author: JUSTICE GREIMAN

text:
      In re MARRIAGE OF DONNA J. GIDLUND, Petitioner-Appellant, and JAMES E. GIDLUND, Respondent-Appellee.
    First District (3rd Division)
    No. 1—91—1244
    Opinion filed March 31,1993.
    Michael G. Miller, of Dominic R. Fichera & Associates, of Chicago, for appellant.
    George W. Brooks, of Brooks, Hankins & Swiatkowski, Ltd., of Orland Park, for appellee.
   JUSTICE GREIMAN

delivered the opinion of the court:

The petitioner, Donna Gidlund (Donna), appeals a post-judgment ruling to open up a portion, rather than all, of a dissolution of marriage judgment by reason of the discovery of undisclosed assets and transactions surrounding those assets.

Donna’s petition was brought pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401), and Supreme Court Rule 304(b)(3) (134 Ill. 2d R. 304 (b)(3)) confers jurisdiction upon us to determine whether the trial court’s limited relief was appropriate.

Donna alleges that the trial court (1) should have set aside the entire judgment rather than merely open up a part to determine the parties’ marital interests in additional assets; and (2) should have allowed her to pursue discovery pursuant to the order opening a portion of the judgment.

We affirm the trial court as to the relief allowed because of the great discretion that we repose in a trial court in this regard and provide directions for the parameters of discovery.

Donna and respondent, James Gidlund (James), were married for nearly 38 years. James was engaged in the construction and contracting business. In August 1988, a judgment for dissolution of marriage was entered predicated upon a property settlement agreement entered into between the parties which sought to dispose of all of their assets.

The property settlement agreement provided for disposition to Donna of the marital home; a $30,000 certificate of deposit; vacant lots in Tinley Park, Illinois, and Florida; a 50% interest in two apartment buildings in Lemont, Illinois; $25,750 in cash; $16,400 in payment of her attorney fees and discovery costs; and an equal division of James’ pension rights.

Under the agreement, James was entitled to a vacant lot in Or-land Park, Illinois; a laundromat business; a seven-store commercial strip in Orland Park; a condominium and an equal division of his pension.

At the time of dissolution proceedings, Donna was aware that James had arranged to refinance the mortgage encumbering the two Lemont apartment buildings without her consent and apparently had signed her name to the loan proceeds check from the lender receiving approximately $117,000 from the net proceeds of the refinancing transaction. Upon representation that these proceeds would be used to satisfy Federal income tax obligations, Donna did not trace the disposition of the mortgage funds.

Approximately 14 months after the entry of the judgment for dissolution of marriage, Donna discovered that two years before the dissolution, James had purchased 10 acres of vacant property under the terms of an installment, contract, apparently providing for periodic “land take-outs,” paying $60,000 down and taking title to a portion of the parcel in a land trust. Donna alleges that part of the proceeds of mortgage from the Lemont apartments was used to retire some of the debt under the installment contract and to trigger conveyance of an additional parcel to the land trust.

During the pendency of the dissolution proceedings, James never advised Donna of the existence of his interest in the vacant property, such property being absent from the schedule of real estate attached to the pretrial memorandum filed in the trial court on July 1, 1988. Moreover, James testified that the agreement set forth the assets of the parties although he was aware that the 10-acre parcel was not included.

After Donna learned of the existence of James’ interest in the undisclosed parcel, she filed a timely motion under section 2 — 1401 to vacate the property settlement agreement contained in the judgment of dissolution of marriage, enjoin James from selling or transferring any of his real or personal property, and for leave to initiate oral and written discovery.

Thereafter, on March 22, 1991, the trial court granted Donna’s petition “as to that part of the judgment relating to the undisclosed property” and opened the judgment to determine the parties’ marital interest in the property. The order was silent as to the exercise of injunctive powers and the limitations as to discovery. It is from this order that Donna appeals.

Donna first argues that the entire property agreement between the parties needs to be opened and thereafter recast due to a fraudulent nondisclosure of marital assets.

Nothing in our law requires such a result. Donna, in her reply brief, expressly concedes that “the case law construing Section 2— 1401 provides ample authority for a Court to modify a judgment for dissolution of marriage,” citing Roth v. Roth (1970), 45 Ill. 2d 19, 256 N.E.2d 838.

In Roth, our supreme court determined that a decree of divorce procured through fraud may be vacated or modified under proceedings brought pursuant to section 2 — 1401. Roth, 45 Ill. 2d 19, 256 N.E.2d 838 (relief sought under decree pursuant to a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1967, ch. 110, par. 72), which was substantially reenacted as section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1401)); accord In re Marriage of Frazier (1990), 203 Ill. App. 3d 847, 561 N.E.2d 160; In re Marriage of Reines (1989), 184 Ill. App.

3d 392, 540 N.E.2d 394; Leach v. Leach (1975), 26 Ill. App. 3d 241, 325 N.E.2d 19; Garmisa v. Garmisa (1972), 4 Ill. App. 3d 411, 280 N.E.2d 444.

Moreover, in marital dissolution cases, the law favors amicable settlement of property entered into by the consent of the parties and incorporated into the judgment of dissolution. (Horwich v. Horwich (1979), 68 Ill. App. 3d 518, 520, 386 N.E.2d 620; Gaddis v. Gaddis (1974), 20 Ill. App. 3d 267, 270, 314 N.E.2d 627.) Such favorable treatment confers all presumptions in favor of the validity of the settlement when a party seeks to vacate or modify a property settlement incorporated in a divorce decree. In re Marriage of Riedy (1985), 130 Ill. App. 3d 311, 313, 474 N.E.2d 28, citing Lagen v. Lagen (1973), 14 Ill. App. 3d 74, 302 N.E.2d 201; Garmisa, 4 Ill. App. 3d 411, 280 N.E.2d 444.

Plaintiff cites Ridgway v. Ridgway (1986), 146 111. App. 3d 463, 497 N.E.2d 126, and Bellow v. Bellow (1976), 40 Ill. App. 3d 442, 352 N.E.2d 427, where the courts correctly exercised their discretion and vacated the entire property settlement agreements. In both Ridgway and Bellow, the property settlement agreements failed in any way to provide a fair and even distribution of the parties’ assets. The husband in Ridgway had testified to $357 in assets while it appeared that he had a net worth in excess of $100,000. Similar evidence in Bellow indicated that the husband had misstated his potential earnings by 500% as well as other irregularities in the representations he made as to the ownership of marital assets.

A section 2 — 1401 petition invokes the equitable powers of the court, and whether such a petition to vacate should be granted depends upon the facts and equities presented. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 221, 499 N.E.2d 1381; In re Marriage of Oldham (1991), 222 111. App. 3d 744, 754, 584 N.E.2d 385; In re Marriage of Hoppe (1991), 220 Ill. App. 3d 271, 282, 580 N.E.2d 1186.) Accordingly, a reviewing court may disturb the circuit court’s judgment only where that court abused its discretion. Smith, 114 Ill. 2d at 221; Oldham, 222 Ill. App. 3d at 754.

Donna does not argue, nor could she, that she failed to obtain relief, but rather complains that she received less relief than she requested. As the disposition of a section 2 — 1401 petition is within the circuit court’s discretion, so also we leave the scope of modification of a dissolution judgment to the sound discretion of the trial court. Frazier, 203 Ill. App. 3d 847, 561 N.E.2d 160; In re Marriage of Emerson (1983), 115 Ill. App. 3d 712, 450 N.E.2d 987.

Donna suggests that the concealment of assets taints any property settlement agreement so as to render it unconscionable. James responds by noting that the issue of unconscionability was not raised in the trial court and therefore has been waived, relying on Western Casualty & Surety Co. v. Brocha (1985), 105 Ill. 2d 486, 475 N.E.2d 872, and In re Estate of Halas (1991), 209 Ill. App. 3d 333, 568 N.E.2d 170.

While that appears to be the case, we do not believe in any event that the issue of unconscionability would impose upon this court a different result than we and the trial court have determined.

In the cases cited by Donna (In re Marriage of Gurin (1991), 212 Ill. App. 3d 806, 571 N.E.2d 857; In re Marriage of Burch (1990), 205 Ill. App. 3d 1082, 563 N.E.2d 1049; Reines, 184 Ill. App. 3d 392, 540 N.E.2d 394; In re Marriage of Carlson (1981), 101 Ill. App. 3d 924, 428 N.E.2d 1005), the court could have fashioned a remedy limited in scope. In these cases, as in Bellow and Ridgway, the trial courts exercised their discretion in requiring that distribution of all the assets be de novo rather than in a limited fashion.

Moreover, in most of the cases cited by Donna, procedural issues appeared which suggested that the facts available to the complaining party as to the extent of assets at the time of the execution of the agreements were insufficient to allow them to make a meaningful choice. In Carlson the parties were represented by a single attorney and had little time to read and make an informed judgment before signing the property settlement agreement. (Carlson, 101 Ill. App. 3d 924, 428 N.E.2d 1005.) In Burch and Reines, the courts were confronted with questions as to whether the parties were entitled to an evidentiary hearing on the section 2 — 1401 petition that had been filed in the respective cases. Burch, 205 Ill. App. 3d 1082, 563 N.E.2d 1049; Reines, 184 Ill. App. 3d 392, 540 N.E.2d 394.

Under the circumstances of the present case, we find that the circuit court did not abuse its discretion in granting the scope of relief it did.

Second, Donna contends that she should be allowed to initiate both written and oral discovery regarding the entire marital estate.

James concedes that a right to pursue discovery exists while a section 2 — 1401 petition is pending but argues that Donna cannot now complain that the trial court did not allow discovery because she did not seek any discovery before the issuance of the March 22, 1991, order.

In the contested March 1991 order, the trial court ordered “that the Petition to Vacate is granted only as to that part of the judgment relating to the undisclosed property located at 159th and Wolf Rd. in Orland Park and said judgment is opened to determine the parties marital interest in said property.” In addition, the order provided that a hearing would be held on June 3, 1991, to determine the marital interest in the undisclosed property.

A petitioner has a right to conduct limited discovery proceedings in connection with a section 2 — 1401 petition. People v. B.R. MacKay & Sons, Inc. (1986), 141 Ill. App. 3d 137, 490 N.E.2d 74.

The record reveals that Donna filed her section 2 — 1401 petition on November 20, 1989, and requested the initiation of discovery. Subpoenas for depositions were issued and requests to admit and written interrogatories were propounded by James and answered by Donna. Following a hearing held on May 4, 1990, the trial court took the matter under advisement until March 22, 1991.

In its March 22, 1991 order, the trial court set a hearing date to determine the marital interest in the undisclosed property. We believe that Donna is entitled to liberal discovery, oral and written, surrounding the acquisition of the undisclosed property as well as discovery which traces the source of the funds used in such acquisition, the stream of any funds obtained in connection with the development, sale or disposition of such property or any part thereof, the tracing of the disposition of the proceeds of the Lemont apartment refinancing and any other discovery which the trial court deems necessary to do justice between the parties.

Judgment affirmed and remanded with directions.

RIZZI and CERDA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE EGAN

license: Public Domain

text:
    LIMMIE ESTES et al., Plaintiffs-Appellees, v. CHARLES SMITH et al., Defendants-Intervenors (South Holland Trust and Savings Bank, Defendant-Appellant).
    First District (6th Division)
    No. 1—92—0552
    Opinion filed April 16,1993.
    Rehearing denied May 21,1993.
    Russell T. Paarlberg, of Van Der Aa, Lanting & Paarlberg, Ltd., of South Holland, for appellant.
    Larry D. Drury, Ltd., of Chicago, for appellees.
    Carol Smith, of American National Mortgage Corporation, of Chicago, pro se, for interveners.
   JUSTICE EGAN

delivered the opinion of the court:

This is an appeal by the defendant, South Holland Trust and Savings Bank (South Holland), from an order denying the defendant’s motion to dissolve a preliminary injunction granted in favor of the plaintiffs. We granted the defendant, Carol Smith, a nonlawyer, leave to intervene pro se as an appellant.

The plaintiffs are Limmie Estes, Ellen Clark, Beatrice Jackson, executrix of the estate of Wardell Jackson, and Clark, Estes and Jackson, an Hlinois partnership. On January 22, 1986, Estes, Clark and Wardell Jackson, individually and as members of a partnership, entered into an oral agreement with Charles Smith and Carol Smith, individually and in their capacity as representatives of defendants American Financial Services and American and International Financial Services. At the same time, the plaintiffs entered into a written agreement with the defendant American National Mortgage Corporation under the same terms and conditions contained in the oral agreement with the Smiths. The written agreement was signed on behalf of American National Mortgage by Carol or Charles Smith. (The defendants will be collectively identified throughout this opinion as “Smith.”) The written agreement provides for the plaintiffs to loan $30,000 to Smith for five years and for Smith to pay 20% interest and that the collateral “may be pooled and pledged” by Smith. The collateral was a certificate of deposit (CD) to be issued by South Holland. The plaintiffs initialed a line on the agreement providing “[a]ll interest on collateral to accumulate over the life of this agreement.” In an addendum to the agreement, the plaintiffs assigned to Smith an unspecified CD valued at $30,000 from South Holland. The plaintiffs also advanced to Smith three checks totalling $30,000.

The promissory note from Smith to the plaintiffs is signed by Carol Smith and is dated January 25, 1986. At the top, the note states that it represents a “collateral loan” and explains: “[Smith] is holding C.D. #028 — 937903[;] it will mature on l/25/91[;] principal and interest will then be paid to the note holder.” The note lists the interest rate as 20%, or 10% if the plaintiff partnership terminates. The note also states that interest is “per annum payable annually, commencing annually and on every anniversary thereafter [and p]rincipal and interest shall be payable in full on 1/25/91.”

Smith used the $30,000 borrowed from the plaintiffs to procure CD 028 — 9379303—3 from South Holland on January 25, 1986. The CD states “this account is not transferable” and shows the amount as $30,000, Smith as the payee, and a January 25,1991, maturity date.

Smith used this CD as collateral for loans from South Holland twice. On or about March 25, 1986, Smith assigned CD 028 — 937903—3 and another CD, number 028 — 941083—8, to South Holland as collateral for a $110,000 loan from South Holland. On March 5, 1990, Smith used CD 028 — 937903—3, along with other funds including CD 028 — 941083—8, as collateral for a loan from South Holland for $90,000.

According to the complaint filed March 6, 1990, Smith breached the oral and written agreements by never giving the plaintiffs a copy of the original CD, refusing the plaintiffs’ later request for a copy of the CD, refusing the plaintiffs’ request for a return of the $30,000, refusing to pay any interest to the plaintiffs, refusing to provide the plaintiffs with an accounting of the $30,000, and refusing to give the plaintiffs copies of any records regarding the $30,000. Count I of the complaint against Smith alleged a breach of contract; count II alleged fraud.

In addition to seeking compensatory and punitive damages from Smith, the plaintiffs requested injunctive relief restraining “the defendants [including South Holland] and their agents and employees from disbursing any of their funds in an amount equal to $30,000 with interest” and directing them “to refund to the plaintiffs their $30,000 with interest.”

On March 26, 1990, after the complaint was filed and after South Holland made the $90,000 loan to Smith, South Holland rolled over CD 028 — 937903—3, which was to mature on January 25, 1991, for a new five-year term at an 8% interest rate. The new CD number is 9474685 and runs until March 26, 1995. The parties do not dispute that CD 9474685 is the successor to the CD Smith originally obtained with the plaintiffs’ $30,000.

In its answer, South Holland admitted that it held a $30,000 CD as collateral for a loan to Smith. South Holland also alleged as an affirmative defense that it maintained a perfected security interest in the CD under the Uniform Commercial Code (111. Rev. Stat. 1989, ch. 26, par. 1 — 101 et seq.) because South Holland had possession of the CD.

Smith answered, denied any breach of the agreement and alleged as an affirmative defense that the plaintiffs had an adequate remedy of law.

On April 26, 1990, Judge Robert Sklodowski entered a temporary restraining order (or preliminary injunction) based on the plaintiffs’ motion. The order generally enjoins any defendants, including South Holland, from disposing of or disbursing CD No. 9474685, which is listed as “formerly certificate #’s 028 — 937903—3, CD 028 — 941083—8, all of which refer to South Holland Bank loan #27800 for $90,000 as closed 3/5/90.”

On May 16, 1991, Smith filed a petition to dissolve the injunction order entered by Judge Sklodowski. On that day Judge Arthur Dunne, who had replaced Judge Sklodowski in this case, ruled on several of the parties’ motions. Over the objection of the plaintiffs, he ordered that the injunction order entered by Judge Sklodowski be dissolved. On May 17, 1991, Judge Dunne transferred the case from the chancery division to the law division.

On June 14, 1991, Judge Dunne heard arguments on the plaintiffs’ motion for reconsideration of his order dissolving the injunction. Judge Dunne adhered to his view that the case would be properly heard as a law matter but reinstated the injunction only for CD No. 9474685, which, we repeat, the parties recognize as the successor to the CD Smith originally obtained with the plaintiffs’ $30,000. Judge Dunne said that any accounting would be so simple that it could be considered as part of the law action.

On June 21, 1991, South Holland filed another motion to dissolve the injunction that Judge Dunne had reinstated June 14, 1991. That motion was ultimately heard by Judge Lassers of the law division on January 7, 1992. On January 23, 1992, Judge Lassers denied South Holland’s motion to dissolve the injunction. It is from that order that this appeal is taken.

The plaintiffs argued that South Holland was equitably estopped from seeking dissolution of the injunction because South Holland allegedly had agreed to the original injunction order of Judge Sklodowski, and that South Holland knew of the agreement between Smith and the plaintiffs when it rolled over the original CD after the suit was filed and before the original CD matured. Before ruling, Judge Lassers said that dissolution of the injunction would seriously prejudice the plaintiffs because dissolution would permit the bank to cash the CD. He said that he was troubled by the question of why the CD was rolled over after the complaint was filed and before the expiration of the first CD. He noted also that the first injunction order was entered by agreement, a point which he felt impressed Judge Dunne, and that it impressed him.

We agree with Judge Lassers that the timing and circumstances of the rollover of the CD are troubling. But we do not agree that South Holland is equitably estopped because the original injunction order of Judge Sklodowski might have been entered by agreement. And we do not agree that the injunction should not have been dissolved.

We will first discuss equitable estoppel. Equitable estoppel “is a doctrine developed in equity to prevent [one] party from asserting rights where the assertion of those rights would work a fraud or injustice on another party.” Launms v. Najman (1984), 129 Ill. App. 3d 498, 504, 472 N.E.2d 170,174.

There are six elements of equitable estoppel that the plaintiffs must prove. They are (1) voluntary words or conduct by the estopped party amounting to a misrepresentation; (2) actual or implied knowledge of the estopped party that the representations were not true; (3) lack of knowledge of the true facts by the innocent party; (4) intent, or a reasonable expectation, on the part of the estopped party that the innocent party would act on the misrepresentations; (5) a reasonable, good-faith, detrimental change of position by the innocent party based on the misrepresentations; and (6) prejudice to the innocent party. Vaughn v. Speaker (1988), 126 Ill. 2d 150, 533 N.E.2d 885.

In this case, there is nothing in the record to support a finding that the plaintiffs changed their position based on the fact that the defendant agreed to the injunction and, more important, there is nothing in the record to support a finding that the injunction order caused any detriment or prejudice to the plaintiffs. (See Peoria Police Sergeants v. Peoria Board of Fire & Police Commissioners (1991), 215 Ill. App. 3d 278, 574 N.E.2d 1240.) We turn now to the merits of the case.

In order to be entitled to the issuance of an injunction, a party must establish a certain and clearly ascertainable right which needs protection; there is no adequate remedy at law; irreparable injury will occur without the protection of an injunction; and there is a reasonable likelihood of success on the merits. (Greenspan v. Mesirow (1985), 138 Ill. App. 3d 294, 485 N.E.2d 1196.) We judge that the plaintiffs have failed to establish a clear legal right which needs protection; that they do not have an adequate remedy at law; and that they will suffer irreparable injury. The case of Grower Service Corp. v. Brown (1990), 204 Ill. App. 3d 532, 561 N.E.2d 1294, is strongly on point and is persuasive of the defendants’ position here. In Grower the plaintiff obtained an injunction restraining the defendant bank from using funds deposited in the bank to satisfy a debt the depositor owed the bank. The plaintiff requested the injunction because the depositor also owed the plaintiff a substantial amount of money; the depositor had given the plaintiff several checks that were returned unpaid due to insufficient funds, had other outstanding debts, sold many assets at a public sale, and was allegedly almost insolvent.

The bank contended that the injunction was invalid because it amounted to a prejudgment attachment without meeting the conditions set forth in the attachment statute. (Ill. Rev. Stat. 1987, ch. 110, par. 4—101 et seq.) The appellate court reversed the order denying dissolution of an injunction:

“Injunctive relief is reserved for those situations where there exists no adequate legal remedy. Where money damages provide adequate remedy, injunctive relief is not proper. [Citation.] Because the only relief requested by plaintiff is monetary, injunctive relief is inappropriate and resembles a prejudgment attachment. The sole exception to the rule prohibiting prejudgment attachments is where the funds which are the subject of the injunction are also the subject of the dispute. [Citation.] The exception contemplates specific funds such as insurance proceeds or inheritances. Injunctive relief has been found inappropriate in disputes involving the proceeds from the sale of real estate to which defendants believe they were entitled [citation], and real estate commissions to which the plaintiff felt he was entitled [citation]. Neither case met the requirements of the exception because the funds sought to be enjoined were not the specific funds in dispute. Similarly, in the instant case, plaintiff merely seeks satisfaction of a debt with interest. Plaintiff has no specified interest in the $200,000 sale proceeds that are the subject of the injunction.” Grower, 204 Ill. App. 3d at 535.

In this case, the plaintiffs seek money damages, and the plaintiffs’ claim of fraud does not change the character of the complaint. A party alleging fraud in a contract action has an election of remedies: he may seek rescission of the contract or he may seek money damages for breach of contract or he may seek money damages on a tort claim. (Sciarabba v. Chrysler Corp. (1988), 173 Ill. App. 3d 57, 527 N.E.2d 368.) The plaintiffs are not listed on the CD in any capacity, and the loan agreement they signed allowed Smith to pledge their money. Like the plaintiffs in Grower, the plaintiffs in this case were not entitled to any specific $30,000, but just the sum of $30,000 plus interest. We note that the dissenting opinion in Grower did so because of allegations that the debtor was insolvent or was about to become insolvent. There are no such allegations in the case before us. (Cf. Carriage Way Apartments v. Pojman (1988), 172 Ill. App. 3d 827, 527 N.E.2d 89; see also Maas v. Cohen Associates, Inc. (1983), 112 Ill. App. 3d 191, 445 N.E.2d 517.) We judge that the injunction order entered in this case was a defacto attachment and was thus invalid.

For these reasons, we conclude that the trial judge abused his discretion by refusing to dissolve the injunction.

Smith asks that we reverse the order denying the motion to dissolve the injunction and for this court to order the return of the CD to Smith. We decline to order the return of the CD to Smith. The only issue before us is whether the trial judge abused his discretion in refusing to dissolve the injunction; the ultimate resolution of the rights of the parties is for the trial court.

The judgment is reversed and remanded for further proceedings consistent with this opinion.

Reversed and remanded.

RAKOWSKI and GIANNIS, JJ., concur.


author: JUSTICE COUSINS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CAROLYN HAWTHORN, Defendant-Appellee.
    First District (5th Division)
    No. 1—90—1515
    Opinion filed April 8,1993.
    Rehearing denied May 26,1993.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Gael M. O’Brien, Assistant State’s Attorneys, of counsel), for the People.
    Michael J. Pelletier and Patricia Unsinn, both of State Appellate Defender’s Office, of Chicago, for appellee.
   JUSTICE COUSINS

delivered the opinion of the court:

The People of the State of Hlinois appeal from the circuit court’s order suppressing certain inculpatory statements made by the defendant, Carolyn Hawthorn (Hawthorn). After an evidentiary hearing, the circuit court found that Hawthorn had been subject to a custodial interrogation without the requisite Miranda warnings. The circuit court held that the statements made during this interrogation were inadmissible because they were obtained in violation of the defendant’s fifth and sixth amendment rights. In addition, the circuit court held that the defendant’s subsequent statements must be suppressed pursuant to the fruit of the poisonous tree doctrine.

We reverse.

Background

On July 16, 1986, the body of Glen Johnson was found in a dumpster in Skokie, Hlinois. Johnson had been beaten and shot with a .32-caliber gun.

The Skokie police detectives ascertained that Johnson had been the defendant’s boyfriend and had lived with the defendant and her two sons until the date of his death. From July until September 4, 1986, the detectives spoke with Hawthorn approximately a dozen times. They discussed the murder with her and questioned her about Johnson’s habits, friends, and “hang outs.” Sometimes they went to Hawthorn’s home or office, other times she came to the police station. The police subpoenaed her telephone records for the entire month of July to find out what phone calls were made by Hawthorn and Johnson. In addition to Hawthorn, the police interviewed about 100 to 200 other individuals in connection with the investigation.

During their investigation the police learned that there had been fights between Hawthorn and Johnson, and that Johnson had caught Harry Ollie, another boyfriend of Hawthorn, in her bedroom. Ollie told the police that he had given Hawthorn a .32-caliber gun to use as protection against Johnson. The police learned that Ollie had taken an unauthorized leave from his job on July 15, 1986, the day before the body was discovered.

The officers testified that, as of September 4, 1986, they did not believe Hawthorn was a suspect, but they did believe she knew more about the murder than she had told them. The information that Hawthorn gave the police contained a number of inconsistencies. For example, Hawthorn told Officer Jones that the last time she saw Johnson, he left in his car. However, Johnson’s car was at Hawthorn’s residence the first time the police came by after the discovery of Johnson’s death. In addition, evidence indicated that Hawthorn was driving Johnson’s car, rather than her own, during the time that Johnson was missing. Officer Silverberg testified that he became concerned when other persons gave him information which Hawthorn withheld. Finally, all of Johnson’s associates suggested that Hawthorn must have played a part in Johnson’s death.

Despite this information, the officers testified that on September 4, 1986, they felt that the investigation had come to a dead end. Therefore, as a “last shot,” they decided to ask Hawthorn to submit to a polygraph examination.

Officer Jones testified that on September 4, he called Hawthorn and invited her to come to the Skokie police station for another interview about the Johnson homicide. Hawthorn agreed to come to the station and arrived around noon. At this time, Jones told Hawthorn that he believed that she was being untruthful and asked her to take a polygraph examination. Jones had received authorization from the department to incur the expense of the polygraph test prior to her arrival. When Hawthorn agreed to take the polygraph examination, Jones called Reid and Associates in Chicago and made an appointment for 1:30 p.m. Jones and Silverberg drove Hawthorn to the polygraph appointment in an unmarked police car.

Upon arriving at Reid and Associates, Hawthorn and the officers waited in the lobby prior to the examination. The officers remained with Hawthorn during this time, and Hawthorn slept while she waited.

Jones testified that he had a conversation with the polygraph examiner or his assistant prior to the polygraph test, but did not tell him what he wanted discovered or discussed. Silverberg testified that he gave the examiner a list of questions he wanted the examiner to ask Hawthorn. The questions included: whether Hawthorn killed Johnson, whether she shot him with a handgun, whether she knew who killed him, and whether she was involved in his killing.

Michael Masokas, who was employed by Reid and Associates as a polygraph examiner, testified that he met with Jones and Silverberg at 1:15 p.m. for approximately 20 to 25 minutes. At this time he obtained background information from which to develop polygraph questions and received a list of questions from the officers.

Masokas then went into the room where Hawthorn had been placed by one of the receptionists. Jones and Silverberg waited in the lobby. Upon entering the room, Masokas observed that Hawthorn had a release form in front of her. Masokas asked Hawthorn if she had time to read it and, upon receiving an affirmative response, asked her to sign it. He signed the form as a witness to her signing.

Masokas then proceeded to examine Hawthorn in three distinct stages: the pretest interview, the polygraph test itself, and the post-test interrogation. During the initial interview, Masokas obtained general background information including her medical and work history. He asked Hawthorn if she knew why she was in the office. She responded that her boyfriend had been killed and she was a suspect in the murder so they wanted her to take the polygraph test. Masokas also asked her if she was involved in causing Johnson’s death, and Hawthorn said no. Masokas observed her behavior as he asked these questions.

After 45 minutes to an hour, Masokas took Hawthorn into another room with a polygraph instrument. Prior to the actual examination, they reviewed the questions which would be asked during the test. Masokas then attached her to the instrument and proceeded with the examination. Masokas asked 10 questions, four of which were relevant to the investigation. This procedure took 30 to 35 minutes. Masokas then returned Hawthorn to the initial interview room and left to review the polygraph results for 10 to 15 minutes. Masokas concluded that Hawthorn was not telling the truth.

Upon returning to the interview room, Masokas confronted Hawthorn with the fact that she was not telling the truth and began the post-test interrogation. At the beginning of the interrogation Masokas told Hawthorn that the door was unlocked and she was free to leave. Masokas used an interrogation procedure known as the “Reid Nine Steps of Interrogation.” One of the primary goals of this procedure is to minimize the moral guilt and responsibility associated with a crime, thereby inducing a suspect to confess. This goal is accomplished, in part, through the development of themes which explain why the suspect may have committed the offense, and, at the same time, provide justification for committing the offense.

Approximately an hour into the interrogation, Louis Senese, then the chief examiner of Reid and Associates, entered the room. Prior to his entry, he had been monitoring the interrogation via an intercom system. Since Masokas appeared to be at an impasse, Senese offered his assistance. Senese continued to interrogate Hawthorn until he induced an admission. At that point he left the room.

When Senese stepped out of the room, Hawthorn provided Masokas with a 10- to 15-minute detailed account of the occurrence. Among other things Hawthorn told Masokas that her two sons had beaten Johnson in her apartment, knocked him unconscious, tied him up and taken him out through a window. At this point, Officer Jones, who had been summoned by Senese from the lobby, entered the room. Masokas summarized for Jones what Hawthorn told him. When Masokas finished, either Masokas or Officer Jones asked Hawthorn if the story was true and she agreed. It was approximately 5:30 p.m. at the time Hawthorn made this admission, and she had been in the continuous company of either police officers or polygraph examiners for approximately 5V2 hours. No Miranda warnings were given prior to this admission.

Following her admission to Jones, Silverberg administered Miranda warnings to Hawthorn in the lobby, while Jones made some phone calls. Then they drove to Hawthorn’s apartment, where Jones advised both Hawthorn and her 16-year-old son, Frank Robinson, of their Miranda rights. Hawthorn told Frank to go ahead and tell them what happened. Frank made a statement and was arrested.

The officers took Frank to the police station. Hawthorn was not arrested, but she also went to the station via her own transportation. Frank was placed alone in a room, until Hawthorn arrived and joined him. Shortly before 9 p.m., Assistant State’s Attorney Mermel arrived at the police station and was briefed by the detectives. After Frank and Hawthorn executed Miranda waiver forms, Mermel had a 20- to 25-min-ute conversation with them, and then took a court-reported statement. After the statement was transcribed, Frank and Hawthorn signed it in the presence of Detective Brezezicki.

Hawthorn was arrested three months later and indicted for murder, armed violence, concealment of a homicidal death, aggravated kidnapping, aggravated unlawful restraint, solicitation, conspiracy and obstruction of justice. Hawthorn moved to suppress the statements she made on the ground that they were obtained in violation of Miranda and her fifth amendment rights.

On March 28, 1990, the circuit court ordered that all statements given by Hawthorn would be suppressed. The circuit court found that Hawthorn had been subject to a custodial interrogation without the requisite Miranda warnings. Therefore, the circuit court held that the statements made during this interrogation were inadmissible because they were obtained in violation of the defendant’s fifth and sixth amendment rights. In addition, the circuit court held that the defendant’s subsequent statements must be suppressed pursuant to the fruit of the poisonous tree doctrine.

The State appeals from the order of suppression.

Opinion

Initially we note that both the State and the defendant have agreed that no sixth amendment violation occurred. The sixth amendment guarantee of counsel attaches only at the initiation of adversarial judicial proceedings. (See Kirby v. Illinois (1972), 406 U.S. 682, 688, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877, 1881.) On September 4, 1986, the day of the interrogation, no adversarial proceedings had commenced. Therefore, no sixth amendment violation occurred when Hawthorn was questioned in the absence of counsel. The circuit court erred in holding that a sixth amendment violation had occurred.

Two issues remain before this court. First, we must determine whether the trial court’s holding that the defendant was “in custody” and, therefore, entitled to Miranda warnings is against the manifest weight of the evidence. Second, assuming that a Miranda violation took place, we must determine whether the trial court erred in concluding that the defendant’s subsequent statement made to the assistant State’s Attorney should be suppressed pursuant to the fruit of the poisonous tree doctrine.

In Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, the United States Supreme Court held that in order to safeguard the fifth amendment right to be free from self-incrimination, Miranda warnings must be given to any defendant subject to custodial interrogation. The Miranda court defined a “custodial interrogation” as questioning initiated by law enforcement officers after a person has been taken into custody or has otherwise been deprived of his freedom of action in any significant way. Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706, 86 S. Ct. at 1612.

The determination of whether an interrogation is custodial should focus on all of the circumstances surrounding the questioning, including: the location, length, mood and mode of the interrogation; the number of police officers present; any indicia of formal arrest or evidence of restraint; the intentions of the officers; the extent of the officers’ knowledge; and the focus of the investigation. (People v. Brown (1990), 136 Ill. 2d 116, 124-25, 554 N.E.2d 216.) The trial court must examine and weigh these factors, along with the credibility of the witnesses. It must then make an objective determination as to what a reasonable person, innocent of any crime, would perceive if he or she were in the defendant’s position. (Brown, 136 Ill. 2d at 125.) The burden of proving that a defendant was not in a custodial situation and had not been deprived of his freedom of action in any significant way is on the State. (In re N.E.R. (1987), 159 Ill. App. 3d 320, 512 N.E. 2d 132.) When reviewing the trial court’s ruling on a motion to suppress, a court of review will not disturb the trial court’s finding unless it is manifestly erroneous. Brown, 136 Ill. 2d at 125.

The circuit court below did in fact consider each of the following factors: (1) the place where Hawthorn was interrogated; (2) statements and nonverbal conduct which might have indicated that Hawthorn was not free to leave; and (3) the extent of the police officers’ knowledge and the focus of their investigation. In applying these factors, the court made the following findings of fact.

At the time of the interrogation, Hawthorn was a primary suspect. The police officers knew that Hawthorn had lived with Johnson and that she had a reason to fear Johnson because he had abused her in the past. The officers had reasonable grounds to believe that Hawthorn had been provided with a pistol which was the same caliber as the gun used to kill Johnson. They knew that this gun had been provided so that she could protect herself against Johnson. Finally, the police knew that Hawthorn showed very little emotion when informed of Johnson’s death.

The court also found that the police officers employed subterfuge in requesting that Hawthorn come to the station for an interview when their actual, but unexpressed, motive was to induce her to submit to a polygraph test. Furthermore, instead of allowing Hawthorn to drive herself to the exam in her own car, the police drove her to the offices of Reid and Associates in an unmarked police car.

With respect to the place of interrogation, the circuit court found that in Hawthorn’s case, the place of interrogation was a room or office which was specifically designed and intended for interrogation. At no time was Hawthorn ever outside of the presence of police; she was taken directly from the police station to another place which was specifically designed for interrogation purposes.

The court found that the polygraph examiners were acting as agents of the police. The police gave Masokas, one of the examiners, a list of questions to ask during the examination, and he did in fact ask those questions. Upon completion of the polygraph test, Masokas confronted Hawthorn with the fact that she had failed the test and, therefore, was not telling the truth. Masokas and later Senese commenced an interrogation using the most scientifically efficient method of interrogation permissible under our judicial system.

Finally, the court found that the interrogation took place at a time which had long surpassed the investigation stage and in fact was at the accusatorial stage. Considering all of the above factors together, the circuit court found that Hawthorn’s freedom had been significantly impaired throughout the entire day of September 4, 1986.

Initially the State contends that the circuit court’s finding that Hawthorn was a primary suspect is against the manifest weight of the evidence. The State correctly points out that both Officer Jones and Officer Silverberg testified that they did not believe that Hawthorn was a suspect prior to September 4, 1986, the day of the interrogation. We note, however, that the record also contains evidence that the police possessed information which could lead a reasonable police officer to view Hawthorn as a suspect. Contrary to the State’s argument, the trial court did not ignore the testimony of the officers. Instead, the trial court stated that in light of the evidence of the officers’ knowledge about Hawthorn as of September 4, it found the testimony of the officers to be incredible. It is the function of the trial court to determine the credibility of the witnesses and to resolve any conflict in their testimony. (People v. Melock (1992), 149 Ill. 2d 423, 432, 599 N.E.2d 941.) In light of all the evidence before the trial court, we cannot say that its conclusion that Hawthorn was a suspect on September 4 was against the manifest weight of the evidence.

Next, the State argues that the trial court erred in finding that the polygraph examiners were acting as agents of the police. We disagree. Our supreme court has previously recognized that polygraph examiners may become agents of the police during an interrogation. (See People v. Turner (1973), 56 Ill. 2d 201, 207, 306 N.E.2d 27.) Whether or not the polygraph examiners have become agents of the police in a particular case depends upon the unique facts of that case. The facts in this case indicate that the polygraph examiners went far beyond merely administering a polygraph test. Masokas confronted Hawthorn with the fact that she failed the examination and, therefore, was not telling the truth. He then commenced a highly structured and stressful interrogation aimed at inducing a confession. When it became apparent that Masokas would not obtain a confession, Senese intervened and completed the interrogation. Only after the examiners had induced a confession did the examiners return Hawthorn to the police officers. Based upon the facts of this case, we hold that the trial court’s conclusion that the examiners were acting as agents of the police is not against the manifest weight of the evidence.

The State next contends that the trial court’s conclusion that Hawthorn was in custody on September 4 is erroneous because the trial court applied the wrong standard. The State maintains that the trial court determined that Hawthorn was in custody because the officers considered her a primary suspect and focused their investigation on her. Therefore, the State asserts that the trial court improperly focused on the subjective intent of the police officers instead of the objective perceptions of a reasonable, innocent person in Hawthorn’s position.

It is well established that Miranda warnings are not triggered solely by the government’s focusing on a particular suspect. (See Minnesota v. Murphy (1984), 465 U.S. 420, 431, 79 L. Ed. 2d 409, 422, 104 S. Ct. 1136, 1144.) However, the knowledge possessed by the police, as well as the focus of their investigation, are two of many factors that may be considered in determining whether a particular interrogation was custodial. (Brown, 136 Ill. 2d at 124-25.) The subjective intent of the police officers is relevant to the extent that it might color their outward behavior toward an individual who is the subject of an interrogation. People v. Bury (1990), 199 Ill. App. 3d 207, 213, 556 N.E.2d 899.

The State is correct in asserting that these factors should not control a trial court’s determination of whether an interrogation is custodial. (See Brown, 136 Ill. 2d at 129.) However, the State is mistaken in asserting that the subjective intentions of the police officers did control the outcome of the trial court’s decision in this instance. After discussing the officers’ conduct toward Hawthorn, the court stated “the actions of the Skokie Police *** would indicate that a reasonable person would be at least apprehensive as to whether or not they were free to go.” Moreover, after carefully considering all the circumstances surrounding the questioning, the trial court stated, “[tjaking all those factors together, the Court is satisfied that throughout the entire day of September 4 that Carolyn Hawthorn’s freedom had been significantly impaired and that she was a suspect and that she would be interrogated at an accusatorial stage and not an investigation stage.” (Emphasis added.) Although we do not agree with the trial court’s finding that Hawthorn’s freedom was significantly impaired throughout the entire day of September 4, we are satisfied that the circuit court considered all of the factors surrounding the questioning of Hawthorn. The trial court did not focus exclusively on the subjective intent of the officers but, instead, applied the proper standard in determining whether the interrogation of Hawthorn was custodial. We hold that the trial court’s conclusion that the interrogation of Hawthorn by the police was custodial is not against the weight of the evidence insofar as it applies to the questioning by the police after they were informed of her admission.

The State next contends that the Illinois Supreme Court case of Me-lock (149 Ill. 2d 423, 599 N.E.2d 941) dictates that we reverse the trial court’s suppression order. We disagree. In Melock, the defendant was suspected of murdering his grandmother. The police went to Melock’s home and requested that he accompany them to the police station. Me-lock was taken to an interview room and questioned for two hours. While Melock was at the station, he offered to take a polygraph examination to prove that he was telling the truth. Melock was transported from the police department to the offices of John Reid and Associates by the interrogating officers. Upon arriving, Melock sat alone in an unsecured waiting room for about 30 minutes while the police officers spoke with the polygraph examiners.

Like the case at bar, Masokas, the polygraph examiner, questioned Melock in three distinct stages: the pretest interview, the polygraph test itself, and the post-test interrogation. As in Hawthorn’s case, the polygraph examiner induced an admission during the post-test interrogation and then summoned the police officers. However, before eliciting any statement from Melock, the police read Melock his Miranda rights. The trial court held that Melock was not in custody prior to the point in time that Melock made the admission to Masokas and the supreme court affirmed. Melock, 149 Ill. 2d at 436, 443.

We disagree with the State’s contention that Melock controls the outcome of this case. The facts of the instant case differ from those of Melock in one critical respect. In Melock, the defendant was given Miranda warnings as soon as he made an admission to the polygraph examiners and before he made any statement to the police officers. In contrast, Hawthorn was not given Miranda warnings as soon as the polygraph examiners induced an admission from her. Instead, the police elicited a second admission from Hawthorn before they gave her Miranda warnings. In light of the facts of this case, it is our view that Miranda warnings should have been given after the polygraph examiners induced an admission and before the police elicited any further statements.

The facts before the court present an extremely close case. We are mindful of the limited scope of our review; the trial court’s determination will not be reversed unless it is manifestly erroneous. (Melock, 149 Bl. 2d at 432.) In light of all the circumstances surrounding the questioning of Hawthorn, we cannot say that the circuit court’s conclusion that Hawthorn was in custody and, therefore, entitled to Miranda warnings at the point she made her initial admission to the police officers following the polygraph examination is against the manifest weight of the evidence. Therefore, the trial court did not err in suppressing Hawthorn’s initial statement.

We now turn to Hawthorn’s subsequent statement which was made to Assistant State’s Attorney Mermel at the police station later that evening. The trial court found this statement to be the “fruit” of the initial custodial interrogation conducted in violation of Miranda. The trial court further found that no attenuation occurred between the initial violation and the subsequent statement. Therefore, the trial court held that these statements were inadmissible pursuant to the fruit of the poisonous tree doctrine. We disagree.

In Oregon v. Elstad (1985), 470 U.S. 298, 84 L. Ed. 2d 222, 105 S. Ct. 1285, the United States Supreme Court held that the fruit of the poisonous tree doctrine is not applicable to Miranda violations. The fruit of the poisonous tree doctrine originated in Wong Sun v. United States (1963), 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407, in which the Supreme Court held that evidence and witnesses discovered as a result of a search conducted in violation of the fourth amendment must be excluded. The principle of Wong Sun also applies when the fruit of the fourth amendment violation is a confession. (Elstad, 470 U.S. at 305-06, 84 L. Ed. 2d at 230, 105 S. Ct. at 1291.) It is well settled that when a confession is obtained in violation of the fourth amendment, the confession must be excluded “ ‘unless intervening events break the causal connection between the illegal arrest and the confession so that the confession is “sufficiently an act of free will to purge the primary taint.” ’ ” Elstad, 470 U.S. at 306, 84 L. Ed. 2d at 230, 105 S. Ct. at 1291, quoting Taylor v. Alabama (1982), 457 U.S. 687, 690, 73 L. Ed. 2d 314, 319, 102 S. Ct. 2664, 2667.

As the Miranda Court observed, however, Miranda violations differ significantly from fourth amendment violations, which have traditionally warranted a broad application of the “fruits” doctrine. The fourth amendment exclusionary rule is designed to deter unreasonable searches, no matter how probative their fruits. In contrast, the Miranda exclusionary rule was created to safeguard fifth amendment rights and sweeps more broadly than the fifth amendment itself. (Elstad, 470 U.S. at 306, 84 L. Ed. 2d at 230, 105 S. Ct. 1291-92.) Miranda warnings are not themselves rights protected by the Constitution. Instead, the requirement that Miranda warnings be given is a prophylactic measure designed to insure that the right against compulsory self-incrimination is protected. (See Michigan v. Tucker (1974), 417 U.S. 433, 444, 41 L. Ed. 2d 182, 193, 94 S. Ct. 2357, 2364.) As such, the Miranda exclusionary rule may be triggered even in the absence of a fifth amendment violation. (Elstad, 470 U.S. at 306, 84 L. Ed. 2d at 230, 105 S. Ct. at 1292.) In light of these considerations, the Supreme Court in Elstad concluded:

“It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.” Elstad, 470 U.S. at 309, 84 L. Ed. 2d at 232,105 S. Ct. at 1293.

The principle set forth in Elstad is clear. The failure to administer Miranda in the absence of coercion does not implicate the fruit of the poisonous tree doctrine. In the case at bar, the trial court did not make a finding of coercion. The defendant urges this court to impute a finding of coercion to the trial court. Defendant asserts that since the trial court failed to apply Elstad, it “apparently recognized” that more than a mere failure to administer Miranda warnings occurred. We disagree. The trial court suppressed the initial statements solely because Hawthorn was not given Miranda rights:

“[Hawthorn] did have the right to be advised under doctrines of the Fifth and Sixth Amendment that any statement that she may make could and would be used against her and that she had the right to have the presence of an attorney with her before any questioning, that the absences of those warnings that any statement made by her must therefore and reluctantly must be excluded from evidence to be used against her.”

Furthermore, there is no basis in the record to support a finding of coercion. The facts of this case indicate that the only violation of Hawthorn’s rights that occurred was the failure to administer Miranda warnings. Therefore, the trial court erred in applying the fruit of the poisonous tree doctrine.

As discussed in Elstad, the only relevant issue concerning Hawthorn’s subsequent statement is whether it was made voluntarily. A statement is voluntary where under the totality of the circumstances, it is given freely, voluntarily and without compulsion or inducement. On the other hand, a statement is involuntary if the defendant’s will was overcome at the time he confessed. (People v. House (1990), 141 Ill. 2d 323, 376, 566 N.E.2d 259.) Factors the court should consider when making a determination of voluntariness include the age, education and intelligence of the accused; the duration of the questioning; whether the accused was apprised of his constitutional rights; and whether the accused was subjected to any physical punishment, such as the deprivation of food or water. (See Schneckloth v. Bustamante (1973), 412 U.S. 218, 226, 36 L. Ed. 2d 854, 862, 93 S. Ct. 2041, 2047; People v. Martin (1984), 102 Ill. 2d 412, 427, 466 N.E.2d 228.) No single fact is dispositive; the question must be answered on the facts of each case. Melock, 149 Ill. 2d at 447-48.

The facts of this case indicate that after Hawthorn made an initial admission at the polygraph office, she was given Miranda warnings. The police then drove her home. Upon arriving at Hawthorn’s home, the officers gave Miranda warnings to both Hawthorn and her son, Frank. At this time Frank admitted his involvement in the murder and gave a statement to the police. The officers then placed Frank under arrest and took him to the police station. Hawthorn was not arrested, but instead was left at home, alone. Hawthorn then went to the station of her own volition in order to be with her son. At the station, Assistant State’s Attorney Mermel gave Miranda warnings to both Hawthorn and her son before taking a joint statement. Both Hawthorn and Frank waived their Miranda rights and gave a statement. Considering the totality of the circumstances surrounding Hawthorn’s subsequent statement, we hold that the statement was voluntary and, therefore, admissible. The trial court erred in suppressing the statement.

For the foregoing reasons, the decision of the trial court is affirmed in part and reversed in part and remanded.

Affirmed in part and reversed in part and remanded.

GORDON, P.J., and MURRAY, J., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHERMAN GIBSON, Defendant-Appellant.
    Fourth District
    No. 4 — 92—0273
    Opinion filed April 29,1993.
    Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On May 10, 1982, following a jury trial in the circuit court of Sangamon County, defendant Sherman Gibson was convicted of the offenses of home invasion, rape, deviate sexual assault, burglary, and felony theft. (Ill. Rev. Stat. 1981, ch. 38, pars. 12 — 11(a)(1), 11 — 1, 11 — 3, 19 — 1, 16 — 1(a)(1).) He was subsequently sentenced to concurrent terms of 45 years’ imprisonment for home invasion, rape and deviate sexual assault and 7 years’ imprisonment for burglary. This court affirmed his convictions and sentences on direct appeal. People v. Gibson (1983), 117 Ill. App. 3d 270, 452 N.E.2d 1368.

On December 22, 1989, defendant filed a pro se petition for post-conviction relief (Ill. Rev. Stat. 1989, ch. 38, pars. 122 — 1 through 122 — 8), alleging that (1) he was denied the effective assistance of counsel because he advised his attorney that Jeffrey Wilford could provide him with an alibi defense, and notwithstanding this information, counsel never contacted Wilford; and (2) the use of hypnotically refreshed testimony at trial violated principles of fundamental fairness, because such testimony was inherently unreliable and made cross-examination impossible. On March 12, 1991, the court appointed counsel to represent defendant.

On September 4, 1991, defendant’s attorney, Jon Noll, filed an amended petition for post-conviction relief which incorporated the pro se petition and made substantially the same allegations as defendant had previously made. The amended petition added that (1) defendant’s trial attorney knew Wilford was incarcerated in the Madison County jail at the time of defendant’s trial and nevertheless failed to contact him; and (2) the use of the hypnotically induced recollection at trial deprived defendant of his constitutional right to cross-examine the witness.

Attached to the amended petition were affidavits of defendant and Wilford. Defendant’s affidavit indicated he told his trial attorney about Wilford and that Wilford would have testified defendant was with him at Wilford’s girlfriend’s house on the night of the incident. He said his counsel told him he did not know how to obtain a witness subpoena. He also said his attorney knew Wilford was in another county jail at the time of defendant’s trial. Wilford’s affidavit indicated he would have testified that defendant was with him at Carolyn Madison’s (his girlfriend’s) home on the morning of June 13, 1981 (the date of the offenses), and defendant was asleep at 5:30 a.m. when Glenda Sue Medley and Allen Medley arrived at the house with credit cards belonging to the victims. He further stated that he and defendant spent the previous night and early morning hours together, defendant did not commit a home invasion or rape, and Wilford was never contacted by any attorney for defendant.

The State filed a motion to dismiss the amended petition, alleging that defense counsel’s performance could not be characterized as constitutionally defective, and the admission of hypnotically refreshed testimony did not violate defendant’s constitutional rights. On January 16, 1992, following a hearing on the petition, the court granted the motion to dismiss.

On appeal, defendant’s contentions center upon his theory that his rights to confrontation and due process were violated by the admission of hypnotically induced testimony. However, he also contends that the petition set forth a violation of his sixth amendment right to effective assistance of counsel, because of his trial counsel’s failure to subpoena an alibi witness. We hold that the first issue has been waived, but the petition did set forth sufficient allegations to require an evidentiary hearing on the question of ineffective assistance of counsel. We reverse and remand to the trial court with directions to hold an evidentiary hearing.

Defendant argues initially that the use of the victim’s post-hypnosis testimony at trial violated his constitutional rights to confrontation and due process.

On direct appeal, defendant argued that the hypnotically enhanced testimony was inadmissible because (1) the prior hypnosis of the victim rendered her incompetent to testify to subjects inquired into under hypnosis; and (2) the witness’ testimony should have been excluded because the hypnosis did not satisfy the safeguards for the admission of hypnotically enhanced testimony set out in State v. Hurd (1981), 86 N.J. 525, 432 A.2d 86. Defendant did not argue the admission of hypnotically enhanced testimony worked a denial of his constitutional rights to confrontation and due process. It is well settled that in evaluating post-conviction petitions, affirmance on direct appeal is res judicata as to all issues that were raised, or could have been raised, in that appeal. (People v. Roberts (1979), 75 Ill. 2d 1, 10, 387 N.E.2d 331, 335; People v. Seidler (1990), 203 Ill. App. 3d 666, 669, 561 N.E.2d 386, 388.) We conclude defendant could have raised this issue on direct appeal, and by failing to do so, has waived any right to present the issue in his post-conviction petition.

Moreover, notwithstanding that the issue has been waived, defendant may not challenge the introduction of this testimony based upon the Illinois Supreme Court’s decision in People v. Zayas (1989), 131 Ill. 2d 284, 546 N.E.2d 513. There, the supreme court changed the law respecting the admission of hypnotically enhanced testimony, concluding it was inherently unreliable and, other than such testimony of the defendant, is not admissible in Illinois. (Zayas, 131 Ill. 2d at 295, 546 N.E.2d at 518.) However, the court specifically stated that this ruling would not affect those cases that have been finally determined on direct appeal.

In People v. Smrekar (1990), 193 Ill. App. 3d 534, 540, 550 N.E.2d 3, 7, appeal denied (1990), 132 Ill. 2d 553, 555 N.E.2d 384, this court refused the defendant’s request to find that Zayas should be applied retroactively. This court concluded that Zayas was unambiguous in its holding that the ruling would have no retroactive effect on collateral attacks. We reaffirm that conclusion.

Although we are not reversing because of the introduction of hypnotically enhanced testimony, we conclude nevertheless that defendant has raised a sufficient question of error as to his claim that his trial counsel was ineffective for failing to subpoena an alibi witness.

In order to prevail under the Post-Conviction Hearing Act, a defendant “must establish a substantial deprivation of his rights under the United States Constitution or the Constitution of Illinois.” (People v. Caballero (1989), 126 Ill. 2d 248, 259, 533 N.E.2d 1089, 1091; see also People v. Spreitzer (1991), 143 Ill. 2d 210, 218, 572 N.E.2d 931, 934.) A defendant is entitled to an evidentiary hearing on the petition if the allegations “are supported by the trial record, accompanying affidavits, and make a substantial showing that a defendant’s rights have been violated.” Spreitzer, 143 Ill. 2d at 218, 572 N.E.2d at 934.

The Supreme Court has determined that in order to establish the defendant was denied his constitutional right to effective assistance of counsel, he must show: (1) counsel’s performance was deficient in that he made errors so serious that counsel was not functioning as “counsel” guaranteed by the sixth amendment; and (2) the deficient performance prejudiced the defense and deprived defendant of a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693,104 S. Ct. 2052, 2064.

Assuming a defendant can show a deficiency of counsel, he must still demonstrate prejudice. Under Strickland, a defendant must show not only that his counsel’s performance fell below the prevailing professional norms, but also that “there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068-69.

Defendant cites People v. Truly (1992), 230 Ill. App. 3d 948, 595 N.E.2d 1230, where the defendant was granted a new trial based on a finding that his trial attorney had been ineffective for failing to investigate and subpoena alibi witnesses. He also cites People v. Skinner (1991), 220 Ill. App. 3d 479, 581 N.E.2d 252, where the appellate court held that Skinner was denied effective assistance of counsel, because his trial counsel failed to call as witnesses the defendant’s parents, who would have corroborated Skinner’s testimony. The court concluded that the failure to call witnesses who would support an otherwise uncorroborated defense amounted to ineffective assistance of counsel. Skinner, 220 Ill. App. 3d at 485, 581 N.E.2d at 256.

Traditionally, courts have not reviewed an attorney’s choices when made on the basis of strategic considerations. However, these strategic decisions may be made only after there has been a “thorough investigation of law and facts relevant to plausible options.” Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066.

Here, on direct appeal, this court determined that although error occurred in the admission of the identification testimony of the victim, the admission of Glenda Medley’s prior consistent statement to the police, and in the exclusion of a response to a question propounded to defendant’s expert, the errors were harmless in light of the “overwhelming” evidence of defendant’s guilt. Had defendant presented Wilford’s alibi testimony, the evidence might not have been overwhelming.

Although defendant’s trial attorney may have decided, as a matter of strategy, not to call Wilford because of his possible involvement in the incident, including his alleged use of the victims’ credit cards, we cannot say as a matter of law that was the attorney’s reasoning. It could, as defendant maintains, have been pure incompetence. Once evidence is heard on the subject, the circuit court will be in a better position to determine whether a Strickland deprivation of counsel occurred.

Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.

KNECHT and COOK, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    INTERNAL MEDICINE ASSOCIATES OF DECATUR, S.C., Plaintiff-Appellee, v. MARY PATTERSON, Defendant-Appellant (Soy Capital Bank and Trust Company, Garnishee).
    Fourth District
    No. 4-92-0817
    Opinion filed April 29, 1993.

      Jessica Stricklin, of Decatur, for appellant.
    Mark S. Morthland, of Record, Finney, Jankowicz & Morthland, of Decatur, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

In the circuit court of Macon County, judgment was entered in favor of plaintiff Internal Medicine Associates of Decatur, S.C., and against defendant Mary Patterson in the amount of $782.17, plus costs, for medical services provided to defendant’s now deceased husband, Melvin, and for which defendant was found to be responsible. In an attempt to collect the debt, plaintiff instituted a garnishment proceeding against defendant and Soy Capital Bank and Trust Company, a banking corporation, in which defendant maintained a bank account containing $1,069.17. In defense of the garnishment proceeding, defendant submitted an affidavit which claimed that all the monies contained in the account were exempt from garnishment because they were derived solely from either a pension from the Veterans Administration (VA) or reimbursement from the Illinois Department of Children and Family Services (DCFS) and Webster-Cantrell Hall for defendant’s services as a foster parent. After consideration of argument and the affidavit of defendant, the trial court ordered the garnishee to make payment to plaintiff. We reverse and remand.

At the hearing before the trial court, plaintiff conceded that the funds from the VA are exempt from garnishment. These funds were, however, commingled with other funds in the account. On appeal, while not disputing the exemption of the veterans’ benefits received as a result of the death of defendant’s husband, plaintiff argues that there was a transmutation of those funds into garnishable assets by reason of the commingling. We decline to extend the doctrine of transmutation to this type of proceeding.

Plaintiff does not argue that any part of the account which is traceable to veterans’ benefits paid is subject to garnishment. If those funds have not become a permanent investment, they are exempt. (See Philpott v. Essex County Welfare Board (1973), 409 U.S. 413, 34 L. Ed. 2d 608, 93 S. Ct. 590 (discussing Federal social security insurance payments).) On this record, it cannot be determined what part, if any, of the account was YA payments. No evidence was presented as to the bank records of the transactions; no evidence was presented by defendant as to the nature of the transactions; and the trial court’s order did not determine the source of the account subject to garnishment.

The remaining issue in this appeal, whether an exemption exists for the funds in the account traceable to reimbursement for defendant’s foster parenting activity, requires an interpretation of section 5 of the Children and Family Services Act (Act), which provides as follows:

“The Department may place children under 18 years of age in licensed child care facilities when in the opinion of the Department, appropriate services aimed at family preservation have been unsuccessful or unavailable and such placement would be for their best interest. Payment for board, clothing, care, training and supervision of any child placed in a licensed child care facility may be made by the Department *** and the parents or guardians, except that no payments shall be made by the Department for any child placed in a licensed child care facility for board, clothing, care, training and supervision of such a child that exceed the average per capita cost of maintaining and of caring for a child in institutions for dependent or neglected children operated by the Department. However, such restriction on payments does not apply in cases where children require specialized care and treatment for problems of severe emotional disturbance, physical disability, social adjustment, or any combination thereof and suitable facilities for the placement of such children are not available at payment rates within the limitations set forth in this Section. All reimbursements for services delivered shall be absolutely inalienable by assignment, sale, attachment, garnishment or otherwise.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 23, par. 5005.

In In re Marriage of Logston (1984), 103 Ill. 2d 266, 277, 469 N.E.2d 167, 171, the Illinois Supreme Court stated:

“As often stated, the primary rule of statutory construction is to ascertain and effectuate the legislature’s intent. In doing so a court looks first to the statutory language itself. If the language is clear, the court must give it effect and should not look to extrinsic aids for construction. (People v. Boykin (1983), 94 Ill. 2d 138, 141; Vause & Striegel, Inc. v. McKibbin (1942), 379 Ill. 169,175.)”

Plaintiff specifically attacks the word “reimbursements” used in section 5, arguing that reimbursements are repayment of expenditures and that the payments made to defendant were wages.

The statute specifically refers to “reimbursements for services,” not “reimbursement for expenditures.” Services include board, clothing, care, training and supervision. Any compensation for services is “reimbursements for services” and includable under the statutory exemption. There is nothing in the record to indicate defendant was paid wages.

In section 12 — 1001 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 12 — 1001), several exemptions are provided. These statutory exemptions, in some instances, specify some types of property, and, in other instances, the right to receive some types of payments. (Compare Ill. Rev. Stat. 1989, ch. 110, pars. 12 — 1001(a), (b), (c), (d), (e) with (g).) In still other instances, the statute exempts both the right to receive and property traceable to a type of payment. (Ill. Rev. Stat. 1989, ch. 110, par. 12 — 1001(h).) As is demonstrated by the analysis in Fayette County Hospital v. Reavis (1988), 169 Ill. App. 3d 246, 250, 523 N.E.2d 693, 695, the distinction between these types of exemptions is significant.

In Fayette County Hospital (169 Ill. App. 3d at 250, 523 N.E.2d at 695), the court correctly pointed out that an exemption of the right to receive designated types of payments “does not clearly indicate whether the legislature intended to exempt a debtor’s funds which are traceable” and that the Illinois statute did not exempt property which was traceable.

In Philpott, the Supreme Court determined section 407 of the Social Security Act (42 U.S.C. §407 (Supp. I 1983)), which provided in part, “none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process,” barred any garnishment action. (Philpott, 409 U.S. at 415 n.3, 34 L. Ed. 2d at 611 n.3, 93 S. Ct. at 591 n.3.) The Fayette County court endorsed the Philpott rationale. Section 5 of the Act, which closely parallels section 407 of title 42 of the United States Code, states: “All reimbursements for services delivered shall be absolutely inalienable by assignment, sale, attachment, garnishment or otherwise.” (Ill. Rev. Stat. 1989, ch. 23, par. 5005.) We agree with the Fayette County court.

In section 5 of the Act, the exemption is not limited to the right to receive the payment. We deem that the legislature intended the exemption to apply not only to the right to receive reimbursement for services, but to any property traceable to the receipt of reimbursement for services. If the funds in the account have not been converted into a permanent investment, they are exempt.

In deciding that the account was not exempt from garnishment, the trial court, in essence, ruled that, even if the funds in the account were generated solely from the three sources designated in defendant’s affidavit, as a matter of law, the account still is not exempt. We disagree with that conclusion. However, we note that no evidence was presented, and the trial court did not specifically find that the funds in the account were derived only from the sources enumerated in defendant’s affidavit.

Plaintiff argues the monies paid defendant by Webster-Cantrell Hall and DCFS were not reimbursements but were in fact income or wages. The record does not disclose the nature of these payments. Although defendant’s counsel stated to the trial court that defendant “operates a licensed child-care home,” the trial judge noted there was nothing in the defendant’s affidavit to that effect. Moreover, the record does not disclose the relationship of Webster-Cantrell Hall to the DCFS or the parents or guardians of the children for whose care defendant was reimbursed. The section 5 exemption is limited to reimbursement for services from DCFS, parents, and guardians. Here, if the payments were made pursuant to the Act, section 5 does apply and any monies paid pursuant to the Act are exempt. On remand, the trial court should allow defendant or garnishee an opportunity to prove whether and to what extent the funds are exempt, as the burden of proving the exemption rests on. the garnishee and debtor. See Kosiba v. Galinski (1912), 171 111. App. 643, 646.

For the foregoing reasons, the judgment of the circuit court of Macon County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

STEIGMANN, P.J., and COOK, J., concur.