author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY CHAVEZ et al., Defendants-Appellants.
    First District (1st Division)
    Nos. 1—89—1791, 1—89—1792 cons.
    Opinion filed February 3, 1992.
    Rehearing denied May 6, 1992.
    Modified opinion filed May 11, 1992.

      Frederick F. Cohn, of Chicago, for appellant Anthony Chavez.
    Julius Lucius Echeles, of Chicago, for appellant Dean Chavez.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and David Stabrawa, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

This is a consolidated appeal. Defendants Anthony Chavez, Dean Chavez, Edward Manzo, Ralph Gabriel and James Kennedy were charged by indictment with the murder of John Mathews, a Chicago police officer. Following a bench trial, Anthony and Dean Chavez (brothers) were found guilty of second degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(d)), and each sentenced to extended prison terms of 27 years. Gabriel was sentenced to 10 years after being convicted in a separate jury trial, and Kennedy pleaded guilty to murder and received a 20-year sentence. Manzo had not yet been tried as of the date of this appeal. Ralph Gabriel and James Kennedy are not parties to this appeal.

On appeal, defendant Dean Chavez, individually, contends that: (1) the trial court erred in denying his motion to quash arrest and suppress his oral statement because the arrest was not based on probable cause. Dean and Anthony Chavez each contend that: (2) the evidence at trial was insufficient to support convictions of second degree murder; (3) defendants’ sentences of 27 years are excessive where a codefendant who was no less culpable was convicted by a jury and sentenced to 10 years; (4) an extended-term sentence is unconstitutional and contrary to the laws of the State of Illinois; and (5) a 27-year sentence violates the eighth amendment of the United States Constitution. For the following reasons, the judgment of the trial court is affirmed.

MOTION TO QUASH AND SUPPRESS

Prior to trial, defendant Dean Chavez moved to quash his arrest and suppress his arrest statements. Annette Miller testified that she lived at 13106 South Burley Avenue in Chicago with her daughters Susan and Debra. Dean was her daughter Susan’s boyfriend and on occasion shared Susan’s bedroom. Dean had his own key to her house. On Friday, May 20, 1988, at approximately 10 or 11 p.m., she fell asleep on the living room couch. She was awakened by the doorbell and pounding on the front window at approximately 3:45 a.m. She saw a man holding a police badge up to her window, but didn’t see anyone in uniform. She opened the door for the detectives and one of them asked where Susan’s room was. She took the officer to Susan’s bedroom door.

Mrs. Miller knocked on the door and told Susan to open the door. When Susan did not answer, the police started pounding and banging on the bedroom door. Then Debra came out and pounded on the door and told Susan to open the door. Susan opened the door, and Mrs. Miller could see into the room and that Dean was in bed covered up. Mrs. Miller said that the officers told her that there was a party at the lake, and that somebody is dead, but that it was “probably over drugs and it’s nothing to worry about.”

On cross-examination, Mrs. Miller stated that Dean did not pay rent for staying in her home and did not get mail there. Mrs. Miller cleaned her daughter’s room.

Susan Miller testified that on May 20 she came home at 11:30 p.m. and went straight to bed. Dean was not there when she got home, and she did not know he was there until 3:45 a.m., when she heard pounding on the door. She opened the door and a police officer asked who was in the bed. Susan said “my boyfriend, Dean Chavez.” She stated that the officers took Dean out in handcuffs.

Frank DeMarco, a Chicago police department evidence technician, testified that on May 21, he investigated a homicide at 13029 South Avenue M at 2 a.m. He saw that Mathews had been brutally beaten about his head, face and body, and found brain matter and pieces of skull on the ground in a pool of blood 30 feet west of Mathews. He also saw a large piece of concrete and a bloody brick. He took a footwear impression and later made a plaster cast of a gym shoe footprint. There were numerous footwear impressions.

At the scene, DeMarco saw a damaged, yellow Oldsmobile, license number DVG 864, about 50 feet from Mathews’ body and a bloody baseball bat near the rear fender. About 50 to 100 feet away he saw a gray Oldsmobile, license number AMK 270.

Next, Officer Daniel McWeeny testified that on the night of May 21 he went to the scene and saw a damaged, yellow Oldsmobile Cutlass, and a baseball bat floating in the lake. The car was registered to Daniel Chavez. Mathews’ body was 10 to 15 feet from the car.

At 2:30 a.m., while McWeeny was canvassing the neighborhood, he encountered Amy Scalone and Jennifer Nelson. Nelson told him that she and her friends had been at a party at Wolf Lake and that the car they were investigating belonged to Anthony Chavez. She identified the second car in the area as belonging to Dean Chavez. She viewed Mathews’ body and said that he was much smaller than either of the Chavez brothers.

Officer McWeeny asked Nelson if she knew Dean’s and Anthony’s whereabouts. She did not know where Anthony was, but said that Dean would probably be at his girl friend’s home at 13106 South Burley.

Officer McWeeny and four other detectives went to 13106 South Burley at approximately 3:45 a.m. and knocked on the door. Mrs. Miller opened the door and asked McWeeny to identify himself. He did so, told her about the incident at the lake, and said that he wanted to speak with her daughter, Susan Miller. Mrs. Miller said “Why don’t you come in,” and he and Sergeant Manos entered the home.

Mrs. Miller went to Susan’s room and tried to open the door, but found it locked. She knocked on the door and there was no response. Then a younger woman appeared and began knocking on the door. When there was no response, Officer McWeeny said “Why don’t you let me try,” and knocked on the door. Susan finally opened the door. She had a sheet wrapped around her.

Officer McWeeny asked Susan about Dean Chavez. He noticed a figure wrapped entirely in blankets curled up on the bed up against the wall. He asked Susan if the figure was Dean and she glanced over toward the bed but said nothing. Officer McWeeny saw the covers moving and said “Dean, get up. I got to talk to you.” He stepped into the bedroom and turned on the light. Dean got up and stood on the bed and Officer McWeeny noticed a large, fresh wound on Dean’s leg. Then Dean got off the bed and backed away from the officer. As Officer McWeeny approached Dean, he picked up Dean’s pants from the floor to hand to Dean and noticed they were ripped and stained with mud and blood. He saw muddy gym shoes lying next to the pants.

When Officer McWeeny asked Dean what happened at Wolf Lake Dean turned away from him. Officer McWeeny handcuffed Dean and took him to police headquarters, where he removed the handcuffs and read Dean his Miranda rights. Dean stated that he understood his rights. Officer McWeeny told Dean he knew he had been out earlier with his brother Tony and Ed Manzo. Dean did not ask to speak to a lawyer or to make any telephone calls.

Officer McWeeny further testified that at approximately 6:30 a.m., May 21, he learned that the victim was a police officer. At 8 a.m. he again spoke with Dean at the police station. He reminded Dean of his Miranda rights, and Dean stated that he remembered them. Dean did not state that he wanted to speak to a lawyer or family members. Officer McWeeny talked to Dean for about 45 minutes.

At 9:15 a.m. Officer McWeeny called the State’s Attorney’s office. Assistant Joan O’Brien came to police headquarters and interviewed Dean. McWeeny and a court reporter were present when Dean gave a statement to O’Brien which concluded at 12:17 p.m.

Following argument, the trial court denied Dean’s motion to quash arrest and granted Dean’s motion to suppress as to the written statement taken by the court reporter in the presence of Officer McWeeny and Assistant State’s Attorney O’Brien. The court granted defendants’ motion for severance from the trials of Ralph Gabriel, Edward Manzo and James Kennedy, and defendants waived jury requests.

TRIAL

At trial, John Thibault, a Chicago police detective, testified on behalf of the State that he lived at 13107 Avenue M, one-half block south of Wolf Lake, across the street from Mathews. At 11:30 p.m. on May 20 he saw Mathews on his front porch and waved to him. He told Mathews he was going to work in 20 minutes and would be investigating a disturbance. Mathews said, “[D]oes this type of thing happen here all the time[?]” and asked Thibault if he needed help investigating the disturbance. Mathews was wearing a short-sleeved blue shirt and jeans.

Next, Richard Mierniczak, a Chicago police detective, testified that at 11:46 p.m. on May 20 he received a call to investigate a disturbance involving teens and drag racing at 130 Street and Avenue M. He and his partner, Officer Jeannie Hernandez, went to the site of the disturbance, a wooded area adjacent to Wolf Lake. Mierniczak stopped a black Pontiac that was speeding out of the woods. While he was talking to the occupants he saw Mathews walking on the sidewalk. At that time Mathews was wearing a multi-colored flannel shirt and jeans. Mathews asked Mierniczak if he needed any help, and Mierniczak said “no thank you, we’re okay.” As Mierniczak was leaving the area, he saw a yellow Oldsmobile and a gray Oldsmobile parked on a dirt access road that led out of the area.

Approximately 12:45 a.m., Mierniczak and Hernandez returned to the Wolf Lake area. At that time they noticed the yellow Oldsmobile they had seen earlier and saw a body lying next to the shoreline. Mierniczak approached the body and saw that it was male, but did not recognize the body as Mathews’. He saw that Mathews had a massive head injury and that his face was totally covered with blood. Miemiczak told Mathews he would be okay, that help was on the way, and asked him, “[W]ho did this?”

About 25 feet from the body he noticed bloodstains and a very large pool of blood, a concrete brick and a large rock which appeared to have on it human hair and part of a human skull. He also saw a baseball bat floating in the lake about 30 to 35 feet from the shore. On cross-examination he testified that the windshield of the yellow Oldsmobile was shattered and that the front tires were flat.

Next, Peter Wenzel testified that he lived at 13036 Avenue M across the street from Wolf Lake. At 11 p.m. on May 20 he heard the noise of traffic and people partying. He heard the police arrive and break up the party. Close to midnight, the party started up again. At around 12:30 a.m., he heard what sounded like a gunshot.

Timothy Gottardo testified that he lived at 13112 South Mackinaw Avenue. At 1 a.m. on May 21, he was out walking his dog. He saw Kennedy running south along the Conrail tracks. About a minute later, he saw four other men run by. He recognized three of them as Ed Manzo, Tony Chavez and Dean Chavez. The following morning he saw Kennedy with the police.

Next, Robert Baikie, a Chicago police evidence technician, testified that at 2 a.m. on May 22, he saw Mathews’ body two to three feet from the water line at Wolf Lake. The area was wooded and the ground was soft and muddy. In the area he saw a bloody, concrete brick, and beer bottles and cans. He found a footwear impression in the ground and made a cast of it. He also found a knife and a revolver. He stated that the little finger of Mathews’ right hand was missing. He did not dust the yellow Oldsmobile for fingerprints.

Edward Leracz, a Chicago police detective, testified that he went to Wolf Lake at 1:30 a.m. and saw Mathews’ body lying near the water. He saw a yellow car parked close by the body, pulled a baseball bat out of the water, and took it to the evidence technicians. The next day, he returned to the area with Detectives McWeeny and Mark Ho-fer and defendant James Kennedy. Kennedy showed the detectives where they had buried Mathews’ police star case wallet.

Next, Earl Zuelke, a Chicago police sergeant in the marine unit, testified that at 7 a.m. on May 21 he and Officers Zia, Spangnolo and Bahr went to the scene, searched Wolf Lake, and recovered a man’s Timex wristwatch from the bottom of the lake, approximately 68 feet from the shore.

Kevin Bahr, a Chicago police officer in the marine unit, testified that he accompanied Sergeant Zuelke to Wolf Lake at 7:30 a.m. on May 21 and found a tire iron at the bottom of the lake, 29 feet off shore.

Next, Daniel McWeeny testified that on May 21 he went to the home of Susan Miller at approximately 3:45 a.m. and saw Dean Chavez. At that time, he saw that Dean had a very large fresh wound on his right leg. He picked up some clothes from the floor and saw that they were tom, soiled and had red stains that appeared to be blood.

William Higgins, a Chicago police detective, testified that on May 22 at 2:40 a.m. he went to 3052 North Ashland and arrested Ralph Gabriel and Anthony Chavez. He took Anthony to police headquarters and read him his Miranda rights. Anthony stated that he was present at Wolf Lake when Mathews was killed. He admitted ownership of a pair of bloodstained blue jeans.

Next, Joan O’Brien, assistant State’s Attorney, testified that on May 21 she interviewed Dean Chavez at police headquarters. She advised Dean of his Miranda rights and he said he understood them. Dean told O’Brien that he had been at a party at Wolf Lake with Anthony Chavez, Ralph Gabriel, Ed Manzo and James Kennedy. When the police broke up the party, everyone ran off. Shortly thereafter, Dean, Manzo and Kennedy returned to get Dean’s car. They encountered Anthony and Gabriel, who said that someone was “messing with the car.” Dean told O’Brien that someone asked him what he had in the trunk and he got out some baseball bats and a crowbar. Dean and Kennedy each took a bat, and Gabriel took the crowbar. The five men then went back to the area where Dean’s car was parked and saw Mathews. Mathews had a gun in his hand and said “I am a police officer. Don’t mess with me.” Dean told O’Brien that Kennedy hit Mathews from behind in the back of the head, then Anthony and Gabriel wrestled Mathews to the ground to get him to drop the gun. Dean hit Mathews with the bat a couple of times in the back while Anthony had Mathews in a headlock. At some point, the gun went off, but no one was shot. Anthony picked up a rock and hit Mathews in the head several times. Dean told O’Brien that Manzo was there but did not hit Mathews. After that Dean ran into the woods and scratched his leg while jumping over a fence.

The parties then stipulated that Pamela Fish, a qualified expert in serology, would have testified that she analyzed Mathews’ blood and the blood of Dean and Anthony Chavez. She performed serological tests on two pieces of wood found at the scene, on a baseball bat, a concrete brick, and a concrete rock, and determined that the blood on these objects matched the enzyme activity of Mathews’ blood. She also tested clothing belonging to Dean and determined that blood on the clothing matched Mathews’ blood.

It was also stipulated that Bernadette Kwak, a qualified expert in the field of microscopic analysis of trace evidence, would have testified that she conducted an analysis on a pair of boots and found traces of glass, wood, silver and metal particles. She analyzed a folding knife which revealed the “minutest particle of a rubber-like substance.” She also examined a man’s Timex wrist watch and determined that the watch had been forcibly removed.

It was further stipulated that R.N. McCaster, a nurse at Cook County Cermak Hospital, would have testified that on May 23 she treated Anthony Chavez and determined that he had broken the third metatarsal bone in his left hand.

Next, Edward Manzo testified that at 7 p.m. on May 20, he went out with Dean Chavez. They drove around and got a case of beer in Indiana. Then they picked up Ralph Gabriel and James Kennedy and went to the Babe Ruth Little League field to listen to music and drink beer. Around 9:30 p.m. they drove around the neighborhood and encountered Anthony Chavez and his girl friend, Gloria Hunter. Anthony told Dean about a party at Wolf Lake, and they met there at 10:30 p.m. At 11 p.m. the police broke up the party and told everyone to leave. Manzo and the others hid in the woods. After the police left, everyone returned to the scene and continued drinking beer and listening to music.

Manzo said that at 11:50 p.m. the police came and again told everyone to leave. Again, Manzo and the others ran into the woods. When Manzo returned to the area, Anthony and Gabriel were not with the others. Manzo got in Dean’s car with him, they picked up Gabriel, and drove off to find Anthony. They found Anthony at 130th and Carondolet talking on a pay telephone. They drove Anthony to his car.

Manzo, Kennedy and Dean waited in Dean’s car for Anthony and Gabriel. Two minutes later, Anthony and Gabriel came back and told Dean “there’s people fucking with Dad’s car,” and asked Dean if he had anything in the trunk. Dean got out two baseball bats and a tire iron. Dean kept one bat, gave a bat to Kennedy, and the tire iron to Anthony, and they went down the path to the car. Manzo saw Mathews walking towards them as they walked into the path. Anthony asked the man if he was the person that was “fucking with his car.” Manzo said Mathews held a gun and stated “Don’t fuck with the Police. I’m a policeman.” Mathews was walking backwards and then Anthony grabbed him and threw a punch at him. At the same time, Kennedy hit Mathews on the right side of his back with a baseball bat. They were all scuffling and fighting, while Mathews was trying to get away from them.

Manzo went to look at the car and saw that the windshield was broken and the tires were slashed. When he returned to the scene, he heard a gun discharge into the woods, and saw Anthony, Dean, Gabriel and Kennedy beating and kicking Mathews. At that time, Mathews had his hands over his head and he was gurgling and gasping for air. He did not have a gun in his hand.

Manzo said that Dean hit Mathews in the head with a concrete block. Then Anthony told Manzo to help look for the gun and to throw Mathews in the lake. They did not find the gun. Manzo, Dean and Kennedy picked up Mathews and moved him to the shore of the lake, about 40 feet away.

After they dropped Mathews’ body, Dean picked up a baseball bat and said, “Do you still want to fuck with me[?] Well I’ll show you,” and hit Mathews five times in the head with the baseball bat.

Manzo stated that he then heard sirens and he ran back toward the woods. Gabriel ran to move the car. The five men met at the Conrail tracks and Anthony told Kennedy to get rid of Mathews’ police star. Manzo and Anthony ran to Susan Miller’s house, where they met Dean. Dean’s father came and gave Anthony and Manzo a ride home. Anthony called Manzo at home 10 minutes later and told him not to say anything.

Manzo was charged with the murder of John Mathews. He agreed to plead guilty to the charge of concealing a murder and to testify against the others in exchange for two to four years of imprisonment. On cross-examination, Manzo stated that the murder charges against him had been dropped and that he had not yet pled guilty to concealing the murder. Manzo said he signed a written statement on May 21 which did not include his statement at trial that Dean hit Mathews with the bat. Manzo originally did not discuss Dean hitting Mathews because he was nervous and he did not think of it until later. On redirect, Manzo stated that Mathews had tried to walk away before the altercation began.

Next, Mitra Kalekar, the deputy Cook County medical examiner, testified that she performed a post-mortem examination on Mathews on May 21. The test showed that Mathews had multiple injuries about the head and face, and that the back of his head was shattered. She said that the large hole in the back of Mathews’ head was consistent with being hit with a concrete block. She stated that the little finger on Mathews’ left hand was severed and, in addition, he had five broken fingers on both hands. Kalekar stated that the cause of death was multiple injuries delivered by a blunt object. On cross-examination, she stated that Mathews received these wounds as he was attempting to defend himself and that he had no offensive wounds.

The parties stipulated that Laura Mathews would have testified that she was Mathews’ wife, and would have identified the Timex watch as belonging to her husband. The parties also stipulated that Anthony was 23 years old and Dean was 20 years old at the time of the incident.

Following the State’s case in chief, defendants’ individual motions for judgment of acquittal on all counts were denied.

Anthony Chavez then testified on his own behalf that on May 20, he picked up Gloria Hunter and met Gabriel, Manzo and Kennedy at Wolf Lake. He stated that he consumed about 10 beers and was drunk. At about 11:45 p.m., he got into a verbal argument with Brian Mclnturf. As they were yelling at each other, the police arrived and told everyone to leave the park. Anthony left his car and ran through the woods to a pay phone at 130th and Carondolet. He called his father and asked him to pick him up. At that time, Dean drove by and gave Anthony a ride. They drove back to the lake, and Anthony and Gabriel got out of the car and walked back along the dirt road to get the car. Anthony heard air deflating from tires, so he hid in the bushes. He saw a man pull a knife out of the tires and kick in the windshield. Anthony told Gabriel to watch the car while he went to get the others. He told Dean that there were “some people messing with the car” and Dean got two baseball bats and a tire iron out of the trunk. They all ran back to the car.

Anthony confronted Mathews and asked him “why the hell he was messing up my car,” and Mathews pulled out a gun and said “don’t fuck with me.” Anthony took a step back and dropped the tire iron. Then, Kennedy struck Mathews from behind. Anthony grabbed Mathews’ arm to get his gun and the gun went off four inches away from him. They struggled as Mathews kept trying to get away.

On cross-examination, Anthony stated that Dean hit Mathews on his back more than once. He originally thought Mathews might have been Brian Mclnturf. While he was looking for the gun, he found Mathews’ wallet and gave it to Kennedy. He denied telling Gloria Hunter that Kennedy hit a police officer and that he had used a brick to hit Mathews.

Dean Chavez also testified on his own behalf. He testified to the same essential facts as described by Anthony. He denied throwing a rock at Mathews. When he saw a police car coming he ran into the woods and cut his leg when he hopped over a fence. He dropped the bat and left it where he fell, got up and ran to Susan Miller’s home. He denied hitting Mathews repeatedly with a baseball bat after Mathews’ body was moved to the edge of the lake.

On rebuttal, the State called several witnesses. Gloria Hunter testified that when she saw Anthony at 1 a.m., he told her that Mathews had ordered them to stand back and that he was a police officer. Anthony told her that they had beaten Mathews with baseball bats, a brick and a tire iron. On cross-examination, she stated that the police had informed her of the consequences of aiding and abetting a felon. She said that Anthony’s head was bleeding and that his hand was swollen. The next day, it was confirmed to Anthony that Mathews was a police officer.

Officer McWeeny testified that he did not tell Dean to say anything to the assistant State’s Attorney. He also said that the first time he talked with Dean, Dean was reluctant to incriminate his family and that he was emotional, but that he had calmed down by his second interview.

Assistant State’s Attorney O’Brien testified that when she interviewed Dean, he was calm and relaxed. She said that Dean told her that Mathews immediately identified himself as a police officer at the time of the incident.

Following closing arguments, the trial court found Dean and Anthony Chavez guilty of second degree murder. After a hearing in aggravation and mitigation, the trial court sentenced each defendant to extended prison terms of 27 years. Defendants’ timely appeals followed.

Opinion

Initially, defendant Dean Chavez (hereinafter Dean) contends that the trial court erred in denying his pretrial motions to quash arrest and suppress oral statements made after arrest on the grounds that the police had neither consent to search the home of Mrs. Miller nor probable cause to arrest Dean in the Miller home. In response, the State argues that police officers entered the Miller home with Mrs. Miller’s consent and had probable cause to arrest Dean when they saw the fresh wound on his leg and his muddy, bloodstained clothes on the floor.

A trial court’s finding on a motion to suppress will not be disturbed unless it is manifestly erroneous. (People v. Stachelek (1986), 145 Ill. App. 3d 391, 399, 495 N.E.2d 984; People v. Brett (1984), 122 Ill. App. 3d 191, 460 N.E.2d 876.) Whether consent to search was voluntary is a question for the trier of fact to be determined from the totality of the circumstances (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 248-49, 36 L. Ed. 2d 854, 875, 93 S. Ct. 2041, 2059), and will not be set aside unless it is clearly erroneous. People v. McNair (1983), 113 Ill. App. 3d 8, 446 N.E.2d 577, cert. denied (1983), 464 U.S. 860, 78 L. Ed. 2d 164, 104 S. Ct. 185.

The cases relied on by Dean, People v. Johnson (1981), 99 Ill. App. 3d 863, 425 N.E.2d 1215 (opening the door in response to the officer’s statement that he was there to make an arrest was merely acquiescence to authority), People v. Montgomery (1980), 84 Ill. App. 3d 695, 405 N.E.2d 1275 (no consent where the door was opened after police knocked and immediately arrested defendant who stood in hallway), and People v. Householder (1980), 81 Ill. App. 3d 31, 400 N.E.2d 988 (consent to enter not voluntary where defendant blocked the door to stop the officer from entering his apartment), are factually distinguishable from the present case and therefore unpersuasive.

In the present case Mrs. Miller testified that she was awakened by police officers ringing her doorbell and knocking on her door. She opened the door, let the officers in and Officer McWeeny asked her if he could talk to her daughter, Susan Miller. Mrs. Miller went to Susan’s bedroom door, knocked, and told Susan to open the door.

Detective McWeeny testified that he and several other detectives went to the Miller home at 3:45 a.m. on May 21. Mrs. Miller answered the door, asked him to identify himself and then said “Why don’t you come in.” He explained that he needed to talk to Susan. Mrs. Miller then went to Susan’s door and knocked. When there was no response, she tried the door, but it was locked. Mrs. Miller continued to ask Susan to open the door when Susan’s sister Debra appeared and knocked on the door, telling Susan to open the door. At that point Detective McWeeny said to Mrs. Miller, “Why don’t you let me try” and knocked on the door. Susan then opened the door. Based on the record, defendant has failed to show that the the officers lacked consent to enter the Miller home.

Dean argues, in the alternative, that even if Mrs. Miller consented to entry into the Miller home, consent was not granted for entry into Susan Miller’s locked bedroom. Dean contends that he had an expectation of privacy in the bedroom of Susan Miller because he had keys to the house and stayed overnight there on occasion.

Under the common authority test used by Illinois courts, third parties may give consent for search of another’s premises if they generally have joint access or control over searched premises. (People v. Howard (1984), 121 Ill. App. 3d 938, 460 N.E.2d 432; United States v. Matlock (1974), 415 U.S. 164, 171, 39 L. Ed. 2d 242, 249-50, 94 S. Ct. 988, 993.) In cases in which it is established that defendant resides with parents or close relatives, and the parents or relatives consent to a search of defendant’s bedroom, it should be presumed that there is a common authority over the bedroom sufficient to authorize the consent to search. (Howard, 121 Ill. App. 3d at 947.) Lack of common authority can be rebutted with evidence that the child/relative has established exclusive possession of the searched premises, e.g., whether the room is locked and whether the child/relative gave specific instructions not to enter the room. People v. Stacey (1974), 58 Ill. 2d 83, 317 N.E.2d 24.

Dean’s reliance on People v. Rodgers (1981), 96 Ill. App. 3d 416, 421 N.E.2d 203, is misplaced. In Rodgers, the police arrived at the home of defendant to investigate an assault that had occurred in the living room of defendant’s home. Finding no evidence after a general survey of the home, the police engaged in an exhaustive search without consent or a search warrant and found controlled substances. The court held that the police had no authority to conduct the exhaustive search because they had no information about the crime they were investigating. Rodgers, 96 Ill. App. 3d at 417-18, 421 N.E.2d at 205.

The record in the present case does not disclose a fact situation similar to Rodgers. Dean was not found in his own home, but in the home of a third party. In the present case, the record discloses that Susan was a 17-year-old high school student who lived with her mother. She allowed her mother to clean her room and never gave her mother specific instructions not to enter the room. Based on the record, Dean has failed to rebut the presumption that Mrs. Miller had the authority to consent to entry into Susan’s bedroom.

Dean also argues that McWeeny did not have consent to turn on the bedroom light and, therefore, using the light constituted an illegal search. Dean’s argument is without merit. The use of artificial means to illuminate a darkened area simply does not constitute a search and thus triggers no fourth amendment protection. Texas v. Brown (1983), 460 U.S. 730, 75 L. Ed. 2d 502, 103 S. Ct. 1535; United States v. Lee (1927), 274 U.S. 559, 563, 71 L. Ed. 1202, 1204, 47 S. Ct. 746, 748 (“[The] use of a searchlight is comparable to the use of a marine glass or a field glass. It is not prohibited by the Constitution”); United States v. Hanahan (7th Cir. 1971), 442 F.2d 649 (shining a flashlight through the window of a dark garage does not constitute an illegal search).

Next, Dean argues that police lacked probable cause to arrest him. The fourth amendment of the United States Constitution requires that probable cause exist to arrest a person. (U.S. Const., amend. IV.) Probable cause exists when the totality of the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution to believe that an offense has been committed and that the person arrested has committed the offense. (People v. Montgomery (1986), 112 Ill. 2d 517, 494 N.E.2d 475; People v. Moody (1983), 94 Ill. 2d 1, 445 N.E.2d 278.) A trial court’s denial of a motion to quash arrest will not be disturbed on review unless it is manifestly erroneous. Stachelek, 145 Ill. App. 3d at 399.

In the present case, McWeeny simultaneously saw the fresh wound on Dean’s leg and, as he was picking up Dean’s clothes to hand to him, noticed that the clothes were ripped and stained with mud and blood. The record discloses that McWeeny knew that the ground at the crime scene was soft and muddy, that there was a large amount of blood throughout the site, that there had been an altercation, and that the perpetrators had fled the scene.

Dean further argues that Detective McWeeny’s handling of Dean’s pants constituted an iUegal seizure. The State responds that the handling of the pants was proper under the plain view doctrine.

The plain view doctrine allows a police officer to seize an item when (1) the officer is lawfully located in the place where he observed the object, (2) the object is in plain view, and (3) the item’s incriminating nature is “immediately apparent.” (Horton v. California (1990), 496 U.S. 128, 110 L. Ed. 2d 112, 110 S. Ct. 2301; People v. Testa (1984), 125 Ill. App. 3d 1039, 1043, 466 N.E.2d 1126.) The Testa court held that seizure was proper under the plain view doctrine where arresting officers testified that clothing was in plain view when they entered the bedroom of a defendant pursuant to his arrest, officers had a right to be in the bedroom, and officers observed long blond hairs on one of the shirts after the victim told officers that her attacker wore similar clothing and had pulled hair from her head. Testa, 125 Ill. App. 3d at 1042-43.

The record in the present case indicates that Officer McWeeny saw the stained pants on the floor when he entered the bedroom. In addition, McWeeny was present with the consent of Mrs. Miller, and he knew that the ground at the crime scene was muddy and bloody.

Finally, Dean argues that the trial court erred in failing to suppress his oral statement made at police headquarters following his arrest because the police lacked probable cause to arrest him. Based on the facts and circumstances of this case, the record supports the ruling of the trial court that there was voluntary consent to enter the Miller home and probable cause to arrest Dean, and it follows that its ruling was not manifestly erroneous. (Stachelek, 145 Ill. App. 3d at 399.) Thus, the trial court properly denied Dean’s motion to quash arrest and suppress his statements.

Next, both Dean and Anthony contend that the evidence in this case is insufficient to support convictions of second degree murder. Defendants contend their convictions for murder were unjust because they acted in self-defense, i.e., with lawful justification. The State responds that the evidence refuted defendants’ claim of self-defense.

A criminal conviction will not be set aside unless the evidence is so improbable or so unsatisfactory as to raise a reasonable doubt of defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) In reviewing a defendant’s challenge to the sufficiency of the evidence, the court must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found defendant guilty beyond a reasonable doubt. People v. Jimerson (1989), 127 Ill. 2d 12, 43-44, 535 N.E.2d 889, 903.

In Illinois, a person commits second degree murder when he commits the offense of first degree murder and either of two mitigating factors is present. The statutory factor applicable in the present case is that, at the time of the killing, the defendant believed the circumstances to be such that they would justify the killing on self-defense grounds, but his belief was unreasonable. People v. Bosek (1991), 210 Ill. App. 3d 573, 594, 569 N.E.2d 551; Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(a).

Whether the person has acted in self-defense depends upon the surrounding facts and circumstances and is a question for the trier of fact. (Bosek, 210 Ill. App. 3d at 596.) It is axiomatic that determinations of the credibility of witnesses and the weight to be given to their testimony are the function of the trier of fact. The affirmative defense of self-defense is raised only if defendant presents some evidence as to each of the following elements of the defense: (1) force had been threatened against defendant; (2) defendant was not the aggressor; (3) the danger of harm is imminent; (4) the force threatened was unlawful; (5) defendant actually believed that a danger existed, that force was necessary to avert the danger, and that the amount of force he used was necessary; and (6) that the beliefs were reasonable. (People v. Kyles (1980), 91 Ill. App. 3d 1019, 415 N.E.2d 499.) Once defendant has presented some evidence as to each of these elements, the State has the burden of disproving the defense beyond a reasonable doubt. (People v. Estes (1984), 127 Ill. App. 3d 642, 469 N.E.2d 275.) If the State negates any one of the self-defense elements beyond a reasonable doubt, it has met its burden of proof. (People v. Zolidis (1983), 115 Ill. App. 3d 669, 450 N.E.2d 1290.) The issue of self-defense is one of fact. Therefore, it is the function of the trier of fact to resolve any conflicts in the evidence and to determine credibility of the witnesses. (People v. Perry (1980), 91 Ill. App. 3d 988, 415 N.E.2d 523.) On review, the decision of the trier of fact will not be disturbed unless the evidence is so improbable or unsatisfactory as to raise a reasonable doubt of guilt. Zolidis, 115 Ill. App. 3d at 674.

In the present case, the State has proved beyond a reasonable doubt that defendants did not act in self-defense. While the trial court found defendants initially armed themselves in self-defense because they believed Mathews was “criminally damaging their father’s car,” the record shows that their subsequent actions were not taken in self-defense. The record indicates that defendants were two of five men who encountered Mathews at Wolf Lake on the night of the incident. Edward Manzo, one of the five men, testified that Mathews waved a gun at all of them, but continuously backed away from all of them telling them not to “mess with him.” Manzo testified that defendant James Kennedy struck Mathews first. Anthony and Ralph Gabriel wrestled Mathews to the ground and tried to get his gun while Dean hit Mathews with a baseball bat. Dean threw a concrete block at Mathews which hit him in the head. During the incident Mathews had his hands over his head to protect his head and continued to try to get away from defendants. Once Mathews was disarmed and on the ground gurgling and gasping for air, Anthony instructed the others to throw Mathews in the lake.

Defendants’ testimony conflicts with Manzo’s, but where testimony is merely conflicting, a reviewing court will not substitute its judgment for that of the trial court. (People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733.) Moreover, self-defense is no justification for the use of deadly force once the antagonist has been subdued or is lying helpless on the ground. (People v. Berry (1988), 175 Ill. App. 3d 420, 529 N.E.2d 1001.) Keeping in mind that it is the trier of fact’s task to determine the credibility of witnesses and the weight to be accorded their testimony (People v. Florey (1987), 153 Ill. App. 3d 530, 505 N.E.2d 1096), and noting the fact that Mathews’ skull was crushed, his finger was severed and he had many broken bones, the record clearly supports the fact finder’s conclusion that defendants did not justifiably act in self-defense. Berry, 175 Ill. App. 3d at 426.

Next, Dean and Anthony each contend that the trial court erred in finding them guilty of second degree murder on an accountability theory. Pursuant to section 5 — 2(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 5 — 2(c)):

“A person is legally accountable for the conduct of another when:
* * *
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.”

Dean contends that if the others acted excessively, there is no evidence that he aided or abetted in that action, and thus, he cannot be held responsible for the acts of the others present. In the alternative, Dean persists in the argument that he acted in self-defense, and in support offers the fact that he hit his own brother, Anthony, during the struggle breaking Anthony’s hand. Dean further argues that Edward Manzo was not a credible witness because his testimony at trial was impeached by his own prior out of court statement. In response, the State argues that the evidence at trial overwhelmingly supported Dean’s conviction on an accountability theory.

The intent to promote or to facilitate a crime can be inferred from the surrounding circumstances. (People v. Grice (1980), 87 Ill. App. 3d 718, 410 N.E.2d 209.) The testimony of a single eyewitness is sufficient to support a conviction, provided that the witness is credible and the circumstances were such that would permit a positive identification. (People v. Nightengale (1988), 168 Ill. App. 3d 968, 523 N.E.2d 136.) It is the function of the trier of fact to determine the credibility of the witnesses and the weight to be afforded their testimony, and the trier of fact may reject defendant’s explanations and accept the prosecutor’s evidence as true. People v. Burke (1985), 136 Ill. App. 3d 593, 483 N.E.2d 674.

In the present case, the surrounding circumstances demonstrate Dean’s guilt of second degree murder on the accountability theory beyond a reasonable doubt. As was previously stated, Manzo testified that Anthony threw a punch at Mathews and wrestled him to the ground while Dean hit Mathews with a baseball bat. Dean threw a concrete block at Mathews’ head. After Mathews was no longer moving, Dean, Manzo and Kennedy picked up Mathews’ body and moved him to the lake. When defendants and the others heard police sirens, they ran away.

Regarding Anthony’s contention that he is not liable on an accountability theory, Anthony argues that there is no evidence that he ever hit Mathews after the initial incident, where he wrestled him to the ground, nor is there evidence that he aided and abetted the others in hitting Mathews. Anthony claims he only had Mathews moved to find the gun, and that was for the purpose of self-defense. In response, the State argues that the facts clearly establish Anthony’s accountability for second degree murder.

When finding a party guilty under an accountability theory, the criminal acts committed do not have to result from a preconceived plan, provided the evidence indicates involvement on the part of the accused in the spontaneous acts of the group. (People v. Hudson (1988), 165 Ill. App. 3d 375, 378, 519 N.E.2d 28.) While mere presence at the scene or mere acquiescence in another’s actions is ordinarily insufficient to establish accountability, one may be held to aid and abet without physically participating in the overt act. (People v. Miscichowski (1986), 143 Ill. App. 3d 646, 655, 493 N.E.2d 135.) If the evidence shows that defendant was present at the scene of the offense without disapproving or opposing it, the trier of fact may consider this conduct along with other circumstances in determining whether defendant assented to the commission of the offense and thereby aided and abetted the actor. (Miscichowski, 143 Ill. App. 3d at 656; People v. Young (1983), 116 Ill. App. 3d 984, 452 N.E.2d 718.) Similarly, failure to report the incident is relevant to establishing accountability. (Young, 116 Ill. App. 3d at 994; People v. Watson (1982), 106 Ill. App. 3d 315, 436 N.E.2d 7.) Defendant’s flight from the scene may also be considered. Miscichowski, 143 Ill. App. 3d at 656.

The evidence in the present case shows that Anthony was present during the entire incident, that he wrestled Mathews to the ground, and that he later directed Kennedy to take Mathews’ police star and Manzo to move Mathews’ unconscious body to the lake. The evidence also shows that Anthony fled the scene of the crime and that later that night he told Manzo not to say anything to the authorities. There is no evidence that Anthony attempted to disassociate himself from the others, or that Anthony exhibited opposition or disapproval of the actions of the others during the incident. This evidence was sufficient to support both Dean’s and Anthony’s convictions on a theory of accountability.

Next, Dean and Anthony each contend that the trial court erred in sentencing them to extended terms of 27 years for second degree murder. The sentencing decision of a trial court is entitled to great deference and weight (People v. LaPointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344), and absent an abuse of discretion by the trial court, a sentence may not be altered upon review. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) An appellate court will not substitute its judgment for that of the trial court merely because it would have balanced the appropriate factors differently had it been charged with the task of sentencing (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541), especially where the sentence imposed by the trial court is within the statutory limitation. People v. Lambrechts (1977), 69 Ill. 2d 544, 372 N.E.2d 641.

Second degree murder is a Class 1 felony, punishable by not less than four years but not more than 15 years. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(aX4).) A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by section 5 — 8—1 unless the factors in aggravation set forth in section 5 — 5—3.2(b) are found to be present. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—2(a).) Where the judge finds such factors present, he may sentence an offender to an extended term of between 15 and 30 years. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—2(a)(3).) The presence of one of the statutory factors in section 5 — 5—3.2(b) will suffice for the imposition of an extended-term sentence. Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(b); People v. Woods (1984), 122 Ill. App. 3d 176, 182, 460 N.E.2d 880, 885.

Defendants argue that their sentences should be reduced to 10 years because Ralph Gabriel received a 10-year sentence on his conviction for second degree murder. Disparity between sentences will not be disturbed where it is warranted by differences in the codefendants’ criminal records, their rehabilitative potential, or the nature and extent of their participation in the offenses. People v. Dixon (1985), 133 Ill. App. 3d 1073, 480 N.E.2d 128.

In the present case, the record shows that the court considered that Gabriel kicked Mathews several times. The record shows that Dean hit Mathews with a baseball bat while he was attempting to flee, and that both defendants beat Mathews while he was gurgling and gasping for air. Dean threw a concrete block at Mathews’ head, the impact of which shattered Mathews’ skull.

The record in this case indicates that defendants were sentenced to 27 years’ imprisonment, which is well within the statutory guidelines for an extended term for a Class 1 felony such as second degree murder. (See Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—2(a)(3) (for a Class 1 felony, a term shall be not less than 15 years and not more than 30 years).) The court found defendants’ conduct to be brutal and heinous and “one of the most brutal and vicious attacks ever presented before this court.” The record also shows that the trial court considered various factors necessary to determine appropriate sentences, including appropriate sentencing range, rehabilitation, and prior criminal record. The record indicates that the court considered that Dean is a high school graduate and held two jobs, that he engaged in athletics and that he had no prior criminal record, and that Anthony finished high school, served in the army, received an honorable discharge, was employed for two years, and had no prior criminal record. Based on these facts, defendants have failed to show that the trial court erred in sentencing.

Dean and Anthony next contend that an extended-term sentence is inconsistent with a conviction for second degree murder.

Defendants rely on People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520. But, in a recent case, this court found Evans to be unpersuasive as authority for defendants’ proposition. (People v. Pirrello (1991), 207 Ill. App. 3d 208, 565 N.E.2d 324; see also People v. Lindsay (1990), 193 Ill. App. 3d 983, 550 N.E.2d 719 (19-year extended-term sentence for second degree murder upheld).) Extended term is therefore consistent with a conviction on second degree murder.

Finally, Anthony and Dean contend that section 5 — 5— 3.2(bX2) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(b)(2)) is vague and violative of the eighth amendment prohibition against cruel and unusual punishment. This argument has been rejected repeatedly (People v. La Pointe (1981), 88 Ill. 2d 482, 499-500, 431 N.E.2d 344; People v. Peeples (1989), 184 Ill. App. 3d 206, 212, 539 N.E.2d 1376; People v. Cooper (1985), 136 Ill. App. 3d 517, 528, 483 N.E.2d 309; People v. Sanford (1983), 116 Ill. App. 3d 834, 844, 452 N.E.2d 710), and we do the same.

For the aforementioned reasons, the judgment of the trial court is affirmed.

Affirmed as modified.

O’CONNOR and MANNING, JJ., concur.

      Note that throughout the record the names “Tony” and “Anthony” are used interchangeably and refer to the same defendant. The notice of appeal uses the name “Tony Chavez,” while the order of sentencing and commitment uses “Anthony Chavez.” In addition, the appendix to the trial record refers to the testimony of “Anthony Chavez," and defendant so identifies himself on the witness stand.

      Ralph Gabriel’s conviction and sentence were affirmed in a Rule 23 order (People v. Gabriel (1st Dist. 1990), No. 1 — 89—2583).


source: Caselaw Access Project

author: PRESIDING JUSTICE HARTMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THERMAN WALKER, Defendant-Appellant.
    First District (2nd Division)
    No. 1—89—2847
    Opinion filed March 31, 1992.
    Rehearing denied May 6, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Beth I. Solomon and Vicki Rogers, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Theodore Burtzos, Marie Quinlivan Czech, and Jeanne Lobelson, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Defendant, Therman Walker, appeals his conviction by a jury on three counts of armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18— 2(a)), and his three concurrent life sentences as an habitual criminal (Ill. Rev. Stat. 1989, ch. 38, par. 33B — 1). On appeal he questions whether (1) the circuit court erred in denying his motion to suppress evidence due to an improper inventory search; (2) the State violated Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (Batson), by exercising peremptory challenges based upon race; (3) the court and the State made improper remarks before and during trial; and (4) there was insufficient evidence to support his sentencing as an habitual criminal.

During a hearing on defendant’s motion to quash arrest and suppress evidence, the following evidence was adduced.

Defendant testified that on August 5, 1987, he was driving his brother’s 1978 Oldsmobile, looking for a friend’s house in Harvey, Illinois. Sidney Carver was his passenger. Defendant pulled the car off the road, turned out the headlights and exited the car to look at addresses. An unmarked police car pulled in front of him. Police officers alighted, threw him against the car and asked him where he was going. A search of defendant produced a pistol. Defendant and Carver were arrested and taken to a police station.

Dixmoor Detective Sergeant Michael R. Morgan testified that he was with his partner, Officer Terry Price, watching local drug houses, when he observed the vehicle driven by defendant fail to stop at a stop sign. The police followed and next saw that the automobile was parked, its lights extinguished, blocking traffic. Sgt. Morgan saw defendant leave and walk away from the vehicle. He drove his vehicle so as to block defendant’s path.

Officer Price left his vehicle and spoke to defendant, while Sgt. Morgan approached him from behind. Sgt. Morgan noticed the butt of a gun in defendant’s pocket. As defendant reached for the gun, Sgt. Morgan grabbed him and the outside of the gun pocket, pushed him against the side of the automobile, took his gun, handcuffed him and placed him in the back of the police car. He and Officer Price ordered Carver out of the car, checked him for weapons, and placed him in another officer’s vehicle to be driven to the police station. He instructed Officer Price to drive defendant’s vehicle to the same station in Dix-moor. He drove defendant to the Dixmoor station in the squad car.

There was no storage facility for autos at the Dixmoor police station and defendant’s vehicle would have to be transferred to a private facility, according to Sgt. Morgan. Preparatory procedures required that, before transfer, the vehicle must be searched for valuables; these are inventoried and held for safekeeping by the police to be returned to the owner. At the station the officers conducted such an inventory search on defendant’s vehicle, before sending it to private storage. Sgt. Morgan found a “flowered bag” containing a sawed-off shotgun, shells and gloves, trader the driver’s seat. The serial numbers and manufacturer’s name were filed off the shotgun. In the trunk, Officer Price found some clothes and identification and credit cards in one of the jacket pockets. The cards were not in defendant’s or Carver’s name. Upon contacting the owners, Sgt. Morgan was informed those items were taken during an armed robbery in Chicago. Sgt. Morgan then contacted Chicago police and defendant was transferred to the Chicago police department for lineup purposes.

At the Chicago police lineup, defendant was identified as one of two men who committed an armed robbery in Chicago on July 24, 1987. He was indicted by a grand jury on three counts of armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2(a)). Defendant requested a jury trial.

Following argument at the suppression hearing, defendant’s motion was denied. The circuit court found, based on the evidence, that defendant was properly arrested on a weapons charge; movement of defendant’s vehicle from the street to impoundment was proper; and the inventory search incident to impoundment was reasonable. The case proceeded to trial.

At trial, Michael Memmer testified that on July 24, 1987, he was working along with Michael Hogan at a retail shop in Chicago. Two customers were present at approximately 3:15 p.m., when defendant entered the store with Carver. Defendant approached him and asked to buy an item. When Memmer opened the cash register, defendant put a gun in his side and walked him to the back of the store. Memmer and Randy Evans, a customer, were ordered to lie on the floor. Carver, carrying a shotgun, directed Hogan and another customer to the same area. They were instructed to turn over their wallets; one customer was told to relinquish her handbag. Hogan and Evans surrendered their wallets; Memmer gave up his money. After the perpetrators left, Memmer called the police, at which point he noticed the cash register was emptied of about $200. He identified the shotgun and pistol as the weapons used by defendant and Carver, which were the same firearms confiscated by Dixmoor police during the inventory search of the auto. Memmer testified that he had identified defendant in a Chicago police lineup and he identified defendant in court as the same person.

Evans and Hogan substantially corroborated Memmer’s testimony. They identified the cards and identification taken from them and recovered by Dixmoor police from the auto. Hogan identified the shotgun used by Carver. Evans related that he identified defendant at a lineup and identified him in court as well.

Sgt. Morgan identified at trial the items taken and the weapons used during the robbery as those found on defendant’s person and in the car defendant was driving the night of the arrest. His testimony at trial tracked his description of events previously asserted at the suppression hearing, which were corroborated by Officer Price. Officer Price also identified the shotgun used by Carver and Hogan’s and Evans’ belongings as being recovered from the automobile the night of the arrest. Both officers identified defendant in court.

Chicago police officer Andrew Sobolewski, who transported defendant from Dixmoor to Chicago police headquarters, asserted he was present when Memmer and Evans identified defendant in a lineup. He further identified defendant in court.

Defendant’s motion for a directed verdict at the close of the State’s case in chief was denied. Defendant’s wife testified as defendant’s only witness and reported that his brother, Lawrence, owned a 1978 Oldsmobile.

This appeal proceeds from the jury verdict and sentencing first noted.

I

Defendant initially urges that his vehicle was not lawfully impounded and the subsequent search was improper; therefore, the circuit court improperly denied his motion to suppress.

The circuit court found that the two officers approached defendant because he failed to stop at a stop sign; as one officer engaged in conversation with defendant, the other recovered a pistol partly visible in defendant’s right-hand pants pocket; and, at that point, the police had probable cause to arrest defendant for unlawful use of a weapon. The court further found that moving the automobile from the scene was reasonable because defendant and Carver were in custody and leaving the car where it was would have created a traffic hazard. This finding was supported by Sgt. Morgan’s testimony that the car was blocking traffic and photographs of the road at the court’s disposal. Police have authority to seize and remove from the roadway vehicles impeding traffic and threatening public safety. (People v. Schultz (1981), 93 Ill. App. 3d 1071, 1076, 418 N.E.2d 6.) The decision of the circuit court in this context will not be disturbed unless it is manifestly erroneous. (People v. Neal (1985), 109 Ill. 2d 216, 218, 486 N.E.2d 898.) The court’s finding here that the car was properly impounded was not manifestly erroneous.

Defendant nevertheless asserts that police were required and failed to use less intrusive alternatives, such as giving the car to Carver or asking defendant if he could make other arrangements, citing People v. Velleff (1981), 94 Ill. App. 3d 820, 419 N.E.2d 89, and People v. Valdez (1980), 81 Ill. App. 3d 25, 400 N.E.2d 1096.

In Velleff, the court found the police did not have a right to take custody of defendant’s automobile because less intrusive alternatives were available (Velleff, 94 Ill. App. 3d at 823-24); however, there was no indication that the car in Velleff was creating a traffic hazard, as here. In Valdez, the court found the police had no authority to remove a vehicle, for the automobile was in a private parking lot, rather than obstructing a public road as in the present situation. (Valdez, 81 Ill. App. 3d at 29.) Neither case has application to these facts.

Defendant insists that the inventory search was not conducted pursuant to standard procedures and left too much discretion to the officers. Sgt. Morgan, while conducting the search, found a flowered bag on the driver’s side of the car under the seat. Upon holding the bag, he felt a trigger guard and the butt of a sawed-off shotgun; he opened the bag and found a shotgun, three shells and a pair of rubber gloves. A search of the trunk revealed, in a jacket pocket, the identification and credit cards previously mentioned. Defendant maintains the opening of the bag and searching of the jacket pocket violated defendant’s fourth amendment rights.

Two purposes of an inventory search are to safeguard a defendant’s property while in police custody and to guard police from danger. (South Dakota v. Opperman (1976), 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092.) In addition, it is clear that such a search would also deter the lodging of unfounded claims for property alleged to be missing. The search must be conducted pursuant to standard procedures, standardized criteria or established routine in order to prevent the inventory search from becoming a ruse for a general rummaging in the pursuit of incriminating evidence. Florida v. Wells (1990), 495 U.S. 1, 109 L. Ed. 2d 1, 110 S. Ct. 1632.

Here, Sgt. Morgan testified that looking into jacket pockets in order to search for valuables was in accord with procedure, although no policy had been articulated allowing a search of containers in a car. (Wells, 495 U.S. at 4-5, 109 L. Ed. 2d at 8, 110 S. Ct. at 1635; People v. Lear (1991), 217 Ill. App. 3d 712, 577 N.E.2d 826.) Nevertheless, once the officer held the bag taken from under the driver’s seat, he became aware that it contained a weapon, having felt a trigger guard and the butt of a sawed-off shotgun. Contrary to defendant’s urgings, this is unlike Lear, where the court prohibited the opening of a bag when there was no policy to do so and no indication as to why the officer thought or how certain the officer was that the bag contained a weapon. Here, the officer had substantial reason to believe that the bag contained a weapon. The officer opened the bag to protect his safety or that of those who may be harmed by the eventual use of the weapon. He also was aware that another car was previously broken into at the pound, the subject vehicle’s eventual destination. Opperman, 428 U.S. at 373-75, 49 L. Ed. 2d at 1007-08, 96 S. Ct. at 3099-3100.

The court’s findings with respect to the suppression motion were not manifestly erroneous.

II

Defendant next claims the State used its peremptory challenges to exclude jurors on the basis of race. During voir dire, the State exercised five peremptory challenges; four were used against black prospective jurors. The circuit court found that a prima facie case existed, sufficient to question whether the State had used its challenges to exclude blacks from the jury.

Once a defendant has established a prima facie case of discrimination, the burden shifts to the State to provide a race-neutral explanation for each peremptory challenge to which an objection was lodged. The explanations must be clear, reasonably specific, legitimate and nonracial. (People v. Kindelan (1991), 213 Ill. App. 3d 548, 555, 572 N.E.2d 1138.) The circuit court’s determination will not be set aside unless it is against the manifest weight of the evidence. Since this determination is based upon credibility, the circuit court’s ruling is given great deference. Kindelan, 213 Ill. App. 3d at 555.

The State asserted that one black prospective juror was excluded because he was previously arrested and charged with armed robbery. A second such juror was excused when she hesitated upon being asked whether she could be fair to both sides, as also noted by the court; she never had been a crime victim. The third juror was excused by the State because her demeanor indicated a lack of honesty. The State excused the final black prospective juror, a free-lance journalist, because it believed she would not have an open mind, but would gather facts to write a story, rather than giving her full attention to the case; further, she was never a crime victim. After hearing these explanations, the court concluded the exclusions were not race-based, stating that the reasons given could be “absolutely specious,” dumb and stupid as long as they are not race-based. The court scrutinized the reasons given for the exclusion of each juror and was convinced they were legitimate and not race-based. (Kindelan, 213 Ill. App. 3d at 555.) Defendant contends, as in Kindelan, the State lacked the information its reasoning was based upon. In Kindelan, however, the State lacked pertinent information and the court did not scrutinize the State’s explanations, neither of which circumstances existed here.

Defendant also contends the reasons given were not sufficient because several of the accepted jurors had some of the same qualities given for the exclusions: they were never victimized by a crime, and two did not own their homes. The court was in the best position to make this determination; further, these were not the sole reasons given for excluding the potential jurors. The court’s findings were not against the manifest weight of the evidence.

Ill

Denial of a fair trial by reason of the circuit court’s alleged display of animosity toward defense counsel and the State’s improper closing argument is the basis for defendant’s next point of error.

Defendant initially points to two remarks by the court, one informing defense counsel he already had his chance to respond and to refrain from debating with the court, and the second, stating the court’s observations as to the jury selection process. Both were spoken outside the presence of the jury and, therefore, could not have affected the verdict.

Several other comments by the circuit court were directed toward defense counsel in the presence of the jury. No objection to them was made at trial, however. Due to the practical difficulties inherent in objecting to the conduct of a judge, this issue is not waived. (People v. Heidorn (1983), 114 Ill. App. 3d 933, 936, 449 N.E.2d 568.) Comments by a court do not require reversal unless they are prejudicial and harm defendant. The verdict will not be disturbed unless the court’s remarks constitute a material factor in the conviction or unless prejudice to defendant appears to be their probable result. (Heidorn, 114 Ill. App. 3d at 937.) Further, a proper jury instruction may reduce the prejudicial effect. Heidorn, 114 Ill. App. 3d at 938.

Each comment by the court objected to by defendant here was related to the court’s ability to ensure that the proceedings follow in a dignified and orderly fashion (People v. Griffin (1990), 194 Ill. App. 3d 286, 294, 550 N.E.2d 1244), or to the court’s wide discretion in conducting a trial (Heidorn, 114 Ill. App. 3d at 936). These comments were directed, in part, to defense counsel’s disobedience of the court’s previous rulings; they did not belittle or attack counsel. Additionally, the jury was instructed that neither by the instructions nor by ruling or remark which the court made did it mean to indicate any opinion as to the facts or as to what the verdict should be. This instruction reduced any potentially prejudicial effect. Heidorn, 114 Ill. App. 3d at 938.

Defendant maintains also that the State’s closing arguments denied him a fair trial, claiming they were made to convince the jury that defendant had a propensity to commit crimes, to diminish defendant’s presumption of innocence and to impugn defense counsel’s integrity.

Defendant failed to object to all but one comment, regarding defendant’s possession of a gun at the time of his arrest. Failure to object to an allegedly improper closing argument or raise the issue in a post-trial motion constitutes waiver of the issue on appeal absent plain error. (People v. Odle (1988), 128 Ill. 2d 111, 133-34, 538 N.E.2d 428.) Plain error may be considered only in cases where the evidence is closely balanced (People v. Gacho (1988), 122 Ill. 2d 221, 239, 522 N.E.2d 1146); the evidence of defendant’s guilt in the present case is overwhelming. Considering the one comment which was not waived, defendant was not denied a fair and impartial trial, for the jury would have reached the same result absent any of the remarks. (People v. Witted (1979), 79 Ill. App. 3d 156, 165, 398 N.E.2d 68.) All statements relating to defendant’s arrest for possession of a gun were proper to demonstrate defendant’s identity. (People v. Stewart (1984), 105 Ill. 2d 22, 62, 473 N.E.2d 840.) Each comment raised was either based on a reasonable inference drawn from the facts in evidence (People v. Franklin (1990), 135 Ill. 2d 78, 100, 552 N.E.2d 743), invited by defense counsel’s argument (People v. Dixon (1982), 91 Ill. 2d 346, 350-51, 438 N.E.2d 180), or served to discredit defense counsel’s argument (People v. Phillips (1989), 127 Ill. 2d. 499, 526, 538 N.E.2d 500). Such comments do not constitute reversible error.

In light of the overwhelming evidence of defendant’s guilt, the prosecutor’s utterances could not have affected the verdict. The court instructed the jury also that argument is not evidence and that argument not based on the evidence should be disregarded. (People v. Scott (1990), 194 Ill. App. 3d 634, 644, 551 N.E.2d 288; Witted, 79 Ill. App. 3d at 165.) There are no bases for disturbing the jury’s verdict in this regard.

IV

Defendant asserts he was wrongfully sentenced to life imprisonment because the State failed to prove his two prior Class X felony convictions beyond a reasonable doubt.

The Habitual Criminal Act (Ill. Rev. Stat. 1989, ch. 38, par. 33B— 1 et seq.) provides a sentence of life for individuals convicted of three Class X felonies within a 20-year period. The State must prove the material allegations in its petition beyond a reasonable doubt. People v. Davis (1990), 205 Ill. App. 3d 865, 872, 563 N.E.2d 869.

Certified copies of conviction statements demonstrating defendant’s prior criminal record are prima facie evidence of that record, but are not alone adequate to meet the burden of proof. (People v. Gill (1988), 169 Ill. App. 3d 1049, 523 N.E.2d 1239.) There must be evidence that the person named in the record and defendant are identical. Gill, 169 Ill. App. 3d at 1057.

The State submitted two certified copies of conviction statements. The first copy contains defendant’s name, raising a rebuttable presumption that it identifies defendant. (People v. Davis (1983), 95 Ill. 2d 1, 31, 447 N.E.2d 353.) Defendant claims that this presumption was successfully rebutted.

Regarding the first conviction, the statement lists the indictment date as February 27, 1976, and the arraignment date as March 14, 1975, an impossibility because an indictment takes place before an arraignment. All other dates are marked within the year 1975, however, including the conviction date, which could not have occurred before the erroneous 1976 date of indictment. As the State argued, the error was typographical. Second, defendant asserts the presumption was rebutted because the State’s petition to sentence defendant to life imprisonment lists November 21, 1975, as the date defendant pled guilty; however, a different date, November 17, 1975, is listed on the conviction statement. The State produced witnesses who made in-court identifications of defendant, including the assistant State’s Attorney who prosecuted him and the officer who arrested him for the 1975 offense. The State proved beyond a reasonable doubt that defendant was the person previously convicted.

As to the second conviction, defendant argues that the State did not carry its burden, pointing to assertedly contradictory testimony of the State’s witnesses.

Lt. Knightly testified that defendant was the person he saw commit a robbery and shoot a gun at him in 1979. At a jury trial, he testified against defendant. A second policeman, Officer Gaiter, identified defendant as the person he apprehended for the robbery in 1979, stated there was a trial, but could not remember whether or not he testified at defendant’s trial. A third policeman, Officer Shannon, testified that defendant and a codefendant were arrested on February 28, 1979, and he testified at defendant’s trial. The assistant State’s Attorney, who prosecuted the trial in question, testified that defendant pled guilty and a codefendant was found guilty by a jury on the same offenses.

Defendant interprets this testimony as leaving doubt about his identity as the one previously convicted. Although there may be a question as to how defendant was convicted, all three officers identified defendant in court, asserting that they witnessed his arrest on February 28, 1979. The assistant State’s Attorney correctly testified that defendant pled guilty. There were two offenders. One pled guilty; the other was found guilty. This explains any ambiguity raised by the officers’ memories as to how defendant was convicted. The State has proved defendant was previously convicted of the alleged acts beyond a reasonable doubt. Davis, 205 Ill. App. 3d at 872.

Lastly, defendant urges that the double jeopardy clauses of the United States and Hlinois Constitutions preclude his resentencing as an habitual offender, relying on Bullington v. Missouri (1981), 451 U.S. 430, 68 L. Ed. 2d 270, 101 S. Ct. 1852, where the Court held that the protection of the double jeopardy clause is extended to defendants with respect to death penalty retrials. (Bullington, 451 U.S. at 446, 68 L. Ed. 2d at 283-84, 101 S. Ct. at 1862.) We need not reach this issue, however, since the evidence presented by the State properly proved only that defendant here was the same person previously convicted of the two Class X felonies within a 20-year period.

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

Affirmed.

DiVITO and McCORMICK, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TANYA BOYCE, Defendant-Appellant.
    First District (2nd Division)
    No. 1—90—0912
    Opinion filed March 31, 1992.

      Michael Pelletier and Alan Goldberg, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and David Stabrawa, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Following a bench trial defendant, Tanya Boyce, was convicted of possession with intent to deliver more than 1 but less than 15 grams of a substance containing cocaine. (Ill. Rev. Stat. 1987, ch. 561/2, par. 1401(b)(2).) She was sentenced to the mandatory minimum sentence of four years’ imprisonment without probation. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3(c)(2)(D) (section 5 — 5—3(c)(2)(D)).) She contends on appeal that (1) the mandatory minimum sentence of section 5 — 5— 3(c)(2)(D), without possibility of probation, periodic imprisonment or conditional discharge violates the due process clause of the Illinois Constitution (Ill. Const. 1970, art. I, §2) and the equal protection clauses of the Illinois and United States Constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2); and (2) this penalty is disproportionate to the nature of the offense in violation of article I, section 11, of the Illinois Constitution (Ill. Const. 1970, art. I, §11) and the eighth amendment of the United States Constitution (U.S. Const., amend. VIII).

Defendant was tried by the court concurrently with Eddie Brisbon, codefendant, who requested a jury trial. The following facts were adduced at trial.

Chicago police officer Michael McMeel testified that on October 25, 1988, he and his partner, Officer Edward May, after observing a large amount of narcotics trafficking near a liquor store at 1600 South Homan Avenue, set up surveillance. Officer McMeel, who had worked that area for 10 years, was a tactical officer and had observed thousands of drug transactions. Waiting behind a porch at the front of the building with a pair of binoculars, he observed defendant and co-defendant standing three feet apart in the area of 1602 South Homan Avenue. The area was well lit by street lights and light from the liquor store.

Defendant was near a telephone booth; codefendant conversed with others. After receiving money, codefendant walked over to defendant and handed her the money. She put it in her purse. Defendant then reached into her right-hand jacket pocket, produced a white folded paper packet and handed it to codefendant, who gave it to the person who handed him the currency. This occurred three times in less than 10 minutes.

Officer McMeel radioed for Officer May to pick him up in the alley. After reentering the vehicle, they proceeded to the observed area. Officer McMeel approached defendant, identified himself and removed 65 white paper packets, which he believed to be cocaine, from her right-hand jacket pocket. Her purse contained $105 and white pieces of paper which he thought were notes regarding narcotics trafficking.

After arresting defendant and advising her of her Miranda warnings, defendant told Officer McMeel that on the paper were two job descriptions, a holder and a seller, adding that she “held” the “dope” for $125 per week. The officer described defendant as a holder and codefendant as the salesperson. He thought defendant was not a major street dealer, but was working for one.

Chicago police officer Edward May’s testimony tracked that of Officer McMeel.

Laurie Lewis, a forensic chemist employed by the Chicago police department, testified that she received 65 stapled white paper packets. She tested seven, which contained 1.57 grams of cocaine. The total weight of all the packets was estimated at 14.5 grams. An additional 18 packets also tested positive for cocaine. The cocaine in the 25 tested packets weighed a total of six grams.

Defendant’s and codefendant’s motions for findings in their favors were denied. The State rested. Following codefendant’s case, rebuttal and surrebuttal, the jury was excused and defendant put on her case.

Defendant testified that on October 25, 1988, at about 9:30 p.m., she was standing outside a store at 16th and Homan talking to her friends. Two or three other people were present. At this point, she had no controlled substances in her possession.

After buying food at the liquor store, her friend Tim asked her if she “still wanted to help hold some packs.” Previously she had told him “no,” but this time she agreed, putting the packets in her pocket, which she possessed when she was arrested. Her friend also gave her a black bag which contained paper and money. Defendant denied awareness of the contents or writing names or numbers on the paper while she was there. She knew, however, she was given drugs to hold.

She related that Officer McMeel grabbed her, “pet[ted]” her, removed the packets and the pouch, handcuffed her and put her in the car. Although she knew codefendant, she denied he was taking money and drugs back and forth from her. At no time did she deal, sell, walk to cars or bring people to her for drugs. She only held them. She did not agree to deal or for codefendant to act as her courier. Defendant denied speaking to codefendant that night about selling drugs.

On cross-examination, she denied that Officer McMeel recovered the amount claimed from her or that she told police she was selling drugs with codefendant. The person who gave her the cocaine had already left.

The jury found codefendant not guilty of possession of a controlled substance with intent to deliver; however, the court found defendant guilty of possession with intent to deliver. The court sentenced her to four years in custody of the Department of Corrections.

I

Defendant asserts that the sentencing provision which denies probation for conviction of possession of more than five grams of a substance containing cocaine with intent to deliver (section 5 — 5— 3(c)(2)(D)) violates due process and equal protection. Under this section, defendant will not be allowed probation, a term of periodic imprisonment or conditional discharge for a violation of section 401(b)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 561/2, par. 1401(b)(2) (section 401(b)(2))), which relates to more than five grams of a substance containing cocaine or an analog thereof. In addition to cocaine, section 401 makes it illegal to possess with intent, manufacture or deliver several other controlled substances. Defendant asserts that by enacting section 5 — 5—3(c)(2)(D), which denies probation only for cocaine offenses under section 401, due process and equal protection were violated.

The General Assembly has wide discretion in classifying offenses and penalties. Equal protection requires that similarly situated persons be treated equally, however. (People v. Brooks (1989), 179 Ill. App. 3d 767, 770, 534 N.E.2d 1063.) In determining whether a statutory provision violates the equal protection clause, it is presumed the classification is valid and will be upheld upon any reasonable basis. (People v. Hermann (1988), 180 Ill. App. 3d 939, 947, 536 N.E.2d 706.) Here the classifications created are violations of section 401 for possession with intent to deliver cocaine and possession with intent to deliver other controlled substances.

The purpose of section 401(b)(2) is to punish delivery of cocaine more severely than that of other drugs due to the crack epidemic, the unique availability of the drug and because the ingestion of a small amount could lead to addiction, serious disablement or death. (People v. Pehrson (1989), 190 Ill. App. 3d 928, 547 N.E.2d 613.) For these reasons, a stiffer penalty is justifiable for cocaine-related crimes. (See Brooks, 179 Ill. App. 3d at 770.) Defendant asserts that there is no rational basis for singling out cocaine, that there is no proof cocaine is more harmful to the body than some other substances, and that cocaine, in having been included as a schedule II drug along with opium, opium derivatives, amphetamines, methamphetamines, phencyclidine and others (Ill. Rev. Stat. 1987, ch. 56V2, par. 1206), requires that its involvement not be treated so severely. These contentions pale beside the legislature’s concerns, as identified in Pehrson, and must be rejected.

Additionally, defendant maintains that section 5 — 5—3(c)(2)(D) violates the due process clause of the Illinois Constitution. Due process is violated when a provision is not reasonably designed to remedy the evils which the legislature determined a threat to the public health, safety and general welfare. People v. Bradley (1980), 79 Ill. 2d 410, 417, 403 N.E.2d 1029 (Bradley).

The intent of the Illinois Controlled Substances Act is not to treat users or occasional petty distributors as severely as large-scale unlawful purveyors and traffickers of controlled substances. This is effectuated in part by allowing latitude in sentencing discretion to the courts. (Ill. Rev. Stat. 1987, ch. 561/2, par. 1100.) Based upon this, defendant asserts that the unavailability of a probation option in favor of defendant, who held a small amount of cocaine and had minimum contact with drug trade, contravened the legislative intent.

Another intent, however, is to provide for the differences between different types of controlled substances and to provide for different degrees of control over the variations. (Ill. Rev. Stat. 1987, ch. 561/2, par. 1100.) Section 5 — 5—3(c)(2)(D) is reasonably designed to remedy the problem identified by the legislature.

Defendant’s reliance upon Bradley and People v. Wagner (1982), 89 Ill. 2d 308, 433 N.E.2d 267, is misplaced. In Bradley, due process was found violated because a higher penalty was imposed for possession than for delivery. This was clearly against legislative intent. (Bradley, 79 Ill. 2d at 418.) In Wagner, it was found to be against legislative intent for one to incur greater punishment for pretending to sell a controlled substance than for actually selling a controlled substance. Wagner, 89 Ill. 2d at 313.

II

Defendant contends that the sentencing provision is disproportionate to the nature of the offense, violating article I, section 11, of the Illinois Constitution (Ill. Const. 1970, art. I, §11), and the eighth amendment of the United States Constitution (U.S. Const., amend. VIII).

The argument made is that by requiring a mandatory penitentiary sentence for possession with intent to deliver, the legislature has ignored both the seriousness of the offense and the objective of restoring the offender to useful citizenship. It does not allow the court to look to each offender’s character and recognize her rehabilitative potential. Defendant further asserts that the allowance of probation would not prevent a court from imposing a prison sentence when appropriate.

Defendant was 19 years old with no prior arrests. The probation officer noted that “[defendant seemed] to be trying to straight [sic] out her life. It seems she was in the wrong place at the wrong time.” The court expressed dismay in that the person who put the drug deal together was not being punished, asserting that “I feel very much for [defendant], but I have to sentence [her] within the range of sentences that the legislature sets out.” The court added, however, that it hoped this would send a message to defendant and other people that this was the result of defendant’s choice and saying “no” was the better route to take. Due to the absence of any prior contact with the law, the court sentenced her to the minimum of four years.

Section 11, article I of the Illinois Constitution (Ill. Const. 1970, art. I, §11) provides for punishment to be proportionate to the seriousness of an offense with the objective of restoring the offender to useful citizenship. Section 1 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 1 — 2) establishes a legislative purpose to prescribe penalties proportionate to the seriousness of offenses, permitting recognition of differences in rehabilitation possibilities and preventing arbitrary and oppressive treatment. It is questionable whether the eighth amendment to the United States Constitution makes such a guarantee. Harmelin v. Michigan (1991), 501 U.S._, 115 L. Ed. 2d 836, 111 S. Ct. 2680.

The punishment here was not cruel and unusual because defendant was found with 65 packets, 25 of which, weighing six grams, tested positive for cocaine. The others were not tested. Additionally, she received only four years’ imprisonment, the minimum allowed by statute. The sentence is not disproportionate to the offense and did not violate either constitution.

Affirmed.

SCARIANO and DiVITO, JJ., concur.

      It should be noted that section 5 — 5—3(c)(2)(D) does not fall under this act but falls under the Unified Code of Corrections; however, this act has substantially the same purposes. Ill. Rev. Stat. 1987, ch. 38, par. 1001 — 1—2.


text:
    CHARLES PELINI et al., Plaintiffs-Appellees, v. METROPOLITAN INSURANCE COMPANY, Defendant-Appellant.
    First District (2nd Division)
    No. 1—90—3087
    Opinion filed March 31, 1992.
    Rehearing denied May 6, 1992.

      Knight, Hoppe, Fanning & Knight, Ltd., of Park Ridge (Colleen H. Considine, Martin D. Hoke, and Sarah Hansen Sotos, of counsel), for appellant.
    Foreman & Foreman, Ltd., of Chicago (Jeffrey Foreman and Jerome Foreman, of counsel), for appellees.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

In a declaratory judgment action brought for reformation of an automobile insurance policy, the circuit court found the issues in favor of plaintiffs, Charles Pelini and Richard Postin, and against defendant, Metropolitan Insurance Company (Metropolitan), from which Metropolitan appeals. The questions raised on review are whether (1) after July 1, 1983, in renewed policies, the Illinois Insurance Code (Code) (Ill. Rev. Stat. 1987, ch. 73, par. 613 et seq.) required offers of underinsured motorist insurance equal to bodily injury liability limits when the limits purchased by the insured exceeded the statutory minimum for uninsured motorist coverage; (2) evidence of Metropolitan’s alleged offers was erroneously excluded; and (3) reformation of the subject policy was the proper remedy.

On October 14, 1988, plaintiffs were involved in an automobile accident and sustained injuries in excess of the at-fault driver’s liability insurance, which had limits of $50,000 per person and $100,000 per accident bodily injury coverage. Plaintiff Pelini was permissively driving his parents’ automobile, insured by Metropolitan, at the time of the accident. Plaintiffs’ amended complaint contained a count seeking a declaratory judgment against Metropolitan, based upon the Pelinis’ insurance policy. Plaintiffs asserted that the named insureds never received from Metropolitan an offer to provide underinsured motorist coverage equal to the policy’s bodily injury liability limits, which were $100,000 per person and $300,000 per occurrence, and that such an offer was required by the Code after July 1, 1983. (Ill. Rev. Stat. 1987, ch. 73, par. 755a — -2.) The policy at issue had been renewed several times and again on September 7, 1988, about one month prior to the accident. It was effective until March 8, 1989. After unsuccessful attempts to dismiss the complaint, Metropolitan answered the allegations set forth, claiming no knowledge of whether the named insured received any offers described and demanded strict proof thereof. Metropolitan also denied the allegation that it was required by law to make such offers.

Guido and Shirley Pelini, the named insureds, testified at trial. Shirley asserted she never knew about the underinsurance coverage limits until plaintiffs’ lawyer contacted her after the accident. Guido claimed he never opened mail or read any letters addressed to him, except for social correspondence. He knew nothing about insurance matters. Shirley testified that she purchased the auto insurance, but never received any documents from Metropolitan explaining the coverage or coverage limits to which she was entitled.

Metropolitan attempted to present certain exhibits as evidence of the insured being offered underinsured insurance coverage through the mail. Judy Knight, employed by Metropolitan in various managerial capacities since 1978, and its regional service manager at the time of trial, testified that she was responsible for overseeing new business processing, accounting, files, premium processing, the computer room and output handling. She was familiar with those procedures while employed as Metropolitan’s customer service supervisor, her previous position. She was versed in the procedures for renewing policies in the State of Illinois, as well as 36 other States. This unit was required to make certain that the mailings complied with various States’ requirements.

She was familiar with Metropolitan’s exhibit 1 for identification, a coverage election/rejection form for uninsured motorists insurance in Illinois. Metropolitan exhibit 2 for identification contained instructions to Metropolitan employees as to what documents were to be included in each mailing. Exhibit 1 for identification was sent by regular mail, in the tens of thousands. Undeliverable mail was returned to the customer service unit. Efforts are made to update the addresses, and the documents are remailed.

Knight was also familiar with Metropolitan’s exhibits 3, 4, 5, and 6 for identification. Exhibit 3 was a microfiche record of precontinuation letters dated December 31, 1987, which explained coverage changes, and were sent to all Metropolitan’s insureds. Metropolitan’s exhibit 4 was an uninsured motorist election/rejection form advising the insured of coverages he currently has and changes proposed, as well as options for increased coverages and their costs. Metropolitan’s exhibit 5 was an explanation of coverages and their availability, which was mailed with exhibit 4. Exhibit 6 was a certificate of mailing, listing the names of insureds to whom the forms allegedly were mailed on January 4, 1988. The Pelinis’ name was on the exhibit 6 list. Knight testified that these documents were made and kept in the ordinary course of business. She had no personal knowledge of the mailings.

The circuit court denied admission in evidence of exhibits 3, 5 and 6 for identification, based upon hearsay objections and the lack of foundation to establish the business records exception to the rule. Metropolitan’s counsel made an offer of proof as to these exhibits, in which she allegedly would have shown through the exhibits that Metropolitan did mail offers of uninsured/underinsured motorist insurance options and explanations of them to their insureds. Metropolitan did not offer exhibit 4 into evidence.

The circuit court found there was no evidence put forth as to an offer of underinsured motorist insurance; such an offer was required by law; and, therefore, the court reformed the policy to include underinsured motorist insurance up to the existing policy bodily injury liability limits of $100,000 per person and $300,000 per accident. Metropolitan appeals.

Metropolitan identifies error in the circuit court’s construction of section 143a — 2 of the Code (Ill. Rev. Stat. 1987, ch. 73, par. 755a — 2) (section 143a — 2) as requiring a pre-July 1988 statutorily mandated offer to the insured of underinsured motorist insurance in a post-July 1983 renewal policy. It maintains that the law requires only inclusion of underinsured motorist insurance in such policies, not an additional offer.

The Code, as amended in 1982 and applicable to the instant case, links underinsurance coverage to uninsurance coverage and sets forth several provisions and operative periods within which an insurer is required to pursue certain procedures. Until July 1, 1983, an insurance company must offer underinsured motorists coverage in every policy renewed or delivered in Illinois (Ill. Rev. Stat. 1987, ch. 73, par. 755a — 2(3)). On and after July 1, 1983, the Code requires that underinsured motorist coverage be included in all policies “in an amount at least equal to the total amount of the uninsured motorist coverage provided in that policy where such uninsured motorist coverage exceeds the limits set forth in Section 7 — 203 of the Illinois Vehicle Code [(Ill. Rev. Stat. 1987, ch. 951/2, par. 7 — 203)] [(section 7 — 203)].” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 73, par. 755a — 2(5).) The statutory minimum coverage set forth in section 7 — 203 was $20,000 per person and $40,000 per accident at the time pertinent here. The Pelinis’ policy contained uninsured motorist coverage of $25,000 per person and $50,000 per accident, thus in excess of the statutory minimum.

The Pelinis’ insurance policy had been written first in 1979 and renewed from time to time until the last renewal before the instant accident. The 1988 renewal policy had bodily injury liability limits of $100,000 per person and $300,000 per accident.

Metropolitan maintains that because the insurance policy was renewed in 1988, which was, of course, after the July 1, 1983, offer period fixed by statute, insurance companies were no longer required to offer underinsured coverage; instead, all policies must include underinsured motorist insurance in an amount equal at least to the total amount of uninsured motorist coverage when the uninsured coverage exceeds the statutory minimum (Ill. Rev. Stat. 1987, ch. 73, par. 755a — 2(5)). Metropolitan asserts that the coverage afforded by its policy covering the Pelinis was in consonance with the law.

The supreme court has recently addressed a similar statutory construction problem in DeGrand v. Motors Insurance Corp. (1992), 146 Ill. 2d 521 (DeGrand). Although the insureds in that case elected to purchase only the minimum uninsured motorist coverage statutorily required at that time, the supreme court’s analysis of section 143a — 2(5) is controlling in this case. The DeGrand opinion observes (DeGrand v. Motors Insurance Corp., 146 Ill. 2d at 529-30):

“The 1982 statute provided that whenever an individual purchased uninsured motorist coverage in an amount greater than the statutory minimum, the insurer must also provide underinsured motorist coverage in the same amount. The 1982 statute also provided that after July 1, 1983, the insurer must provide and the insured must accept the underinsured motorist coverage. The new statute did not permit the insurer or insured to reject this coverage. The 1982 statute provided additional coverage for many individuals purchasing automobile insurance after July 1, 1983. If the insured purchased uninsured motorist coverage in an amount above the statutory minimum, the insured must also purchase underinsured motorist coverage in the same amount.
* * *
According to the 1982 statutory scheme, an automobile owner who purchases the minimum amount of uninsured motorist coverage after July 1, 1983, was entitled neither to an offer of underinsured motorist coverage nor to automatic inclusion of such coverage in an amount commensurate with uninsured motorist coverage ***. The policy had to contain underinsured motorist coverage in an amount at least equal to the total amount of uninsured motorist coverage. Only those policies issued prior to July 1, 1983, were entitled to an offer of underinsurance.” (Emphasis added.)

The Pelinis, in having purchased uninsured motorist coverage in excess of the statutory minimum, were entitled to automatic inclusion in their automobile policy of underinsurance coverage in the same amount. (DeGrand, 146 Ill. 2d 521.) Metropolitan furnished them with such insurance. The circuit court erred in requiring of Metropolitan an offer of greater coverage than they possessed and the judgment must be reversed.

Plaintiffs’ amended complaint, in paragraph 6 of count II, alleges that “[subsequent to September 7, 1988, to and including the present time, the named insured have never received a [sic] *** offer of underinsured motorist coverage equal to their bodily injury liability limits as required by the Illinois Insurance Code, ch. 73, Ill. Rev. Stat., par. 755a — 2.” The ellipsis marks denote the absence of the word “proper,” which plaintiffs struck through by interlineation with circuit court permission. Also to be noted is the fact that plaintiffs, at trial, argued that they were never offered such coverage at any time. They were given leave to amend their complaint to that effect. No such amendment appears to have been made; Metropolitan denied the allegations as orally amended, however, and the case was tried upon that theory. This issue will be regarded as having been joined orally. (Troutman v. Keys (1987), 156 Ill. App. 3d 247, 253, 509 N.E.2d 453; Vider v. City of Chicago (1895), 60 Ill. App. 595, aff’d (1896), 164 Ill. 354.) Since plaintiffs alleged and offered some proof that Metropolitan never made such an offer, the circuit court required Metropolitan to demonstrate affirmatively that it did so.

Plaintiffs’ argument in this regard is little different from that advanced by the DeGrand plaintiffs. They represented to the supreme court that they never knew about the underinsurance motorist coverage until after the accident, to no avail. There is no dispute here that Metropolitan included the same amount of underinsurance as the Pelinis had purchased for uninsurance in their September 7, 1988, renewal policy. Metropolitan thereby fulfilled its statutory obligation.

In light of the disposition we make in this matter, we need not and do not reach the issues concerning evidence of alleged offers by Metropolitan or appropriate reformation of the Pelinis’ insurance policy.

From the foregoing analysis, the declaratory judgment order entered by the circuit court in the case sub judice must be reversed.

Reversed.

SCARIANO and DiVITO, JJ., concur.