author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. IVAN TODD THOMAS, Defendant-Appellant.
    Fourth District
    No. 4—89—0076
    Opinion filed November 30, 1989.

      Daniel D. Yuhas and Gloria A. Carroll, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

Following a jury trial, defendant was convicted of aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12—4(b)(1)) and acquitted of armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18—2(a)). He appeals, contending (1) evidence of a statement which was purportedly related to plea bargaining was improperly admitted at his trial; (2) in closing argument, the prosecutor improperly defined the concept of reasonable doubt to the jury in such a manner as to lessen the State’s burden of proof; and (3) the State failed to prove beyond a reasonable doubt that a deadly weapon was used in the battery of which he was convicted.

At defendant’s trial, the victim, who is a haircutter by profession, stated that on the evening of December 19, 1987, he attended a Christmas party at the residence of Carol Wright. Several persons at the party were acquaintances whom the victim had met while a student at the Bloomington Academy of Beauty Culture. Defendant was among the guests at the party. The victim stated that during the course of the party, he saw defendant with a knife and that defendant talked about trading the knife for a hair-shaping razor blade, which is used for thinning hair. Defendant stated that he knew that Carol Wright possessed such a razor blade. During the party, the victim briefly saw the defendant in possession of a hair-shaping razor blade in the back bedroom of the Wright residence.

The victim further testified that he left the party at approximately 10:30 or 11 p.m. in the company of defendant and Paul Childs. The victim agreed to give defendant and Childs a ride to another party in the victim’s car. The defendant sat in the front seat, and Childs sat in the middle of the backseat as the victim drove the car. There was no one at the scene of the party which defendant and Childs wanted to attend, and the victim therefore decided to return to the party at Wright’s residence. En route, the victim “stop[ped] by a girl’s house” at the request of defendant and Childs. When they arrived at that location, Childs left the car and was gone for a maximum of 10 to 15 minutes. After Childs left the car, the victim discovered that a bottle of vodka which had been in his car was missing. The victim frisked Childs upon his return, found the vodka in his possession, took it from him, and placed it by the driver’s door of his car. When the victim took the bottle of vodka away from Childs, Childs claimed that it was his. The victim stated that he knew the vodka was his (the victim’s) because it was still in a bag bearing the name of the store at which he had purchased it, and he knew that Childs did not have the vodka when he got into the car.

The victim stated that after recovering his bottle of vodka, he began to drive his car to the Wright residence. After driving a distance of one-half block, defendant pulled out “something like a knife,” put it against the victim’s throat and told the victim to take him and Childs to “Sunnyside.” The defendant stated that if the victim did not cooperate, he would get hurt. The victim thereupon drove for a further distance, while the defendant continuously held the sharp object against his throat. The victim pulled the car over to a curb a couple of blocks from the Law and Justice Center. At that point, defendant turned off the ignition and grabbed the keys to the victim’s car. The victim stated that at the same time, he grabbed the right hand of defendant, which was holding the knife, hit it against the steering wheel, and squeezed out of the car. The victim did not immediately know what happened to the object which the defendant was holding.

After squeezing out of his car, the victim ran two blocks to the police station and reported the incident. He then returned to his car in the company of a police officer. They discovered that the glove compartment of the victim’s car had been ransacked and that the bottle of vodka was missing.

The victim further testified that about a week after the incident involving the defendant, a friend of his discovered a “hair shaping blade” under the seat of the victim’s car. This was the same type of hair-shaping blade which he saw in defendant’s possession during the party at the Wright residence. The victim further stated that the blade was not in his car prior to the evening of the party at the Wright residence and that when the victim’s friend discovered the blade in the victim’s car, it had a dried red substance on it which looked like blood.

The victim also testified that when he got to the police station, he noticed that his shirt had bloodstains on it and that there was blood on his neck. He further stated that after defendant placed the sharp object against his neck, he felt pain.

On cross-examination, the victim testified that he never saw defendant with the bottle of vodka. He further stated that he did not know what the object was which the defendant held to his neck. The victim further testified that while defendant held the object against his neck, defendant also had his other hand on the victim’s neck. The victim acknowledged that the pain which he experienced at the time could have been caused by defendant’s other hand, and that the cuts which he sustained could have been inflicted during the struggle just before he squeezed out of his car. The victim also acknowledged that he had had quite a bit to drink on the evening in question. The victim further testified on cross-examination that the defendant was not wearing gloves on the night of the party at the Wright residence.

On redirect examination, the victim stated that the injury to his neck consisted of both straight and jagged cuts, and that the straight cuts were “razor fine.” He further stated that a couple of weeks after the incident involving the defendant, he discovered that a coat which had been in his car on that evening was also missing.

When asked on re-cross-examination if the cuts on his neck could have been caused by fingernails, the victim stated:

“I don’t think so, I don’t think so for the fact that they were longer. When you get scratched with a fingernail, it more or less scrapes instead of cuts. It was a clean cut. I don’t think it was from fingernails.”

Also testifying on behalf of the State was Vickie Walton. She stated that she saw defendant with a knife at the party at Carol Wright’s residence on December 19 and 20, 1987. Walton testified that the knife had a dark handle and a long blade. She further testified that the bloodstained object found in the victim’s car was a razor blade similar to the ones used in the razors at the beauty school which she attended. She also recalled a conversation at the party at Wright’s residence in which defendant offered to trade Carol Wright a knife for a razor blade similar to the blade discovered in the victim’s car. Walton further testified that she did not see cuts on the victim’s neck while he was at the party at Wright’s residence.

On cross-examination, Walton was impeached with a 1986 forgery conviction.

Detective Jeff Sanders of the Bloomington police department stated that the victim gave him the blade which he recovered from his car. Sanders further testified that the substance on the object appeared to be dried blood.

On cross-examination, Sanders stated that no tests of the dried blood on the blade found in the victim’s car were performed, and that he discovered no obviously apparent fingerprints on that object.

Following Sanders’ testimony, the court admitted into evidence the razor blade which the victim discovered in his car.

Detective Mike Jordan of the Bloomington police department testified that when he observed the victim shortly after midnight on the morning of December 20, 1987, he noticed some fresh cuts to his neck area. The cuts appeared to have been made “by a sharp instrument of some sort.”

On cross-examination, Jordan stated that he discovered no knife or razor blade when he searched the victim’s car for evidence on the morning of December 20. He further stated that when he took the victim to the hospital on that morning, he required no stitches. Jordan also stated that the victim told him that he got cut during the struggle just before he escaped from his assailant.

At the conclusion of the State’s case, the court admitted into evidence a transcript of a September 20, 1988, hearing on a motion of the defendant’s court-appointed counsel for leave to withdraw. The prosecutor published to the jury a portion of the transcript in which the defendant stated: “I know I am not guilty of nothing but aggravated battery ***.”

The court denied a motion for a directed verdict as to both of the offenses with which defendant was charged. The defendant presented no evidence.

Following a sentencing hearing, the court sentenced defendant to five years’ imprisonment on the aggravated battery count of which he was found guilty.

We first consider defendant’s contention that there is insufficient evidence to support his aggravated battery conviction, because the State did not prove beyond a reasonable doubt that he utilized a deadly weapon in committing the aggravated battery of which he was convicted.

In determining whether the evidence is sufficient to establish a defendant’s guilt beyond a reasonable doubt, the pertinent inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have concluded that the evidence establishes the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.

As both parties point out, under the indictment filed in this cause, evidence that defendant used a deadly weapon was necessary in order for the battery which defendant committed to be enhanced to the more serious offense of aggravated battery. (Ill. Rev. Stat. 1987, ch. 38, par. 12—4(b)(1).) Use of a deadly weapon during the commission of a battery may be established by circumstantial evidence if there is some physical manifestation of a weapon (People v. Parks (1977), 50 Ill. App. 3d 929, 365 N.E.2d 1339) or some other evidence from which the use of a weapon may be inferred. People v. Partee (1987), 157 Ill. App. 3d 231, 511 N.E.2d 1165, cert, denied (1988), 484 U.S. 1072, 98 L. Ed. 2d 1006, 108 S. Ct. 1043; People v. Goodwin (1975), 24 Ill. App. 3d 1090, 322 N.E.2d 569.

In the present case, there is ample circumstantial evidence to support a conclusion by a rational trier of fact that the evidence establishes beyond a reasonable doubt that the defendant used a deadly weapon in committing the battery of the victim. The victim testified that the defendant pulled out an object and placed it against his throat. In his testimony, the victim repeatedly referred to the object as a knife. The cuts on the victim’s neck appear to have been caused by a long, sharp object. The discovery of a hair-shaping blade with dried blood on it in the victim’s car approximately one week after the battery would not in itself be sufficient to establish beyond a reasonable doubt that defendant used a deadly weapon in committing the battery. However, this was a factor which the jury properly could have considered together with the other evidence in concluding that defendant used a deadly weapon in committing the battery of which he was accused.

We next consider whether evidence of a plea-related statement was improperly admitted at defendant’s trial. Admitted into evidence at defendant’s trial was a transcript of a September 12, 1988, pretrial hearing on a motion by defendant’s counsel for leave to withdraw. The prosecutor read a portion of this transcript to the jury. The part of the transcript which was read to the jury included the following response by defendant to the court’s query as to whether he desired the appointment of other counsel:

“Yes, like — because I really don’t want to perform this myself. All I really want is somebody to work with me, you know, on my case, you know. That is all I want, you know? I feel as though Mr. Butler — evidently he didn’t have the time or the patience to sit down and look at my case. It wasn’t like I wanted to represent myself, because I am no lawyer, you know? I just wanted, you know, justice, you know? I mean I been up here for three pretrials and, you know, all this stuff ain’t necessary, you know, especially when I know that I am not guilty of nothing but aggravated battery, you knowl” (Emphasis added.)

Defendant contends that when considered in the context of his previous statements to the court at other pretrial hearings, and a letter which he wrote to the State’s Attorney’s office, this statement was a part of a plea-related discussion and was thus improperly admitted into evidence in violation of Supreme Court Rule 402(f). 107 Ill. 2d R. 402(f).

The defendant observes that appearing in the common law record is a copy of a letter which he wrote to the McLean County State’s Attorney in May 1988. In that letter, he offered to “take a Battery [sic] Class A, B, C,” with a sentence of “3yr. intens [sic] [intensive probation] and 4 mt. in here and some commt. savist. [sic] [community service] work,” and further stated, “I want to pay his [the victim’s] Doctor Bill.” The defendant asserts that when considered in the context of this statement and his other statements to the court at both prior and subsequent pretrial hearings, his September 12 admission was part of an ongoing attempt to engage the trial court in the plea negotiation process when he felt that his counsel was not participating. Defendant notes that the State referred to his September 12 statement in its opening statements, read it into evidence over defense objections, and referred to it extensively in closing argument. The defendant maintains that the admission of the purported plea-related statement which he made at the September 12, 1988, hearing denied him a fair trial.

The State asserts that at the September 12, 1988, hearing, defendant did not request that the trial judge “make a deal,” did not convey to the trial judge any offer to plea bargain, did not address the assistant State’s Attorney who was present, and did not testify as to what his expectations were. The State argues there was thus at that time no explicit manifestation of a subjective intent on the part of the defendant to plea bargain.

The State further asserts that a defendant’s actions over a five-month period are not relevant in determining whether a statement on the part of a defendant was plea related. The State maintains that even if the September 12, 1988, statement is considered in the context of the defendant’s statements before and after the September 12, 1988, hearing, defendant still did not manifest an expectation of negotiating a guilty plea. The State observes that defendant writing to the State’s Attorney a letter setting forth the terms under which he would be willing to plead guilty, as well as his previously pleading guilty to a felony, demonstrates that he knew that the State’s Attorney, and not the trial judge, was the person with whom to plea bargain. The State also argues that the defendant may have had other possible motives for making the admission here at issue, such as a desire to be released on a lower bond. Finally, the State asserts that even if defendant had a subjective expectation of negotiating a guilty plea on September 12, 1988, that expectation was unreasonable under the circumstances of this case.

Supreme Court Rule 402(f) provides:

“Plea Discussions, Plea Agreements, Pleas of Guilty Inadmissible Under Certain Circumstances. If a plea discussion does not result in a plea of guilty, or if a plea of guilty is not accepted or is withdrawn, or if judgment on a plea of guilty is reversed on direct or collateral review, neither the plea discussion nor any resulting agreement, plea, or judgment shall be admissible against the defendant in any criminal proceeding.” (107 Ill. 2d R. 402(f).)

In determining whether an admission by a defendant was plea related and is therefore inadmissible, a court must first inquire whether the accused demonstrated a subjective expectation to negotiate a plea. Second, the court must inquire whether this expectation was reasonable under the totality of the objective circumstances. Where a defendant manifests no explicit subjective expectations in making the statement at issue, the objective circumstances surrounding the statement take precedence in determining whether it was plea related. (People v. Friedman (1980), 79 Ill. 2d 341, 403 N.E.2d 229.) Before a statement may be characterized as plea related, “it must contain the rudiments of the negotiation process, i.e., a willingness by defendant to enter a plea of guilty in return for concessions by the State.” Friedman, 79 Ill. 2d at 353, 403 N.E.2d at 236.

Assuming, without deciding, that the events which preceded and followed defendant’s September 12, 1988, admission may properly be considered in determining whether that statement was plea related and is thus inadmissible, there is nothing in the record to support defendant’s contention that this admission was plea related. Defendant provided no explicit indication of his subjective expectations in making this admission, and the objective circumstances do not support a conclusion that it was plea related. All of the defendant’s other statements to the court on which defendant relies focus on either dissatisfaction with his counsel or requests for bond reduction. Likewise, in the September 12 statement, the defendant expressed a desire to obtain another attorney who would work more closely with him in the preparation of his case. Moreover, neither this statement, nor any of the defendant’s other statements to the court, contain any indications of the terms on which the defendant was willing to plead guilty. In view of both his letter to the State’s Attorney setting forth the terms on which he would plead guilty to battery and his prior plea of guilty to the offense of burglary, defendant certainly knew that the State’s Attorney, and not the trial judge, was the proper person to approach in order to begin plea negotiations. Also, the trial judge at no time manifested a willingness to enter into plea negotiations with defendant.

This court’s recent decision in People v. Connolly (1989), 186 Ill. App. 3d 429, 542 N.E.2d 517, does not support defendant’s position that Rule 402(f) was violated in the present case. Connolly involved an inquiry by a suspect to a deputy sheriff as to whether “ ‘deals’ ” were made in the county. (Connolly, 186 Ill. App. 3d at 433, 542 N.E.2d at 520.) This court held that testimony concerning the suspect’s inquiry was improperly admitted because the jury could have regarded the inquiry as an admission of guilt, despite the defendant’s protestations of innocence.

The inquiry at issue in Connolly could have had no purpose other than to serve as an overture for the beginning of plea negotiations. Furthermore, the inquiry was directed to a law enforcement officer. In the present case, the admission occurred in a conversation with the trial judge concerning the defendant’s desire for the appointment of other counsel. Also, unlike in the present case, the record in Connolly apparently contained no indications that the defendant was familiar with the plea negotiation process.

In sum, there are neither subjective nor objective indications that defendant’s admission was a plea-related statement. Consequently, its introduction into evidence did not deny defendant a fair trial.

During closing argument, the prosecutor stated:

“Another instruction that you need to talk about, need to think about, ladies and gentlemen, is the definition of the burden of proof. The State must prove its case beyond a reasonable doubt. That is sort of textbook law. I think we all know about that. I submit to you folks that the operative word in that particular definition is the word ‘reasonable.’ We don’t have to prove our case beyond any doubt or beyond a shadow of a doubt, just beyond a reasonable doubt. What that means, ladies and gentlemen, is that any doubt which you have which would defeat the State’s theory I submit must be reasonable. It’s got to fit together, it’s got to make sense in light of all the other evidence in the case.”

Defendant contends that in making this statement, the prosecutor created a presumption in favor of the State, which the jurors’ reasonable doubts had to defeat in order for defendant to be acquitted. The defendant also asserts that these comments may have improperly shifted the burden of proof from the State by requiring either the defense or the jurors' reasonable doubts to defeat the State’s theory of the case.

The State asserts that any error in the prosecutor’s comments regarding reasonable doubt was waived by the defendant’s failure to object to these comments at trial or to specify them in his post-trial motion. The People further argue that these comments do not represent an attempt to define reasonable doubt but are merely an argument regarding the weight of the evidence. The State also contends that the prosecutorial comments at issue did not reduce the State’s burden of proof, and that even if these comments were improper, they did not substantially prejudice the defendant. In support of the latter contention, the State relies on (1) the jury instructions and the portions of the arguments of counsel emphasizing the State’s burden of proof and the defendant’s presumption of innocence and (2) the presumption that the jurors followed the court’s instructions.

It is well established that the concept of reasonable doubt needs no definition and that is improper for the court or counsel to attempt to define reasonable doubt to the jury. (People v. Weinstein (1966), 35 Ill. 2d 467, 220 N.E.2d 432; People v. Eddington (1984), 129 Ill. App. 3d 745, 473 N.E.2d 103.) The comments here at issue could have been construed by at least some jurors as implying that the State’s evidence — or the State’s theory of the case — enjoys a presumption of veracity, which the defendant must defeat or negate if he is to be acquitted. Because of the damaging effect which statements like this might have on such fundamental concepts of justice as the defendant’s presumption of innocence and the prosecution’s burden of establishing beyond a reasonable doubt all elements of the charged offenses (see Weinstein, 35 Ill. 2d 467, 220 N.E.2d 432), we must consider whether these comments require reversal of defendant’s conviction under the plain error exception to the waiver doctrine. 107 Ill. 2d R. 615; see People v. Ellis (1985), 134 Ill. App. 3d 924, 481 N.E.2d 320.

We conclude that although the prosecutorial remarks here at issue at least bordered on impropriety, they did not contribute to the jury’s verdict to the extent that reversal of the defendant’s conviction is required. The evidence in this case was largely undisputed. There was no evidence which contradicted the victim’s testimony that a battery occurred or the victim’s identification of the defendant as his attacker. Indeed, the only matter seriously disputed was whether the defendant used a deadly weapon in committing the battery. The evidence does not reasonably support a conclusion other than that a sharp metal object caused the cuts on the victim’s neck. Because there was overwhelming evidence of defendant’s guilt, we hold the prosecutor’s comments concerning the concept of reasonable doubt and the State’s burden of proof did not constitute plain error.

The defendant’s aggravated battery conviction is affirmed.

Affirmed.

LUND and KNECHT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SPITZ

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY REDMILES, Defendant-Appellant.
    Fourth District
    No. 4—89—0254
    Opinion filed November 30, 1989.
    Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

Defendant was charged with the unlawful possession of a hypodermic syringe or needle in violation of section 1 of “An Act to regulate the possession, delivery, sale or exchange of hypodermic syringes ***.” (Ill. Rev. Stat. 1987, ch. 38, par. 22—50.) Prior to trial, defendant filed a motion to suppress evidence. The court denied the motion and found defendant guilty of the offense. Defendant appeals the trial court’s denial of his motion to suppress evidence.

At the suppression hearing, several officers testified. Officer James P. Hanko-Summers, a Champaign County police officer testified that on the morning of November 3, 1988, he was a member of the SWAT team that executed a narcotics search warrant at 51 East Bradley Street in Champaign. The residence was owned by Larry Hoffman. Nine to twelve police officers participated in the search.

Upon arriving at the house, one of the officers noticed someone, who later turned out to be defendant, standing in the backyard. Defendant ran into the house through the open rear door. The officers followed with guns drawn, also entering the house through the rear door. Once inside the house, Officer Hanko-Summers saw defendant standing in the kitchen, handcuffed him and asked him his name. Hanko-Summers along with Officer Murphy then conducted a pat-down search of defendant for weapons to ensure the officers’ safety. This, according to Officer Hanko-Summers, was standard procedure. Officer Hanko-Summers asked defendant if he had anything the officers might injure themselves on, such as needles or razor blades. Defendant responded by motioning his head towards his belt and stating “There’s a needle right here.” Officer Hanko-Summers found a hypodermic syringe underneath defendant’s belt buckle. The officer later found a spoon, some cotton, and a film canister on defendant.

The next officer to testify was police sergeant Scott Colclasure. Sergeant Colclasure testified that he had been on 20 to 25 narcotic search warrants over the last few years and that on most of the searches, he had encountered armed individuals or weapons present on the premises. The sergeant further stated that the officers found a small quantity of drugs at the house.

Officer Jeffrey Jolley testified next. Jolley testified that upon arriving at the residence and coming through an alley, he noticed defendant in the backyard of the premises, walking away from the door. When defendant noticed the police, he turned around and ran back into the house.

The final witness to testify was defendant Larry Redmiles. Red-miles testified that he was not in the backyard, but instead fixing a broken lock on the rear door of the premises when he saw the police come around the back. Defendant then closed the door, went in the house and told Larry Hoffman, the owner of the house, that the police were there. After the police came in, “they immediately asked me [Redmiles] my name, handcuffed me and then started reachin’ in my pockets.” The officers found a spoon, a film canister, and some cotton and then asked defendant if he had a syringe. Redmiles said he did not have a syringe but the officers threatened to strip search him and find one if he had it on him. It was only after this threat that defendant indicated where the syringe was.

Defendant Redmiles further testified that he used drugs and bought them on Bradley Street. However, defendant claims he did not know that Larry Hoffman dealt drugs.

The trial court specifically rejected claims by the State that the search was valid under section 107—14 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 107—14 (temporary questioning without arrest)). The court next discussed section 108—9 of the Code. (Ill. Rev. Stat. 1987, ch. 38, par. 108—9.) Section 108—9 states:

“In the execution of the warrant the person executing the same may reasonably detain to search any person in the place at the time:
(a) To protect himself (rom attack, or
(b) To prevent the disposal or concealment of any instruments, articles or things particularly described in the warrant.”

The court found no evidence that the search was valid under section 108—9(b) of the Code because defendant could not have concealed or disposed of anything since the police were right behind him as he entered the house. However, section 108—9(a) did validate the search as the officers conducted the search for their own safety.

The court further found that there was no mention of defendant in the search warrant; the police did not know defendant would be on the premises; there was no command in the warrant to search defendant; the police officers handcuffed defendant and conducted a pat-down search of him to protect themselves from attack; during this search, the officers asked defendant if he had any dangerous articles on him; and defendant indicated he did in fact have a syringe.

Defendant waived his right to a jury trial, and a stipulation was made that all evidence presented at the hearing except for defendant’s testimony was to be used at the bench trial. The court found defendant guilty and sentenced him to up to 90 days’ incarceration or until a bed became available in a residential treatment center for substance abuse and 12 months’ probation.

Defendant argues that the police lacked the requisite articulable suspicion or probable cause to believe that he was armed and dangerous. No probable cause existed because defendant was not named in the warrant, the officers did not expect to find defendant on the premises and defendant did nothing suspicious to create probable cause. Defendant further argues that the officers held no reasonable belief that he was armed and dangerous to permit a Terry frisk. Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.

The United States Supreme Court in Ybarra v. Illinois (1979), 444 U.S. 85, 62 L. Ed. 2d 238, 100 S. Ct. 338, held that independent probable cause is required to search a person on a premises being searched if that person is not named in the warrant. In Ybarra, police obtained a warrant authorizing them to conduct a search of a bar and its bartender for controlled substances. Seven or eight police officers entered the tavern to search the premises. One of the officers conducted a pat down of each of the 9 to 13 customers in the bar. The officer frisking defendant felt what he believed to be a cigarette package with objects in it. The officer later retrieved the package from defendant’s pocket and found small packets containing heroin. The trial court found the search to be valid under the authority of section 108—9(b) of the Code. The United States Supreme Court reversed, finding that no independent probable cause existed to search defendant. The warrant did not mention defendant as a possible violator; the police did not know defendant and had no reason to believe that he had committed, or was committing, an offense; there was no movement suggesting any criminal conduct; and defendant said nothing suspicious in nature.

The Illinois Supreme Court has recognized that section 108—9 cannot authorize the search of people merely because they are on premises while a search warrant is executed. (People v. Gutierrez (1985), 109 Ill. 2d 59, 485 N.E.2d 845.) Instead, there must be a sufficient connection with the premises searched or -with persons described in the warrant. Sufficient connection has been described as including the status of the person searched, where he resided, the purpose of the person’s presence and any furtive gestures or motions. Independent probable cause must also exist to search a person on the premises who is not named in the warrant. Gutierrez, 109 Ill. 2d 59, 485 N.E.2d 845.

In Gutierrez, the defendant answered the door when police arrived and attempted to bar their entry. Defendant was nervous and refused to sit still. There were also bulges in defendant’s pockets. The search warrant authorized the search of the house for drugs, and it appeared that defendant lived there. These factors, along with the fact that the warrant issued soon after an undercover officer bought drugs on the premises, led the court to find that probable cause existed and that the search was reasonable under Ybarra standards.

However, in People v. Gross (1984), 124 Ill. App. 3d 1036, 465 N.E.2d 119, a trial court applying Ybarra found no probable cause to search defendant. In Gross, defendant was a social guest at a house during the execution of a narcotics search warrant. The police detained and frisked defendant, and then went through her purse. Inside the purse, which was lying on a table next to defendant, police found cocaine. In affirming the trial court, the appellate court stated that there was no evidence to show that defendant had acted suspiciously, furtively, threateningly or that the officers could point to any specific reason for believing defendant to be armed and dangerous.

In the present case, defendant claims that he did nothing suspicious to create the probable cause required for a search pursuant to section 108 — 9. We disagree. The record shows that as the 9 to 12 police officers approached the house, defendant was standing either in the yard, or on the porch. Upon seeing the officers, defendant turned around and ran into the house. As the officers entered the house, they found defendant standing in the kitchen. The trial court found that defendant’s actions created the probable cause required for a search pursuant to section 108—9. A trial court’s decision on a motion to suppress will not be overturned unless it is manifestly erroneous. (People v. Fuentes (1980), 91 Ill. App. 3d 71, 414 N.E.2d 876.) We cannot say that the trial court’s decision was manifestly erroneous here.

This case differs from Ybarra and Gross in that defendant here acted suspiciously when the police arrived. In both Ybarra and Gross, nothing suspicious was done to create probable cause in the minds of the officers. But here, there was testimony that defendant saw the police and immediately ran back into the house. This created the sufficient connection to the premises and the probable cause required to search defendant.

Because we find that, probable cause existed to search defendant, we need not answer defendant’s second claim that no reasonable suspicion existed to conduct a Terry frisk. The trial court is affirmed.

Affirmed.

McCULLOUGH, Ed., and KNECHT, J., concur.


author: JUSTICE KNECHT

text:
    COMPUTER TEACHING CORPORATION, Plaintiff-Appellant, v. COURSEWARE APPLICATIONS, INC., Defendant-Appellee (Paul Tenczar, Respondent-Appellant).
    Fourth District
    No. 4—89—0377
    Opinion filed November 30, 1989.
    Marc J. Ansel, of Erwin, Martinkus, Cole & Ansel, Ltd., of Champaign, for appellants.

      Robert G. Kirchner, of Lerner & Kirchner, of Champaign, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

This case comes to us on appeal from a contempt order entered by the circuit court of Champaign County. The plaintiff Computer Teaching Corporation (CTC) was held in contempt for disobeying a court order entered in litigation between CTC and defendant Course-ware Applications, Inc. (CAPP). We affirm.

CTC and CAPP entered into a joint venture to develop computer programs. The parties later signed a royalty agreement which terminated the joint venture. This agreement provided defendant would assign all of its rights in the jointly developed programs to plaintiff in return for royalty payments to be paid by plaintiff upon marketing the programs.

On January 20, 1987, the plaintiff filed a complaint for declaratory relief in the circuit court of Champaign County. The complaint generally alleged the defendant was marketing software deceptively similar to that produced by the joint venture in violation of the royalty agreement. In the complaint, the plaintiff sought declaratory judgment which would relieve it of any obligations to pay royalty payments to defendant. In addition, count II of the complaint asked for monetary damages in an amount equal to the royalties paid by the plaintiff to the defendant.

Subsequent to the initiation of litigation and the filing of a counterclaim by the defendant, the parties entered into an escrow agreement on August 24, 1987. The parties agreed royalty payments would be made into an escrow account and be held until the conclusion of litigation or the joint agreement of the parties. On April 18, 1988, in response to plaintiff’s refusal to make payments, the defendant filed a motion to compel compliance with the escrow agreement. Attached to the motion was a letter from the plaintiff’s attorney to the defendant indicating the plaintiff believed the defendant was dragging its feet on pretrial discovery. For this reason, the letter stated, plaintiff refused to make further payments into the escrow account. On December 30, 1988, the judge presiding ordered the plaintiff to deposit the royalties due into the escrow account until further order by the court. The court retained jurisdiction of the matter to ensure enforcement. On February 24, 1989, the court ordered all sums due should be deposited within 30 days of February 20, 1989. On April 10, 1989, the court found the plaintiff and its president Paul Tenczar in contempt of court for failure to make the required deposits and fined each of them $100. On May 5,1989, a notice of appeal was filed.

The plaintiff on appeal maintains the trial court improperly entered a finding of contempt against it because the court lacked jurisdiction to enforce the escrow agreement. A judgment of contempt cannot be sustained on review where the underlying order is void because the court lacked subject-matter or personal jurisdiction. Jenner v. Wissore (1988), 164 Ill. App. 3d 259, 517 N.E.2d 1220.

The plaintiff contends the order requiring compliance with the escrow agreement was void because this agreement was collateral to the matter before the court. The court’s order found the escrow agreement was a partial resolution of some of the matters before the court. The escrow agreement simply provides for the handling of disputed funds during the course of litigation. Despite the finding of the trial court, the agreement is not a settlement of any kind.

The error of the circuit court does not entitle the plaintiff to reversal of the contempt order. A reviewing court may sustain the decision of a trial court on any grounds called for by the record, regardless of whether the circuit court made its decision on proper grounds. (Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 520 N.E.2d 37.) Here, the fundamental question is whether the court had jurisdiction over the matters contained in the escrow agreement. If a justiciable controversy exists and any statutory conditions precedent are met, a circuit court has subject-matter jurisdiction. (In re Gray (1985), 131 Ill. App. 3d 401, 475 N.E.2d 1116.) We find the circuit court’s exercise of jurisdiction was proper.

In American Re-Insurance Co. v. MGIC Investment Corp. (1979), 73 Ill. App. 3d 316, 391 N.E.2d 532, the appellate court reviewed an escrow order of a circuit court requiring funds due between the parties in litigation to be paid into an escrow account. There, the appellate court upheld the escrow order, finding the funds in question were clearly subject to disposition by the court as part of its final order. The court wrote:

“It is clear, however, that it is unnecessary to have a precedent for equitable relief before it will be granted. (Johnson v. Johnson (1973), 11 Ill. App. 3d 681, 297 N.E.2d 285.) The mere fact that no precedent can be found in which the requested relief has been granted under a similar state of facts ‘is no reason for a court of chancery to shrink from action.’ (County of Cook v. Barrett (1975), 36 Ill. App. 3d 623, 630, 344 N.E.2d 540, 547.) *** As we indicated, however, the fund at issue is composed of monies whose past and future payment under the re-insurance treaty is in dispute, and whose disposition will be dealt with in the trial court’s final order. We cannot agree that by taking steps to insure that the monies are preserved until that final ruling, the court abused the exercise of its equitable discretion. Additionally, we reject defendants’ final argument that the ex parte deposit order denied them their constitutional right to due process of law. An ex parte order, which is clearly within the power of the court to enter, is by definition an order originally granted at the instance and for the benefit of one party, without notice to or contestation by any person adversely interested.” American Re-Insurance, 73 Ill. App. 3d at 325-26, 391 N.E.2d at 539.

Clearly in this case, the funds to be deposited in the escrow account are not merely a collateral matter as the plaintiff would have it. The disposition of the royalty payments constitutes one of the major issues to be decided in this case. As in American Re-Insurance, the circuit court here would clearly have jurisdiction to enter an ex parte order requiring the parties to place the disputed funds in escrow. It follows the court could equally well employ its equitable powers to enforce an escrow agreement reached between the parties. The plaintiff’s argument that the courts may enforce final agreements and compromise of claims does not require us to find the converse— that no other agreements made in the course of litigation are enforceable.

It is sound policy to encourage the type of escrow agreement reached between the parties here. It accrues to the benefit of both the litigants and the court when an amicable arrangement for the safeguarding of disputed funds is created. If the agreement is to serve its intended purpose, a trial court must have jurisdiction to enforce it. For this reason and because our case law provides sound precedent which governs this issue, we find the trial court had jurisdiction to enforce the agreement here.

Courts have inherent power to enforce orders by way of contempt proceedings. (In re G.B. (1981), 88 Ill. 2d 36, 430 N.E.2d 1096.) It is well established that a litigant’s disagreement with the court’s decision does not excuse that party from the obligation to follow that decision. (Welch v. City of Evanston (1989), 181 Ill. App. 3d 49, 536 N.E.2d 866.) A contempt proceeding is an original, special proceeding collateral to and independent of the case in which the contempt arises. As long as the trial court has jurisdiction over the parties and subject matter, the trial court has jurisdiction to enter an order of contempt. (People v. Draves (1986), 149 Ill. App. 3d 657, 500 N.E.2d 1072.) As discussed above, the trial court had jurisdiction to enforce the escrow agreement between the parties. The plaintiff on appeal raises no issue as to the merits of the order of contempt itself. It deliberately defied the court’s order for the purpose of contesting the validity of the court’s ruling on the escrow issue. This being the case, the plaintiff clearly was in contempt, and the circuit court’s order is affirmed.

Affirmed.

McCULLOUGH, PM., and SPITZ, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN TROY McCON, Defendant-Appellant.
    Fourth District
    No. 4—89—0149
    Opinion filed November 30, 1989.

      Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

Defendant was charged with the possession of more than 30 grams of phencyclidine (PCP) with intent to deliver and with the possession of more than 30 grams of PCP in violation of sections 402(a)(10) and 401(a)(10) of the Illinois Controlled Substances Act (Ill. Rev. Stat., 1984 Supp., ch. 56½, pars. 1402(a)(10), 1401(a)(10)). Defendant pleaded guilty to the possession of PCP and, in exchange, the State dropped the intent to deliver PCP charge. The trial court sentenced defendant to 10 years’ imprisonment but later reduced the sentence to eight years. Defendant now appeals the length of his sentence.

The record shows that on May 23, 1985, Trooper Shaw of the Illinois State Police came upon a vehicle parked alongside Interstate 55 and stopped to investigate. Trooper Shaw found defendant asleep in the car, woke defendant, and asked for identification. Shaw soon learned that defendant was wanted in California for transporting illegal drugs and arrested him. Shaw also inventoried the vehicle and found three jars containing a brown liquid. These containers were submitted to the laboratory and were found to hold 507.5 fluid ounces of PCP. Defendant was arrested on narcotics charges and pleaded guilty to the possession charge.

At the sentencing hearing, Sergeant Steve Fermon of the Illinois State Police Criminal Investigation Unit testified that the quantity of PCP found in defendant’s vehicle was in excess of 507 fluid ounces. The street value of the drug was between $350 and $500 per ounce.

Gerald Long, a lieutenant with the Illinois Department of Law Enforcement, testified that defendant admitted to meeting with people in California to arrange the trip to bring the PCP to Chicago. Long also testified that defendant admitted to making similar trips in the past. Defendant claimed he never sold the drug, however, and was hesitant to assist the officers because of fear for his own safety.

Next to testify was Daniel Brown, an employee of the Bureau of Forensic Investigations Science Division of the Illinois State Police. Brown testified as an expert about the dangers of POP. Defendant objected to Brown’s testimony, claiming it to be irrelevant. The prosecution replied that the court needed to know for sentencing the implications of possessing such a large quantity of PGP. The trial court overruled the objection.

Defendant was the last to testify. Defendant stated that he had suffered a disabling injury in May of 1987. As a result, defendant was unemployable and was collecting workers’ compensation. Defendant further testified that he had a lawsuit pending against his former employer.

The court found the following factors in aggravation: the defendant’s conduct caused or threatened serious harm; the defendant received compensation for committing the offense; and a sentence of incarceration is necessary under the facts and circumstances of this case to deter others from committing similar crimes. For mitigating factors, the court found that defendant had a long period of time -without any history of significant criminal activity or delinquency.

The court further found that defendant was not a member of any group or organization that was engaged in the sale or distribution of a controlled substance to the extent other than he was used as an individual to transport the controlled substance. However, the court did believe that defendant knew he was transporting PGP and that defendant was aware of the dangers the drug could bring upon the community. The court sentenced defendant to 10 years’ imprisonment.

On December 16, 1988, defendant filed a motion to reduce his sentence. The motion alleged that the trial court had improperly considered expert testimony concerning the dangers of PGP, defendant had no significant prior record, and defendant’s health had deteriorated so that in addition to his crippling back injury, defendant had been diagnosed as having asbestosis. The motion stated that defendant would probably never work again and that an adequate disability settlement could be obtained only if defendant was available for consultation and vocational rehabilitation.

On February 8, 1989, the trial court reduced defendant’s sentence to eight years. Notice of appeal was filed February 14,1989.

Defendant first argues that the trial court erred when it allowed and considered Dr. Brown’s testimony concerning the dangers of PGP abuse. The effects of PGP usage had already been considered by the legislature when it established the penalties for possession of the substance and should not have been considered in the sentencing hearing. Defendant further argues that Dr. Brown’s testimony was not harmless error because the State relied on it in arguing for a severe sentence. The court also specifically referred to the fact that POP was a dangerous drug. Defendant claims that there was no evidence other than Dr. Brown’s testimony to support this statement. Defendant asks for a new sentencing hearing.

We must first determine whether the trial court considered an improper aggravating factor in sentencing defendant. If the trial court considered an improper factor, we must then decide if that improper factor was significant enough to remand the cause for resentencing.

Matters considered by the legislature in determining the authorized range of sentences which are inherent in the offense are not proper aggravating factors to be considered in a sentencing hearing. (People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906.) In Conover, the Illinois Supreme Court held that it was improper for a trial court to consider receipt of proceeds from a burglary or theft as an aggravating factor in determining the length of a sentence. Proceeds were an inherent part of the crime of burglary or theft and had already been considered by the legislature when it determined the range of penalties. (See also People v. Martin (1988), 119 Ill. 2d 453, 519 N.E.2d 884 (holding that the death of a victim may not be considered an aggravating factor in a homicide sentencing); People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138.) However, the court in Saldivar stated that while death may not be considered as an aggravating factor in a homicide case, the force used to bring about the death may be considered. The classification of a crime determines the range of sentencing, but the severity of the sentence depends upon the degree of harm caused.

Section 411 of the Illinois Controlled Substances Act allows a court to consider the nature and quantity of the drug possessed in sentencing defendants. (Ill. Rev. Stat. 1983, ch. 56½, par. 1411.) PCP is listed as a Schedule II drug (Ill. Rev. Stat. 1983, ch. 56½, par. 1206(e)(5)), meaning that the substance has a high potential for abuse, has a currently accepted medical use, or currently accepted medical use with severe restrictions, and the abuse of the substance may lead to severe psychological or physiological dependence. Ill. Rev. Stat. 1983, ch. 56½, par. 1205.

Defendant’s argument that the trial court considered an improper factor in sentencing is not convincing. The trial court found as an aggravating factor that defendant’s action would cause a great deal of harm. Defendant asserts that this finding was a result of Dr. Brown’s testimony that PCP was a dangerous drug. However, this finding was a reference to the quantity of PCP defendant possessed. The trial court overruled defendant’s objection to Dr. Brown’s testimony because the State asserted that such testimony would illustrate the dangers of possessing a large quantity of the drug. At the motion to reduce defendant’s sentence, the trial court stated in reference to its earlier finding: “The nature of the offense, the size of the controlled substance that was being transported in no way would merit a sentence of probation.” (Emphasis added.) Case law, Saldivar, and statute, section 411, all allow the quantity of drugs to be considered as an aggravating factor.

Defendant further contends that nowhere in the record, except for Dr. Brown’s testimony, is it stated that PCP is a dangerous drug. However, not only should it be common knowledge that PCP is a dangerous drug, it is also listed as a Schedule II drug in the Illinois Controlled Substances Act (see Ill. Rev. Stat. 1987, ch. 56½, pars. 1411(1), (2)), and as such is classified as a highly toxic drug (sections 411 (1), (2)) with a high potential for abuse.

Even if we were to find that the trial court relied on improper evidence in the sentencing hearing, such reliance would be insignificant. Defendant received far from the maximum sentence, 8 out of a possible 15 years (see Ill. Rev. Stat. 1983, ch. 56½, par. 1402(a)(10); ch. 38, par. 1005—8—1(a)(4)); and the court relied on other aggravating factors, including the massive quantity of PCP defendant possessed. Where it can be determined that an improper factor in aggravation did not lead to a greater sentence, no reversal is required. People v. Bourke (1983), 96 Ill. 2d 327, 449 N.E.2d 1338.

Defendant’s second contention, that the trial court’s eight-year sentence does not adequately reflect any consideration of his health problems, is without merit. During defendant’s motion to reconsider, defendant testified extensively regarding his injuries and his pending claims against his former employer. The court heard defendant’s testimony and explicitly stated that it would consider a letter from defendant’s civil counsel concerning defendant’s pending lawsuits. The court then reduced defendant’s sentence by two years. We find that the record amply shows that the trial court considered defendant’s personal troubles in determining a proper sentence.

For the foregoing reasons, the trial court is affirmed.

Affirmed.

GREEN and STEIGMANN, JJ., concur.


author: PRESIDING JUSTICE McCULLOUGH

text:
    PAUL J. KANE, Plaintiff-Appellee, v. WILLIAM McDERMOTT, Defendant-Appellant.
    Fourth District
    No. 4—89—0385
    Opinion filed November 30, 1989.

      Christopher W. Bohlen, of Blanke, Norden, Barmann & Bohlen, P.C., of Kankakee, for appellant.

      Strong, Blakeman & Schrock, Ltd., of Pontiac (Alan M. Schrock, of counsel), for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff Paul Kane brought an action seeking specific performance of an option to purchase real estate, contained in a lease between him and his uncle, James McDermott. Defendant, William McDermott, had inherited the property from James McDermott. Defendant opposed specific performance and brought a counterclaim seeking possession of the disputed property and damages. The trial court granted plaintiff specific performance and found for plaintiff on the counterclaim.

Defendant appeals, arguing the trial court abused its discretion in granting specific performance because the description of the real estate was not definite, the option failed to set forth sufficient terms and conditions of the sale, and the sales price of the property was not fixed in the option. Second, defendant argues the trial court erred in admitting testimony concerning custom and usage.

We affirm.

The parties filed a stipulation of facts. On August 18, 1972, James McDermott and plaintiff entered an Illinois crop-share cash farm lease. The lease term started on March 1, 1973, and ended on March 1, 1988. The lease applied to approximately 320 acres of land. The legal description of all of the leased property was contained in the lease.

The part of the leased land at issue here is described as:

“The West Half of the Northwest Quarter of Section 29, in Township 28 North, Range 9 East of the Third Principal Meridian, Mona Township, Ford County, Illinois.”

The lease was validly executed, supported by consideration, and in full force and effect during its entire term. Plaintiff complied with the term of the lease and was not in breach with respect to it.

The parties further stipulated that defendant is the current owner in fee simple of the disputed 80 acres, subject to certain liens and encumbrances. James McDermott devised the property to defendant. Prior to James McDermott’s death and after it, defendant knew of the crop lease and its terms. Plaintiff continued to farm the leased land as defendant’s tenant. The lease provided it was binding upon heirs, executors, administrators, and assigns of the original landlord and tenant.

Section 7 of the lease is entitled “Additional Agreements.” It is handwritten and states:

“It is agreed that the tenant, and/or his heirs, is to have first option to purchase any part or all of the land farmed by the tenant, and/or his heirs and owned by the landlord and/or his heirs at the appraised bid as established by three disinterested parties.”

On July 8, 1987, plaintiff sent a letter by certified mail to defendant. The letter states that plaintiff is exercising the option granted in section 7 of the lease. On July 22, 1987, defendant sent a return letter to plaintiff. The return letter from defendant’s attorneys stated that they had serious questions about the enforceability of the option and defendant did not intend to comply with its terms.

On August 17, 1987, plaintiff recorded the lease and a notice that he intended to exercise the option to purchase the west half of the northwest quarter of section 29, in township 28 north, range 9 east of the third principal meridian, in Mona Township, which was contained within the leased property. Defendant received a copy of the recorded notice.

Defendant had not offered to sell the property to any third party. Defendant had not agreed to sell the property to plaintiff. No price had been determined or agreed upon between plaintiff and defendant. However, plaintiff had been ready and financially able to purchase the property.

Prior to November 1, 1987, defendant served plaintiff with a written notice to terminate the tenancy. Defendant had the opportunity to lease the disputed property for the 1988 crop year at $126 per tillable acre to a third party. Plaintiff did not surrender possession of the property on March 1, 1988, and continued to farm it, pursuant to his claim under the lease. Defendant did not consent to the holdover.

At the hearing, plaintiff called Faraday Strock, a retired attorney who specialized in real estate transactions in Ford County, as a witness. Strock stated he was familiar with custom as it applied to general terms and provisions in real estate contracts absent an agreement by the parties to the contrary. Title would typically be transferred by warranty deed. It would be merchantable title shown by an abstract or title insurance policy. The customary exceptions were for tile drains and utility easements. Absent an agreement to the contrary, the seller would pay the cost of proving merchantable title. Revenue stamps were the obligation of the seller. Unless the contract expressly provided that the property was to be purchased subject to mortgages, they would typically have to be discharged prior to closing.

Strock further testified that in a farm transaction, closing possession is typically given on March 1 of the year following the termination of the tenant’s lease. In a farm real estate transaction, taxes are to be paid by the owner of the land who receives the crop rent for the year. Most parties would ordinarily anticipate taxes would be a part of the contract to sell real estate. Ordinarily, a provision concerning taxes would be included in a real estate sales contract, in addition to a provision concerning the growing crops.

Strock further testified that based on custom and practice, each party would select an appraiser. The two appraisers would select a third appraiser. The parties would pay the expenses of their appraiser and share the cost of the third. If the parties refused to appoint an appraiser to set a purchase price, the court would make the appointment. Strock stated he knew plaintiff and had done legal work for him. He also knew defendant and had represented him in the past. He represented defendant in a guardianship matter related to his father. His prior contacts did not affect his testimony relating to custom and practice in real estate matters.

On cross-examination, Strock admitted discussing the instant lease with defendant. If he had drafted a contract for the sale of property, he would have included provisions related to taxes, title, and the mechanics of the appraisal process. “Appraised bid” did not have legal significance outside the context of the option. The custom and practice he discussed would be commonly understood by lay people in the farming community who had been involved in numerous real estate transactions.

The trial court found section 7 of the lease was a specifically enforceable term. The court (1) ordered defendant to convey the real estate to plaintiff at the fair market value as of the date plaintiff exercised the option; (2) appointed three disinterested appraisers; (3) ordered the parties to share the appraisal expenses; (4) instructed the appraisers to reach one value if they could agree; (5) stated the value of the property would be averaged if the appraisers disagreed; (6) ordered defendant to provide plaintiff with proof of merchantable title; (7) stated the property should be sold subject to easements, covenants, restrictions, and rights of way but free of all other mortgage liens and encumbrances, which were to be satisfied by the proceeds of the sale; (8) ordered defendant to pay the real estate transfer tax and the cost of recording the deed; (9) stated defendant was responsible for the 1987 real estate taxes and plaintiff was responsible for the 1988 real estate taxes; and (10) stated plaintiff was entitled to continued possession of the property. The court further stated plaintiff was entitled to receive all 1988 crops and the agricultural payments for the 1988 crop year and thereafter.

The trial court has discretion in determining whether it will grant specific performance of a contract. (Dawdy v. Sample (1989), 178 Ill. App. 3d 118, 532 N.E.2d 1128.) A contract for the sale of real estate cannot be specifically enforced by a court unless the writing contains the essential contract terms, including (1) the names of the vendor and vendee; (2) a description of the party; (3) the sales price, or a means of determining it, and the terms and conditions of sale; and (4) the signature of the party to be charged. (Leach v. Hazel (1947), 398 Ill. 33, 74 N.E.2d 797; McDaniel v. Silvernail (1976), 37 Ill. App. 3d 884, 346 N.E.2d 382.) The contract’s terms must be so certain and unambiguous that the court can require the specific thing contracted for be done. Where the terms of a contract are ambiguous or where the writing is capable of more than one construction, parol evidence is admissible to explain or ascertain what the parties intended. However, parol evidence may not be used to supply missing terms. (Santo v. Santo (1986), 146 Ill. App. 3d 774, 497 N.E.2d 492.) The court should not make a new contract for the parties. (Lencioni v. Brill (1977), 50 Ill. App. 3d 802, 365 N.E.2d 1169.) Still, it is not necessary for the contract to state specifically all details in regard to matters concerning which the parties are contracting. (Welsh v. Jakstas (1948), 401 Ill. 288, 82 N.E.2d 53.) Option contracts will, if possible, be interpreted so as to effectuate the intent of the parties. Bonde v. Weber (1955), 6 Ill. 2d 365, 128 N.E.2d 883.

With these principles in mind, we turn to defendant’s specific contentions. Initially, defendant argues the property is insufficiently described in the option. The option states that the tenant may purchase all or part of the land farmed by the tenant and owned by the landlord or his heirs. Defendant’s argument has little merit. A description of property is sufficiently definite if it will enable a surveyor, by aid of extrinsic evidence, to locate the property. Any reference to ownership or other matters which would make the description definite will be considered to locate the property. Werling v. Grosse (1979), 76 Ill. App. 3d 834, 395 N.E.2d 629; Bliss v. Rhodes (1978), 66 Ill. App. 3d 895, 384 N.E.2d 512.

Here, the crop lease, which contains the option, contains the following description of leased property:

“NW ¼ of Sec. 29 in Mona Twp—Ford Co—Twp 28 N—Range 9E; and N ½ of NE ¼ of Sec. 8 in Sullivan Twp—Livingston Co.—Twp 28 N—Range 8E; and N ½ of SE ¼ of Sec. 21 in Sullivan Twp—Livingston Co.—Twp 28 N—Range 8E.”

Plaintiff sought to enforce the option only as to the west half of the northwest quarter of section 29 in Mona Township. Defendant in essence asks this court to discard the lease and view the option in isolation. The provisions of the lease should be read together to effectuate the parties’ intentions. (Bonde, 6 Ill. 2d 365, 128 N.E.2d 883.) Viewing the option in context, a sufficiently definite description of the property is present.

Defendant contends that the contract failed to set forth sufficient terms and conditions to allow its enforcement. Defendant’s contentions with regard to the appraisers will be addressed later. Defendant argues specifically that the contract is indefinite because it does not state who should pay taxes, that the seller should pay documentary stamps, does not set forth the type of deed, and does not set forth a closing date and place.

A contract is not rendered incomplete by failure to provide for assumption or apportionment of taxes, where the matter is determinable by statute or custom. (81 C.J.S. Specific Performance §811 (1961).) Here, Strock testified about the custom related to apportionment of taxes. This omission would not render the contract unenforceable. Similarly, documentary stamps are by statute to be paid by the seller. (Ill. Rev. Stat. 1987, ch. 120, par. 1003.) Thus, the absence of this provision does not render the option unenforceable.

It is also not necessary that the contract specify the character of the deed to be executed. It may be implied that conveyance by general warranty deed was intended. (Welsh, 401 Ill. 288, 82 N.E.2d 53; 81 C.J.S. Specific Performance §810 (1961); but see contra Favata v. Mercer (1951), 409 Ill. 271, 99 N.E.2d 116 (Court denied specific performance due to fraud by the buyer. It also noted the writing did not state anything about the character of the deed, merely that seller would make good the title. Plaintiffs’ complaint asked for conveyance by warranty deed. The court stated a quitclaim deed would be equally effective. Therefore, it concluded plaintiffs were attempting to compel defendant to do something different than what she had agreed to do).) Under the circumstances presented here, failure to specify how title was to be conveyed did not render the option unenforceable.

Defendant alleges the option was unenforceable because it did not set a closing date or place. Failure of a contract to specify the time of payment may render it too incomplete for specific performance. However, such an omission will not preclude specific enforcement of the contract where the time for payment may be supplied by implication. The law will imply performance within a reasonable time. What time is reasonable depends upon the circumstances surrounding the case. (Ullsperger v. Meyer (1905), 217 Ill. 262, 267, 75 N.E. 482, 484; 81 C.J.S. Specific Performance §810 (1961).) Here, the trial court set a time for closing based upon the type of sale and community custom. The option was not rendered indefinite by failure to specify these details.

The cases defendant relies upon are distinguishable from the instant case. In Lencioni, the defendant agreed to provide a standard-form mortgage. However, the parties could not agree about the contents of the mortgage. Thus, the terms of payment were too indefinite, and the court refused to specifically enforce the contract. The court noted the phrase “standard-form mortgage” did not have the same meaning for the parties. It would not provide mortgage payment terms, the grace period before default, and other terms.

Similarly, in Threlkeld v. Inglett (1919), 289 Ill. 90, 124 N.E. 368, the parties agreed to transfer oil, coal, and gas under 320 acres. The option provided transfer would be by a form deed. Many different forms of deeds used in the area were offered into evidence. The court would not specifically enforce the option and select a deed for the parties.

Here, the taxes, closing, and warranty deed provisions were all nonessential matters, missing from the option but which could be supplied by implication. In contrast, the Lencioni and Threlkeld cases involved fundamental disputes as to the definiteness and meaning of the terms in the agreements which the parties sought to enforce.

Defendant next argues the option failed to set forth a price and the court erred in supplementing the agreement by providing for the appointment of appraisers, payment of their fees, and settlement of an agreed valuation if they failed to agree. Initially, defendant contends the option does not state the sales price is to be fair market value and this conclusion cannot be reached from a reading of the language. We disagree.

The option states the tenant may purchase “at the appraised bid as established by three disinterested persons.” “Appraised” is defined as fixing or setting a price or value upon or to value property at what it is worth. (Black’s Law Dictionary 92 (5th ed. 1979).) “Bid” is defined as “[a]n offer by an intended] purchaser to pay a designated price for property which is about to be sold at auction.” (Black’s Law Dictionary 147 (5th ed. 1979).) “Fair market value” is defined as “[t]he amount at which property would change hands between a willing buyer and a willing seller.” (Black’s Law Dictionary 537 (5th ed. 1979).) Thus, by definition, the option stated the price was to be the fair market value of the property as set by three disinterested persons. (See Miller v. Bloomberg (1975), 26 Ill. App. 3d 18, 324 N.E.2d 207.) The trial court properly considered custom and practice to determine who would share the appraisers’ fees and how to reach a sales price if the appraisers could not agree as to valuation. See generally Guel v. Bullock (1984), 127 Ill. App. 3d 36, 468 N.E.2d 811.

Finally, defendant argues the trial court erred in admitting testimony as to the custom and practice in the community. Parol evidence may be used to clarify the terms of an agreement. (Guel, 127 Ill. App. 3d 36, 468 N.E.2d 811.) Here, the option evidenced the parties’ intentions to be bound by the agreement. It also shows they agreed on the essential terms of the sale. Testimony on custom and practice was relevant and useful in resolving ambiguities as to nonessential conditions.

Defendant’s contention that Strock was precluded from testifying as an expert because he had performed legal services for defendant is without merit. Strock did not testify as to any confidential communication but only as to custom and practice in the community.

For the above reasons, we affirm the trial court.

Affirmed.

KNECHT and GREEN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS ex rel. MARY RICE, Plaintiff-Appellant, v. ARTHUR GRAVES, Defendant-Appellee.
    Fourth District
    No. 4—89—0381
    Opinion filed November 30, 1989.

      Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Jan E. Hughes, Assistant Attorney General, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE SPITZ

delivered the opinion of the court:

This is an appeal by the State from an order of the circuit court of Macon County dismissing a petition to establish parentage and support filed against respondent Arthur Graves by the State, as related by Mary Rice, on behalf of her minor child, Timothy Rogers. It is respondent’s contention, and the trial court agreed, that the instant proceeding was barred by the fact a paternity action filed by the State on the relation of Mary J. Rogers was dismissed for want of prosecution, without prejudice, on March 8, 1976. It is not disputed Mary J. Rogers is now Mary Rice.

Initially, it should be noted the consideration of this case proceeded without the benefit of an appellee’s brief being filed by respondent. However, the case will not be reversed for that reason alone since, although the issue is a delicate one, the record is simple and the claimed error is such that this court can decide the case on the merits without the aid of an appellee’s brief. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

In Maller v. Cohen (1988), 176 Ill. App. 3d 987, 531 N.E.2d 1029, the court discussed the impact of a prior dismissal of a mother’s paternity action on the subsequent action on behalf of the child brought under the Illinois Parentage Act of 1984 (Parentage Act) (Ill. Rev. Stat. 1987, ch. 40, par. 2501 et seq.). Effective July 1, 1985, Public Act 83—1372 (1984 Ill. Laws 2627) repealed the Paternity Act (Ill. Rev. Stat. 1981, ch. 40, par. 1351 et seq.) and adopted the Parentage Act. While Mailer specifically discusses the res judicata effect of the prior dismissal and not the question of whether a second action can be filed at all, Mailer does correctly point out that under the Paternity Act, the child was not a party to the suit, whereas the second action under the Parentage Act was an action brought on behalf of the child.

As a result, the Mailer court decided the doctrine of res judicata did not bar the second action. It is not clear whether the Mailer court would have decided collateral estoppel would not bar relitigation of the paternity issue on the merits simply because the child was not a party to the original suit or in privity with such a party. (See Simcox v. Simcox (1989), 131 Ill. 2d 491.) In any event, we believe the statute of limitations does not bar the second action in the case at bar so as to frustrate the public policy of the State that, if parentage can be proved, the father should be supporting his child. While the mother herein may be prohibited from filing another suit, the child is not so barred. An action under the Parentage Act may be brought by or on behalf of the child not later than two years after the child attains the age of majority. (Ill. Rev. Stat. 1987, ch. 40, par. 2508(a)(1).) Technically, the child had no cause of action under the Paternity Act and, therefore, the dismissal of the mother’s suit has no effect whatsoever on the right of the child to bring an action under the Parentage Act.

Therefore, we need not decide, as the State asks us to do, the application of the facts of this case to section 13—217 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13—217 (formerly Ill. Rev. Stat. 1975, ch. 83, par. 24a)), which allows the refiling of suits dismissed for want of prosecution, without prejudice, within one year of dismissal or within the remainder of the limitation period, whichever is greater. The State would have us consider section 13 — 217 in light of the intervening decisions concerning the unconstitutionality of the prior statute of limitations (Dornfeld v. Julian (1984), 104 Ill. 2d 261, 472 N.E.2d 431; Jude v. Morrissey (1983), 117 Ill. App. 3d 782, 454 N.E.2d 24; see Pickett v. Brown (1983), 462 U.S. 1, 76 L. Ed. 2d 372, 103 S. Ct. 2199) and the subsequent enactment of a new statute of limitations.

Accordingly, the order of the circuit court of Macon County is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

KNECHT and STEIGMANN, JJ., concur.


text:
    GAYLE A. FREEMAN et al., Plaintiffs-Appellees, v. JAMES M. MYERS, Adm’r of the Estate of Merritt L. Myers, Deceased, Defendant (Robert E. Gillespie, Defendant-Appellant).
    Fourth District
    No. 4—88—0798
    Opinion filed November 9, 1989.
    Lee Humphrey, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Springfield, for appellant.
    Mark E. Wertz, of Janssen, Maher, Wertz & Miller, of Peoria, for appellees Daniel Williams and Law Office of Jay H. Janssen.
    Jerome Mirza & Associates, Ltd., of Bloomington (Eileen M. O’Sullivan, of counsel), for appellee Gayle A. Freeman.
   JUSTICE KNECHT

delivered the opinion of the court:

This appeal involves an award of attorney fees to counsel because opposing counsel intentionally violated the trial court’s ruling in limine and thereby caused a mistrial. We agree with the trial court’s findings, but conclude the award of attorney fees is impermissible and reverse.

Plaintiffs, Gayle Freeman and Daniel Williams, were passengers in an automobile driven by Jeffrey Williams on September 27, 1981. At the intersection of business Route 66 and Nicholson Road in Logan County, Illinois, the Williams vehicle collided with an automobile driven by Merritt L. Myers. Myers and his wife were killed in the accident. Plaintiffs sustained personal injuries. Plaintiffs’ separately filed complaints were consolidated for trial.

Prior to trial, plaintiffs filed a motion in limine requesting defendant be prohibited from introducing evidence, arguing or insinuating, in the presence of the jury:

“3. That Jeffrey Williams was participating in a drag race or other speed competition with another automobile.
* * *
7. That Jeffrey Williams had installed an aluminum intake manifold on his vehicle earlier on the day of the occurrence.
8. That Jeffrey Williams passed another vehicle approximately one mile from the scene of the occurrence.
9. Any testimony by Robert E. Mulvaney, Michael Leake or anyone else concerning reconstruction of the accident or the speeds of the vehicles therein because there is eyewitness testimony concerning the accident, the computations of Robert E. Mulvaney are not available for examination or cross-examination, Robert E. Mulvaney is not competent to testify on this case, and supporting data is not available.”

Over the objection of defendant, the court granted these provisions of plaintiffs’ motion in limine.

The trial commenced on January 12, 1987. Defendant Myers was represented at trial by attorney Robert Gillespie. Plaintiff Freeman was represented by attorney David Dorris, and plaintiff Williams was represented by attorney Jay Janssen. Plaintiffs called witnesses Docia Barrick, Michael Leake, Gayle Freeman, Dennis Freeman, Sandra Freeman, Pauline Williams, and Daniel Williams. Defendant called witnesses Charles Rigg, James Myers, Robert Mulvaney, Victor Knight, Ronald Craig, and Carolyn Seitzer.

During the course of the trial, plaintiffs made frequent objections to perceived violations of the motion in limine. During voir dire, Gillespie questioned juror Gerald Litterly whether he had ever owned a high-performance car; whether he had made any modifications to the car; and whether he had ever participated in races with the car. At this early juncture of the trial, the court reminded Gillespie of the motion in' limine.

When cross-examining plaintiff Gayle Freeman, Gillespie asked whether Williams had installed a new piece of machinery in the engine of his automobile on the day of the accident. Such questioning had earlier been barred by the court order. When reprimanded, Gillespie informed the court it was incorrect in not allowing evidence of racing and modification of the Williams vehicle. In counsel’s opinion, the defendant had an absolute right to show the conduct of racing was the sole cause of the accident.

On direct examination, Gillespie questioned witness Trooper Mulvaney and witness Victor Knight regarding the speed of the Williams vehicle and a second vehicle it was alleged to be racing with. Trooper Mulvaney specializes in accident reconstruction and was asked to ascertain the speed of the vehicles through information gained from the accident scene. Knight was standing approximately five blocks from the intersection at the time of the accident. He was asked to testify to the speed of a second vehicle observed after the accident. On each of these occasions, plaintiffs objected and the court found the testimony barred by the court’s earlier order.

After the questioning of Trooper Mulvaney, plaintiffs moved for a mistrial. The court refused the motion, but stated Gillespie’s conduct was nearing such a level. In the reprimand following the questioning of Knight, Gillespie stated it was the theory of defendant that Williams was racing another vehicle at the time of the accident. In response, the court reminded Gillespie of the motion in limine and stated his conduct was very close to violating the prior court order.

The next witness called by Gillespie was Carolyn Seitzer. Seitzer lived a block from the intersection and was standing in her driveway at the time of the accident. The dialogue between Gillespie and Seitzer was as follows:

“GILLESPIE: Now did you describe to the jury how those cars went as they first came into view until they went out of your view?
WITNESS: Speed wise?
GILLESPIE: Well, describe them.
WITNESS: What did they do?
GILLESPIE: How were they — .
WITNESS: I would say they were drag racing.”

Plaintiffs immediately renewed their motion for a mistrial. In the hearing that followed, Gillespie admitted he had not informed Seitzer of the limitations set by the court. Judge Dehner ordered a mistrial, citing breach of the order pertaining to the motion in limine.

On May 7, 1987, plaintiffs filed a motion for attorney fees and sanctions in this case. One of the remedies sought by plaintiffs was a rule to show cause as to why Gillespie should not be held in contempt. On April 25, 1988, Judge Dehner entered an order assessing attorney fees against Gillespie ordering him to pay $2,100 to attorney David Dorris and $2,800 to Jay Janssen. In its April 25, 1988, order, the court did not cite any legal authority in support of its decision. It did state Gillespie’s conduct was intentional but did not make a finding of contempt.

On August 22, 1988, Gillespie filed a motion to reconsider the award of attorney fees and a memorandum of law in support of his motion. Hearing was held on Gillespie’s motion to reconsider on September 30, 1988. Judge Dehner entered an order on October 4, 1988, affirming the earlier award of attorney fees. In this order, Judge Dehner cited Transamerica Insurance Group v. Lee (1988), 164 Ill. App. 3d 945, 518 N.E.2d 413, Supreme Court Rule 63 (107 Ill. 2d R. 63), and Rule 1—102 of the Code of Professional Responsibility (107 Ill. 2d R. 1—102) as supporting his decision. Again, no finding of contempt was made. The order further stated there was no just cause to delay appeal on this issue.

In Illinois, in the absence of statutory authority, or an agreement between the parties, a successful party to a lawsuit is not entitled to attorney fees or costs of litigation. (Ritter v. Ritter (1943), 381 Ill. 549, 553, 46 N.E.2d 41, 43; see also Meyer v. Marshall (1976), 62 Ill. 2d 435, 442, 343 N.E.2d 479, 483.) Moreover, causing a mistrial does not change the rule. In re Marriage of Spizzo (1988), 168 Ill. App. 3d 487, 492, 522 N.E.2d 808, 811.

This court recently addressed the issue of awarding attorney fees pursuant to a mistrial in the case of Kilpatrick v. First Church of the Nazarene (1989), 182 Ill. App. 3d 461, 538 N.E.2d 136. Kilpatrick is factually similar to the case at bar. Plaintiff filed a personal injury action. The cause proceeded to a jury trial where a court order forbade reference to repairs made after the injury. Plaintiff’s counsel violated the order in referring to such repairs before the jury. Even after reprimand, counsel continued to make reference to the repairs. The court ordered a mistrial. Finding counsel’s conduct indicated a conscious attempt to damage the trial proceedings, the court ordered him to pay $7,120.90 in attorney fees and costs.

The trial court in Kilpatrick did not make a finding of contempt and failed to cite any legal authority in support of the award of attorney fees. On appeal, we reversed the decision of the trial court for lack of statutory authority or agreement. (Kilpatrick, 182 Ill. App. 3d at 465, 538 N.E.2d at 138.) Plaintiffs attempt to distinguish the case at bar from Kilpatrick. In making this distinction, they cite the case law and statutes relied upon by Judge Dehner in his order of October 4, 1988. However, this legal authority was incorrectly interpreted and relied upon.

In Transamerica Insurance Group v. Lee (1988), 164 Ill. App. 3d 945, 518 N.E.2d 413, the appellate court upheld sanctions imposed upon a law firm for false interrogatory answers. The trial court imposed a sanction of $5,000 on the firm, representing twice the amount the opposing attorney had expended in labor due to the false response. Unlike the case at bar, an appropriate statute existed for the imposition of the sanction. The trial court there correctly relied upon section 2—611 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—611), which allowed the court to assess reasonable attorney fees against a party filing untrue pleadings. Neither this statute, nor a similar statute, is applicable to the case at bar.

The trial court here cited portions of Supreme Court Rule 63 and Rule 1—102 of the Code of Professional Responsibility as supporting its action of imposing attorney fees. However, these provisions do not grant the trial court such authority. Rule 63 addresses judicial duties and provides a judge should maintain order and decorum in proceedings before him. Rule 1—102 pertains to attorney misconduct and provides a lawyer shall not engage in conduct prejudicial to the administration of justice. These provisions provide for disciplinary measures to be taken by the Attorney Registration and Disciplinary Commission and do not provide for the trial court to order its own independent sanctions. The trial court erred in its interpretation.

The rule requiring statutory authority or agreement prior to imposition of attorney fees takes into consideration certain policy issues. Such a sanction could have a dangerous chilling effect upon an attorney’s ability to represent his client. Trial tactics should not be constrained with the fear a mistake or vigorous advocacy could result in severe financial penalty. There may be cases where it would be difficult to judge between mistaken tactics and deliberate and premeditated conduct. (Kilpatrick, 182 Ill. App. 3d at 464, 538 N.E.2d at 138.) Additionally, in clearly intentional situations a court may be able to fashion appropriate relief pursuant to contempt proceedings.

This is not a case of mistaken tactics. Gillespie, an experienced trial lawyer, was repeatedly warned by the court. When reprimanded, Gillespie stated the excluded evidence was the theory of defendant’s case. The trial court was justified in finding Gillespie’s violation of the court order to be intentional. In such a situation the court may have been able to fashion appropriate relief based on contempt. However, there was no finding of contempt. Though a different remedy may have been appropriate, absent authority or agreement, the trial court’s award of attorney fees in this case cannot stand.

Reversed.

LUND and SPITZ, JJ., concur.