for about an hour after giving him his Miranda rights. Detective Dignan testified that when they entered the room at 9 a.m. to question the defendant, he was handcuffed to a ring. He proceeded to remove the handcuffs, and at that time the defendant appeared to be fine physically. They returned to the interview room at 3 p.m. for a second interview with the defendant. After this interview, Detectives Dignan and Madigan took the defendant to his home to obtain more clothing and to allow the mobile crime unit to further process the scene of the crime. Specifically, they went to look for a board, previously described by the defendant as the weapon used by him to strike the decedent with in the head. Detective Dignan further testified that they noticed the defendant’s bloodstained pants during the first interview at 9 a.m., but his clothing was not taken from him until the 3 p.m. interview.

Detective Madigan testified that he and Detective Dignan took the defendant back to his home after the 3 p.m. interview to allow the defendant to speak with his family and to look for the board, which they were unable to find. He further testified that he questioned the defendant alone at 5 p.m. after giving the defendant his Miranda rights. During this conversation the defendant stated that he and the deceased had been drinking together on the evening of March 30, 1985. The defendant confronted Ward about some money that Ward allegedly owed him, and he became upset because Ward had no money to pay him but had money to buy cocaine. The defendant then demanded the money or the cocaine. Ward turned and slapped the defendant in the face. The defendant responded by hitting Ward three times over the head with a board that he had gotten from Ward’s backyard. The defendant also took $40 out of Ward’s pocket, threw the board in an alley and proceeded to a service station, where he bought cocaine. The next day defendant called the police after being informed that the police were looking for him. Detective Madigan also testified that the defendant changed his story during the 5 p.m. interview from that given during the morning interview. The defendant acknowledged that he had lied during the morning interview but said he decided to tell the truth during the 5 p.m. interview because the police had possession of the bloodstained pants and were aware of the argument involving the cocaine.

Lieutenant John Burge testified that as the commanding officer of the Area 2 violent crimes unit he was aware that the defendant was being questioned in the conference room on the second floor by the detectives assigned to investigate the death of David Ward. He stated that, although he was not personally involved in the investigation, on several occasions he either listened outside of the door or briefly went into the conference room to listen to the conversations the detectives were having with the defendant.

McKinley Holmes, defendant’s brother, testified that when the defendant came home, on May 31, 1985, at approximately 4 p.m., the defendant’s face and eyes were swollen, and he had a bruise under his forehead. He gave the defendant fresh clothes and later brought food to the defendant at the police station. However, the defendant did not eat the food because he was too sore to eat as a result of the beatings that he had received from the police. McKinley informed Lt. Burge of the beating and then contacted “People’s Alert.”

Assistant State’s Attorney James Kogut testified that on May 31, 1985, he had a conversation with the defendant, who agreed to make a statement after he was advised of his Miranda rights. Kogut reduced the defendant’s statement to writing; and while Kogut was reading the statement to him, the defendant was eating fried chicken that his brother had brought to him. The defendant then signed the line under the Miranda warnings. However, he did not sign the statement itself because his family advised him not to sign anything. Kogut also testified that he did not observe any injuries on the defendant nor did the defendant complain that he was injured or threatened by the police.

Cecelia Chavez, a medical technician at Cermak Health Services, testified that she completed a physical examination of the defendant on June 1, 1985. The defendant told her that he had received “a blow to the head”; however, she did not know when the injury occurred. Further, she did not see any bruises or current injury to the defendant. However, on June 11, 1985, and June 13, 1985, the defendant did complaint about headaches that he had been experiencing, and he informed the doctors that he had been hit on the head with a board.

The defendant testified that when he initially arrived at the police station he was placed in a room, handcuffed and questioned for two hours without being given any Miranda rights. During this time he requested to see a lawyer and his family. Defendant stated that both of these requests were denied by Lt. Burge. Defendant further testified that Lt. Burge asked him to remove his outer pair of pants; and after seeing the blood on the pants underneath, he slapped him, accused him of committing the crime and sent the clothes to the crime lab to be analyzed. Defendant was then transferred to a second room for further questioning. Defendant testified that for three hours he was handcuffed to a bar in an interview room with the air-conditioning turned up, and he was wearing only a T-shirt and jogging pants. Subsequently, an officer entered the room, loosened his handcuffs and gave him a sandwich. Thereafter, Lt. Burge entered the room, tightened the handcuffs and took the sandwich.

The defendant testified that he was interrogated and threatened by Lt. Burge and Detectives Lacy and Hines. Several hours later Lt. Burge and three other officers returned to the room. After being hit with a Chicago telephone book and kicked by Lt. Burge and Detective Madigan, the defendant agreed with Lt. Burge’s version of Ward’s death, and Lt. Burge reduced the statement to writing. Later that afternoon the defendant was driven to an alley behind the decedent’s house by Detectives Madigan and Dignan. He was also driven to his home, where he received additional clothing from his brother, Jesse. Thereafter, he was returned to the police station and interviewed by an assistant State’s Attorney. The defendant’s brother later brought some food to the police station, but he could not eat the food due to the pain he was experiencing from the beating that he had received from the police. The defendant stated that he did not receive any medical attention until seven days later when he complained of his injuries. The defendant also testified that he did not take any money from the deceased. He further stated that the conversations with the deceased which led to the struggle did not concern money. Instead, the conversations pertained to the wife of the deceased, Shirley Ward.

The trial court denied the defendant’s motion to suppress statements; and following a bench trial, the defendant was found guilty of voluntary manslaughter. At the sentencing hearing, the mother of the decedent submitted a “victim impact letter” to the court for consideration. Following arguments in aggravation and mitigation, the defendant was sentenced to 10 years’ imprisonment in the Illinois Department of Corrections.

The defendant first contends on appeal that his fourth amendment rights were violated when he was taken into custody, transported to the police station and detained for interrogation without probable cause to arrest. Therefore, he asserts the evidence derived from that illegal arrest should have been suppressed. It is well-settled that a trial court’s decision regarding a motion to suppress evidence will not be disturbed on review unless it is manifestly erroneous. (People v. Collins (1989), 182 Ill. App. 3d 362, 364, 538 N.E.2d 781; People v. Evans (1988), 125 Ill. 2d 50, 78, 530 N.E.2d 1360; People v. Gacho (1988), 122 Ill. 2d 221, 237, 522 N.E.2d 1146.) Moreover, a trial court’s determination that there was probable cause to arrest will not be disturbed by a court of review unless it is manifestly erroneous. Evans, 125 Ill. 2d at 71; People v. Foster (1987), 119 Ill. 2d 69, 83, 518 N.E.2d 82, cert. denied (1988), 486 U.S. 1047, 100 L. Ed. 2d 628, 108 S. Ct. 2044.

The task of a court of review in analyzing a probable cause question is simply to ensure that the trial court had a substantial basis for concluding that probable cause existed. (Illinois v. Gates (1983), 462 U.S. 213, 238-39, 76 L. Ed. 2d 527, 548, 103 S. Ct. 2317, 2332; People v. Tisler (1984), 103 Ill. 2d 226, 248, 469 N.E.2d 147.) Therefore, we must first determine whether the trial court properly concluded that probable cause existed to arrest the defendant. Our courts have frequently held that probable cause to arrest exists when the facts and circumstances within the knowledge of the arresting officer are sufficient to justify the belief of a reasonably cautious person that an offense has been committed and the person that was arrested committed the offense. Ill. Rev. Stat. 1987, ch. 38, pars. 107—2(1)(a), (c); People v. Montgomery (1986), 112 Ill. 2d 517, 525, 494 N.E.2d 475, cert. denied (1987), 479 U.S. 1101, 94 L. Ed. 2d 181, 107 S. Ct. 1330; People v. Lippert (1982), 89 Ill. 2d 171, 178, 432 N.E.2d 605; People v. Lekas (1987), 155 Ill. App. 3d 391, 410, 508 N.E.2d 221, 234.

In the instant case, we are satisfied with the trial court's finding that no arrest occurred until the detectives discovered the bloodstained pants. The record discloses that the defendant voluntarily accompanied the police officers to the police station; and he was not handcuffed, fingerprinted nor subjected to a custodial interrogation until after the bloodstained pants were discovered. It is true that the defendant was questioned by the police for several hours prior to the discovery of the bloodstained pants. However, questioning by the police during an investigation does not alone constitute a fourth amendment violation unless the defendant is taken into custody by the police without probable cause to arrest. (People v. Long (1983), 99 Ill. 2d 219, 230, 457 N.E.2d 1252, 1256.) Further, this court has repeatedly held that every interrogation held at a station house is not necessarily a custodial interrogation, indicating an arrest. People v. Longoria (1983), 117 Ill. App. 3d 241, 251, 452 N.E.2d 1350; People v. Reed (1982), 104 Ill. App. 3d 331, 335, 432 N.E.2d 979; People v. Wipfler (1977), 68 Ill. 2d 158, 368 N.E.2d 870.

The defendant’s reliance on Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248, and People v. Townes (1982), 91 Ill. 2d 32, 435 N.E.2d 103, to support his contention that his fourth amendment rights were violated is misplaced. The facts in Dunaway v. New York and People v. Townes are distinguishable from the case at bar. In Dunaway v. New York, the victim was killed during an armed robbery, and the detectives were ordered to “pick up” the defendant and “bring him in” even though they did not have enough information to secure a warrant for his arrest. The defendant was involuntarily taken to the police station; and the evidence revealed that, although he was not told that he was under arrest, he would have been physically restrained had he refused to accompany the officers or had he attempted to leave the police station. Furthermore, in Dunaway v. New York, the defendant was seized without probable cause for the purpose that something might “turn up” or as an “expedition for evidence.”

In the present case, the police were not ordered to “pickup” the defendant. To the contrary, the police asked the defendant if he would come to the police station for questioning. It was only after the defendant stated that he did not have a ride that he accompanied the detectives to the Area 2 police station. Moreover, none of the detectives testified that the defendant would have been physically restrained had he attempted to leave. In People v. Townes, the defendant was asked to go to the police station for questioning as a part of a rape investigation. The defendant was then given the option of driving his own car or accompanying the police officers in the police car. The defendant chose the latter. He arrived at the station at 9:30 a.m., and after several hours of interviews, the defendant was placed in a lineup. However, the victim was unable to identify him. Five interviews were conducted during the 12 hours that the defendant was detained at the police station, and he was given his Miranda warnings prior to each interview. During his fifth interview between 6 p.m. and 10:10 p.m., he admitted to having consensual sexual relations with the victim. The court in People v. Townes concluded that the defendant’s fourth amendment rights were violated when he was subjected to a lengthy interrogation at the police station without probable cause.

In the case at bar, the record demonstrates that defendant freely moved about the station and was not detained until the bloodstained pants were discovered. Conversely, there was nothing in the facts of People v. Townes to suggest that the defendant had any freedom of movement. Moreover, the victim in People v. Townes was only able to provide a general description of her attacker, and based on the information provided, the defendant’s name, was included on a list of seven suspects. In the instant case, several witnesses actually saw the defendant with the deceased on the date of the crime, and one witness saw them together as late as 2 a.m. Therefore, since the police were investigating the death of David Ward and neighbors identified the defendant as the last person to be seen with the deceased, they wanted to question him. It is undisputed that the defendant went to the police station voluntarily; and during a criminal investigation, police officers may question citizens and citizens have a duty to cooperate with the police. People v. Longoria, 117 Ill. App. 3d at 249; People v. Miller (1980), 89 Ill. App. 3d 973, 977, 412 N.E.2d 175, cert. denied (1981), 454 U.S. 871, 70 L. Ed. 2d 175, 102 S. Ct. 339.

In determining whether a seizure has occurred, the court must review all the circumstances surrounding the incident and determine whether a reasonable person, innocent of any crime, would believe that he was under arrest or not free to leave. (United States v. Mendenhall (1980), 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877; Longoria, 117 Ill. App. 3d at 249.) Prior to the discovery of the bloodstained pants there were no indicia of an arrest. In addition to the defendant voluntarily accompanying the detectives to the police station and not being fingerprinted, photographed or handcuffed, he was given a great deal of freedom of movement while at the police station by being allowed to freely move from room to room unescorted in order to get coffee and use the restroom. In light of the totality of the circumstances, a reasonable person would have believed that he was not under arrest and was free to leave the police station. Accordingly, we conclude that the trial court properly determined that no seizure occurred until after the discovery of the bloodstained pants. We further conclude that the trial court’s finding that there was probable cause to arrest was not contrary to the manifest weight of the evidence. Under the facts of this case, the trial court properly denied defendant’s motion to quash arrest and suppress statements.

The defendant next contends that the trial court’s finding that his confession was voluntary was against the manifest weight of the evidence in light of the police officer’s inconsistent testimony. Although the defendant’s written statement was not signed, the trial court determined that the written statement was voluntarily made; and based on the actual signing of the Miranda rights, the defendant knowingly and intelligently waived his rights. The voluntariness of a statement depends upon the totality of the circumstances, and a trial court’s finding that the statement was voluntarily made will not be disturbed on review unless it is contrary to the manifest weight of the evidence. (Evans, 125 Ill. 2d at 77; People v. Rogers (1988), 123 Ill. 2d 487, 495, 528 N.E.2d 667, cert. denied (1989), 488 U.S. 1046, 102 L. Ed. 2d 1001, 109 S. Ct. 878; People v. Clark (1986), 114 Ill. 2d 450, 457, 501 N.E.2d 123.) The defendant argues that he was severely beaten by Detective Madigan and Lt. Burge during the morning hours of May 31, 1985, until he confessed to committing the crime. Moreover, the defendant’s brother testified that he observed bruises on the defendant when he visited him at the police station. However, the record reveals that Lt. Burge did not report for duty on that day until 4 p.m. Moreover, the assistant State’s Attorney testified that he did not observe injuries on the defendant, and the defendant did not complain that he had been injured by the police. Further, the medical technician, who completed a physical on the defendant on June 1, 1985, testified that she did not see any bruises or current injury to the defendant.

The defendant further argues that the testimony of the detectives, regarding when the bloodstained pants were found and the handcuffing of the defendant, was inconsistent, unreliable, and against the manifest weight of the evidence. It is well established that in an evidentiary proceeding, wherein the trial court is the trier of the facts, it is the responsibility of the trial court to determine the credibility of witnesses and the weight to be given their testimony and to draw reasonable inferences from the evidence. People v. Jimerson (1989), 127 Ill. 2d 12, 43, 535 N.E.2d 889; People v. Titone (1986), 115 Ill. 2d 413, 422, 505 N.E.2d 300.

Detective Dignan testified that when he and Detective Madigan entered the room on May 31, 1985, at 9 a.m., the defendant was handcuffed to a ring. Detective Glynn testified that'prior to 4 a.m. on May 31, 1985, the defendant was never placed in handcuffs, and Detective Hines testified that the defendant was not handcuffed as late as 4:15 a.m. After reviewing this testimony, we have determined there is no inconsistency.

We recognize that there was a discrepancy in the testimony as to when the bloodstained pants were discovered. Detective Glynn testified that the pants were discovered and taken during the 1 a.m. questioning, and Detective Madigan testified that the pants were not taken until the 3 p.m. interview. It is the responsibility of the trier of fact to resolve any conflicts in the evidence (People v. Slim (1989), 127 Ill. 2d 302, 307, 537 N.E.2d 317; People v. Berland (1978), 74 Ill. 2d 286, 305-06, 385 N.E.2d 649), and a court of review will not substitute its judgment for the trier of fact when the evidence is merely conflicting. (People v. Woods (1980), 81 Ill. 2d 537, 542, 410 N.E.2d 866.) We, therefore, conclude that based on the totality of the circumstances, the finding by the trial court that the defendant’s statements were voluntarily made is not against the manifest weight of the evidence.

Although the defendant failed to raise this issue before the trial court, he now argues that his sentence should be vacated and his cause remanded for a new sentencing hearing, where the trial court improperly considered the testimony and a prejudicial and irrelevant “victim impact letter” written by Helena Ward, the deceased’s mother. The defendant further argues that failure of defense counsel to object to the evidence presented by Ms. Ward constituted ineffective assistance of counsel pursuant to Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. The State argues that this issue was not properly preserved for review and has been waived since the defendant failed to object to the admission of the “victim impact letter” or to Ms. Ward’s testimony. We find the defendant’s argument to be without merit.

Our courts have held that the failure of counsel to object to the admission of evidence serves as a waiver of that issue on appeal. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233; People v. Newbury (1972), 53 Ill. 2d 228, 238-39, 290 N.E.2d 592.) We have further held that the failure to raise an issue in a written post-trial motion operates as a waiver of that issue on appeal. (People v. Shum (1987), 117 Ill. 2d 317, 512 N.E.2d 1183; People v. Szabo (1986), 113 Ill. 2d 83, 93, 497 N.E.2d 995.) Furthermore, our supreme court has recently held that in order to preserve an issue on appeal there must be both a trial objection and a written post-trial motion raising the alleged error. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) In the case at bar, defense counsel failed to object to the admission of the “victim impact letter” or Ms. Ward’s testimony. Moreover, defense counsel failed to raise these objections in the defendant’s post-trial motion. Therefore, these objections may now be deemed waived. People v. Jones (1988), 123 Ill. 2d 387, 410, 528 N.E.2d 648; People v. Whitehead (1987), 116 Ill. 2d 425, 447, 508 N.E.2d 687.

The waiver rule is not a complete bar to appellate review. (People v. Crews (1988), 122 Ill. 2d 266, 275, 522 N.E.2d 1167.) Instead, it serves as a rule of administrative convenience rather than jurisdiction. (People v. Smith (1985), 106 Ill. 2d 327, 333, 478 N.E.2d 357.) Pursuant to Rule 615(a), this court may in the interest of justice take notice of all issues which appear to be plain error or defects affecting substantial rights even if these errors were not brought to the attention of the trial court. (107 Ill. 2d R. 615(a); People v. Britz (1988), 123 Ill. 2d 446, 486, 528 N.E.2d 703; Enoch, 122 Ill. 2d at 189.) Additionally, if the evidence is closely balanced, the plain error doctrine may be invoked in reviewing a sentence. (People v. Martin (1988), 119 Ill. 2d 453, 458, 519 N.E.2d 884; People v. Garcia (1983), 97 Ill. 2d 58, 87, 454 N.E.2d 274.) Our courts have determined that the admission of a victim impact statement may be reviewed under the plain error rule. (People v. Phillips (1989), 127 Ill. 2d 499, 536, 538 N.E.2d 500; People v. Simms (1988), 121 Ill. 2d 259, 272, 520 N.E.2d 308.) The evidence in this record is not closely balanced nor does it indicate that the defendant was denied a fair and impartial trial. Therefore, under the facts of this case, we decline to invoke the plain error doctrine.

However, if we were to consider the merits of defendant’s contention, we need only to look to recent supreme court decisions addressing the admission of victim impact statements in light of Booth v. Maryland (1987), 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529. (See People v. Felella (1989), 131 Ill. 2d 525; People v. Turner (1989), 128 Ill. 2d 540, 539 N.E.2d 1196; Phillips, 127 Ill. 2d 499, 538 N.E.2d 500; Crews, 122 Ill. 2d 266, 522 N.E.2d 1167.) In Booth v. Maryland, a very lengthy and emotional victim impact statement was read to the jury at a death penalty sentencing hearing. The court reasoned that the use of the statement at the sentencing hearing was error since the emotional effect of the crime on the victim’s family would divert the jury’s attention from considering the circumstances of the crime and the character of the defendant. The Booth v. Maryland court stated that, “Our disapproval of victim impact statements at the sentencing phase of a capital case does not mean, however, that this type of information will never be relevant in any context. Similar types of information may well be admissible because they relate directly to the circumstances of the crime. Facts about the victim and family also may be relevant in a noncapital criminal trial. Moreover, there may be times that the victim’s personal characteristics are relevant to rebut an argument offered by the defendant.” Booth, 482 U.S. at 507 n.10, 96 L. Ed. 2d at 451 n.10, 107 S. Ct. at 2535 n.10.

Our supreme court has recently held that Booth v. Maryland should not be extended to noncapital cases. (People v. Turner (1989), 128 Ill. 2d 540, 578, 539 N.E.2d 1196; People v. Felella (1989), 131 Ill. 2d 525, 535.) We also note that neither the testimony of Ms. Ward nor the information contained in the “victim impact letter” violated the holding of Booth v. Maryland. To the contrary, in this noncapital criminal trial the defendant testified that David Ward attacked him. Therefore, Ms. Ward’s testimony which reiterated her beliefs that were expressed in the letter was relevant to rebut the defendant’s claim that the deceased was the aggressor. In People v. Crews, the court noted the distinction between a sentencing hearing conducted before a jury and one before a trial judge alone. Although the trial judge in the instant case made reference to the testimony of several witnesses presented in aggravation and mitigation by the families and friends of both David Ward and the defendant, the record does not support the defendant’s contention that the trial court particularly considered the victim impact letter or Ms. Ward’s testimony when sentencing the defendant. Moreover, the trial court recognized that incarceration of the defendant would not serve as rehabilitation but rather that a period of imprisonment would operate as a deterrent to others. See Ill. Rev. Stat. 1985, ch. 38, par. 1005—5—3.2.

It is well settled that the trial judge’s sentencing decisions are entitled to great weight and deference, and a sentence may not be altered by a court of review absent an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882; People v. Plantinga (1985), 132 Ill. App. 3d 512, 522, 477 N.E.2d 1299.) A sentence of not less than four years and not more than 15 years’ imprisonment may be imposed for voluntary manslaughter. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1(4).) Although pursuant to Supreme Court Rule 615(b)(4) we have the discretionary power to reduce an excessive sentence (107 Ill. 2d R. 615), the trial judge is in a superior position to consider and determine the punishment to be imposed rather than a court of review. (Perruquet, 68 Ill. 2d at 154.) Even though the defendant asserts that the trial court considered improper evidence at the sentencing hearing, our supreme court has frequently held that the trial court will be presumed to have considered only reliable and competent evidence when it serves as the sentencer. Phillips, 127 Ill. 2d at 537; Whitehead, 116 Ill. 2d at 455; People v. Hall (1986), 114 Ill. 2d 376, 419, 499 N.E.2d 1335.

It is undisputed that the defendant killed David Ward. Further, the record does not provide any evidence to rebut the presumption that the trial court only considered competent evidence in imposing sentence on the defendant. Therefore, on this record, we are satisfied that the “victim impact letter” was not relied on by the trial judge in imposing a 10-year sentence on the defendant. We further conclude that, if there was any error in the admission of the victim impact letter or Ms. Ward’s testimony into evidence, it must be considered as harmless beyond a reasonable doubt. See Phillips, 127 Ill. 2d 499.

In light of our disposition of defendant’s contentions concerning the “victim impact letter” and the defendant’s failure to show that he was prejudiced by the admission of the evidence as required by Strickland v. Washington, it is not necessary to consider the defendant’s allegation that he was denied effective assistance of counsel due to defense counsel’s failure to object to the admittance of the “victim impact letter” and testimony of Ms. Ward. (See Phillips, 127 Ill. 2d at 537-38.) Accordingly, for all of the above reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

CAMPBELL and QUINLAN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICCARDO WHITE, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—1574
    Opinion filed December 4, 1989.
    Rehearing denied June 28, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Hugh Stevens, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Renee Goldfarb, and Loretta H. Davenport, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

The sole issue presented on appeal is whether the trial court’s dismissal of the petitioner’s pro se post-conviction petition was proper.

Petitioner, Riccardo White, together with Philip Shaw, was charged by information filed in the circuit court of Cook County, with the murder of Edward Lewis. In separate, simultaneous trials, Shaw was tried before a jury, and the petitioner was tried in a bench trial. Both men were found guilty as charged.

In a joint appeal, both men contended that they were denied a fair trial. (People v. Shaw (1981), 98 Ill. App. 3d 682, 410 N.E.2d 1082.) The petitioner raised only two issues: (1) whether the trial court erred in conducting simultaneous trials; and (2) whether the trial court erred in finding him guilty on the theory of accountability. This court rejected petitioner’s arguments and affirmed the convictions of both men. Thereafter, petitioner filed a petition for habeas corpus relief in the Federal district court, wherein he alleged ineffective assistance of trial counsel violated his constitutional rights. (United States ex rel. White v. DeRobertis (N.D. Ill. 1983), 566 F. Supp. 871.) The district court denied the writ of habeas corpus.

In 1986, petitioner filed a pro se petition for post-conviction relief and motion for appointment of counsel. In the petition, petitioner alleged that he had been illegally arrested in violation of his fourth amendment rights; and therefore, trial counsel’s failure to challenge the legality of the arrest, when combined with other errors, amounted to ineffective assistance of counsel, a violation of his sixth amendment rights. The State moved to dismiss the petition for failure to state a claim, and further, that the issues raised by the petitioner were barred under the doctrines of res judicata, waiver and collateral estoppel.

During the hearing on the State’s motion to dismiss, petitioner’s appointed counsel certified to the court, pursuant to Supreme Court Rule 651(c) (107 Ill. 2d R. 651(c)), that he had consulted with the petitioner, had read the record and that there was nothing that he could add to the petition. The trial court granted the State’s motion and dismissed the petition with prejudice, finding that the petition for post-conviction relief did not assert any constitutional issues. The petitioner now appeals that dismissal under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122—1 et seq.). For the following reasons, we affirm the judgment of the circuit court.

On appeal, the petitioner asserts a twofold argument. First, he argues that the trial court erred in dismissing his pro se petition for post-conviction relief because he was illegally arrested, and thus, the identification testimony of several witnesses was improperly allowed, which he contends was a violation of his right to a fair trial guaranteed by the fourth amendment. Petitioner further argues that his sixth amendment right to effective assistance of counsel was denied where trial counsel suggested that he fabricate a story and prevented him the opportunity to testify. Second, petitioner maintains that the trial court erred in dismissing the petition because post-conviction counsel was ineffective for failure to amend the pro se petition or put it in proper legal form to adequately state these constitutional deprivations.

The State counters that the trial court properly dismissed the petition since the petitioner utterly failed to demonstrate the existence of any substantial violation of his constitutional rights; and even if his allegations on appeal were sufficient, they would be barred under the doctrines of res judicata, waiver and collateral estoppel. We agree.

It is well settled in Illinois that a proceeding under the Post-Conviction Hearing Act is not an appeal but a collateral attack on the judgment. (People v. James (1986), 111 Ill. 2d 283, 290-91, 489 N.E.2d 1350.) “The purpose of a post-conviction proceeding is to inquire into the constitutional phases of the original conviction which have not already been adjudicated.” (People v. Williams (1970), 47 Ill. 2d 1, 3, 264 N.E.2d 697; see also People v. Gaines (1984), 105 Ill. 2d 79, 87, 473 N.E.2d 868.) The burden is upon the petitioner to demonstrate a substantial showing of a violation of a constitutional right. People v. Silagy (1987), 116 Ill. 2d 357, 365, 507 N.E.2d 830; People v. Griffin (1985), 109 Ill. 2d 293, 303, 487 N.E.2d 599.

Moreover, it is well established that a determination of the trial court in a post-conviction proceeding will not be set aside unless it is manifestly erroneous. (People v. Albanese (1988), 125 Ill. 2d 100, 109, 537 N.E.2d 17; Griffin, 109 Ill. 2d at 303.) Proceedings under the Post-Conviction Hearing Act are not meant to provide the petitioner an opportunity to relitigate his case. Hence, issues which were raised on direct appeal are generally res judicata as to all issues decided (People v. Kubat (1986), 114 Ill. 2d 424, 436, 501 N.E.2d 111; Gaines, 105 Ill. 2d at 87-88), and issues which could have been raised, but were not raised, are considered waived. People v. Albanese (1988), 125 Ill. 2d 100, 105, 531 N.E.2d 17; Silagy, 116 Ill. 2d at 365; People v. Burns (1979), 75 Ill. 2d 282, 290, 388 N.E.2d 394.

In the case at bar, petitioner now raises for the first time in his post-conviction petition the issue of an illegal arrest and violation of his fourth amendment rights. However, we believe the issue is deemed waived because of petitioner’s failure to raise it on direct appeal under the application of Silagy (116 Ill. 2d 357, 507 N.E.2d 830), Kubat (114 Ill. 2d 424, 501 N.E.2d 111) and, Gaines (105 Ill. 2d 79, 473 N.E.2d 868). Under People v. Silagy, People v. Kubat, and People v. Gaines, a petitioner’s claim (of a fourth amendment violation) is deemed waived where, as here, the fourth amendment issue was clearly within the record, and the record does not suggest any reason why the claim was not or could not have been presented on direct appeal. See also People v. Stewart (1988), 123 Ill. 2d 368, 528 N.E.2d 631.

We consider next petitioner’s assertion concerning his failure to receive effective assistance of counsel during the trial. Likewise, this issue first raised in the habeas corpus hearing, a collateral proceeding, is without merit. In White v. DeRobertis, the district court there found that claims that “defense attorney’s failure to file certain motions and call particular witnesses, *** amount to nothing more than strategic decisions which are exempted from review, and are insufficient to warrant a determination of incompetence.” (White, 566 F. Supp. at 874.) The court further commented that the “petitioner’s claim that he was not given [an] opportunity to testify to the truth at trial is not supported by the record whatsoever.” White, 566 F. Supp. at 874.

Although the petitioner did not raise the identical issues in the post-conviction petition that he raised in the habeas corpus petition, the questions were the same in substance. Therefore, petitioner is barred from retrying issues actually litigated and decided in a collateral proceeding (Silagy, 116 Ill. 2d at 370-71) by rephrasing essentially the same argument. See People v. Berland (1978), 74 Ill. 2d 286.

During oral argument, counsel for the petitioner argued that this court should not apply the doctrines of waiver, collateral estoppel or res judicata but should follow the doctrine of fundamental fairness. The doctrine of fundamental fairness dictates that a reviewing court may relax the harsh application of the waiver, collateral estoppel and res judicata rules and consider the issue under circumstances where it would be fundamentally unfair to the defendant to preclude consideration of the issue.

In support of this argument petitioner asserts that he could not have raised the fourth and sixth amendment issues prior to raising them in the post-conviction petition. He urges that the fourth amendment question evolves from an incomplete record, where no motion to suppress was filed by trial counsel challenging the warrantless arrest, and that the sixth amendment claim is based upon information outside the record. However, this argument likewise must fail.

The facts in the instant case reveal that petitioner was represented by private counsel of his choice during the bench trial. He was represented by different counsel on direct appeal to this court, and yet another attorney was appointed to represent him in the post-conviction proceeding. Moreover, the Federal district court adequately and comprehensively reviewed the petitioner’s same assertions raised in the habeas corpus proceeding. Petitioner had ample opportunity to raise all issues pertinent to this case and to provide the various courts with the proper facts and supplemental records to support the allegations raised in the post-conviction petition. Hence, we decline to invoke the doctrine of fundamental fairness on the facts here presented.

Thus, we find that the crux of petitioner’s claims of fourth and sixth amendment constitutional deprivations were previously addressed either on direct appeal or in the habeas corpus proceeding and merit no further consideration by this court under the doctrines of waiver, collateral estoppel and res judicata.

Next, we address petitioner’s contention that post-conviction counsel was incompetent for failure to amend the pro se petition to properly state the petitioner’s alleged constitutional claims. We disagree. We believe post-conviction counsel acted properly under the circumstances and that the petitioner was in no way prejudiced by counsel’s failure to amend the post-conviction petition.

In People v. Albanese, our supreme court adopted the standards enunciated in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, for determining whether a defendant has received ineffective assistance of counsel. The two-prong test requires: (1) that defendant demonstrate counsel made serious errors which resulted in deficient performance and (2) that this deficient performance prejudiced the defense.

In the case at bar, during the post-conviction hearing held on April 23, 1987, counsel for petitioner represented the following to the court.

“MR. GINSBERG [Assistant Public Defender]: I have had the opportunity to review the trial transcript.
I have consulted with the petitioner regarding his claims on his post-conviction petition.
I have examined the pro se petition, and I feel that it adequately presents his [petitioner’s] claims of deprivation of constitutional rights.
There is nothing I can add or amend by way of supplemental petition.
Accordingly, I would request leave of court at this time to file my certificate in accordance with Supreme Court Rule 651(c). I will stand on the allegations of Mr. White’s petition for post-conviction relief.”

Supreme Court Rule 651(c) provides, in relevant part:

“The record filed in [the trial] court shall contain a showing, which may be made by the certificate of petitioner’s attorney, that the attorney has consulted with [the] petitioner *** to ascertain his contentions of deprivation of constitutional rights, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner’s contentions.” 107 Ill. 2d R. 651(c).

After reviewing the record and applying the standards of Strickland v. Washington and People v. Albanese, we are unable to agree with the petitioner’s contentions that post-conviction counsel’s actions were unreasonable or that counsel committed any error resulting in deficient performance and prejudice to the petitioner. Counsel is not considered incompetent for choosing not to amend a pro se petition with allegations that are without substance. (People v. Smith (1968), 40 Ill. 2d 562, 241 N.E.2d 413.) It appears that petitioner’s allegations were meritless on their face where he did not raise any constitutional issue in the post-conviction petition nor had he done so in his direct appeal, or in the habeas corpus proceeding. A petitioner is not entitled to relief under the Post-Conviction Hearing Act by “rephrasing previously addressed issues in constitutional terms” in the petition. (Gaines, 105 Ill. 2d at 90.) Neither is it a requirement nor will it suffice for post-conviction counsel to rephrase previously addressed issues in constitutional terms or more acceptable legal terminology in an attempt to sustain the petitioner’s burden to demonstrate a substantial showing of a violation of a constitutional right.

Post-conviction counsel has no mandatory obligation under the circumstances to amend the petition in an effort to state matters either not in existence or wholly unsupported by the record and the law. There is no reason to believe that the petition could have been successfully amended. (Smith, 40 Ill. 2d at 564.) Moreover, where there is no meritorious issue which could have been raised, then no amendment is necessary, and the petitioner is not denied effective assistance of counsel during a post-conviction proceeding, even though the post-conviction petition was not amended. See People v. Jones (1976), 36 Ill. App. 3d 315, 343 N.E.2d 525. See also People v. Mays (1975), 29 Ill. App. 3d 610, 331 N.E.2d 195; People v. Lockett (1974), 19 Ill. App. 3d 807, 313 N.E.2d 183.

Accordingly, we conclude that post-conviction counsel satisfied the criteria set forth in Supreme Court Rule 651(c) and committed no errors within the contemplation of Strickland v. Washington and People v. Albanese.

The Post-Conviction Hearing Act authorizes summary dismissals of nonmeritorious petitions, without an evidentiary hearing (Silagy, 116 Ill. 2d at 373; James, 111 Ill. 2d at 292), where the petitioner has not demonstrated a substantial violation of a constitutional right which is supported either by the record or accompanying affidavits. (Ill. Rev. Stat. 1985, ch. 38, par. 122—2; Gaines, 105 Ill. 2d at 91-92.) We hold that the circuit court properly dismissed the petition for post-conviction relief where the petition failed to demonstrate a substantial violation of petitioner’s constitutional rights which would entitle him to relief.

Accordingly, for the reasons set forth above, the judgment of the circuit court is affirmed.

Judgment affirmed.

BUCKLEY and O’CONNOR, JJ., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    JAMES M. HARBIN, JR., Petitioner-Appellant, v. LOCAL 744, International Brotherhood of Teamsters, et al., Respondents-Appellees.
    First District (1st Division)
    No. 1—88—3488
    Opinion filed March 6, 1990.
    Rehearing denied June 28, 1990.
    James M. Harbin, Jr., of Chicago, petitioner pro se.

    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Jan E. Hughes, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois State Labor Relations Board.

      Asher, Gittler & Greenfield, Ltd., of Chicago (Marvin Gittler, Stephen B. Rubin and Anne Wells Clark, of counsel), for respondent Local 744, International Brotherhood of Teamsters.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

This is a direct appeal from a final administrative order in an action brought by James M. Harbin, Jr. (petitioner), before the Illinois State Labor Relations Board (the Board), alleging that Local 744 of the International Brotherhood of Teamsters (the Union) engaged in unfair labor practices within the meaning of section 10(b)(1) of the Illinois Public Labor Relations Act (the Act) (Ill. Rev. Stat. 1987, ch. 48, par. 1610(b)(1)). The Board affirmed the hearing officer’s decision to dismiss petitioner’s claim that the Union had breached its duty of fair representation in processing petitioner’s grievance after petitioner was discharged from PACE South bus lines for destroying company property.

On appeal, this court allowed petitioner to adopt his briefs filed in the administrative proceeding. In these briefs, petitioner argued that the Union breached its duty of fair representation owed to him under the standard set forth in Vaca v. Sipes (1967), 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903, when it rendered poor advice and failed to process his grievance beyond the second step of the grievance procedure for racial and discriminatory reasons. The hearing officer adopted the legal standard espoused by petitioner in reaching her decision, and the Board affirmed that ruling.

In reviewing petitioner’s briefs, we are mindful that on administrative review of the Board’s decision, all “findings [of fact] and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct” (Ill. Rev. Stat. 1987, ch. 110, par. 3—110) and that an administrative agency’s factual findings will not be reversed unless contrary to the manifest weight of the evidence (Service Employees International Local Union No. 316 v. Illinois Educational Labor Relations Board (1987), 153 Ill. App. 3d 744, 753, 505 N.E.2d 418, 425). Under the scope of our limited review, petitioner’s briefs raise no basis for reversing the Board’s finding that the petitioner failed to prove the Union acted in a racially discriminatory or arbitrary manner in its representation of petitioner.

Although petitioner’s briefs do not raise a basis for reversing the Board’s decision on the merits of his claim, the briefs do raise a legal question as to whether the hearing officer erred in her interpretation of certain regulations and statutory provisions and the application of the supreme court rules in connection with the enforcement of subpoenas in matters before the Board. Following the hearing officer’s decision in the case, petitioner filed a motion to reopen the record, enforce four subpoenas and take further testimony on the basis that the hearing officer erred on the day of the hearing in refusing to seek judicial enforcement of the subpoenas and in denying petitioner’s request for a continuance. The hearing officer declined to seek judicial enforcement of any of the four subpoenas as permitted under section 11(b) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 1611(b)), because she found that none of the four subpoenas were properly served despite two continuances for the purpose of effectuating proper service. The hearing officer found that two of the subpoenas were returnable with an incorrect hearing date, while two others had been served without witness fees.

Petitioner argued in his memorandum in support of his motion that statutory provisions and regulations did. not require that a check for witness fees and mileage be instantaneously served on a witness when a witness is tendered a subpoena to testify at a Board hearing. Petitioner insisted that section 1200.90 of the Rules and Regulations of the Illinois Labor Relations Board (the Rules) (80 Ill. Adm. Code §1200 et seq. (1987 Supp.)) and section 47 of the Fee and Salaries Act (Ill. Rev. Stat. 1985, ch. 53, par. 65) require that witness fees and mileage be paid only after the witness submits an affidavit. The hearing officer found that these provisions were not intended to establish the prerequisites for judicial enforcement of subpoenas as permitted in section 11(b) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 1611(b)), but pertained only to the sum of the per diem and mileage to which a witness is entitled. Instead, the hearing officer found Supreme Court Rule 237 (107 Ill. 2d R. 237) to be the governing provision. Rule 237 provides that a court may compel witnesses to appear only if witness fees and mileage have been tendered.

After reviewing section 1200.90 of the Rules and section 47 of the Fee and Salaries Act, we find that the hearing officer did not err in finding these provisions pertain only to the sum of the per diem and mileage to which a witness is entitled. Petitioner, though, in his exception to the hearing officer’s decision, argued that the hearing officer had no authority to apply Rule 237 to Board proceedings because the Act does not provide that Rule 237 is included as part of the Board’s procedures. The basis of the hearing officer’s ruling, however, was that the witnesses could not be compelled to appear through the judicial enforcement procedure allowed in section 11(b) of the Act. Because the supreme court rules govern the proceedings in the trial court unless the procedure is regulated by a statute other than the Civil Practice Law (107 Ill. 2d R. 1), the hearing officer correctly held that the witnesses could not be compelled to appear unless the conditions in Rule 237 were satisfied.

Finally, petitioner’s briefs set forth no basis for holding that the hearing officer abused its discretion in denying petitioner’s request for a continuance where petitioner was given at least two previous opportunities to effectuate proper service but failed to do so.

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.