author: PRESIDING JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JULIO MONTES, Defendant-Appellant.
    First District (6th Division)
    No. 1—87—1769
    Opinion filed December 22, 1989.
    Rehearing denied January 18, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Hugh Stevens, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Gael O'Brien, and Paul Gliatta, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The defendant, Julio Montes, was indicted with Walter Godinez for murder, attempted armed robbery and armed violence. The defendant’s case was severed from that of Godinez; after a bench trial, he was found guilty of all three charges and sentenced to 20 years’ imprisonment. A jury later convicted Godinez of murder; and that conviction was affirmed. People v. Godinez (1989), 191 Ill. App. 3d 6.

Eduardo Soto was shot to death around 1 a.m. on April 28, 1986, at 1653 North Francisco in Chicago. A post-mortem examination of Soto’s body disclosed a close-contact wound to the right ear penetrating the brain, a close-range wound to the left side of the neck exiting the right cheek and a close-range wound to the left side of the neck exiting from the back. A .38 caliber bullet was recovered from the body.

The defendant was arrested by investigating officer William Rose on April 30 at 11 p.m. in the 1600 block of Fairfield, approximately one-half mile from where Soto had been killed. The defendant orally confessed to his participation in the killing and subsequently made a typewritten confession to an assistant State’s Attorney. In substance, he said that Walter Godinez had attempted to rob Soto and shot him while the defendant acted as a lookout. Two witnesses, who lived near the scene of the shooting but in separate buildings, testified that they heard shots and looked out their windows; one saw two men, and the other saw one man. One identified Godinez; but neither was able to identify the defendant.

Before the trial the defendant made a motion to quash his arrest and to suppress his confessions. After a hearing, the motion was denied; and that denial is one of the defendant’s contentions of error.

William Rose testified that he had been a member of the 14th District Tactical Unit for three years and a police officer for five years. He was assigned to investigate the homicide of Soto on April 28. On April 29 he interviewed neighbors around the scene; he also spoke to people and gang members known to frequent the area. From those interviews, he had reason to believe that members of the Latin Disciples street gang committed the Soto homicide.

He continued his investigation on April 30 by interviewing other people in the area. He spoke with two informants. One informant, a member of the Latin Disciples street gang, told him that one of the offenders was named “Wally.” The informant had previously heard on the street that “Wally” was the offender. At approximately 10 p.m. he spoke to a second informant. That informant, who was also a gang member, told Rose that he had heard “Wally” bragging about the killing; and “Wally” said “Little Man” was involved in the killing. Rose knew both informants; the second informant had given him reliable information in the past. Rose knew “Wally” to be Walter Godinez and “Little Man” to be the defendant. He also knew that both Godinez and the defendant were members of the Maniac Latin Disciple street gang.

Another officer on Rose’s team made arrangements through a friend of Godinez to meet Godinez at the corner of Western and Wabansia. Meanwhile, Rose and other members of the tactical unit continued to tour the neighborhood to locate the defendant. At approximately 11 p.m. the officers saw the defendant at the 1600 block of Fairfield. Rose stopped the defendant, announced he was an officer, handcuffed him and put him in a squad car. He told the defendant that he had been implicated in a homicide and advised him of his rights. The defendant, who was 16 years old at the time, began to cry and stated that he did not shoot the victim but that “Wally” did. Without further conversation, Rose and his partner brought the defendant into the tactical office and turned the case over to the Area 5 detectives. Rose said that he knew “Wally” based upon his nickname and did not have to look up his identity in the files. He repeated that he also knew the defendant as “Little Man.”

The defendant testified that three officers stopped him on Fairfield and Wabansia, searched him, read him his rights, handcuffed him and transported him to the Shakespeare Avenue police station. At about 5 p.m. on May 1, 1986, the officers took him for a polygraph test. His nickname was “Little Man” and Godinez’s nickname was “Wally.” When he got into the squad car at about 11 p.m., he told the officers that “Wally” committed the murder under investigation. He admitted that he and Godinez were members of the Latin Disciples from the area of the homicide. Godinez was a chief.

In People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147, the supreme court expressed certain rules applicable to warrantless arrests in which the arresting officer relies on an informant’s “tips”:

Since the term “reasonable grounds” justifying a warrantless arrest has the same substantive meaning as “probable cause” which is required of a magistrate before he may issue a warrant, the trial court making a determination of the validity of a warrantless arrest is to apply standards at least as stringent as those that guide a magistrate in deciding whether to issue a warrant.

To determine whether a warrantless arrest meets the reasonable-grounds/probable-cause requirement, the trial court must decide whether a reasonable and prudent man, having the knowledge possessed by the officer at the time of the arrest, would believe the defendant committed the offense. In determining whether the officer had probable cause, the officer’s factual knowledge, based on his prior law-enforcement experience, is relevant.

In an application for a warrant, a police officer’s statements to a magistrate may be based on hearsay; and the magistrate should look to the totality of the circumstances when assessing a statement that relies on an informant’s story. (Tisler, 103 Ill. 2d at 237-38.) Factors which should be considered are whether the police officer had independent information that corroborates the informant’s story and whether the informant obtained his story “in a reliable fashion” such as “from the alleged wrongdoer” himself. Tisler, 103 Ill. 2d at 238-39.

With those rules as guidelines, the issue here is whether Officer Rose possessed knowledge that would justify a reasonable and prudent man to believe that the defendant had committed the offense. We conclude that Officer Rose did have such knowledge.

For comparison purposes we refer to those cases which have upheld search warrants based on statements of confidential informants that have led to gambling and narcotics arrests. (E.g., People v. Dillon (1970), 44 Ill. 2d 482, 256 N.E.2d 451 (gambling); People v. Curry (1980), 84 Ill. App. 3d 256, 405 N.E.2d 373 (narcotics).) In those cases the officers had no independent knowledge that a crime had, in fact, been committed; the proof of existence of a crime depended entirely on the statements made by the informants; and yet the arrests and searches were held valid. In this case, the officers themselves knew that a murder had been committed. The State’s argument, therefore, begins with the benefit of a substantial underpinning not present in the aforementioned cases which have nevertheless upheld arrests. In addition, the informant, who had previously given reliable information to Rose, had, in effect, heard “Wally” confess to the crime. Thus, the informant obtained his story “in a reliable fashion” — “from the alleged wrongdoer” himself. (Tisler, 103 Ill. 2d at 239.) Last, the officer had independent knowledge corroborating the informant in that he knew that “Wally” and “Little Man” were Godinez and the defendant; and he also knew that they were both members of the Latin Disciples.

The defendant has referred us to two cases, People v. Grzeskiewicz (1981), 94 Ill. App. 3d 769, 419 N.E.2d 56, and People v. Parker (1968), 42 Ill. 2d 42, 245 N.E.2d 487. The holding of those two cases was based on Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509, and Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584. Aguilar and Spinelli were interpreted to impose a “two-pronged test” which required a magistrate to assess an informant’s statements regarding how he learned the information and also required an evaluation of either the informant’s past record of truthfulness or facts indicating that the present information was reliable.

In Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317, the United States Supreme Court replaced the two-pronged test with the “totality-of-circumstances” approach. Our supreme court adopted the totality-of-circumstances test in People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147. Consequently, we do not believe the cases cited by the defendant which predated Gates are persuasive.

The defendant has also asked us to compare this case with People v. Helms (1978), 67 Ill. App. 3d 729, 385 N.E.2d 127, in which the informant had been used by police officers on four previous occasions resulting in three arrests and three convictions. We could, of course, compare this case with many cases other than People v. Helms which would show stronger grounds for the issuance of a warrant than those present in this case. It is indeed a rare case that could not be supported by stronger evidence. However, whether the evidence could be stronger is not the issue; the issue is whether it was strong enough. In our judgment the evidence supporting a finding of reasonable grounds or probable cause was strong enough.

We conclude that we may not substitute our judgment for that of the trial judge, who found that the officer had probable cause to arrest the defendant; and that the judge did not err in denying the motion to suppress the defendant’s confessions.

The defendant’s next argument is that his convictions of felony murder and attempted armed robbery should be reversed because, he maintains, there is no evidence independent of his confession tending to prove an attempted armed robbery. The State concedes that, in order to sustain a conviction based upon a confession, the confession must be corroborated. (People v. Willingham (1982), 89 Ill. 2d 352, 432 N.E.2d 861.) In Willingham the court quoted from People v. Perfecto (1962), 26 Ill. 2d 228, 229, 186 N.E.2d 258, 259:

“The true rule is that if there is evidence of corroborating circumstances which tend to prove the corpus delicti and correspond with the circumstances related in the confession, both the circumstances and the confession may be considered in determining whether the corpus delicti is sufficiently proved in a given case. [Citation.] The same evidence may be used to prove both the existence of the crime and the guilt of the defendant, the test being whether the whole evidence proves the facts that a crime was committed and that the accused committed it. [Citations.]” (Emphasis in Willingham opinion.) Willingham, 89 Ill. 2d at 359-60.

In addition to the confession, the court heard the testimony of George Monk and Jeanne Rodriguez. Monk testified that he lived at 1656 N. Francisco across the street from the scene of the killing of Soto. Monk was watching television in his living room shortly before 1 a.m. on April 28. A flash and then a shot made him look out the window. He saw two men across the street; one of the men was shooting a gun and the other was “getting shot.” He heard three more shots. One man fell, and the other man ran down the street into the gangway at 1655 North Francisco. He opened the gangway gate and ran into the alley. Monk saw only two persons in the street.

Jeanne Rodriguez testified that she lived at 1653 North Francisco. She went to bed about 12:50 a.m. She heard four gunshots and then heard a gate open at the side of her house. She looked out the window and saw somebody running through the gangway toward the alley. She later identified Walter Godinez in a lineup as the man she saw running through the gangway.

The defendant’s typewritten and signed confession given to an assistant State’s Attorney is, in substance, as follows:

On April 26 the defendant met Godinez at Artesian and Wabansia, and they walked to California and Wabansia where they saw a Mexican pushing an ice cream cart. Wally said, “Let’s go over here, see if we can rob this Mexican.” Wally went up to the Mexican and tried to rob him. The defendant was watching for the police. Wally tried to grab the Mexican and asked him for his money. The Mexican said, “I ain’t got no money” and pulled out a knife. Wally ran and told the Mexican, “I’m going to get you.”

On April 28 at about 12:55 a.m. Wally pointed out the Mexican as he exited a bus at California and Wabansia. Upon seeing the Mexican, Wally said, “Remember that Mexican right there? Look what I got for him.” Wally pulled a .38 caliber revolver from his waistband. The defendant asked Wally where he got the gun, and Wally told him not to worry about it. Wally told him that the gun was loaded, and the defendant saw six bullets in the cylinder. Wally told the defendant that he was going to rob the Mexican; and the defendant was supposed to look out for the police. From California and Wabansia, Godinez and the defendant went through a gangway to Mozart and Wabansia. At Mozart, Wally grabbed the Mexican from the back. The Mexican pushed away and started running; and Wally chased him, grabbed him, pulled out his gun and shot him. The defendant ran, and as he was running, he heard two or three more shots.

The defendant made some corrections on the typewritten statement. Where the statement said, “We tried to rob the guy,” the defendant changed “we” to “Wally.” A typewritten question read, “When you say the Mexican, was it the same Mexican you tried to rob earlier?” The defendant changed “you” to “Wally.”

It is our judgment that the evidence independent of the confession sufficiently corroborated the defendant’s confession of attempted armed robbery. It is true, as the defendant argues, that the testimony of Monk and Rodriguez does not establish an attempted armed robbery. But it is also true that evidence that a man was shot to death on a city street at 1 o’clock in the morning and that the shooter fled tends to establish armed robbery or an attempted armed robbery. There are other possibilities, of course. There could have been a dispute between two persons, for example. But the rule does not require that the independent evidence establish the crime beyond a reasonable doubt. Perfecto, 26 Ill. 2d at 229.

The defendant relies principally on People v. Kokoraleis (1986), 149 Ill. App. 3d 1000, 501 N.E.2d 207, in which the defendant was convicted of murder and rape. The victim’s decomposed body was found five months after she had been abducted. The defendant confessed to participation in both crimes with others, but he himself denied having intercourse with the victim. The victim’s pants were split along the inseam from the back to the front along the crotch. The appellate court held that that evidence was insufficient proof independent of the confession to sustain the rape conviction. We confess that we have difficulty reconciling the holding of People v. Kokoraleis with that of People v. Perfecto (1962), 26 Ill. 2d 228, 186 N.E.2d 258, even after reading the Kokoraleis court’s attempt to distinguish Perfecto.

In Perfecto the defendant was convicted of the rape of a 75-year-old victim. The only proof of penetration was the defendant’s confession. The supreme court affirmed the conviction, saying this:

“Here we have an abundance of evidence corroborating the 32-year-old defendant’s statements and confessions in which he related visiting the room of his 75-year-old victim twice on the evening in question, beating her into insensibility when she resisted his advances and having intercourse with her. Independent confirmation of these facts is found in the testimony of the witness Quintella, an acquaintance of defendant who stopped in defendant’s hotel room for a drink about the time the offense was committed. Quintella testified defendant left the room and returned later holding a handkerchief to his face. Subsequently the witness left the room and returned to find defendant again gone. Quintella then went to the washroom and noticed the lights in the victim’s room go on and off and the door shake. He stood in the hallway watching the door and saw defendant come out a short time later. This witness saw scratches on defendant’s left shoulder, and a bite on his right shoulder. There was a red smear on the wall of the room where the offense occurred, papers all over the floor and blood was flowing from the victim when she was removed on a stretcher. She was badly bruised and had a broken collar-bone.
The evidence here, taken as a whole, leaves no doubt that a rape was committed and that defendant committed it.” Perfecto, 26 Ill. 2d at 229-30.

The independent evidence in Perfecto established an aggravated battery, but we do not believe it tended to establish a rape to any greater degree than did the independent evidence in Kokoraleis. However, we need express neither agreement nor disagreement with the holding of Kokoraleis because we conclude that the corroborating evidence in this case is stronger than the evidence in Kokoraleis and is similar to the corroborating evidence in Perfecto. The State established that Soto had been shot three times with a .38 caliber weapon and that the shooter fled. A witness identified Godinez as the shooter. These independent facts corroborated the defendant’s statement that Godinez was the shooter, that he had used a .38 caliber revolver, that he had fired at least three shots and that he fled.

There is one other aspect of the Kokoraleis opinion that we wish to discuss lest our silence be misconstrued. In Kokoraleis the State had also contended that it need not have introduced independent evidence of the rape offense because the corpus delicti of the murder offense had been established independent of the confession. The State’s argument was that once the confession was shown to be trustworthy through independent evidence of the murder the confession should be sufficient to prove the corpus delicti of the rape without independent corroborative evidence.

The court rejected that argument and, although conceding there were no Illinois cases directly in point, held that each offense must be corroborated by independent evidence. In so holding the appellate court relied on People v. Neal (1985), 111 Ill. 2d 180, 489 N.E.2d 845, and People v. Darnell (1981), 94 Ill. App. 3d 830, 419 N.E.2d 384. The court noted that the supreme court had upheld convictions of murder and armed robbery in Neal and the appellate court had upheld convictions of murder and rape in Darnell on the ground that there was sufficient independent evidence of armed robbery in Neal and sufficient independent evidence of rape in Darnell to corroborate the confession. The court reasoned that the supreme court and appellate court had implicitly rejected the State’s argument made in Kokoraleis because they could have decided the cases on the basis of the State’s position that independent evidence of one offense with a corroborating confession would be sufficient to prove the corpus delicti of another offense without independent corroborative evidence.

We have examined the briefs in Neal and Darnell which disclose that the argument advanced by the State in Kokoraleis was not advanced in Neal or Darnell. Similarly, the argument was not made by the State in People v. Davis (1988), 173 Ill. App. 3d 300, 527 N.E.2d 552, decided by this court, which involved a murder and armed robbery and a claim that the corpus delicti of armed robbery had not been established. Nor has the argument been made in this court. Therefore, we wish to make it clear that our discussion of the sufficiency of independent evidence to corroborate a confession should not be construed as an implicit holding that each offense must be corroborated with independent evidence. Again, we express neither agreement nor disagreement with the holding of Kokoraleis because the question is not before us.

The defendant next contends that the evidence failed to establish his guilt on the basis of accountability. (Ill. Rev. Stat. 1985, ch. 38, pars. 9—1(a)(1), (a)(2).) We disagree. In both his oral and written confessions, the defendant said that he knew that Godinez intended to rob Soto two days before the shooting and again on the night of the shooting. On both occasions he agreed to act as a lookout; and he knew that Godinez was armed with a revolver. Acting as a lookout is an act aiding and abetting the commission of the offense.

The defendant argues also that even if he knew Godinez intended to rob Soto, his knowledge of robbery would not make him accountable for intentional or knowing murder. The defendant’s contention has been rejected by the supreme court in People v. Terry (1984), 99 Ill. 2d 508, 460 N.E.2d 746, in which the defendants agreed to commit the substantive offense of battery, a misdemeanor. In the course of the commission of that offense, a murder was committed. The court affirmed the conviction of murder, adhering to the long-established “common-design rule” which provides that where two or more persons engage in a common criminal design or agreement, any acts in the furtherance of the design committed by one party are considered to be the acts of all parties to the common design and all are equally responsible for the consequences of such further acts. (Terry, 99 Ill. 2d at 514.) We judge that the evidence established the defendant’s guilt under the accountability theory.

The defendant’s last contention is that his conviction on four of the five counts must be vacated. The defendant was convicted of intentional murder (count I), knowing murder (count II), felony murder (count IV), armed violence based on murder (count III) and attempted armed robbery (count V).

The State argues that the defendant has waived this argument by failing to object at the time of the judge’s finding or in his post-trial motion. We do not accept the State’s position. At the close of the evidence the judge said simply that he found the defendant guilty in the manner and form as charged in the indictment. Although it can be argued that the pronouncement was the equivalent of the finding of guilty on each count, it can also be argued that the pronouncement could be construed in another way. Since waiver is an intentional relinquishment of a known right by word or action, we refuse to find it here. Similarly, the defendant had no way of knowing that the court would deny his post-trial motion and enter a judgment that would be construed as a judgment on all five counts. Since the defendant’s post-trial motion was filed and argued before he was sentenced, any error was not waived. See People v. Gibson (1983), 114 Ill. App. 3d 488, 449 N.E.2d 182.

In People v. Mack (1984), 105 Ill. 2d 103, 473 N.E.2d 880, the supreme court held that where one individual is murdered, there can be only one conviction of murder and that judgment may be entered on only one count. As here, the defendant had been convicted of felony murder, knowing murder and intentional murder. The court concluded that intentional murder was the more serious offense and entered judgment on that count. We do so here. The judgment of intentional murder as charged in count I is affirmed. The judgments of knowing murder based on count II and felony murder on count IV are vacated.

The defendant’s argument that the attempted armed robbery conviction cannot stand in light of a conviction of murder is refuted by People v. Green (1976), 62 Ill. 2d 146, 340 N.E.2d 9. (See also People v. Davis (1988), 173 Ill. App. 3d 300, 527 N.E.2d 552.) Consequently, the judgment of conviction of attempted armed robbery based on count V is affirmed.

In People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477, the supreme court held that convictions for armed violence and its underlying felony cannot stand where a single physical act is the basis for both and that judgment should be entered and sentence imposed only on the more serious offense. Here, the underlying felony for the charge of armed violence is murder and a single physical act is the basis for both. Therefore, the conviction for armed violence based on count III is vacated.

We wish to add some observations about our vacaturs of convictions on certain counts. This case is but one of many that unnecessarily present courts of review with the same problem: the propriety of convictions and sentences in multicount indictments. We say that the problem is unnecessarily presented here because the case law is clear and the issue should be resolved in the trial court. The State understandably makes no attempt in this court to justify the convictions on all counts. Both the State and defense were aware long before trial that the indictment contained three counts of murder based on a single act and that the armed violence count was based on the act of murder. Both sides, therefore, should have been alerted to the fact that the issue would arise before sentencing and both had the obligation to call the question to the attention of the trial judge. Neither did so. In view of their silence, it is understandable that the trial judge might have concluded that his general finding of guilty on the indictment would have been in conformity with our holding here. We would hope that in the future the prosecutors or the defense attorneys will call the trial judge’s attention to the question at the time of sentencing.

For these reasons the judgments of conviction on counts I and V are affirmed. The judgments of convictions on counts II, III and IV are vacated.

Judgment affirmed in part and vacated in part.

McNAMARA and LaPORTA, JJ., concur.

       Justice LaPorta participated in this opinion after the resignation of Justice Quinlan, who had participated in the oral argument. Justice LaPorta has read the briefs and listened to a tape of the oral argument.


source: Caselaw Access Project

author: JUSTICE LaPORTA JUSTICE McNAMARA

license: Public Domain

text:
      In re B.S., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. B.S., Respondent-Appellant).
    First District (6th Division)
    No. 1—88—0096
    Opinion filed December 22, 1989.

      McNAMARA, J., dissenting.
    Michael J. Pelletier and Elizabeth Clarke, both of State Appellate Defender’s Office of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, David R. Butzen, and Mercedes Luque-Rosales, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LaPORTA

delivered the opinion of the court:

Following an adjudicatory hearing, respondent was found delinquent on a charge of theft of property valued under $300 (Ill. Rev. Stat. 1987, ch. 38, par. 16—1(a)(1)), was adjudicated a ward of the State, and was committed to the Juvenile Division of the Illinois Department of Corrections for an indeterminate period. On appeal, respondent contends that (1) the evidence failed to establish that the Department of Corrections was the least restrictive placement where he could receive treatment, (2) his commitment for an indeterminate period violated his constitutional rights to equal protection, due process, and proportionate penalties, and (3) trial counsel’s failure to raise this constitutional issue deprived him of his right to effective assistance of counsel.

The evidence adduced at the adjudicatory hearing established that about 2 p.m. on October 12, 1987, the 13-year-old respondent went with his mother to the Payless Shoes store located at 6145 North Broadway in Chicago, Illinois. When he entered the store, respondent was carrying a brown paper bag that contained several items. While in the shoe store, respondent tried on a pair of boots but did not buy them because they were not the correct size. Before leaving, respondent took a pair of white high-top gym shoes and placed them in the bag he had carried into the store. Respondent and his mother then left the shoe store without paying for the gym shoes, which were valued at $27.99. Upon consideration of the evidence presented, the trial court found the respondent delinquent on the charge of theft.

At the disposition hearing, probation officer LuAnn Nystrom testified that respondent had been referred to Intensive Probation Services but was rejected as a candidate for that program. Nystrom also testified as to the contents of a report of respondent’s behavior while at the Audy Home. That report, dated December 1, 1987, indicated that respondent exhibited an abrupt and continued deterioration in his behavior, which included abusive acts in the classroom and threatening, aggressive, disobedient, and quarrelsome behavior. Nystrom also reported that respondent would not be considered a candidate for placement through the Department of Children and Family Services based upon the difficulty in placing him due to his sometimes violent reactions; the likelihood that his mother would be uncooperative; his need for counseling; the assessment that he could best be treated in the community; the assessment that there had not been sufficient or reasonable efforts to keep him in the home; and the fact that potential placements within the community had not been exhausted.

Nystrom indicated that a residential placement through the board of education was inappropriate because respondent was enrolled at the Joseph Academy for emotionally disturbed youngsters and because there were adequate community support services available. Nystrom stated further that respondent had been involved in counseling with Paul Kredow of Alternatives, Inc., a community-based counseling service, since May 1987. Nystrom expressed her opinion that respondent had made progress with this counseling situation and that he had the potential to do well with treatment in the home. Nystrom concluded that placement in the Department of Corrections would be inappropriate for respondent and recommended a referral to Unified Delinquency Intervention System.

Probation officer McAdoo from Intensive Probation Services testified that respondent was not an appropriate candidate for their program based upon the quantity of petitions he had accrued by the age of 13; the fact that seven of those petitions were for crimes against people; respondent’s attitude; his lack of maturity; and his lack of remorse or understanding of his court involvement. McAdoo recommended that respondent be committed to the Department of Corrections. McAdoo also stated that support from the home environment for respondent was minimal and that the Department of Corrections had the ability to handle emotionally disturbed children.

Mr. Lampley of Intensive Probation Services testified that commitment to the Department of Corrections was the only appropriate recommendation before the court, but also stated that residential placement in an inpatient counseling facility was a possibility.

Also before the court was a social investigation report prepared by Nystrom which reflected that respondent lived with his mother in a two-bedroom apartment. Respondent’s mother was unemployed but received benefits from the Illinois Department of Public Aid. Although respondent’s father made child-support payments to the Department of Public Aid, he had very little contact or involvement with respondent. The report also indicated that respondent had two prior court referrals for neglect by his mother. Both of these charges were dismissed for want of prosecution. Respondent had eight other court referrals for delinquent matters which were dismissed for want of prosecution or stricken with leave to reinstate. Respondent was found delinquent of criminal damage to property in July 1985 and received a one-year term of supervision which was terminated satisfactorily. Respondent received 18 months’ probation in February 1987, upon finding of delinquency for battery. In September 1987, respondent received a term of 18 months’ probation upon charges of aggravated assault and disorderly conduct. Respondent also had two station adjustments involving one charge of auto theft and one charge of battery involving a relative.

Nystrom’s report reflected her opinion that although the instant offense was respondent’s third finding of delinquency, commitment to the Department of Corrections would be inappropriate. The report also stated that Nystrom believed that respondent was an emotionally disturbed youngster who would benefit from placement in a residential treatment center where he would receive long-term therapy and an education.

The trial court also had before it a social assessment and psychological evaluation of respondent prepared by Dr. Clifton Saper, adolescent program director of the Charter Barclay Hospital. Dr. Saper’s report indicated that respondent needed continued therapy and that incarceration would be an extremely destructive alternative. Saper recommended probation and continued treatment. Saper also indicated that if respondent did not exhibit progress after six months, residential treatment alternatives should be investigated along with a request to the Chicago board of education for a review of respondent’s case by a multidisciplinary staff.

Finally, the trial court had before it a letter from Paul Kredow, a family therapist with Alternatives, Inc. Kredow’s letter identified the long-term issues faced by respondent and recommended that respondent be hospitalized in an adolescent unit of a hospital that could provide intensive treatment for his problems, including individual psychotherapy, group therapy, psychiatric screening, and family therapy.

Respondent testified that his attendance at Joseph Academy was excellent and that he would continue to attend- school if given the opportunity to do so. Respondent’s mother testified that she would be willing to undergo more intensive counseling to help her son. Defense counsel reminded the court that one of the reasons given by the Department of Children and Family Services in refusing to place respondent was the fact that other placement opportunities in the community had not been fully explored. Upon consideration of the evidence presented and the arguments of counsel, the trial court indicated that the Department of Corrections did provide rehabilitative services as well as the opportunity for education and vocational training. The trial judge stated further that he had no alternative other than commitment to the Department of Corrections because no alternatives had been presented to the court other than returning respondent to his home with his mother. The trial judge stated that he did not believe that returning respondent to his mother’s home was in the best interests of the minor or the public. Finding that the public had to be protected from delinquent behavior of the respondent, the court committed him to the Department of Corrections.

Respondent initially contends that the trial court erred in committing him to the Department of Corrections. Section 5 — 23 of the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1987, eh. 37, par. 805—23) sets out the various dispositional alternatives available to a trial court once a minor has been found delinquent. These alternatives include probation or conditional discharge; placement outside the home; admission or treatment for drug addiction; commitment to the Department of Children and Family Services; placement in detention for a period not to exceed 30 days; or commitment to the Department of Corrections. (Ill. Rev. Stat. 1987, ch. 37, par. 805—23.) The Act also provides that a minor may be committed to the Department of Corrections if the court finds that (a) his parents are unfit or are unable, for some reason other than financial circumstances alone, to care for, protect, train or discipline the minor, or are unwilling to do so,, and the best interests of the minor and the public will not be served by placement under section 5 — 29; or (b) it is necessary to ensure the protection of the public from the consequences of criminal activity of the delinquent. Ill. Rev. Stat. 1987, ch. 37, par. 805—33(1).

The disposition of a minor rests within the discretion of the trial judge, whose decision will not be disturbed unless it is contrary to the manifest weight of the evidence. (In re J.C. (1987), 163 Ill. App. 3d 877, 886, 516 N.E.2d 1326, 1332; In re T.M. (1984), 125 Ill. App. 3d 859, 861, 466 N.E.2d 1328, 1330.) It is well established that delinquency proceedings are protective, not penal in nature, and the first purpose of the Act is not to punish, but to correct and to rehabilitate. (In re Armour (1974), 59 Ill. 2d 102, 104, 319 N.E.2d 496, 498; In re M.D.B. (1984), 121 Ill. App. 3d 77, 83, 458 N.E.2d 1380, 1385.) Commitment is to be used only when less severe placement alternatives would not be in the best interests of the minor and the public. In re M.D.B., 121 Ill. App. 3d at 83, 458 N.E.2d at 1385.

Respondent argues that the trial court erred in failing to investigate or consider less restrictive placements before committing him to the Department of Corrections. We agree.

The evidence presented at the dispositional hearing indicated that respondent had been involved in a regular program of counseling with Paul Kredow of Alternatives, Inc., and that respondent had shown progress since starting this program. His attendance at Joseph Academy was excellent, and he expressed a desire to return to school. His mother testified that she was willing to undergo an intensive counseling program in order to help her son. The opinions of Paul Kredow, LuAnn Nystrom, and Dr. Clifton Saper revealed that respondent would benefit most from a residential treatment alternative and indicated that commitment of respondent to the Department of Corrections would be, at best, inappropriate and, at worst, extremely destructive.

We believe it is significant that respondent could not be placed with the Department of Children and Family Services for reasons which included the assessment that he could best be treated in the community; the assessment that there had not been sufficient or reasonable efforts to keep him in the home; and the fact that potential placements within the community had not been exhausted. Probation officer Nystrom recommended a referral to Unified Delinquency Intervention System, and defense counsel argued that other placement opportunities in the community had not been fully explored. In committing respondent to the Department of Corrections, the trial judge specifically stated that he had no other alternative because none had been presented. We recognize that the trial judge predicated his decision upon the alternatives before him at the time of the hearing. We believe, however, that the record indicates that the prosecution and defense counsel were not fully prepared to advise the court of all possible placement alternatives. Thus, it appears that further investigation into potential placements was required and that, if necessary, the hearing should have been continued.

We find this case is analogous to In re P.S.B. (1988), 174 Ill. App. 3d 114, 528 N.E.2d 769, which involved a minor who was committed to the Department of Corrections despite evidence that he required treatment for substance abuse. The court entered an order committing the minor because that was the “only reasonable alternative before the court.” (In re P.S.B., 174 Ill. App. 3d at 118, 528 N.E.2d at 772.) There it was held that there was insufficient evidence presented regarding the type, method, and procedures of the available long-term treatment options and that the matter deserved more attention by the trial court. (In re P.S.B., 174 Ill. App. 3d at 119, 528 N.E.2d at 773.) The cause was, therefore, remanded for a new dispositional hearing.

In the case of In re Wealer (1976), 42 Ill. App. 3d 479, 355 N.E.2d 187, a minor was committed to the Department of Corrections because the county in which she resided did not have the facilities to provide the supervision and assistance she required. There, the court recognized the importance of “an active concern and involvement in the placement of the minor” by the juvenile court. (In re Wealer, 42 Ill. App. 3d at 483, 355 N.E.2d at 190.) The court also noted that the trial court had made no inquiry into the possibility of placing the minor with her brother as an alternative to commitment. (In re Wealer, 42 Ill. App. 3d at 483, 355 N.E.2d at 190.) The court concluded that the best interests of the minor and the public required a new dispositional hearing for consideration of all relevant factors, including other available alternative dispositions. In re Wealer, 42 Ill. App. 3d at 484, 355 N.E.2d at 191.

The record in the case sub judice reveals that although it was within the trial court’s discretion to commit respondent to the Department of Corrections, there was insufficient inquiry into alternative placements within the community which would be less restrictive and would afford respondent the rehabilitation and treatment he requires. The best interests of respondent and the public would best be served by a new dispositional hearing to examine alternative placements available to respondent within the community.

Respondent also asserts that his commitment for an indeterminate period violated his constitutional rights to equal protection, due process, and proportionate penalties. Because respondent failed to challenge the constitutionality of his commitment in the trial court, he has waived argument of this issue on appeal. In re E.H. (1980), 82 Ill. App. 3d 514, 402 N.E.2d 661; In re F.L.W. (1979), 73 Ill. App. 3d 355, 391 N.E.2d 1070.

Even if respondent had preserved this issue for appeal, his claim would be without merit. Because the indeterminate sentencing scheme of the Act is considered to play a useful role in achieving the rehabilitation of delinquent minors and is applied similarly to all juveniles declared to be delinquent, it meets constitutional standards. (In re T.L.B. (1989), 184 Ill. App. 3d 213, 223, 539 N.E.2d 1340, 1347.) The Act also offers unique benefits to juvenile offenders which are not available to adult offenders: the continuous opportunity to seek early release; no criminal record incurred; no disqualification from subsequently holding public office or receiving any license other than, in an appropriate case, one relating to the operation of motor vehicles. (In re T.L.B., 184 Ill. App. 3d at 223, 539 N.E.2d at 1347.) Adult offenders and juveniles adjudicated delinquent are not similarly circumstanced, and they need not be treated similarly. (In re Presley (1970), 47 Ill. 2d 50, 56, 264 N.E.2d 177, 180.) Consequently, respondent’s commitment for an indeterminate period did not violate his rights to equal protection, due process, and proportionate penalties.

Finally, respondent argues that trial counsel’s failure to raise this constitutional issue deprived him of his right to effective assistance of counsel. We disagree.

The adequacy of trial counsel entitles a respondent to a new trial only if his counsel was actually incompetent, as reflected in the performance of his duties as trial attorney, and if this incompetence produced substantial prejudice to the respondent without which the result of the trial would probably have been different. (People v. Albanese (1984), 104 Ill. 2d 504, 525-26, 473 N.E.2d 1246, 1255-56.) A respondent is entitled to competent, not perfect, representation. (People v. Eddmonds (1984), 101 Ill. 2d 44, 69, 461 N.E.2d 347, 359.) When incompetency of trial counsel is alleged, the reviewing court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Albanese, 104 Ill. 2d at 526, 473 N.E.2d at 1255.

We have previously held that commitment of respondent for an indeterminate period did not violate his constitutional rights. Thus, trial counsel’s failure to raise this issue did not result in substantial prejudice without which the result of the trial would have been different. Albanese, 104 Ill. 2d at 525-26, 473 N.E.2d at 1255-56.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

QUINLAN, J., concurs.

JUSTICE McNAMARA

dissenting:

I respectfully dissent from the majority’s conclusion that commitment of respondent to the Department of Corrections was inappropriate. As the majority concedes, very few alternatives were available to the court in the placement of respondent, and the record is clear that the able and experienced trial judge considered all possibilities before making his decision.

Placing respondent on probation and allowing him to go home, where neither he nor his mother had any insight to his behavior, would have been disastrous. Understandably, in view of respondent’s repeated delinquent behavior, placement in an institution designed for dependent or neglected children would have been impossible. The trial court also had before it the report that respondent’s delinquent behavior continued while he was at Audy Home. The trial court’s decision to commit respondent to the Department of Corrections was appropriate.

I would affirm that decision.

       Justice Quinlan participated in this opinion prior to his resignation from the court.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. PETER SANTORO et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—88—1076
    Opinion filed December 22, 1989.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Linda Woloshin, Assistant State’s Attorneys, of counsel), for the People.
    Randolph N. Stone, Public Defender, of Chicago (Callie Baird and Vicki Rogers, Assistant Public Defenders, of counsel), for appellees.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

This is a State appeal from an order allowing the defendants’ motion to suppress evidence.

The defendants, Peter Santoro and John Kopel, were arrested on August 10, 1987. The State charged both defendants with possession of cocaine; Kopel was also charged with possession of cannabis. At the suppression hearing, the only witness was Officer Thomas Villa, who was called by the defendants. The defendants also introduced some documents. Villa’s testimony, in substance, is as follows:

At approximately 4 a.m. on August 10, 1987, Villa, a Burbank police officer for five years, was on routine patrol duty in a marked police vehicle driving southbound at the 8100 block of Long Avenue in the Village of Burbank. He noticed a Ford LTD, approximately three car lengths in front of him, that had a partially open trunk with a bicycle sticking out. He believed the trunk obscured the driver’s vision, a traffic violation. He then ran an information check on the car’s license plate, 733 788.

The radio communications dispatcher, Vicki Guiterrez, informed Villa that the plate was registered to a 1973 Dodge van owned by Peter Santoro and that the plate had expired in November 1986. He thought that Guiterrez might have told him that the status of the plate was unavailable.

After receiving that information, Villa, who was alone, called over his radio for a backup and stopped the car. Santoro was driving, and Kopel was a passenger. It was dark out as Villa approached the car, and he turned on his flashlight. He went to the car window, which had been lowered, asked Santoro for his driver’s license and used his flashlight to see into the car. He saw between Santoro’s feet the butt of a gun sticking out from underneath Santoro’s seat. At the time he saw the gun he was asking for Santoro’s driver’s license. After he observed the gun he pulled out his own gun and told both men to get out of the car; both men did so. For his own safety he had them put their hands on the vehicle, and he waited for his backup to come before he did any further investigation. After his backup arrived, he gave Kopel a “pat-down search.”

While patting down Kopel to check for weapons, he came across a hard object in the crotch area of Kopel’s pants. He had Kopel pull down his pants, and Villa retrieved a metallic pipe in a clear plastic bag that also contained a green leafy substance that appeared to Villa to be cannabis. He continued his search and found a cardboard cigarette package in Kopel’s left shirt pocket. That package contained cigarettes and a small white envelope, identified on the street as a “snow seal,” that contained a white powdery substance.

Officer Danny Gafney searched Santoro and pulled from his left pants pocket a white envelope “snow seal” with white powder, suspected cocaine. Gainey conducted a full search of Santoro, not just a pat-down search. After the defendants were arrested, Villa took the gun from the car. It was a toy replica of an Uzi submachine gun. Villa took both men to the police station and issued a traffic ticket to Santoro for fictitious plates. He never gave Santoro a ticket for driving while his vision was obstructed.

Before he issued the ticket, Villa received the computer printout on the license plate. The printout indicated that the status of the plate was “unavailable.” No stops were in effect; there were no convictions of Santoro in the preceding 12 months, and he was not wanted on any warrants.

The defense established that the plates had been transferred from a 1973 Dodge to the 1978 Ford LTD on May 28, 1987, more than two months before Santoro’s arrest.

In the ruling sustaining the motion to suppress, the judge made several observations with some of which we agree, but we do not agree with his determination of what constituted the ultimate factual issue. It appears to us that the issue in this case was misunderstood by defense counsel and the judge. The issue was not whether Villa had probable cause or reasonable grounds to issue the ticket for defective plates; the issue was whether he was justified first in stopping the vehicle, then in conducting a pat-down search and finally in conducting a full search. It is our judgment that Officer Villa was justified in taking each step.

It would needlessly lengthen this opinion to recite all that was said by the judge, but some of his remarks are appropriately set forth. During the hearing on the first day, the assistant State’s Attorney objected to questions concerning what had transpired after the defendants were taken to the police station. He said, “The only thing in issue is the stop of the defendants and the subsequent search.” The judge correctly agreed when he responded, in part, “The number one issue that is brought here today is the question of a police officer’s credibility as to the stop and to the subsequent search.”

A lengthy discussion ensued between the judge and counsel over whether the proof would establish that on the day of the arrest the license plate on the Ford LTD was, in fact, registered with the Secretary of State on the Ford LTD and not the Dodge van. The State’s Attorney would not agree that the proof would show registration on the LTD, and the case was continued.

Approximately 3Vs months later, the hearing resumed. The defendant offered documentary evidence showing that the plates had been transferred from the 1973 Dodge to the 1978 Ford LTD on May 28, 1987, more than two months before Santoro’s arrest. Therefore, it was clear that Santoro had not violated the registration statute.

Immediately after both sides had rested the court said, “Motion to suppress is granted.” When the State’s Attorney asked the basis of the judge’s ruling, the judge said the following:

“It’s very simple. It’s the credibility of the officer. He had the report in his hand at the time he wrote ‘fictitious plates.’ There was no evidence to show that in any way it was traced back.
I really don’t blame the officer for stopping him, but the problem is I can’t put myself in that position because I have got to be available to have this thing done as the court of law in which there has to be probable cause for the purpose of the stop. It’s kind of on a higher standard than what we think of generally applicable.
What happened here, in reality, is that the bicycle kicked inquiry. I would be suspicious of somebody having a bicycle in the back. The problem is upon the check in with the license plates and things of that nature, now the officer is positive with the question of trying to, in effect, justify the stop. That’s where it pops. Even this document [the computer printout] that they put in here, the status is not available. The credibility really comes down to issue when he goes and writes the ticket for fictitious plates and no document of any form that there is fictitious plates. It comes all the way back down the spindle.” (Emphasis added.)

Initially, we observe that the trial judge applied the wrong standard applicable to the initial stop. The test is not whether Officer Villa had “probable cause” to make the stop; the test is whether he had a “reasonable suspicion” that the driver of the vehicle had violated the law. (People v. Repp (1988), 165 Ill. App. 3d 90, 94, 518 N.E.2d 750, 753; see also People v. Ohlinger (1989), 185 Ill. App. 3d 763, 542 N.E.2d 382.) But the application of the wrong standard, in our judgment, did not cause the error. We interpret all of the judge’s remarks to mean that he did not believe that the officer had probable cause to issue the ticket for fictitious plates, that he believed that the officer knew he did not have probable cause to issue the ticket and that the officer issued the ticket in an attempt to justify the initial stop. What the officer believed or knew at the time he issued the ticket is not determinative of the issue.

It is uncontradicted that the police officer saw a bicycle in the car trunk causing a possible traffic violation. The judge believed that testimony. It is also uncontradicted that the officer called in and received information that the car had plates which were registered to another vehicle and which had expired. Villa’s testimony is not only uncontradicted on this point but is corroborated by the computer printout which was introduced by the defendants. Regardless of whether Villa knew that the current status of the license registration was unavailable, it is uncontroverted that he did not know the status. Therefore, at the time of the stop, Villa had a “reasonable, articulable suspicion of criminal activity to warrant the stop.” (Repp, 165 Ill. App. 3d at 94.) It is of no significance that subsequent events did not bear out his suspicion. Any holding that the evidence in this case was insufficient to justify the initial stop would be clearly erroneous.

After the initial stop, the officer saw what appeared to be a weapon extruding from under Santoro’s seat. At that point he had every right to suspect that he was dealing with someone more dangerous than a traffic law violator. It is again of no significance that the weapon later proved to be a toy. The order for both men to get out of the car was a minimal intrusion into the defendants’ personal liberty, and a subsequent pat-down search of Kopel was justified under the circumstances.

A case similar on its facts to this case is People v. Williams (1975), 28 Ill. App. 3d 189, 328 N.E.2d 89, in which police officers stopped a vehicle for speeding at 6 a.m. The defendant was a passenger. Before stopping the car the officers ran a registration check on the license plate which showed that the vehicle was owned by a corporation. The driver had no driver’s license, and a search of his person disclosed a cylindrical flask containing a white powder which the officer suspected was cocaine. The officer then told the defendant to get out of the car, and the officer searched him for the officer’s protection. Before he searched the defendant he searched the car and found a revolver under the seat where the defendant was sitting. His search of the defendant disclosed heroin. The court upheld the search and cited United States v. Berryhill (9th Cir. 1971), 445 F.2d 1189, 1193, in which the court held as follows:

“We think that Terry [Terry v. Ohio (1967), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868] recognizes and common sense dictates that the legality of such a limited intrusion into a citizen’s personal privacy extends to a criminal’s companions at the time of arrest. It is inconceivable that a peace officer effecting a lawful arrest of an occupant of a vehicle must expose himself to a shot in the back from [the] defendant’s associate because he cannot, on the spot, make the nice distinction between whether the other is a companion in crime or a social acquaintance. All companions of the arrestee within the immediate vicinity, capable of accomplishing a harmful assault on the officer, are constitutionally subjected to the cursory ‘pat-down’ reasonably necessary to give assurance that they are unarmed.”

See also People v. Bradi (1982), 107 Ill. App. 3d 594, 437 N.E.2d 1285.

We conclude, therefore, that Villa properly performed a pat-down search of Kopel and that in the course of that search and the later search of his shirt pocket properly discovered the evidence which the State sought to introduce.

In the trial court each defendant was represented by his own attorney and each filed his own motion to suppress. In this court both defendants are represented by the same attorney. In both the trial court and in this court they have presented the same argument and only that argument: The judge decided the case on the officer’s credibility and concluded that the stop and search were unjustified. Kopel, the passenger, has not argued that a distinction should be made between the right to search a driver and the right to search a passenger. Nor has Santoro, the driver, made any attempt in the trial court or in this court to show or argue that the search by Gafney was unjustifiably extended beyond a pat-down search. Neither Gafney nor Santoro was called by the defendants to testify to the circumstances under which Santoro was searched. The record shows at least that Officer Gafney was justified in making a pat-down search. Villa testified simply that Gafney pulled from Santoro’s left pants pocket a “white envelope with white powder, which they suspected was cocaine.”

Since Santoro has not made any argument that Gafney’s search was unreasonably extended and has introduced no proof to show that it was so unreasonably extended, any such argument is waived.

For these reasons we conclude that the motion to suppress should have been denied as to both defendants. The judgment of the circuit court is reversed.

Judgment reversed.

McNAMARA and LaPORTA, JJ., concur.


author: JUSTICE McNAMARA

text:
    THE NORTHERN TRUST COMPANY, Plaintiff-Appellant, v. AETNA LIFE AND SURETY COMPANY, Defendant-Appellee.
    First District (6th Division)
    No. 1—89—0417
    Opinion filed December 22, 1989.
    Rehearing denied January 30, 1990.

      Wildman, Harrold, Allen & Dixon, of Chicago (James T. Nyeste and Timothy W. Heath, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, The Northern Trust Company, sued its insurer, defendant Aetna Life & Surety Company, for its failure to pay attorney fees which Northern incurred defending a suit against it. The trial court dismissed Northern’s complaint pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619) on the grounds of collateral estoppel. Northern appeals, contending that the complaint is not barred by prior litigation.

On November 20, 1972, Hillard W. Marks died, and his will engendered many disputes. (See In re Estate of Marks (1979), 74 Ill. App. 3d 599, 393 N.E.2d 538.) Helen S. Baron, Marks’ common-law wife, was beneficiary and co-executor of the Marks estate along with Northern. In 1975, Baron sued Northern and others. The suit included the allegation that Northern “[attempted to interfere with the attorney client relationship existing between [Baron] and her counsel by repeatedly advising [Baron’s] counsel that [Baron] was a liar, a person of low morals and untrustworthy, all of which [Northern] knew was untrue, with the intent of persuading [Baron’s] counsel to withdraw and thereby coerce plaintiff into giving up her interests in [Marks’] estate.”

Aetna insured Northern under a policy covering occurrences and offenses committed during the relevant period, including “all sums which [Northern] shall become legally obligated to pay” arising out of Northern’s business, including "the publication or utterance of a libel or slander or of other defamatory or disparaging material, or a publication or utterance in violation of an individual’s right of privacy.” The policy also covered claims against Northern arising out of “malicious prosecution.”

In addition, under the policy Aetna had “the right and duty to defend any suit against [Northern] seeking damages on account of such personal injury even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient.”

Northern tendered the defense of the Baron complaint to Aetna. Because Aetna appointed an attorney only to monitor the case, Northern conducted its own defense and paid its own attorney fees. On April 2, 1976, Aetna sent Northern a reservation of rights letter in the Baron case, stating that it “defended” Northern under a reservation of rights due to the defamation allegation in the Baron case, which Aetna recognized was potentially covered under the policy. On January 18, 1977, Aetna notified Northern that a declaratory action would be filed by Aetna. On March 22, 1978, Aetna filed the declaratory action.

In the meantime, the trial court in Baron dismissed from the Baron complaint all allegations against Northern. This court affirmed in part and reversed in part. (Baron v. The Northern Trust Co. (1st Dist. 1982), No. 81—1972 (unpublished order under Supreme Court Rule 23).) In a supplemental Rule 23 order, this court specifically upheld the dismissal of the defamation allegation against Northern. Baron v. The Northern Trust Co. (1st Dist. 1984), No. 81—1972 (unpublished order under Supreme Court Rule 23).

After this court issued its supplemental order, Aetna moved for summary judgment in the declaratory action. Aetna averred in the motion that the “only allegation in the Baron complaint directed against Northern which could be construed as alleging potential coverage under Aetna’s policy” was the defamation allegation. Aetna stated further that the Baron complaint “potentially could be construed by a court as alleging defamation. Thus, there was a potential for coverage under Aetna’s policy. Accordingly, Aetna provided a defense for Northern under a Reservation of Rights.”

Aetna argued further that, because this court dismissed the defamation allegations against Northern, “Aetna no longer has a duty to defend or indemnify Northern for the allegations contained in the Baron lawsuit *** and that therefore, Aetna is entitled to summary judgment in its favor and against” Northern. (Emphasis added.) In its prayer for summary judgment, Aetna again stated that the defamation claims were “the only allegations in the said [Baron] complaint which allege potential coverage under Aetna’s policy.”

On May 6, 1986, the trial court denied Aetna’s motion for summary judgment, reasoning that disputed facts remained as to whether certain allegations could be construed as “property damage” under the policy. The court did not refer to the defamation allegations. Both Aetna and Northern filed motions to reconsider. The trial court granted Aetna’s motion for reconsideration, which argued that certain trust property was not covered. The court denied Northern’s motion for reconsideration, which had argued that a “malicious prosecution” allegation was covered under the policy. Northern appealed, and this court affirmed the trial court’s decision. (Aetna Life & Surety Co. v. Northern Trust Co. (1988), 169 Ill. App. 3d 678, 523 N.E.2d 1043.) The defamation allegations were not addressed in that opinion.

On December 3, 1986, Northern filed this suit. It alleged that Aetna had a duty to defend it from the inception of the 1975 Baron suit until the defamation allegation was finally dismissed on April 26, 1984, and that Aetna failed to do so. Northern sought reimbursement of $61,457.67 in attorney fees which it had incurred in defense of Baron.

Aetna moved to dismiss the complaint as being barred by res judicata as a result of Aetna’s declaratory action. The trial court granted the motion for dismissal, holding that it was barred by res judicata. The court reasoned that the attorney fees claim could have been raised in the declaratory judgment action.

Northern moved for reconsideration. The trial court then stated it erred in holding that res judicata applied. In a corrected decision, the trial court held that the claim for attorney fees was barred by collateral estoppel. Both parties agree that only res judicata applies, but Aetna asserts that, nevertheless, the trial court properly dismissed the suit.

The doctrine of res judicata (estoppel by judgment) applies when the second suit is between the same parties and is based on the same cause of action as the first suit. Res judicata holds that a final judgment on the merits is conclusive as to the rights of the same parties in subsequent litigation as to all issues which might have been raised, regardless of whether they were in fact litigated. (Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 461 N.E.2d 959.) Collateral estoppel (estoppel by verdict), which does not apply here, comes into play when a party participates in two separate and consecutive cases, and some controlling fact or question material to the determination of both cases has been adjudicated against that party in the former suit by a court of competent jurisdiction. Under collateral estoppel, the judgment in the first suit is binding only with regard to the issues actually litigated in that suit. Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 461 N.E.2d 959; Benton v. Smith (1987), 157 Ill. App. 3d 847, 510 N.E.2d 952.

Aetna and Northern participated in both the declaratory judgment action and in the present suit. Thus, if the present suit involves the same cause of action, the previous judgment is conclusive as to all issues which might have been raised. The issue of whether Aetna should pay Northern’s attorney fees would be barred simply because it might have been raised in the previous suit. Aetna, as the party relying on the doctrine of res judicata, bears the heavy burden of showing what was determined by the prior judgment, and if any uncertainty exists the doctrine will not be applied. (See Benton v. Smith, 157 Ill. App. 3d 847, 510 N.E.2d 952; Rotogravure Service, Inc. v. R.W. Borrowdale Co. (1979), 77 Ill. App. 3d 518, 395 N.E.2d 1143.) Aetna has failed to meet that burden.

In determining the identity of the cause of action in two suits, the courts generally focus on the factual setting from which each claim arises, although the perimeters of the factual setting have been defined both rigorously and liberally. R Michael, 4 Illinois Practice: Civil Procedures Before Trial §41.5, at 312-13 (1989), citing, among other cases, Wilbon v. D.F. Bast Co. (1978), 73 Ill. 2d 58, 382 N.E.2d 784.

Under either the more stringent test, requiring identical operative facts before res judicata will be applied (see, e.g., Neuberg v. Michael Reese Hospital & Medical Center (1983), 118 Ill. App. 3d 93, 454 N.E.2d 684), or the more liberal test, requiring only a factual overlap (see, e.g., Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 461 N.E.2d 959; Edwards v. City of Quincy (1984), 124 Ill. App. 3d 1004, 464 N.E.2d 1125), res judicata does not bar the present action. (See also Restatement (Second) of Judgments, §24(1), comment b (1982) (Test for determining whether two suits involve same cause of action is whether the first suit involved all or any part of the transaction, or series of connected transactions out of which the actions arose. A “transaction” means “a natural grouping or common nucleus of operative fact”).) The present suit for attorney fees, resulting from defending Baron prior to the dismissal of the defamation count, sets forth an entirely different cause of action than the previous declaratory action’s summary judgment motion limiting the determination to the issue of whether Aetna was required to provide attorneys or attorney fees for the defense of counts remaining in Baron.

In the present case, then, the relevant transactions resist any attempt to connect them as operative facts. The operative facts in each case span completely different time periods. The present case focuses on Baron’s original defamation action; it never needs to look past the moment in time when that count was dismissed. The declaratory action never needed to look back at the dismissed defamation action; it only needed to focus on the remaining counts.

The present suit focuses on Northern’s tendering the Baron defense to Aetna, Aetna’s appointment of counsel to “monitor” the defense, and Aetna’s repeated statements that, under a reservation of rights clause, it was defending Northern because of the potential coverage under the policy. In contrast, the declaratory action merely requires a comparison of the counts remaining in Baron and the insurance policy itself.

In addition to our finding that the two cases involve different causes of action, and our finding that the defamation-related attorney fees could not have been raised in the first action, fairness and justice preclude our invocation of the doctrine of res judicata. Even where all the essential elements of res judicata are satisfied, its effect will be denied in order to avoid injustice. See R. Michael, 4 Illinois Practice: Civil Procedure Before Trial §41.5, at 311 n.9 (1989), citing Adams v. Pearson (1952), 411 Ill. 431, 104 N.E.2d 267, comparing Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 461 N.E.2d 959.

In the previous declaratory judgment action, Aetna deprived Northern of the opportunity to ask the trial court to determine the attorney fees claim, or anything related to the defamation count. Aetna itself withdrew the issue of whether it had a duty to defend the defamation issue prior to final judgment in the declaratory action. Now it maintains that, notwithstanding its own conduct in removing the issue from the case, its duty to defend Northern from the defamation allegations was, or could have been, actually adjudicated in the prior action.

It would be unfair to bar this suit after Aetna belatedly limited its summary judgment prayer in the declaratory action to less than all the relief originally requested; conceded that Baron raised defamation claims which Aetna had a potential duty to defend Northern against until that claim was dismissed; admitted that it represented Northern under a reservation of rights clause; and then merely appointed counsel to “monitor” the case, while Northern was forced to hire counsel to defend itself until the defamation claim was dismissed. Res judicata will not be used in such a manner as to defeat principles of fairness and justice. (See Benton v. Smith, 157 Ill. App. 3d 847, 510 N.E.2d 952; Rotogravure Service, Inc. v. R.W. Borrowdale Co. (1979), 77 Ill. App. 3d 518, 395 N.E.2d 1143.) In view of the facts and chronology we have set forth, we find that imposing the doctrine of res judicata would result in serious injustice or inequity.

Aetna points to, and the trial court relied upon, language in this court’s prior opinion regarding Baron’s limiting her attempt to seek recovery from Northern only under a malicious prosecution claim. In that appeal, the court addressed the issue of whether the Baron complaint alleged malicious prosecution such that the policy would require Aetna to defend. This court held that the allegations could not reasonably be characterized as malicious prosecution. There was no reference to the defamation allegations covered under a different subparagraph of Aetna’s policy.

We hold that the questions raised in Northern’s present suit for attorney fees are not barred under the doctrine of res judicata.

For these reasons, the judgment of the circuit court of Cook County dismissing plaintiff’s cause of action is reversed, and the cause is remanded for further proceedings consistent with the holdings contained herein.

Reversed and remanded.

LORENZ and LaPORTA, JJ., concur.