author: JUSTICE GEIGER

text:
    O S F HEALTHCARE SYSTEMS, d/b/a Saint Anthony Medical Center, f/k/a Sisters of the Third Order of St. Francis, Plaintiff-Appellee and Separate Appellant, v. THE COUNTY OF LEE, Defendant-Appellee and Separate Appellee (The City of Dixon, Defendant-Appellant).
    Second District
    No. 2—92—0225
    Opinion filed January 29, 1993.

      Richard A. Palmer, of Ward, Murray, Pace & Johnson, P.C., of Sterling, for appellant.
    Thomas D. Luchetti, Debra A. Delia, and Andrew C. Osen, all of Thomas D. Luchetti, P.C., of Rockford, for appellee OSF Healthcare Systems.
    Daniel A. Fish, State’s Attorney, of Dixon, for appellee County of Lee.
    Paul A. Logli, State’s Attorney, of Rockford (Charles J. Prorok, Deputy State’s Attorney, of counsel), for amicus curiae.

   JUSTICE GEIGER

delivered the opinion of the court:

The plaintiff, OSF Healthcare Systems (the hospital), brought this action against both defendants: the City of Dixon (the city) and the County of Lee (the county). It claimed it was statutorily entitled to receive payment for medical expenses it rendered in the care of an arrestee. The court granted the hospital summary judgment against the city, denying the city’s own motion for summary judgment. The court also granted the county summary judgment against the hospital, denying the hospital’s motion for summary judgment against the county. The city brought this appeal from the court’s ruling as to its liability; the hospital also appeals, arguing, in the alternative, that the county was responsible for the medical expenses in question. We affirm.

The trial court found that the facts were not in dispute. According to its findings, in an altercation on May 22, 1990, the arrestee in this case was shot by city police. Apparently without any county involvement, the arrestee was transported for treatment at the hospital; he arrived at 12:30 a.m. on May 23. As a result of the May 22 altercation, the chief of the city police department signed two complaints against the arrestee; those complaints, plus two others stemming from the same incident, charged the arrestee with two counts of attempted murder, one count of unlawful use of weapons, and one count of aggravated assault (Ill. Rev. Stat. 1991, ch. 38, pars. 8—4(a), 9—1, 24—1.1, 12—2, respectively). The circuit court issued an arrest warrant on May 23. It was shown served by a city police officer.

The arrestee remained in the hospital until he was transferred to the county jail on August 2, 1990. During his hospital stay, he incurred over $35,000 in medical and hospital expenses. With this suit, the hospital sought reimbursement for those expenses, the central issue being whether the city or the county was liable.

After hearing summary judgment motions brought by each party, the trial court ruled that the city was responsible for its arrestee’s medical expenses until the arrestee came into the county’s physical custody. This appeal followed. In addition to briefs from the parties, we have allowed participation by amicus curiae represented by Paul A. Logli, Winnebago County State’s Attorney.

All parties to the appeal acknowledge the import of statutory analysis in this case. Most significant is a portion of section 17 of the County Jail Act (Ill. Rev. Stat. 1991, ch. 75, par. 117). That critical language of section 17 also appears in section 3 — 15016 of the Counties Code (Ill. Rev. Stat. 1991, ch. 34, par. 3—15016). It was somewhat recently added to section 17 and it provides as follows. “An arresting authority shall be responsible for any incurred medical expenses relating to the arrestee until such time as the arrestee is placed in the custody of the sheriff [unless] the arrest was made pursuant to a request by the sheriff.” Ill. Rev. Stat. 1991, ch. 75, par. 117, amended by Pub. Act 86—794, §17, eff. January 1, 1990.

Also significant to our analysis here are three cases: St. Mary of Nazareth Hospital v. City of Chicago (1975), 29 Ill. App. 3d 511, Sisters of the Third Order of St. Francis v. County of Tazewell (1984), 122 Ill. App. 3d 605, and Rockford Memorial Hospital v. Schueler (1988), 167 Ill. App. 3d 358. Under those cases, where an authority other than the county arrested an individual, the bringing of State charges was the event triggering county liability for the arrestee’s medical expenses; physical custody was not determinative.

The city argues on appeal that under the above-named cases, and using that case law as a guide for the interpretation of current statutes, the filing of State charges against the arrestee here triggered the county’s liability for his medical expenses. Under that analysis, the county, not the city, is liable to the hospital here. The county, amicus curiae, and the hospital in a portion of its argument all emphasize statutory changes made after the St. Mary case was decided. They argue, with reference to those changes and the related legislative debate, that because the county never had physical custody of the arrestee, the court correctly decided that the city, not the county, was liable for the medical expenses here.

In St. Mary, the patient was admitted to the plaintiff hospital after Chicago police responded to a call and found him suffering gunshot wounds. The following day, while he was still being treated at the hospital, the patient was charged in a criminal complaint. (St. Mary, 29 Ill. App. 3d at 514.) The appellate court found that from the date he was charged with the State criminal violation the patient’s custody was the county sheriff’s responsibility, even though actual custody was not in the sheriff. (29 Ill. App. 3d at 516.) The court, then, recited the statutory provisions that addressed a sheriff’s roles as warden of the county jail, custodian of prisoners there, and provider of medical aid for all persons under his charge; it also referred to statutes providing that the county treasury was responsible to maintain county jail prisoners. (29 Ill. App. 3d at 517.) The court asserted that, but for his injuries, the patient would have been imprisoned in the county jail; it concluded that Cook County had primary and sole liability to reimburse the hospital for the patient’s medical expenses. 29 Ill. App. 3d at 517.

In the two cases consolidated in St. Francis, each patient was transported to the plaintiff hospital by city police; neither patient was charged with a crime before he left the hospital. (St. Francis, 122 Ill. App. 3d at 605-06.) The appellate court, with Justice Heiple concurring only in the result, interpreted St. Mary and held that the county had not been liable for incurred medical expenses; the critical factor cited by the majority was that no criminal charges had been filed to trigger county liability. 122 Ill. App. 3d at 608.

The Rockford Memorial court also relied importantly on the St. Mary case and concluded that the county was not liable for the arrestee’s medical expenses. (Rockford Memorial, 167 Ill. App. 3d at 361.) City police brought the arrestee in that case to the plaintiff hospital. (167 Ill. App. 3d at 359.) The critical factor for the Rockford Memorial court was that the arrestee was not charged with an offense, and therefore was not considered within the sheriff’s custody, until after his medical treatment was complete and he was released from the hospital. 167 Ill. App. 3d at 360-61.

In this case, the county argues that, as the trial court decided, St. Mary and the related cases are distinct from this case because they were based upon different, predecessor statutes. It also finds support in the legislative debates that preceded the vote to add the relevant language to section 17. The city accurately points out that the relevant addition to section 17 did not actually represent the creation of new statutory language, so that it could thus cause us to distinguish St. Mary and its progeny. Rather, it represents merely a relocation of language that previously existed in the jail and jailers act (see Ill. Rev. Stat. 1983, ch. 75, par. 24). Based on the courts’ obligation to follow established precedent, the city argues that the courts here are bound to interpret this reenacted language under St. Mary, so that in this case custody triggering county liability for medical expenses shifted to the sheriff when the arrestee was criminally charged, on May 23.

The fundamental rule of statutory construction is that courts attempt to give effect to the intent of the legislature. (State of Illinois v. Mikusch (1990), 138 Ill. 2d 242, 247.) The language of a statute must be given its plain and ordinary meaning. (Schorsch v. Fireside Chrysler-Plymouth, Mazda, Inc. (1988), 172 Ill. App. 3d 993, 996.) When further interpretation is necessary to ascertain legislative intent behind a statute, reviewing courts may look to legislative debates. (Schorsch, 172 Ill. App. 3d at 997.) Also, courts will consider a statute in its entirety, noting the subject it addresses and the legislature’s apparent motive in enacting it. Mikusch, 138 Ill. 2d at 247.

Courts presume that in enacting statutory language the legislature acts rationally and with full knowledge both of all previous enactments and of judicial construction of prior statutes. (Mikusch, 138 Ill. 2d at 247-48; Williams v. Crickman (1980), 81 Ill. 2d 105, 111.) By reenactment of a prior statute, the legislature is presumed to have intended to adopt any clearly established judicial interpretation of that prior legislation. Williams, 81 Ill. 2d at 111-12.

We agree with the parties that the language recently added to section 17 is determinative of the case. We note that because that statutory language was part of the relevant statute when the St. Francis and Rockford Memorial cases were decided following the St. Mary case (see Ill. Rev. Stat. 1983, ch. 75, par. 24), we presume that those statutory interpretations were made with attention to it. (See Mikusch, 138 Ill. 2d at 247.) We find, nevertheless, that with full attention to the particular history of statutory amendment here, the particular statutory language in question, and the new evidence of legislative intent, we are not now bound to the St. Mary rule.

We note that in deciding the St. Mary case, the court made no reference to the particular language now in question. Similarly, neither the St. Francis nor the Rockford Memorial court commented on this language. More important to our conclusion that the St. Mary reasoning should not control, however, is the fact that legislative comments made preceding the vote to alter section 17 reveal a legislative intent contrary to a simple endorsement of the St. Mary rule.

In the relevant legislative debate comments, Representative Giorgi stated that the amendment that added the critical language here to section 17 made “the arresting authority responsible for any incurred medical expenses relating to the arrestee until he is placed in the custody of the sheriff. Unless [sic] the arrest was made at the sheriffs [sic] request.” (86th Ill. Gen. Assem., House Proceedings, May 9, 1989, at 1 (statements of Representative Giorgi).) Representative Giorgi went on to say generally that the bill would make park districts, police departments, airport districts, forest preserve districts, and sanitary districts responsible for the medical cost of injured persons “until the sheriff accepts them.” (86th Ill. Gen. Assem., House Proceedings, May 9, 1989, at 1 (statements of Representative Giorgi).) In responding to an inquiry, Representative Giorgi indicated that under the legislation in question, if municipal police brought a person to a medical facility, the county would not become liable for the associated medical costs “until they’re placed in the custody of this jail.” 86th Ill. Gen. Assem., House Proceedings, May 9, 1989, at 2 (statements of Representative Giorgi).

We find that the legislative debate preceding the enactment of the revised applicable version of section 17 clearly reveals a legislative intent contrary to that expressed in St. Mary, St. Francis, and Rockford Memorial. Given the content of those comments, and despite the fact that the legislature did not alter the statutory language that was in effect at the time of earlier, contrary judicial interpretation, we find that with the enactment now in effect, the legislature did not contemplate or intend that the charging of an arrestee would trigger a county’s liability under the facts now before us. Rather, it demonstrated that the legislature’s intent was that when an arrest is made, other than by the sheriff, and not pursuant to the sheriff’s request, the county shall not be responsible for the arrestee’s medical expenses until the arrestee is placed in the sheriff’s physical custody.

Based on this evidence of the legislative intent, an intent fully consistent with a public policy encouraging timely charging of hospitalized arrestees, we find that the trial court, despite its relianee on other reasoning (see Burghardt v. Remiyac (1991), 207 Ill. App. 3d 402, 407), correctly found that the city was liable for the arrestee’s medical expenses prior to his transfer to the county jail, and granted summary judgment against the city and for the county.

Based on the foregoing, we affirm the judgment of the circuit court of Lee County.

Affirmed.

UNVERZAGT and BOWMAN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE INGLIS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL BLALOCK, SR., Defendant-Appellant.
    Second District
    No. 2—91—0561
    Opinion filed January 22, 1993.
    Rehearing denied February 17, 1993.

      G. Joseph Weller and Patrick M. Carmody, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

A jury found defendant, Daniel Blalock, Sr., guilty of six counts of first-degree murder under section 9 — 1 of the Criminal Code of 1961 (Code) (111. Rev. Stat. 1989, ch. 38, pars. 9—1(a)(1), (a)(2), (a)(3)) and two counts of armed violence under section 33A — 2 of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 33A—2). Defendant was sentenced to a term of natural-life imprisonment. The following issues are raised on appeal: (1) whether the mittimus must be amended to reflect convictions of two counts of first-degree murder; (2) whether the trial court infringed on defendant’s right to due process of law when it told a witness for the defense that testifying could possibly result in self-incrimination; (3) whether the prosecutor misstated the law in closing argument; (4) whether error occurred if the trial court failed to con-suit with defense counsel after receiving three notes from the jury during deliberation; and (5) whether the trial court erred in refusing to appoint new counsel after defendant alleged in a post-trial motion that counsel was ineffective.

On February 18, 1988, the police discovered the bodies of Santos Escobedo and Domingo Garcia, Jr., in an apartment building in Zion, Illinois. Defendant, Theodore Knox, Oscar Parham, Ronald Walker and Daniel Blalock, Jr., were charged, inter alia, with first-degree murder.

The evidence adduced at trial showed that the killings resulted from a drug deal gone awry. Defendant was “The Godfather” of a drug dealing “family” comprised of him, Blalock, Jr., Knox, Parham, and Walker. Walker testified that the family was at the apartment of Katrina Conner, Parham’s girlfriend, which was a frequent hangout for the family. Around noontime, Knox came to the apartment and informed the group that someone wanted to sell them marijuana. The group smoked a sample of the marijuana and agreed that they would purchase the marijuana. Defendant, Parham, Knox and Blalock, Jr., took a scale into the laundry room of the apartment building, adjacent to Conner’s apartment, to consummate the deal. Walker testified that he stayed behind in Conner’s apartment.

Walker further testified that he heard gunshots a few minutes after the group left. Knox called to Walker. Walker entered the laundry room and saw Knox struggling with an Hispanic male. A second Hispanic male was lying on the floor with a gunshot wound in his head. No one else was in the room. Walker threw the Hispanic male off Knox, and Knox shot him in the head. Knox then shot the other Hispanic male who was on the ground two or three times. Walker also acknowledged that “a set-up” meant robbery in the family jargon.

On February 21, 1988, defendant was interviewed by Detective Don Tessmann of the Waukegan police department. Defendant stated that he arranged a drug deal involving the victims, but went to Chicago after introducing the parties. When he arrived in Chicago, he heard that the deal had gone bad and some people had been killed.

Officer Frank Messina, a Chicago police officer, took a robbery report from defendant at the corner of California and Courtland in Chicago on February 17, 1988. Defendant claimed that three Hispanic males robbed him, Blalock, Jr., and Parham at approximately 2:45 p.m. Defendant stated that the three individuals took money, six rings, a silver rope chain and a fur coat. Blalock, Jr., reported as stolen a black vest and various forms of identification.

David Capíes, an inmate at the Joliet Correctional Facility, testified about a conversation he had with defendant when defendant was incarcerated late in 1988. Defendant told Capíes that the drug deal on February 17, 1988, was “a set-up.” Defendant stated that the victims were “narc agents” and had to be killed. Defendant further stated that Knox was a coward and did not want to participate when the others were shooting.

Tim Allen, incarcerated at the Lake County jail with defendant in the summer of 1990, testified that defendant stated that he knew the victims were police because they did not check the merchandise. After the victims did not check it, defendant picked up his cocaine and left. Defendant stated that if he thinks someone is a cop, he will kill him. Referring to the murders, defendant said “we did it” and at other times said “they did it.” Defendant told Allen that the police “ain’t got nothin” to tie him to the murders. Defendant stated if he was worried that someone would talk to the police he would kill him, even if it was a family member. He said it would be nothing personal, but would be business.

Defendant subpoenaed Knox to testify in his defense. Knox’s attorney filed a motion to quash the subpoena. He argued that even though Knox was willing to testify, Knox’s attorney believed that Knox was going to testify because he feared defendant. The trial judge met with Knox, Knox’s attorney, and the attorneys in the case in the judge's chambers. Knox told the trial judge that he wanted to testify. The trial judge explained Knox’s fifth amendment rights to him and stated that it would be “foolish” for Knox to testify because of the potential danger of self-incrimination. Defense counsel stated that he did not anticipate calling Knox until the following day, and Knox was given until the next day by the trial court to contemplate his decision. When Knox returned the following day, he exercised his privilege against self-incrimination.

After the jury retired to deliberate, the common-law record reflects that the jury asked the court three questions. A response to one question was given, apparently written by the trial judge. The question was whether the transcripts from Tuesday could be reviewed. The response was: “You have the facts, evidence and the instructions. It is your duty to follow them.” No written response was given to the other two questions, which were a request for the judge to explain legal terms and a request for a dictionary. The report of proceedings contains no testimony concerning these exchanges.

The jury returned a verdict of guilty on six counts of first-degree murder and two counts of armed violence. At defendant’s post-trial hearing, defense counsel informed the court that defendant wished to raise an ineffective assistance of counsel argument in his post-trial motion. Defense counsel moved to withdraw his representation. The trial court denied the motion, stating that it would do an injustice to defendant because defense counsel was most familiar with the case. After defendant’s post-trial motions were denied, he filed a timely appeal.

We initially note that both the State and defendant agree that defendant’s mittimus should be amended to reflect convictions of two counts of first-degree murder. The number of murder convictions should equal the number of victims killed. (People v. Waldron (1991), 219 Ill. App. 3d 1017, 1038.) Here, there can be two convictions for the two murders. However, when multiple convictions arise out of a single act, the sentence is imposed for the most serious offense. (Waldron, 219 Ill. App. 3d at 1038.) Thus, we remand for the correction of defendant’s mittimus to reflect convictions of two counts of first-degree murder under section 9—1(a)(1) of the Code, one conviction for each victim. The convictions under sections 9—1(a)(2) and 9—1(a)(3) of the Code should be vacated. The mittimus should continue to reflect the convictions of two counts of armed violence.

The State has argued that defendant has waived review of issues II (witness incrimination), III (improper closing argument) and IV (ex parte communication) for failing to include them in his post-trial motion. Generally, the failure to include an issue in a post-trial motion results in waiver. (People v. Enoch (1988), 122 Ill. 2d 176, 186.) Plain errors may be reviewed although not brought to the attention of the trial court. (134 Ill. 2d R. 615(a).) Reviewing such errors preserves the integrity and reputation of the judicial process. (People v. Herrett (1990), 137 Ill. 2d 195, 210.) Thus, we will review issues II, III and IV under the plain error doctrine.

PRIVILEGE AGAINST SELF-INCRIMINATION

At issue is whether the trial court infringed upon defendant’s due process rights when informing Knox of the danger of self-incrimination if he testified. Defendant claims that the trial judge’s remarks effectively drove the witness off the witness stand. He argues that although the trial court may have been well-intentioned, it overstepped the bounds of permissible judicial intervention.

While in the trial judge’s chambers, Knox stated that he wished to testify on behalf of defendant. During the conversation, the trial judge made these statements:

“If you were to testify and if some of the questions that were asked were of an incriminating nature, I can only encourage you to exercise those rights that are given you and refuse to answer.
This is a right you have, and it is a very valuable and important right. From what I have gathered in this case, I think it would be foolish for you not to exercise your right.
We’ll have you back tomorrow to see what your response is; but for your information and edification, Mr. Walker has testified and Mr. Allen has testified or will shortly testify, Mr. Capíes has testified; and I just want you to know that they have testified, and the State’s position on this is they don’t care if you testify or not.
Finally, once again, based on the evidence that I have heard, I think it is foolish if you do not exercise your privilege under the law, and we’ll have you back tomorrow.”

Knox returned to court the following day and exercised his privilege against self-incrimination.

In part, the fifth amendment provides that no person shall be compelled to testify against himself or herself in a criminal case. (U.S. Const., amend. V; Ill. Const. 1970, art. I, §10.) A witness may invoke the fifth amendment and refuse to answer questions of an incriminating nature. (People v. Redd (1990), 135 Ill. 2d 252, 304.) Although the trial court does not have an affirmative duty to warn of potential incrimination, the court has the discretion to so advise the witness when the need arises. People v. Pantoja (1976), 35 Ill. App. 3d 375, 380; see also West v. Boehne (1992), 229 Ill. App. 3d 1045, 1054-55.

Notwithstanding the State’s contention that this issue has been waived because of defendant’s failure to object to the trial court’s admonition, we hold that the trial court did not infringe on defendant’s due process rights when warning Knox. On the record, Knox’s counsel stated that his client was following “our advice” by exercising his fifth amendment right to remain silent. Knox stated on the record that he wanted to remain silent. Also, we find it significant that the trial judge admonished Knox in response to a motion to quash the subpoena and not sua sponte.

It was appropriate for the trial judge to inform the witness of his right to remain silent. However, we believe it was inappropriate for the trial judge repeatedly to inform the witness of this right and editorialize that testifying would be foolish. Nevertheless, the trial judge’s comments did not rise to the level of reversible error. Viewing the trial court’s statements together with those of Knox’s counsel, we believe that the trial court’s warning had little persuasive effect on Knox, but allowed him the additional time to make an informed decision.

The cases cited by defendant to support his argument are distinguishable. In Webb v. Texas (1972), 409 U.S. 95, 34 L. Ed. 2d 330, 93 S. Ct. 351, the trial court informed the defendant’s only witness that if he lied “the Court will personally see that your case goes to the grand jury and you will be indicted for perjury.” The trial court also stated that he would likely be convicted of perjury and “it would be stacked onto what you already got.” (Webb, 409 U.S. at 96, 34 L. Ed. 2d at 332, 93 S. Ct. at 352.) The Supreme Court held that the admonition was improper because, through his statements, the trial judge implied that he expected the witness to lie. The judge’s threatening remarks exerted such duress on the witness’ mind that the witness was effectively driven off the stand. Webb, 409 U.S. at 97-98, 34 L. Ed. 2d at 333, 93 S. Ct. at 353.

In People v. King (1992), 228 Ill. App. 3d 519, a codefendant was called as a defense witness in the defendant’s trial. The witness had already negotiated a guilty plea with the trial judge in which the witness’ attorney stipulated that the witness and the defendant participated together in the armed robbery. (King, 228 Ill. App. 3d at 521.) The trial judge informed the witness that if he testified differently from the stipulated facts at his plea hearing, the judge would vacate his guilty plea. The witness would then be subjected to a trial. The witness exercised his fifth amendment rights. (King, 228 Ill. App. 3d at 522-23.) The appellate court held that the trial court’s admonishment was improper because the judge implied that the witness would lie if he testified on behalf of the defendant. Further, the record showed that the witness did not agree with all the facts his attorney stipulated to at the plea hearing. King, 228 Ill. App. 3d at 525.

Finally, defendant cites two California cases: People v. Schroeder (1991), 227 Cal. App. 3d 784, 278 Cal. Rptr. 237, and Berg v. Morris (E.D. Cal. 1980), 483 F. Supp. 179. In Schroeder, the reviewing court held that the trial judge’s repeated warnings about incrimination exceeded the court’s duty to apprise the witness of the privilege against self-incrimination. Defense counsel even acknowledged to the trial judge that his comments were bordering on “coercion and intimidation.” (Schroeder, 227 Cal. App. 3d at 793, 278 Cal. Rptr. at 242.) In Berg, the witness was told that if he did not tell the truth, his probation would be revoked and perjury charges would be filed against him. (Berg, 483 F. Supp. at 181.) The witness was also detained when court was adjourned over the weekend. The witness, who originally did not implicate the defendant, thereafter changed his testimony and implicated the defendant. (Berg, 483 F. Supp. at 182.) The district court granted the defendant’s habeas corpus petition because the trial court impermissibly interfered with the defendant’s right to present the testimony of his witnesses. Berg, 483 F. Supp. at 183-84.

In nearly all the cases cited by defendant, the witness in question was presented with an “if-then” proposition. The trial judge, implying that he anticipated the witness would lie, informed the witness of the adverse consequences of testifying. The witnesses then exercised their privilege under the fifth amendment for fear of having probation revoked or their plea agreements vacated. No such threat was presented to Knox here.

The case at bar is analogous to People v. Young (1992), 231 Ill. App. 3d 40, in which the trial judge did not threaten the witness with perjury charges or a vacation of a plea agreement. The witness was informed that he could withdraw his guilty plea before testifying or exercise his fifth amendment right. (Young, 231 Ill. App. 3d at 43.) Similarly, Knox was merely informed that testifying when he was implicated in the crime would be “foolish.” This statement by the trial court did not rise to the level of coercion or intimidation displayed in Sehroeder or to the level of reversible error. Thus, we hold that defendant was not denied due process of law based on the trial court’s warning to Knox.

CLOSING ARGUMENT

Defendant contends that the prosecutor misstated the law in closing argument. In his rebuttal argument, the prosecutor stated:

“If you find that before this took place that he set up this drug deal, you must convict him of every count. If you find that getting this scale, as being part of a set-up, you must convict him of every count. If you find that he played any part of this whatsoever, you must convict him of every count.
MR. WALDECK [defense counsel]: Judge, I object. It is not the law.
MR. STRICKLAND [prosecutor]: That is the law. I am arguing. It is argument.
THE COURT: Overruled.”

Defendant argues that in order for him to be guilty of felony murder, he must be found to have attempted or committed a forcible felony other than second-degree murder. (See Ill. Rev. Stat. 1989, ch. 38, par. 9—1(a)(3).) He claims that delivery or possession of cannabis is not a forcible felony under section 2—8 of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 2—8). The State counters that the evidence showed that “the family” used the term “a set-up” synonymously with robbery, which is a forcible felony needed to support a felony murder conviction.

The prosecutor has wide latitude in closing argument, and allegedly improper comments should be considered in context with both the State’s and the defense’s arguments. (People v. Gant (1990), 202 Ill. App. 3d 218, 224.) Remarks made at closing argument must be based on the evidence presented or reasonable inferences therefrom. (People v. Cisewski (1987), 118 Ill. 2d 163, 175-76.) Improper remarks are harmless error if there is overwhelming evidence of guilt, and a new trial will not be granted unless the remarks were so prejudicial that they materially contributed to the defendant’s conviction. Gant, 202 Ill. App. 3d at 225.

Defendant argues that a prosecutor is not to misstate the law in closing argument, citing People v. Weinstein (1966), 35 Ill. 2d 467. However, in Weinstein, the prosecutor argued that the defendant had the burden to introduce evidence creating a reasonable doubt of guilt before she could be found not guilty. (Weinstein, 35 Ill. 2d at 470.) Such an egregious misstatement of law did not occur here. The evidence presented at trial supported the prosecutor’s theory that the drug deal was a robbery. Walker testified that “a set-up” was a term used by the family to mean a robbery. Defendant referred to the drug deal in his conversation with Capíes as “a set-up.” Walker also testified that defendant went into the laundry room of the apartment building to meet with the victims. Thus, as the prosecutor stated to the jury, if it found that defendant was part of the “set-up” when he took the scale into the laundry room, defendant could be convicted of first-degree murder under the theory of accountability. See 111. Rev. Stat. 1989, ch. 38, par. 5 — 2.

Also, under section 5—2(c) of the Criminal Code of 1961, defendant could be held accountable if, before the commission of the offense, defendant participated in the planning or commission of the offense. (Ill. Rev. Stat. 1989, ch. 38, par. 5—2(c).) Again, there was evidence for the prosecutor to infer that defendant planned a robbery. Officer Tessmann testified about his conversation with defendant in which defendant acknowledged setting up the drug deal. Defendant told prison inmates that the deal was “a set-up” from the start. Walker testified that “a set-up” was synonymous with a robbery. Based on this evidence, the prosecutor could argue that defendant is guilty of felony murder under an accountability theory if the drug deal was “a set-up.”

Finally, the prosecutor claimed that defendant was guilty of felony murder if defendant played any part in “this” whatsoever. Although “this” is an ephemeral term, when viewed in context with the arguments of the State and the defense, “this” refers to the drug deal which inferably was “a set-up” for a robbery. Under the analysis above, participation in the underlying forcible felony, in this case robbery, is the basis for a conviction of felony murder. (Ill. Rev. Stat. 1989, ch. 38, par. 9—1(a)(3).) Thus, we hold that, based on the evidence, the prosecutor’s argument was not a misstatement of law.

Further, even if the jury may have been confused by the prosecutor’s closing argument, the impact of the argument was negated by the proper jury instructions given to the jury. The instructions informed the jury of the law of accountability and first-degree murder based upon the robbery and not the drug deal. The jury was also instructed that closing argument is not evidence, and statements made by the attorney not based on the evidence should be disregarded. Any impact the prosecutor’s closing argument had would not have been so prejudicial as to contribute materially to defendant’s conviction.

EX PARTE COMMUNICATION BETWEEN JURY AND TRIAL JUDGE

At issue is whether the trial court committed reversible error in communicating ex parte with the jury after it began deliberating. Defendant contends that, based on a lack of a record of communication between the jury and the trial judge, the trial judge must have communicated with the jury without the presence of the defendant or defense counsel. Defendant argues that ex parte communication between the judge and the jury during deliberation is per se reversible error.

The State contends that defendant must have been prejudiced by the ex parte communication for there to be reversible error. The State also argues that the record is insufficient to establish error as it is unclear from the record on appeal whether defendant or defense counsel was present when the judge responded to the jury.

During deliberations, the jury sent three questions to the court, one of which was answered, apparently by the trial judge:

“[Question]: Can we have transcript of Tuesday?
[Answer]: You have the facts, evidence and the instructions — it is your duty to follow them.
[Question]: Have judge visit to explain legal terms?
[Question]: Need dictionary ‘abets.’ ”

A similar situation occurred in People v. Scott (1989), 192 Ill. App. 3d 594. There, the defendant appealed based on two “ambiguous” notes that suggested ex parte communication between the judge and jury while the jury was deliberating. The defendant, as does defendant here, asked this court to remand to determine the circumstances surrounding the communication and order a new trial if ex parte communication occurred. (Scott, 192 Ill. App. 3d at 595.) This court denied the request. The defendant failed to provide a report of proceedings to determine whether defendant and his counsel were present. Doubts from the incompleteness of the record were resolved against the defendant. Scott, 192 Ill. App. 3d at 598.

In the case at bar, we have the report of proceedings, but it is not instructive as to whether defendant and his trial counsel were present when the judge responded to the jury’s notes. Appellate counsel assumes that because the record is silent on this point it must mean that defendant and his counsel were not present. We, as the reviewing court, should not be left to speculate about these matters. If appellate counsel believes ex parte communication between the judge and jury has taken place, an affidavit from defendant’s trial counsel clarifying that fact would be inordinately helpful. Based on the record before us, we follow Scott and hold that the doubts arising from the incompleteness of the record will be resolved against the appellant. See also Foutch v. O’Bryant (1984), 99 Ill. 2d 389.

Even if we assume that ex parte communication occurred here, we would find that the trial judge’s actions would not be reversible error. Generally, the proper procedure when the jury communicates with the judge during deliberation is for the trial judge to discuss the request with the prosecutor and defense counsel before responding. (People v. Tansil (1985), 137 Ill. App. 3d 498, 501.) When the defendant and counsel are absent from such communication, the defendant must demonstrate that she or he suffered prejudice as a result for the error to require reversal. (People v. Johnson (1991), 146 Ill. 2d 109, 150; Tansil, 137 Ill. App. 3d at 501.) The key question in determining prejudice is whether defense counsel’s presence could have had any effect on the communication (People v. King (1988), 165 Ill. App. 3d 464, 471-72) or the deliberative process (Tansil, 137 Ill. App. 3d at 501).

It is within the sound discretion of the trial court to allow or refuse a request by the jury to review testimony in a criminal case. (People v. Queen (1974), 56 Ill. 2d 560, 565-66.) The trial court is in a better position to assess the jury’s request to determine whether reviewing the testimony would help the jury during deliberations. (Tan sil, 137 Ill. App. 3d at 502.) However, it is reversible error if the trial court refuses to exercise its discretion under the erroneous belief that it has no discretion to answer the question. (Queen, 56 Ill. 2d at 565.) Failure by the trial court to ascertain the specific testimony desired by the jury has been considered a signal that the trial court erroneously believed it lacked the discretion to grant the jury’s request. People v. Bryant (1988), 176 Ill. App. 3d 809, 813; see also Tansil, 137 Ill. App. 3d at 503. But see People v. Page (1976), 39 Ill. App. 3d 728, 730 n.1 (where request for testimony is so broad that it would require inordinate delay or result in retrial by transcript, the request may be denied as unreasonable).

Although a request for the "transcript of Tuesday” is not particularly specific, considering that 14 witnesses testified on Tuesday, April 9, 1991, we do not believe that the trial judge thought he lacked the discretion to allow the request. The trial judge’s written answer in no way suggests that he lacked the ability to provide the transcripts. Most of the cases cited by defendant to support his argument are distinguishable because the trial judges, through their written responses, demonstrated that they believed they could not grant the juries’ requests. (Queen, 56 Ill. 2d at 565 (judge responded by writing: “I cannot have any testimony of any witnesses read to you”); Tansil, 137 Ill. App. 3d at 500 (judge responded by claiming that the jury is not permitted to receive any part of a witness’ written testimony); see also People v. Walker (1992), 230 Ill. App. 3d 292, 296-97.) Moreover, defendant’s reliance on a recent Appellate Court, First District, case, People v. Childs (1992), 230 Ill. App. 3d 993, is misplaced because it did not deal with a jury’s request to review testimony, but involved a question of law.

The jury’s second note asked the trial judge to explain legal terms, and the third note requested a dictionary to define the word “abets.” Apparently, the trial judge did not respond to these requests. We find that the trial court’s response, or lack of one, was appropriate. The trial judge is not required to answer a jury’s question when the jury instructions are sufficient. (People v. Petty (1987), 160 Ill. App. 3d 207, 213.) The court also has the discretion to refuse a request for a dictionary. (Petty, 160 Ill. App. 3d at 213.) The jury instructions were in plain language which an average person could understand. Thus, the trial court did not abuse its discretion by not sending a written response to these requests.

Assuming ex parte communication occurred, we would hold that defendant was not prejudiced by the trial court’s alleged failure to inform him or defense counsel of the jury notes. The trial court’s response to the jury’s requests was within its sound discretion. Thus, the alleged ex parte communication did not result in reversible error.

TRIAL COURT’S REFUSAL TO APPOINT NEW COUNSEL

Defendant’s final contention is that the trial court abused its discretion in denying his request for new counsel at the post-trial stage of proceedings. He argues that his trial counsel had been ineffective for tampering with Knox’s decision not to testify. Defendant also claims that trial counsel was ineffective because he failed to inform a witness that she had to appear in court.

The State argues that People v. Krankel (1984), 102 Ill. 2d 181, the case primarily relied upon by defendant, does not stapd for the proposition that new counsel should be appointed in every post-trial claim of ineffective assistance of counsel. The State also claims that both allegations of ineffective assistance were solely matters of trial strategy. Thus, the trial judge properly denied defendant’s request.

We believe that the case cited by the State, People v. Washington (1989), 184 Ill. App. 3d 703, is instructive. In Washington, this court outlined the procedure for appointing new counsel for post-trial proceedings:

“The holding in Krankel has been interpreted by the appellate court not to establish a per se rule that all pro se motions for a new trial by defendants alleging ineffective assistance of counsel mandate appointment of new counsel to assist in the motion irrespective of the basis of the motion and in the absence of a request for new counsel. [Citations.] Rather, the trial court should examine the factual matters underlying the defendant’s claim, and, if the claim lacks merit or pertains to matters of trial strategy, then no new counsel need be appointed. Only if the allegations show possible neglect of the case for which counsel could undertake an independent evaluation of defendant’s complaint and present the matter to the court should new codnsel be appointed.” Washington, 184 Ill. App. 3d at 711.

We have reviewed defendant’s two claims of ineffective assistance of counsel and find that they both lack merit. Defendant’s counsel indeed told Knox to listen to Knox’s attorney, but that statement in no way encouraged Knox not to testify. In fact, defendant’s counsel made it a point to state on the record that he never had a conversation with Knox unless in the presence of the court or Knox’s attorneys. Defense counsel also stated:

“Judge, at no time did I ever inform him that he should not testify. In fact, what I did, the only statement that I asked, I asked him or, in fact, told him that he should listen to his lawyers and never advised him one way or the other which way to testify.”

This statement does not demonstrate neglect on the part of defense counsel.

Further, defendant’s allegation that his counsel failed to inform a witness to appear in court to testify is not neglect. The record reveals that defense counsel made no less than five telephone calls from his personal residence informing the witness to appear in court. Our reading of the record shows that defendant’s allegation is baseless. The trial court did not err in denying defendant’s request for new counsel to argue his motion for a new trial.

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

Affirmed.

McLAREN and BOWMAN, JJ., concur.


author: JUSTICE GEIGER JUSTICE DOYLE,

text:
    MOHAMED NUSRATH ALI, Plaintiff-Appellant, v. LISA K. JONES, n/k/a Lisa K. Koester, Defendant-Appellee.
    Second District
    No. 2—92—0139
    Opinion filed January 22, 1993.

      Kevin William Bloese, of Vescelus, Powell & Stock, of Wheaton, for appellant.
    John R. Wienold and Michael C. O’Neill, both of Law Offices of John R. Wienold, Ltd., of Aurora, for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The plaintiff, Mohamed Nusrath Ali, appeals from the trial court’s order of January 3, 1992, dismissing his complaint with prejudice. The complaint at law sought damages arising from the alleged negligence of the defendant, Lisa K. Jones, in the operation of her automobile in April 1984.

In dismissing the cause with prejudice on January 3, the court observed that the plaintiff answered not ready for trial and requested another continuance. In its order, the court made the following specific findings: (1) the plaintiff did not exercise due diligence in obtaining service of process and in going forward with his case; (2) the plaintiff had been given ample leave to obtain counsel and had received due notice of his right and ability to obtain counsel; and (3) altérnatively, the plaintiff answered that he was not ready for trial. The plaintiff contends that it was error for the trial court to dismiss the cause. We agree and reverse.

The record reveals the following chronology of pertinent events leading to the dismissal of the cause. The plaintiff voluntarily dismissed his original negligence complaint on December 15, 1988. Acting pro se, he refiled on December 8, 1989. On November 25, 1991, the court was advised of plaintiffs attorney’s motion to withdraw as counsel. The cause was continued to December 23, 1991, for a hearing on the motion to withdraw and for setting on the January jury call; the court ordered the plaintiff to appear to avoid dismissal of the cause with prejudice and ordered counsel to give the plaintiff a copy of the order.

On November 27, 1991, counsel filed his notice and motion to withdraw, citing irreconcilable differences between himself and his client. On December 23, 1991, the cause was ordered continued to January 3 for trial by jury. By agreement of the plaintiff, his attorney was given leave to withdraw. Also on December 23, the defendant’s motion to reconsider dismissal was set to be heard on January 3; the court’s order stated that plaintiff “must have counsel by trial date if he desires to have counsel.”

On January 3, 1992, defense counsel appeared and argued for dismissal of the cause, based on the plaintiff’s lack of diligence. When the plaintiff, acting pro se, sought a continuance to obtain counsel, the defendant argued against the continuance, asserting that she was prejudiced by delay in the case. Counsel noted that the plaintiff’s deposition showed that the plaintiff had no memory of the accident, that the plaintiff had not cooperated with his counsel, and that the plaintiff was now present without counsel even though he was given prior opportunities to obtain counsel.

Observing the vintage of the cause of action, the court called the case for trial and, in the alternative, ruled that it would be dismissed. The court declined to continue the cause. The plaintiff argued that he had visited a physician in September and was now asking for a final continuance. The court pointed out that motions must be in writing and notice given to the opposing party and that continuances are not granted when a cause has reached the trial stage unless a sufficient excuse is shown for the delay. The court also noted the December 23 withdrawal order, and the plaintiff acknowledged that he was present on December 23 but that he had not recently consulted an attorney.

The plaintiff stated that he was under the impression that because of his attorney’s notice of withdrawal, he had 21 more days to retain counsel or file a supplementary appearance. Over the defendant’s objection, he also argued that he did not have the money to obtain counsel; he stated that he needed a continuance of at least three months to obtain a physician and an attorney and to prepare his case.

The court observed that the cause of action was by now nearly eight years old; that the plaintiff’s case was no further advanced than it was in 1984; and that the plaintiff had been given every opportunity to pursue his cause of action. The cause had already been dismissed and reinstated and the present cause had been previously dismissed twice for want of prosecution. The court then entered its order dismissing the cause with prejudice and reciting its findings as stated earlier herein.

On appeal, the plaintiff challenges each of the court’s three apparent bases for dismissing the complaint: (1) that the plaintiff was not reasonably diligent in obtaining service of process after the expiration of the applicable statute of limitations; (2) that in view of the delay in bringing the case to trial, the plaintiff was generally not diligent in the prosecution of his case; and (3) that although he had been apprised of his need to secure counsel, he did not do so and he answered not ready for trial. Because it is dispositive of the case, we begin with the plaintiff’s argument that he was given inadequate time to obtain counsel between December 23 and January 3. That argument relies on the provisions of Supreme Court Rule 13(c) (134 111. 2d R. 13(c)).

Rule 13(c) provides in pertinent part:

“(2) Notice of Withdrawal. An attorney may not withdraw his appearance for a party without leave of court and notice to all parties of record, and, unless another attorney is substituted, he must give reasonable notice of the time and place of the presentation of the motion for leave to withdraw ***. Such notice shall advise said party that to insure notice of any action in said cause, he should retain other counsel therein or file with the clerk of the court, within 21 days after entry of the order of withdrawal, his supplementary appearance stating therein an address at which service *** may be had upon him.
(3) *** The motion [to withdraw] may be denied by the court if the granting of it would delay the trial of the case, or would otherwise be inequitable.” (Emphasis added.) (134 Ill. 2d R. 13(c).)

The plaintiff’s attorney’s notice, served by certified mail on plaintiff on or about November 25,1991, stated:

“YOU SHOULD RETAIN OTHER COUNSEL THEREIN OR FILE WITH THE CLERK OF THE COURT, WITHIN 21 DAYS AFTER THE ENTRY OF THE ORDER OF WITHDRAWAL, OR FILE YOUR SUPPLEMENTARY APPEARANCE STATING THEREIN AN ADDRESS AT WHICH SERVICE OF NOTICES OR OTHER PAPERS MAY BE HAD UPON YOU.”

The plaintiff urges that the implicit meaning of Rule 13 is that nothing prejudicing a client’s rights will occur within the 21 days following the allowance of an attorney’s withdrawal. He challenges the court’s ability here to take any substantive action during the 21-day period following the entry of a withdrawal order. Also, he asserts he was prejudiced by the court’s January 3 order.

The plaintiff’s reliance on Rule 13 rests primarily on In re Marriage of Santa Cruz (1989), 179 Ill. App. 3d 611, In re J.M. (1988), 170 Ill. App. 3d 552, rev’d in part on other grounds sub nom. People v. R.G. (1989), 131 Ill. 2d 328, and Firkus v. Firkus (1990), 200 Ill. App. 3d 982. With reference to Rule 13, the Santa Cruz court reversed the trial court’s visitation order entered only two days after the client received notice of her attorney’s intention to withdraw. (Santa Cruz, 179 Ill. App. 3d at 621-22.) In reversing the dis-positional order in J.M., the appellate court referred to the respondent’s failure to receive Rule 13 notice when his attorney moved to withdraw and to the showing that the respondent did not waive his right to have counsel present at the dispositional hearing. (J.M., 170 Ill. App. 3d at 568.) In Firkus, the appellate court observed that the concern of Rule 13 is for continued representation, full notice, and an opportunity for the client to contest withdrawal. Firkus, 200 Ill. App. 3d at 989.

According to the defendant, Rule 13 is concerned with notice, a matter that is not at issue in this case because the plaintiff was given timely notice of the motion to withdraw and of the court’s grant of that motion. The defendant argues that Santa Cruz and J.M. are distinguishable because each focused on a client who failed to receive notice of his attorney’s withdrawal motion. She also argues that nothing in Firkus indicates that Rule 13 is designed to prevent action in a case during the 21 days after entry of an attorney’s withdrawal.

Here, the plaintiff was present at the hearing allowing his counsel’s withdrawal, he had advance notice of counsel’s motion to withdraw, and he agreed to the withdrawal of his counsel. He also did not object to the court’s December 23 order requiring that he must have counsel by the January 3 hearing date, if he wished to be represented by counsel. Nevertheless, we find that under the language and spirit of Rule 13, with its concern for continued representation (see Firkus, 200 Ill. App. 3d at 989), the court erroneously denied the plaintiff a continuance and proceeded, despite the plaintiff’s lack of counsel at the January 3 hearing.

Courts possess the inherent power to dismiss actions for want of prosecution, and a determination that there has been a lack of diligent prosecution warranting dismissal rests within the sound discretion of the trial court; however, a dismissal for want of prosecution is error unless the party has been guilty of inexcusable delay in prosecuting the suit. (In re Marriage of Hanlon (1980), 83 Ill. App. 3d 629, 632.) The circumstances justifying the dismissal of an action are governed by the facts peculiar to each specific case. Bender v. Schallerer (1973), 9 Ill. App. 3d 951, 953.

In denying the plaintiff’s extemporaneous request for a continuance and dismissing the cause with prejudice, the court found that the plaintiff was not diligent in going forward with his case. Implicit in the court’s finding was that the plaintiff offered an insufficient excuse when he answered that he was not ready for trial. We find, however, that the plaintiff demonstrated a sufficiently grave reason or excuse to preclude a dismissal for want of prosecution and to require the court to grant the January 3 continuance. (See Francone v. Weigel Broadcasting Co. (1979), 79 Ill. App. 3d 991, 995.) Although the overall facts in the record disclose a pattern of delay and a case that was close to eight years old, the December 23 withdrawal of the plaintiff’s counsel significantly altered the scenario here.

When the case was called on January 3, the plaintiff fully explained that he had not secured new counsel in the brief period since former counsel withdrew on December 23. Despite any merit to the court’s apparent conclusions that the plaintiff was not diligent in obtaining service or in prosecuting the case generally, given the 21-day transition period that Rule 13 contemplates for the continuation of representation, the trial court should have allowed the plaintiff’s continuance. (See 134 Ill. 2d R. 13(c)(2); Firkus, 200 Ill. App. 3d at 989.) In the event that the court deemed that such a transition period would improperly delay trial in the case or otherwise be inequitable, it had the option to deny counsel’s withdrawal. See 134 Ill. 2d R. 13(c)(3).

Based on the foregoing, we reverse the judgment of the circuit court of Kendall County and remand the cause for further proceedings.

Reversed and remanded.

UNVERZAGT, J., concurs.

JUSTICE DOYLE,

dissenting:

I respectfully dissent. I do not agree with the majority’s interpretation of Rule 13 as establishing a 21-day “transition period” during which all action by the trial court must be suspended regardless of the circumstances. The language of that rule appears to state that the purpose of filing a supplementary appearance or other document containing the client’s address is for the client to receive notice of ongoing proceedings. The concern for the client’s “continued representation” referred to in Firkus (200 Ill. App. 3d at 989) was intended to relate, I believe, to the requirement that the client be represented up to the order of withdrawal.

In the present case, plaintiff was present at the December 23 hearing at which his attorney was allowed to withdraw, he had 28 day’s advance notice of it, he agreed to the withdrawal of his attorney, and he did not object to the court’s order requiring his presence with counsel, if he desired representation, at the January 3 trial. I find nothing in the language of Rule 13 or in the decisions cited in the majority opinion indicating that the trial court should have been paralyzed in the conduct of its business on January 3.

Considering the history of delay attributable to plaintiff, I would defer to the trial court’s exercise of discretion in denying plaintiff’s motion for a continuance and dismissing this cause with prejudice. No sufficiently grave reason for granting a continuance on the day of trial is evident from the record. (See Francone, 79 Ill. App. 3d at 995.) By the time of the trial date nearly eight years had elapsed since plaintiff was injured. The cause had already been voluntarily dismissed and reinstated, and the present cause had been previously dismissed twice for want of prosecution. The trial judge noted that plaintiff’s case was advanced no further than it was in 1984. Moreover, at the December 23 hearing plaintiff was directed by the trial court to retain counsel for the January 3 trial. It appears that plaintiff took no action whatsoever to comply -with the court’s direction but, instead, appeared pro se on the day of trial and requested three more months to obtain counsel, consult a physician and prepare his case for trial. Plaintiff’s failure to demonstrate any minimal effort toward retaining counsel might have reasonably been regarded by the judge as one more chapter in a pattern of delay and indifference to the trial court’s efforts to expedite a case that was close to eight years old. I cannot conclude that such delay would not have operated to the substantial prejudice of defendant in presenting her defense. See, e.g., Brown v. Drovers National Bank (1977), 54 Ill. App. 3d 593, 594-95; Elward v. Mancuso Chevrolet, Inc. (1970), 122 Ill. App. 2d 421.

The majority opinion does not discuss an independent basis for the dismissal, i.e., that plaintiff was not reasonably diligent in obtaining service of process after the expiration of the applicable statute of limitations. It is apparently the majority’s view that the trial court erred by ruling on this issue without affording plaintiff another continuance to obtain counsel who might have argued against the motion. Again, I disagree and would not find an abuse of discretion in granting the motion to dismiss for want of diligent service of process.


author: PER CURIAM:

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY KAEDING, Defendant (Terrence M. Spears, Contemnor-Appellant).
    Second District
    No. 2—91—0470
    Opinion filed January 14, 1993.

      Terrence M. Spears, of Belvidere, appellant pro se.

    Roger T. Russell, State’s Attorney, of Belvidere (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PER CURIAM:

Contemnor, attorney Terrence M. Spears, appeals from two trial court orders finding him in direct criminal contempt. We affirm.

The record shows that Spears was representing Gary Kaeding in an indirect criminal contempt proceeding when he was found in contempt. On appeal, Spears’ first argument appears to raise matters relating to this underlying proceeding. For the reasons which follow, we dismiss any arguments regarding that proceeding.

Absent authorization by statute or supreme court rule, a non-final order is not appealable since the reviewing court only has jurisdiction over final judgments. (People v. Whigam (1990), 202 Ill. App. 3d 252, 559 N.E.2d 896.) In the case at hand, the record fails to show that the trial court decided the merits of the prosecution against Gary Kaeding. Therefore, since no final order was entered against Kaeding, we lack jurisdiction to re-view any issues concerning the underlying proceeding.

Spears’ second argument on appeal is that the trial court erred in finding him in direct criminal contempt for his actions in open court.

The record shows that during the underlying Kaeding proceeding, Judge John L. Moore stated that he would give Spears five days to file a motion for substitution of judge. Thereafter, the following exchange took place:

“THE COURT: Also I am going to sua sponte enter an order ordering Mr. Kaeding to be examined by a psychiatrist of the choice of the Court, because I do not know whether he is competent to stand trial.
MR. SPEARS: You cannot rule since there has been a Motion for Leave—
THE COURT: (Interrupting) I can; anybody can request a psychiatric examination. I am going to do that.
MR. SPEARS: I will be asking for one for you, Judge; have that on the record.
MR. SCHARF: Judge, I would ask he be found in contempt for that.
THE COURT: I am going to hold you in contempt, $500 fine.
MR. SPEARS: Praise God, praise the Lord Almighty God. May you—
MR. SCHARF: (Interrupting) I ask for jail.
MR. SPEARS: May you reap what you sow, Judge, by the good book.
THE COURT: You have 24 hours to pay the fine, or you are going to jail.
MR. SPEARS: Thank you, Judge.
MR. SCHARF: Thank you.
MR. SPEARS: See you there, Judge.”

On appeal, we begin our discussion by noting that the main categories of contempt are indirect civil, direct civil, indirect criminal, and direct criminal. Because the procedures which must be followed in contempt cases vary according to the type of contempt involved, proper classification of the contempt charged is necessary before resolving the issues presented in this case.

The primary determinant of whether contempt proceedings are civil or criminal in nature is the purpose for which contempt sanctions are imposed. If contempt sanctions are imposed for coercive purposes, that is, to compel the contemnor to perform a particular act, the contempt is civil in nature. In such cases, the contemnor “holds the keys to his jail cell” and can purge himself of contempt by complying with the pertinent court order. See In re Marriage of Logston (1984), 103 Ill. 2d 266, 469 N.E.2d 167.

On the other hand, criminal contempt sanctions are imposed to punish past conduct. They are retrospective in nature and punish the contemnor for past acts which he cannot undo. In re Marriage of Betts (1990), 200 Ill. App. 3d 26, 558 N.E.2d 404.

In the case at hand, the record shows that Spears was fined $500 for his actions in court. This fine clearly was retrospective in nature and meant to punish Spears for his conduct. As such, we find that Spears was properly found guilty of criminal contempt rather than civil contempt.

We must next determine if the trial court properly found Spears to be in direct contempt rather than indirect contempt.

Direct criminal contempt is contemptuous conduct occurring in the very presence of the judge, making all the elements of the offense matters within his own personal knowledge. Indirect contempt is contemptuous conduct which in whole or in an essential part occurred out of the presence of the court and which is dependent for its proof upon evidence of which the court had no judicial notice. People v. L.A.S. (1986), 111 Ill. 2d 539, 490 N.E.2d 1271.

Direct criminal contempt may be found and punished summarily without the usual procedural due process rights being followed. In contrast, indirect criminal contempt requires the usual due process rights of notice, opportunity to answer, and a hearing. People v. Javaras (1972), 51 Ill. 2d 296, 281 N.E.2d 670.

Here, Spears’ conduct took place in the presence of the trial court. As such, the court properly found it to be direct contempt.

We now address the issue of whether Spears’ conduct was contemptuous.

Criminal contempt is conduct which is calculated to embarrass, hinder, or obstruct a court in its administration of justice or derogate from its authority or dignity, thereby bringing the administration of law into disrepute. People ex rel. Finch v. Locher (1988), 172 Ill. App. 3d 706, 526 N.E.2d 935.

In the instant case, we find that Spears’ comments were calculated to embarrass the court and to derogate from the court’s authority and dignity. Accordingly, we hold that based on this conduct, the trial court’s finding of direct criminal contempt was proper.

Spears next argues on appeal that the court erred in finding him in direct criminal contempt based on his filing of contemptuous documents with the court. Specifically, he contends that since the filing of contemptuous documents constituted indirect criminal contempt, he was entitled to notice and a hearing.

The record shows that following the court’s first order of contempt, Spears filed a motion for reconsideration. This motion stated in relevant part the following:

“4. That a statement to the effect that the Court should have a psychiatric examination ordered for itself was only made in reference to the following:
a. A judge, acting in a case with no jurisdiction over the defendant.
b. A judge, after walking off the bench and dismissing court stating to the defendant client of Attorney Spears that he was going to order a psychiatric examination of defendant without jurisdiction or probable cause.
c. A judge, threatening orders and making statements outside of jurisdiction after close of Court which are actionable claims against the judge in a Court of law for abuse of process and malicious prosecution.
d. A judge, threatening the defendant with institutional incarceration with out probable cause or findings of fact because the judge fears exposure of the skimming of fines from local state county court system and coverup of the death of a certain Rockford individual, Lee Desmuke by certain Winnebago County judges and Rockford police officers.
e. A judge, acting in the capacity of what appears to be the evil and wicked pattern or practice of incarcerating local individuals who are deemed ‘trouble-makers’ in privately owned insane asylums by the use of Court-appointed and paid such as Jack Fowler of Boone County and Ronald R Bombliss of Lee County.
f. A judge, appointed by the Illinois Supreme Court as an ‘axeman’ without authority, without jurisdiction and without just cause in the above captioned cause.
g. A judge who, in his own words, believes ‘Anyone can order anybody to have a psychiatric examination.’ ”

This document was filed in the same case as the underlying Kaeding proceeding. In addition, it was directed at the same judge who presided over that proceeding. Based on these facts and the “insulting and scandalous” language of the motion, the court found Spears to be in direct criminal contempt and ordered that he be jailed for six months.

On appeal, the first question we must answer is whether the filing of contemptuous documents is either direct or indirect criminal contempt. Some cases have found that there is a subcategory of direct criminal contempt consisting of contemptuous acts not personally seen by a judge, but which take place in an integral part of the court. These acts can include the filing of a contemptuous document with the clerk of the court. People ex rel. Kunce v. Hogan (1977), 67 Ill. 2d 55, 364 N.E.2d 50.

We agree with the Hogan decision that the filing of contemptuous documents can constitute direct contempt. We find that the filing of documents before the judge who had presided over all of the other proceedings in the case is an act that takes place in an integral part of the court. As such, the court here properly held that Spears’ conduct involved direct contempt.

At this point, we must clarify our decision in People v. Kaeding (1989), 192 Ill. App. 3d 660, 548 N.E.2d 1118. In Kaeding, we held that the filing of a document constituted indirect criminal contempt. Contrary to Spears’ assertion, we did not hold that the filing of contemptuous documents was always a form of indirect contempt. Rather, we held that in the circumstances of that case it constituted indirect contempt.

In Kaeding, this court was faced with the issue of whether the filing of a civil lawsuit in Federal court against a State trial judge could be the basis for a direct contempt finding. We found that it could not. This conclusion was based on the fact that the State court, in order to find the defendant in contempt, would have had to take notice of matters outside of its own court.

In the case at hand, as stated above, the court was not required to take judicial notice of matters outside of its own court. Here, the document was filed before the same judge that found Spears to be in contempt for the comments he made in open court. The judge therefore personally had knowledge of all the elements necessary to find Spears in direct contempt. As such, we hold that the filing of documents can, depending on the facts of the case, be either indirect or direct criminal contempt.

We now address the question of whether the trial court properly found Spears to be in contempt.

We find that Spears’ conduct was contemptuous. He filed a document with the court that was obviously calculated to derogate from the dignity of the court. Stating that the trial judge was an “axeman,” was engaged in an “evil and wicked” pattern of incarcerating individuals, and was skimming fines for the court system was clearly conduct aimed at bringing the administration of law into disrepute.

In conclusion, we find that both findings of contempt were proper. In addition, since Spears only received six months of incarceration, he is not entitled to a hearing. See In re Marriage of Betts (1990), 200 Ill. App. 3d 26, 558 N.E.2d 404.

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

Affirmed.


author: JUSTICE McLAREN

text:
    THE PEOPLE ex rel. MICHAEL J. WALLER, State’s Attorney of Lake County, Plaintiff-Appellant, v. $4,175 UNITED STATES CURRENCY, Defendant-Appellee (Lewis Clayborne, Claimant).
    Second District
    No. 2—91—0901
    Opinion filed January 15, 1993.

      Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers, Norbert J. Goetten, Robert J. Biderman, and Jeffrey K. Davison, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellant.
    Peter A. Staben, of Staben & Kopsick, P.C., of Waukegan, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

The State brought an action against Lewis Clayborne (hereinafter claimant) for the forfeiture of $4,175 pursuant to section 12 of the Cannabis Control Act (Ill. Rev. Stat. 1991, ch. 56½, par. 712). Following a bench trial, the court ruled in favor of the claimant. On appeal, the State contends that the trial court erred in finding that the State (1) failed to prove that probable cause existed to forfeit the money and (2) failed to establish the applicability of the rebuttable presumption that the money was forfeitable under section 7 of the Drug Asset Forfeiture Procedure Act (Ill. Rev. Stat. 1991, ch. 56½, par. 1677(1)).

The State’s complaint for forfeiture alleged, inter alia, that on December 21, 1990, claimant knowingly and unlawfully possessed cannabis with the intent to deliver (Ill. Rev. Stat. 1991, ch. 56½, par. 705). The complaint also alleged that $4,175 was used or was intended to be used to facilitate a violation of section 5 of the Cannabis Control Act (Act), that the money was found in close proximity of cannabis, and that the money and cannabis were seized by the Waukegan police department. The State petitioned that the money and cannabis be dedared contraband and forfeited, with the money given to the custody of the Director of the Illinois State Police as specified in the Act (Ill. Rev. Stat. 1991, ch. 56½, par. 712).

Claimant filed an amended answer to the complaint stating he had $5,450 in his pants pocket on December 21, 1990. In his amended answer, claimant stated that he acquired this money from a bond refund in case No. 90 — CF—713, a bank account withdrawal on December 17, 1990, and a loan from his son for automobile repairs. Claimant further alleged the money was not subject to forfeiture because there was no probable cause to arrest claimant or seize the money, that no presumption of forfeitability existed (Ill. Rev. Stat. 1991, ch. 56½, par. 1677), and that the money was exempt from forfeiture (Ill. Rev. Stat. 1991, ch. 56½, par. 1678(A)(i)).

Claimant’s amended answer further alleged that on December 21, 1990, police officers had a search warrant for Karlos Clayborne (a female black 25 to 30 years old), a male black 22 to 26 years old named Winston, and the premises at 725 Eighth Street in Waukegan. Claimant also alleged that at the time of the warrant’s execution claimant had just returned from Chicago, taken a shower, and was sitting talking to a guest, John Shannon. Claimant’s answer further alleged that the officers’ search revealed 14 manila envelopes containing 15.54 grams of cannabis in the second drawer of a dresser in the middle east bedroom. Claimant further alleged that he was taken to his (southeast) bedroom to put on his clothes. Claimant alleged that the $4,175 which was the subject matter of the complaint was found in claimant’s pants pocket and that no drugs, cannabis, paraphernalia or drug-related evidence were found in proximity of the $4,175 or claimant. Claimant further alleged the cannabis and an additional $35 found with the cannabis did not belong to claimant and therefore claimant did not claim the additional $35.

At trial, the State presented Detective Daniel Greathouse, a Waukegan police officer assigned to the narcotics task force, as its only witness. Detective Greathouse testified that he was conducting a surveillance of the Clayborne family residence at 3:30 p.m. on the date in question. Between 3:30 and 4 p.m., John Shannon, whom Detective Greathouse had once arrested for possession of a controlled substance, drove up to the residence and knocked on the front door. A black male wearing a blue robe answered and let Shannon inside. Greathouse then met with other officers comprising the search warrant team a few blocks away. Approximately 20 minutes after Shannon entered, Greathouse returned to the premises, looked through the front porch glass window, and saw claimant and Shannon on a sofa in the living room. Greathouse announced the officers’ presence, stated they had a search warrant, and demanded entry. Shannon immediately jumped up from the sofa, looked around frantically, and ran toward the rear of the house. Greathouse then entered the premises, grabbed Shannon, and directed him to the floor. Greathouse searched the house, finding only Shannon and the claimant present. Shannon told Greathouse that he was there to “cop some weed.” When asked whose marijuana it was, Shannon replied, “It was the old man’s (marijuana), but whomever [sic] is home sells it.” Shannon also told Greathouse he was glad the police arrived when they did or else they would have caught Shannon possessing marijuana.

After a brief conversation with the claimant, Greathouse explained that the claimant needed to get dressed. Greathouse then asked the claimant where his bedroom was, and claimant pointed to the southeast bedroom. Greathouse and the claimant walked into the southeast bedroom, where claimant pointed to a pair of pants on the bed. Sergeant Juarez, who was also in the bedroom, picked up the pants, removed a large wad of money from the front pocket and a wallet from the rear pocket. The wad contained $4,140. When Greathouse told the claimant that he had to confiscate the money, claimant “kind of laughed” and said, “Well, that’s the same money you guys tried to take last time.”

The officers also found cannabis packed in 14 manila envelopes and $35 in a bag in the second drawer in a dresser by the door in the middle east bedroom. Claimant was not present in the middle east bedroom when these items were found. The middle east bedroom was next to the southeast bedroom where claimant’s pants were found, but Greathouse did not think the doors of the rooms were next to one another. The middle east bedroom contained female and children’s clothes. Greathouse never saw the claimant in the middle east bedroom. No other contraband was found anywhere else in the house. The claimant told Greathouse that the middle east bedroom where the cannabis was found was his daughter Karlos’ room. Greathouse further stated that when the officers first entered the premises, the claimant was on the sofa in the living room approximately 8 to 15 feet from where the cannabis was found, and approximately 20 feet from the southeast bedroom where his pants were located.

On cross-examination, Greathouse admitted that the names on the search warrant were those of Karlos Clayborne and a 22-year-old black male subject named Winston. Greathouse admitted that the claimant was neither listed in the search warrant nor on the complaint for the search warrant. Greathouse stated that the basis for his probable cause for the search warrant consisted of the complaint, which alleged that someone bought some marijuana from Karlos Clay-borne and that someone identified as Winston was inside the residence. No contraband was found on Shannon during an initial pat-down search, and Greathouse did not know if Shannon had any drugs or money on him. Additionally, there was no money on the claimant’s person. Greathouse also testified that he searched the southeast bedroom where the claimant’s pants and money were found, did not find any marijuana there, and did not think any marijuana was ever found in the southeast bedroom. Greathouse also stated he did not think any packets, scales, or other indicia of drug trafficking were found in the southeast bedroom.

The State rested its case after Detective Greathouse testified. The claimant then moved for dismissal, contending the State failed to prove sufficient probable cause existed to forfeit the money. Specifically, the claimant contended that the State failed to show probable cause that the money seized was the result of a drug transaction and therefore forfeitable and thus claimant had no duty to present any evidence rebutting forfeitability. After a short recess to review the Act, the court found that the State did not establish probable cause that the money seized from the claimant’s pants pocket was subject to forfeiture; that the statutory presumption regarding proximity was not established; and that no justification for forfeiture existed. The court then ordered that the money be returned to the claimant. The State timely appealed.

On review, an appellate court will not reverse a trial court’s ruling regarding forfeiture unless the ruling is against the manifest weight of the evidence. (People v. Strong (1986), 151 Ill. App. 3d 28, 34.) The forfeiture statute states that the following are subject to forfeiture:

“(1) [A]ll substances containing cannabis which have been produced, manufactured, delivered, or possessed in violation of this Act;
(2) all raw materials, products and equipment of any kind which are produced, delivered, or possessed in connection with any substance containing cannabis in violation of this Act;
(3) all conveyances, including aircraft, vehicles or vessels, which are used, or intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property described in paragraph (1) or (2) that constitutes a felony violation of the Act ***.” (Ill. Rev. Stat. 1991, ch. 56½, par. 712(a).)

The State has the initial burden of showing the existence of probable cause for forfeiture. (Ill. Rev. Stat. 1991, ch. 56½, par. 1679(G).) During the probable cause portion of the forfeiture proceeding wherein the State presents its case in chief, the court receives and considers all relevant evidence and information, including hearsay. (Ill. Rev. Stat. 1991, ch. 56½, par. 1679(B).) It is only when the State has sufficiently proved the existence of probable cause that the burden shifts to the claimant to show by a preponderance of the evidence that his interest in the property is not subject to forfeiture. (Ill. Rev. Stat. 1991, ch. 56½, par. 1679(G).) The central inquiry here is whether the State showed sufficient probable cause that the money seized from the claimant’s pants pocket was used, or intended to be used, to transport or facilitate the transportation, sale, receipt or possession of the cannabis found in Karlos’ bedroom.

The State contends initially that the trial court erred in ruling that there was no probable cause to forfeit the money. Recognizing that probable cause is not defined in the forfeiture statute, the State notes that “probable cause” is defined in search and arrest cases as “reasonable grounds for a particular belief or course of action.” (See People v. Gross (1988), 166 Ill. App. 3d 413; People v. Weatherbe (1984), 122 Ill. App. 3d 654.) Equating the “reasonable grounds” standard applied in criminal arrest cases, the State contends that if the State has initially established reasonable grounds to believe the currency is forfeitable, the claimant then has the burden of proving by a preponderance of the evidence that the property is not forfeitable.

The State contends that it met its burden of proof to establish probable cause under this “reasonable grounds” standard. Specifically, the State points out that the 15.54 grams of cannabis in 14 packets shows that somebody in the house was dealing cannabis. Additionally, the claimant had approximately $4,100 in his pants pocket. The State contends that, if the claimant received $1,852 in August as the claimant alleged in his answer, it is doubtful that the claimant carried between $1,800 and $4,000 from August until the seizure of the money on December 21. The State further contends that the claimant was between 8 and 15 feet from the marijuana found in a room adjacent to the sofa in the living room where the claimant was sitting. The State further relies on Shannon’s testimony that he was at the house to “cop a bag of weed,” that was the “old man’s (weed),” that all the occupants sold drugs, and that Shannon was glad the police arrived before he was caught possessing cannabis. The State contends that these facts, when combined with the cannabis being found within 10 to 20 feet of the money in claimant’s pants, support the conclusion that reasonable grounds existed that the money was used, or intended to be used, to facilitate drug trafficking.

The claimant contends that the State’s “rational basis” standard of probable cause found in criminal arrest cases does not apply to civil forfeiture proceedings. Rather, the claimant contends, for the State to prove probable cause to forfeit derivative contraband, such as money used or intended for use in illegal activity, the State must show a rational relationship existed between the seized contraband and the illegal activity. (People v. 1984 BMW 528E Automobile (1991), 208 Ill. App. 3d 930, 936.) The claimant contends that under this standard the State failed to show probable cause for forfeiture; therefore, he concludes, the trial court’s ruling was not against the manifest weight of the evidence.

We agree with claimant that the State must show a rational relationship between the contraband and the illegal activity in order to sustain its burden of proving probable cause for forfeiture. Moreover, we agree with claimant that the trial court’s decision that the money was not forfeitable was not against the manifest weight of the evidence.

In reaching this conclusion, we note that no drugs were found on the claimant’s person, on the money seized, in the room where the claimant was sitting, or in the claimant’s bedroom. The search warrant did not name the claimant, but rather his daughter. Moreover, the cannabis was found in his daughter’s bedroom, which contained women’s and children’s clothing. The State failed to show any connection between the claimant and the bedroom where the cannabis was found. Additionally, the trial court found specifically that Shannon’s statements that the claimant was selling drugs were unreliable. The court noted that Shannon remained in the residence over 20 minutes before the police entered and had a prior arrest record. These facts support clearly the trial court’s conclusion that the State failed to show that the claimant was selling or intended to sell drugs. Based on these facts, the trial court concluded that the State failed to show that a rational relationship existed between the money seized from the claimant’s pants and any illegal activity. Such ruling was not against the manifest weight of the evidence.

Nevertheless, the State contends that Shannon’s testimony and the drug dealing by the claimant’s daughter are not inconsistent with a joint operation with the claimant and support Shannon’s statement that all the occupants of the residence sold marijuana. The State further contends that, since the claimant is a tenant, an inference could be drawn regarding his knowledge of what was going on in his residence.

We disagree. The mere facts that the claimant’s daughter may have been dealing in marijuana and that the claimant’s name appears on rent receipts found in the home do not create an inference that the claimant was involved in illegal drug trafficking. Such mere inferences do not provide probable cause to forfeit the money, when so many other factors show that there was no rational connection between the money seized from the claimant’s pants and the drugs found in the claimant’s daughter’s bedroom. Also, the State’s argument is premised on the rational grounds basis used for criminal arrests, whereas forfeiture actions are civil proceedings. See 1984 BMW 528E Automobile, 208 Ill. App. 3d 930.

The State further contends that the trial judge strayed by analyzing several “tangents” the State believes were not proper considerations to resolve the issue of probable cause. Specifically, the State points to the court’s considerations of the complaint for the search warrant, the claimant’s having been found not guilty of any criminal activity, and the court’s analysis of the reliability and credibility of the evidence. We do not agree that these points were tangential matters. To the contrary, they were facts and evidence necessary for a proper determination of whether probable cause existed to forfeit the money.

We find that the State failed to prove that a rational relationship existed between the cannabis found in Karlos Clayborne’s bedroom and the money found in the claimant’s pants pockets. Therefore, we uphold the trial court’s ruling that there was no probable cause to forfeit the money.

Alternatively, the State argues that the evidence showed that the money seized was found in “close proximity” to the cannabis and therefore a presumption exists that the money was furnished or intended to be furnished in exchange for controlled substances and thus was forfeitable. (See Ill. Rev. Stat. 1991, ch. 56½, par. 1677(1).) The State relies on language from People ex rel. Daley v. $9,403 in United States Currency (1985), 131 Ill. App. 3d 188, 191-92, that courts “will not restrict or enlarge the plain meaning of an unambiguous statute to require that controlled substances and forfeitable items related thereto be found in the same drawer, box or cabinet as the money.”

The State’s reliance on Daley is unpersuasive. In Daley, police officers found packets of heroin on the kitchen table and, in an adjacent room, found $7,000 in a dresser drawer. The drawer also contained hypodermic syringes. On top of the dresser was a tri-beam scale, a quantity of plastic bags, small squares of tin foil, and an ounce of powder commonly used to dilute heroin. (Daley, 131 Ill. App. 3d at 190.) Here, no cannabis was found in plain view but rather was found in sealed envelopes in a dresser drawer in a room containing women’s and children’s clothing. No scales, envelopes, or any other indicia of drug trafficking were found on the person of the claimant, in his bedroom, or in the remainder of the residence. Consequently, the instant case is clearly distinguishable from Daley.

We reject the State’s argument that the statutory presumption of forfeitability under section 7 of the Drug Asset Forfeiture Procedure Act applies to the facts presented here. To rule otherwise is tantamount to determining that the presumption exists whenever contraband and money are found in the same premises, without any other connection between them.

Lastly, the State contends that the trial court erred when it commented that money used to facilitate a narcotics transaction under section 12 of the Cannabis Control Act is not entitled to the statutory presumption of forfeitability under section 7 of the Drug Asset Forfeiture Procedure Act, because “money used to facilitate narcotics transactions” is not specified in section 7. We note that the State did not cite the language contained in these statutes in its brief, which made following its argument difficult and time consuming. Nevertheless, we have reviewed the trial court’s comments regarding the statutes and find no basis for reversal. Moreover, the State fails to assert how such comments affected the outcome of this case.

The trial court’s rulings that there was no probable cause to forfeit the money and that the State failed to prove the statutory presumption of forfeitability were not against the manifest weight of the evidence and therefore its judgment must be affirmed. Strong, 151 Ill. App. 3d at 34.

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

Affirmed.

UNVERZAGT and BOWMAN, JJ., concur.