text:
      In re V.H. et al., Minors (V.H. et al., Minors, Petitioners-Appellees, v. Gary T. Morgan, Guardianship Adm’r of the Department of Children and Family Services, et al., Respondents-Appellants).
    First District (6th Division)
    No. 1—89—3167
    Opinion filed April 20, 1990.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Robert G. Toews, Assistant Attorney Cepera!, of Chicago, of counsel), for appellants.

      Patrick T. Murphy, Public Guardian, of Chicago (Lee Ann Lowder, Assistant Public Guardian, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

The minor petitioners, Veronica H., Krystina S., Dale Y., Ronald A., David B. and Rickey L., are wards of the State of Illinois. They sought a preliminary injunction when respondents Gary T. Morgan, Guardianship Administrator of the Illinois Department of Children and Family Services (DCFS), and Ina Denton, Deputy Director of DCFS, decided to remove the minors from a residential treatment facility in Arkansas and return them to Chicago. Following a full hearing in which expert witnesses and the minors testified, the parties entered into an agreed order under which the minors would remain in Arkansas pending an independent assessment to determine the children’s best interests. The trial court also issued a preliminary mandatory injunction ordering respondents to arrange for payment to the facility while the children remain in Arkansas.

Respondents filed an interlocutory appeal from that preliminary injunction, and we stayed the trial court’s order pending this appeal. On appeal, respondents contend that the court order is void because it violates sovereign immunity and that the court abused its discretion in granting the injunction because it intruded into the authority reserved for DCFS as to which placement services are fit and proper for the children.

In July 1987, DCFS entered into a contract with Lord's Ranch, a residential program in Warm Springs, Arkansas, to care for DCFS wards. DCFS then began placing the six petitioners at the Lord’s Ranch (the Ranch).

Petitioners are adjudicated delinquent, dependent, neglected or abused minors who were made wards of the court, and Morgan was appointed their guardian. Extensive testimony and records revealed that the children, aged 12 to 19, all have serious emotional and behavioral problems. They have all been in multiple placements in DCFS custody and have been rejected by five or more residential facilities in Illinois. For example, David failed in 11 placements and was rejected by 15 agencies. Rickey failed in 8 placements, and Dale in 14 placements. Two of the children were sent to the Ranch directly from the Department of Corrections. They have all posed a danger to others, and several have been hospitalized for emotional problems. They have been involved in battery, arson, sexual assaults on other children, burglaries, drugs, alcohol, criminal damage to property, and shoplifting.

The record also establishes that the children have made significant progress at the Ranch. The children testified that they believed they were doing well in this placement and wanted to remain there.

In January 1988, DCFS and the Ranch entered into a corrective action plan in order to bring the Ranch into compliance with certain DCFS regulations. DCFS decided to remove petitioners from the Ranch because DCFS was not planning to renew the contract, which expired September 1, 1988. DCFS thereafter renewed its contract for placement services with the Ranch several times. Later in 1988, an audit revealed a $108,957 overpayment by DCFS to the Ranch. The Ranch began repaying the amount to DCFS. As of September 1, 1989, $64,145 was still outstanding.

On February 15, 1989, DCFS entered into an agreed order to “maintain [the] minors in placement at the Ranch through June 30, 1989 or until further order of this court.”

In June 1989, DCFS informed the Ranch that the contract would not be renewed and that alternative placements for the children would be found. The final contract between the Ranch and DCFS extended from July 1, 1989, until September 30, 1989. The contract provides:

“The Department shall not be liable for payment for service provided after the Contract termination date or after the last child is removed from the provider’s care, whichever is later.”

On July 12, 1989, DCFS entered into an agreed order to submit a report of the guardian by September 4, about the future plans for placement of the children, and to maintain the children in placement at the Ranch, as provided in the agreed order dated February 15, 1989, until further order of the court. On September 14, 1989, counsel for petitioners filed a motion for a preliminary injunction, naming Morgan in his capacity as guardian.

On September 18, 1989, Morgan moved to dismiss the motion for preliminary injunction, contending the court had no jurisdiction to grant the relief and maintaining that Morgan had no authority to supply funding for placement following the September 30 expiration of the contract.

On September 21, 1989, petitioners sought leave to file an amended motion for preliminary injunction, adding Denton as a respondent and asking that DCFS conduct psychological evaluations of petitioners, allow petitioners to remain at the Ranch, and pay for that placement through the appeal process. On September 25, the court granted leave to file the amended petition.

Eight days of hearings were held between September 25 and October 4, 1989. Dr. Allen Ravitz, a psychiatrist, testified that DCFS’ plan to return the children to Chicago was an unreasonable and unnecessary intrusion on their physical and emotional well-being, which would put the children at risk of harm to themselves and to others. Denise Kane, a social worker, testified that the plan to return the children to Chicago was a substantial departure from accepted professional standards and practices, which demonstrated that those responsible for devising the plan had failed to use professional judgment. The experts’ opinions were offered without contradiction.

On October 4,1989, counsel for respondents stated to the court:

“[B]eing two weeks from the time that we started this entire matter and now knowing many more matters then we knew at the beginning, it has become clear to me and my co-counsels, and to others in the department, that the plan to return the petitioners to Chicago and to work with the agency called Kaleidoscope is really an unworkable plan. It is clear to me that the petitioners are not interested in later returning to Chicago and working with that agency. Without their cooperation, the plan is pretty much down the drain.”

Counsel added that DCFS would like time to meet with the children and make an assessment, and that “the Lord’s Ranch can bill us for the costs that are going to be incurred, that of course being another major problem. There is now no contract; and I think if we can get this opportunity [for a continuance], we might be able to straighten this matter out, once and for all.”

The court granted a continuance to enable the parties to confer and try to decide on a plan they could agree upon regarding an assessment of the children. Respondents’ counsel, however, stated that the Ranch would not be paid during that time. “I indicated they could bill us, they could send us a bill. *** There is sixty thousand dollars that they owe us, that can be set off against, but without a contract, I don’t — there is no way under the State budget and appropriations *** that they can get paid, [but] we can set off against the sixty thousand. This is why I am asking for a short period of time.” She informed the court: “I don’t believe [the children] are going to be thrown off [the Ranch]. I believe what the Ranch will try to do is try to settle with us on that sixty thousand. When that problem arises, we will address it.”

On October 17, 1989, the parties appeared before the court and reported the result of their negotiations. DCFS had reconsidered the plan to bring the children to Chicago and agreed to let them remain at the Ranch until assessments were completed. Respondents’ counsel also stated that what DCFS had “offered to do is take the old rate from the old contract, break it down into actual costs and to pay the Lord’s Ranch per that rate-setting system.” The court then permitted the parties to complete the hearing.

Denton testified that she withdrew the plan to return the children to Chicago because the plan “would most probably not *** meet their needs.” What she was “willing to do is to contract with an agency in Arkansas to do those assessments so that we have a clear understanding of the needs of the youngsters so that appropriate plans would be developed for them.”

The juvenile court entered an order prohibiting respondents from removing the children from the Ranch until assessments are completed, service plans made, and objections heard and resolved. The court ordered the parties to submit proposed findings of fact and conclusions of law.

On November 3, 1989, the court denied respondents’ motion to dismiss the preliminary injunction and respondents’ request for a stay of the preliminary injunction order. The court also adopted petitioners’ proposed findings of fact, conclusions of law and their proposed order. The order stated:

“A. By agreement of the parties, Gary T. Morgan and Ina Denton are hereby enjoined from removing the children from placement at the Lord’s Ranch until further order of Court, so that the parties may obtain [sic] pending an independent assessment of the children by Northwestern University, University of Chicago or Loyola University.
B. Gary T. Morgan and Ina Denton are hereby ordered to make arrangements to pay the Lord’s Ranch for placement of the children at the per diem rate which was in effect' on September 30, 1989, pending this independent assessment, and until further order of Court.”

On November 16, 1989, petitioners filed a petition for rule to show cause against respondents for failing to make arrangements to pay the Ranch for the children’s case, in violation of the earlier court order. Respondents have filed this interlocutory appeal.

Respondents first contend that the juvenile court’s preliminary injunction violates sovereign immunity specifically because it requires respondents to enter into a contract and to make payments out of State funds.

In determining whether a suit brought against the State is barred by sovereign immunity, the focus is not on the identification of the formal parties, but rather on the issues involved and the relief sought. (City of Springfield v. Allphin (1980), 82 Ill. 2d 571, 413 N.E.2d 394; Board of Trustees v. Illinois Community College Board (1978), 63 Ill. App. 3d 969, 380 N.E.2d 988.) A suit against State officials which seeks to compel them to perform their duty is not held to be a suit against the State, and the payment of State funds may be compelled. Board of Trustees v. Illinois Community College Board, 63 Ill. App. 3d 969, 380 N.E.2d 988.

Respondents themselves define the issues here. They ask whether they can be told “which placement services are fit and proper to serve DCFS wards,” when in fact they have agreed to that continued placement, and told “to supply funding for the continued stay of the minors” in the agreed upon residence.

The legislature has imposed upon DCFS the duty to provide social services to certain children and to provide rehabilitative and residential services for them. (Ill. Rev. Stat. 1987, ch. 23, par. 5001 et seq.) The Constitution recognizes a protectible liberty interest which requires DCFS to provide minimally adequate care and treatment of children in its custody. Youngberg v. Romeo (1982), 457 U.S. 307, 319, 73 L. Ed. 2d 28, 39, 102 S. Ct. 2452, 2459-60; B.H. v. Johnson (N.D. Ill. 1989), 715 F. Supp. 1387.

We hold that the trial court has enjoined respondents from taking actions in excess of their delegated authority and in violation of petitioners’ protectible liberty interests, and that such a ruling does not contravene the immunity prohibition. See Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 370 N.E.2d 223, citing County of Cook v. Ogilvie (1972), 50 Ill. 2d 379, 383, 280 N.E.2d 224; Owens v. Green (1948), 400 Ill. 380, 408-09, 81 N.E.2d 149; People ex rel. Freeman v. Department of Public Welfare (1938), 368 Ill. 505, 506-07, 14 N.E.2d 642; see also Aurora National Bank v. Simpson (1983), 118 Ill. App. 3d 392, 454 N.E.2d 1132.

The fact that an expenditure of State funds is required does not alter this finding. (See, e.g., Bio-Medical Laboratories, Inc. v. Trainor, 168 Ill. 2d 540, 370 N.E.2d 223; People ex rel. Hilger v. Myers (1969), 114 Ill. App. 2d 478, 252 N.E.2d 924.) This is especially true where respondents have agreed to the placement and have admitted before this court that DCFS will “ultimately” be responsible for making such payments.

Respondents also argue that even if the juvenile court had jurisdiction to enter an injunction, respondents have no authority to perform on behalf of DCFS “absent the approval or acquiescence of the DCFS director.” This contention is not persuasive, since it was respondents, purportedly with the authority of DCFS, who agreed to the continued placement of the children in Arkansas pending an independent assessment of their needs. Moreover, Denton testified that what she was “willing to do is to contract with an agency in Arkansas to do those assessments so that we have a clear understanding of the needs of the youngsters so that appropriate plans would be developed for them.” In addition, Jack Targonski, administrator of contracts and grants for DCFS, testified that he prepared a contract with the Ranch “at the direction of the Director of Cook County Operations.” That director is Denton.

In addition, the final contract between DCFS and the Ranch provides:

“The Department shall not be liable for payment for service provided after the Contract termination date or after the last child is removed from the provider’s care, whichever is later.”

Obviously, the last child has not been removed from the provider’s care.

Respondents next contend that the juvenile court abused its discretion in granting the injunction because it intruded into the authority reserved for DCFS’ judgment as to “which placement services are fit and proper to serve DCFS wards.” This argument contradicts respondents’ agreement to continue the placement of the children at the Ranch. It is also contrary to what respondents have stated at oral argument, that the only issue before this court concerned the immediate payment of funds to the Ranch, and did not concern DCFS’ admitted judgment that it was “fit and proper” to permit the children to remain at the Ranch.

Respondents also contend that injunctive relief should not be granted against public officials unless such acts are either outside their authority or unlawful.

These children have a constitutional right to minimally adequate care. (Youngberg v. Romeo (1982), 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452.) They have a right not to be subjected to multiple placements which may cause them emotional harm. (K.H. v. Morgan (N.D. Ill. Sept. 6, 1989), No. 87 C 9833, slip op. at 19.) Respondents admitted before the juvenile court that the placement plans it had devised for the children were inadequate. Two experts testified that the placement plans to return the children to Chicago were an unreasonable and unnecessary intrusion on their physical and emotional well-being, that the move would place the children at risk to themselves and others, and that the plan was a substantial departure from accepted professional standards and practices. The trial court correctly concluded that the decision to remove the children from placement at the Ranch “was arbitrary and capricious, and constituted an abuse of discretion.” We agree with its conclusion that, based upon the uncontradieted expert testimony, the “decision to move the children, where they have been placed for more than two years and have made significant progress, violated the children’s constitutional rights.”

Respondents point to DCFS’ “tremendous struggles dealing with the Lord’s Ranch,” and its “stormy” relationship with the Ranch, including the $60,000 still due from the Agency. Again, in view of the fact that respondents have agreed to petitioners’ continued placement at the Ranch, and repeatedly insist that DCFS can “work out” its financial problems with the Ranch, we see little relevance to this argument. See Bio-Medical Laboratories, Inc. v. Trainor, 68 Ill. 2d 540, 370 N.E.2d 223 (notwithstanding fact that Department of Public Aid made $321,291 in overpayments to Bio-Medical, court upholds order restraining director of Department from suspending corporation’s right to participate in medical assistance program).

Respondents belatedly argue that injunctive relief is improper because no threat of irreparable harm has been shown. A preliminary injunction will be granted if irreparable harm would result if the injunction is not forthcoming. (Lindsey v. Board of Education (1984), 127 Ill. App. 3d 413, 468 N.E.2d 1019.) Respondents maintain that, because they agreed to leave the children at the Ranch, the children’s best interests were being protected and no irreparable harm could occur. The argument unpersuasively assumes that the Ranch, a private agency, will keep the children indefinitely, with no payment, despite the fact that it apparently cost the Ranch approximately $30,000 per month to care for the children. It has already absorbed these costs for nearly six months.

Nor are we persuaded by respondents’ argument that the financial matters will be settled in a separate action which DCFS has filed against the Ranch. That suit does not address the costs incurred beginning October 1, 1989, and continuing to accrue until the last child leaves the Ranch. Moreover, six months have passed, and thus, we do not accept respondent’s urging that DCFS will “ultimately” reimburse the Ranch for these costs.

We conclude that the obvious dilemma which DCFS forces upon the Ranch, to support these children for free until such time as DCFS decides differently, can only result in irreparable harm to DCFS’ own wards. They will be forced to return to Chicago, where DCFS has no placement plans, or return to the streets. Either alternative would appear to be disastrous.

Respondents rely on Dixon Association for Retarded Citizens v. Thompson (1982), 91 Ill. 2d 518, 440 N.E.2d 117, for the proposition that the trial court should not interfere in matters reserved to agency discretion, such as deciding which placement services are fit and proper to serve DCFS wards. In Dixon, however, the agency had developed an extensive relocation plan for retarded persons under its care. The court concluded that there was no indication of a “precipitous, unplanned closing and transfer of the residents,” and instead “the evidence indicates that there was detailed, considered planning for the closing of this facility and that there was a sincere attempt to develop a program for relocating the residents in a manner that would accommodate the residents’ individuals needs.” (Dixon Association for Retarded Citizens v. Thompson, 91 Ill. 2d at 534, 440 N.E.2d at 125, citing Youngberg v. Romeo (1982), 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452.) In contrast, the present case does not reveal any plan at all.

For the foregoing reasons, the injunction order entered by the circuit court of Cook County is affirmed.

Judgment affirmed.

LaPORTA, P.J., and EGAN, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE HEIPLE JUSTICE STOUDER,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT RICHARDSON, Defendant-Appellant.
    Third District
    No. 3-88-0710
    Opinion filed April 4, 1990.

      STOUDER, J., dissenting.
    Frank W. Ralph, of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (Elizabeth A. Klug, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

Following a jury trial, the defendant, Robert Richardson, was found guilty of the offenses of home invasion and aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 11(a)(1), 12— 14(a)(1)), and sentenced to concurrent terms of imprisonment of 25 years. Defendant filed an appeal raising two issues: (1) whether the prosecutor’s alleged improper conduct denied the defendant his constitutional right to a fair trial; and (2) whether the State proved the defendant guilty beyond a reasonable doubt.

The relevant testimony revealed that the defendant entered the home of Deborah House by force on the night of June 3, 1988, and forced Ms. House to perform various sexual acts, including sexual intercourse, while brandishing a large stick or pole. The victim testified to the events of the evening of June 3, 1988, in great detail. She stated that defendant entered her apartment uninvited and incited an argument with her. She asked him to leave, but he refused. She went to a neighbor’s door, and when the neighbor answered the door, he and defendant engaged in a shouting match. When the neighbor removed a large stick from behind his door, defendant threatened the neighbor and left the building, ostensibly to retrieve a weapon.

House stated that she called police and advised them of the incident before defendant arrived back at the apartment. While waiting for the police to arrive, House heard windows breaking in the apartment building. As the sound of breaking windows got closer to her window, she went into the hallway to wait for the police. Thereafter, House saw the defendant in her living room holding a large pole. The defendant ordered her to come back into the apartment. She testified that she complied with defendant’s orders out of fear for her safety. The defendant then allegedly forced House to perform various sexual acts with him. The victim estimated that the entire scenario lasted 20 to 30 minutes from the time she first notified the police.

Officer Robert Gossmeyer of the Peoria city police department testified for the State. He explained that he heard a radio dispatch at 9:53 p.m. concerning an incident at the complainant’s apartment building. The officer proceeded to the apartment building, where he discovered an open window with its screen missing. He promptly called out House’s name, and she came outside. The officer then went inside the apartment and arrested the defendant. The officer noted that the time between his receiving the call from the dispatcher and House’s coming out of the apartment was 5 to 10 minutes.

At trial, the defendant testified in his own defense. The defendant insisted that House consented to having sexual intercourse with him.

The defendant contends on appeal that, during closing arguments, the prosecutor made remarks and engaged in a colloquy with the jury which constituted reversible error. During closing arguments, the prosecutor spoke to the jury addressing the inconsistent time estimates given by the victim and other witnesses. In an effort to bolster the credibility of her witness, the prosecutor posed the following rhetorical question:

“How long have I been talking? Don’t look at the clock. Have the twelve of you sit there and decide, after you go back in that jury room, and I would suggest that you’re going to come up with twelve different times, and probably none of them is going to be accurate ***. So are we going to hold Debra [House] to a standard that you and I probably could not measure up to? And I suggest to you that we will not hold her up to that standard and we shouldn’t.”

It appears that one juror responded to the prosecutor’s question, for during the rebuttal closing argument the prosecutor commented:

“By the way, when I asked you before how long I’d been talking, it had been fifteen minutes. I think one of you responded it was five. It’s a little tough sometimes to judge how much time has passed.”

Initially, the State argues that defendant interposed no objection at trial to any of the claimed errors in the prosecutor’s closing argument and that therefore the issue is waived. This position is well supported. Generally, the failure to raise objection to improper argument at trial waives an issue on appeal. We conclude that defendant did waive his right to raise the issue of improper argument on appeal. However, we choose to take the discussion one step further and analyze defendant’s argument, as it raises an area of significant interest to this court.

When the prosecutor posed her rhetorical question to the jury as to the passage of time, one juror responded aloud. A rhetorical question, by definition, does not contemplate a verbal response. It is an ancient and accepted form of argument which is designed to focus the thought processes of the listener on the issue at hand. In this respect, the closing argument of the prosecutor fell well within the realm of proper professional advocacy. That a juror did respond aloud cannot be charged to prosecutorial misconduct. Neither is it prejudicial to the defendant. Error did not occur. And if error did not occur, a fortiori, it cannot rise to the level of plain error so as to obviate the necessity for an objection.

Defendant also complains error resulted from two additional prosecutorial comments during closing arguments. Defendant contends that the prosecutor improperly vouched for the victim’s credibility when she suggested that the jury would find that House did not lie, based on the evidence presented. Defendant’s prompt objection was correctly overruled by the trial court. The prosecutor’s comment was nothing more than a brief endorsement of the victim’s credibility. Such a remark does not constitute trial error. People v. Jones (1988), 123 Ill. 2d 387.

Further, defendant asserts that the prosecutor misstated the law and jury instructions during rebuttal argument, when she stated:

“The judge has already instructed you that when people change stories, that’s an indication that they’re lying.”

The trial court correctly overruled defendant’s timely objection. The jury had been properly instructed regarding challenging the believability of a witness based on inconsistent statements, following testimony of the State’s rebuttal witness. The prosecutor’s statement was based upon the instructions to the jury and was not improper.

Regarding the issue of whether the defendant could have been found guilty beyond a reasonable doubt, we note that when presented with a challenge to the sufficiency of the evidence, it is not the function of the appellate court to retry the defendant. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E. 2d 267.) The relevant question is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Christiansen (1986), 142 Ill. App. 3d 1050, 492 N.E. 2d 241.) We conclude that a rational trier of fact could find defendant guilty beyond a reasonable doubt of the aforementioned charges.

For these reasons, we affirm the judgment of the circuit court of Peoria County.

Affirmed.

BARRY, J., concurs.

JUSTICE STOUDER,

dissenting:

In the instant case, I find the remarks made by the prosecutor in closing arguments constituted not only error but reversible error, requiring the cause be remanded for a new trial. The questioning of the jury on the time issue amounted to an experiment or distraction which allowed the prosecutor to interject her own unsworn testimony on the that issue. Evidence of the time issue was critical because the victim’s estimation became questionable in relation to the police testimony regarding the time it took them to respond and the actions complained of by the victim.

Generally, the prosecutor’s remarks in closing argument do not amount to reversible error unless they deprive the defendant of a fair trial in that they constitute a material factor in the defendant’s conviction or result in substantial prejudice to him. (People v. Burke (1985), 136 Ill. App. 3d 593, 483 N.E.2d 674.) It is axiomatic that the prosecutor must confine himself to facts introduced in evidence and to the fair and reasonable deduction and conclusions therefrom. (People v. Young (1975), 33 Ill. App. 3d 443, 337 N.E.2d 40.) Assumptions and statements of fact not based upon evidence presented in the case may not properly be argued to the jury, and the prosecutor may not properly interject before the jury that which amounts to his own testimony. People v. Burke (1985), 136 Ill. App. 3d 593, 483 N.E.2d 674.

In the instant case, the prosecutor was in effect conducting an experiment during closing arguments when she asked the jury how long she had been talking to them. She asked, “How long have I been talking? Don’t look at the clock. How long have I been standing up here talking to you?” She asked that they decide this question during their deliberations. The tone of her questions on this point was such that at least one of the jurors was prompted to respond. The prosecutor suggested that each of them would make a different determination and stated that she herself did not know how long she had been talking. In rebuttal, she then “testified” that the period of time she had been talking was in fact 15 minutes, and not five minutes as one of the jurors had stated. This type of argument allowed the prosecutor to in effect “testify” on a party’s ability to estimate the passage of time. This activity distracted the jury’s attention from the issues before it and created the appearance that the prosecutor was carrying on a dialogue with the jury. This distraction was critical given the fact that the testimony on the time issue is so contradictory.

Considering all the evidence in this case, I find the prosecutor’s closing argument to have so prejudiced the defendant’s right to a fair trial that it constitutes reversible error.


author: JUSTICE BARRY

text:
      In re ESTATE OF ELEANOR JANE MILLER, Deceased (Lyle Blaine Miller, Petitioner-Appellee, v. James P. Kellstedt, Respondent and Contemnor-Appellant).—In re ESTATE OF ELEANOR JANE MILLER, Deceased (James P. Kellstedt, Petitioner-Appellant, v. Lyle Blaine Miller, Ex’r, Respondent-Appellee).
    Third District
    Nos. 3—89—0212, 3—89—0213 cons.
    Opinion filed March 30, 1990.
    Rehearing denied May 23, 1990.

      James P. Kellstedt, of Peoria Heights, appellant pro se.

    Bernardi, Bernard! & Bode, of Pekin (Kirk W. Bode, of counsel), for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

This cause arose out of probate proceedings upon the demise of Eleanor Jane Miller, who died testate on May 17, 1986. The surviving spouse and executor of her will, Lyle Blaine Miller, was represented by Attorney James R Kellstedt in the probate matter. Upon preparation of the final accounting, Miller refused to pay Kellstedt’s fees and costs, which he claimed in the amount of $2,451.50 After a hearing on Kellstedt’s petition for fees and costs the circuit court of Tazewell County entered judgment for Kellstedt in the amount of $989. The court further ordered Kellstedt to turn over certain securities that he had retained during the course of his employment in the probate matter. Kellstedt appeals from that order as well as from a subsequent order finding him in indirect civil contempt and imposing sanctions for Kellstedt’s failure to comply with the court’s turnover order. For reasons that follow, we affirm.

The relevant facts as presented to the trial court and as they now appear in the record on appeal establish that Kellstedt duly filed a petition for probate of the decedent’s will and for letters testamentary on June 2, 1986, and that letters of office were issued to Lyle Blaine Miller as executor on the same date. On February 2, 1987, the first of three publications of the claim notice was made. The inventory of the estate was filed on December 30, 1988. According to Kellstedt, he suffered numerous personal difficulties during this period, including an automobile accident, health problems, the death of his only son and his mother and an unmanageable workload in his law practice.

The decedent’s estate subject to probate was valued at $43,225.49. The value of decedent’s nonprobate estate was $318,188.89. No claims were filed against or on behalf of the estate, no one contested the will, and no estate taxes had to be paid. There were, however, several securities held by the deceased in joint ownership or in trust which had to be transferred to her surviving husband and children. It appears that Kellstedt was instrumental in accomplishing the transfer of certain stock certificates, and Miller facilitated the process in others. When Miller met with Kellstedt to go over the final accounting, he refused to pay attorney fees and costs claimed by Kellstedt in the amounts of $2,137.50 and $314, respectively. Accordingly, Kellstedt filed his petition for fees and costs contemporaneously with the inventory of the estate and the final accounting on December 30, 1988.

At the hearing on Kellstedt’s petition, the court received testimony of Kellstedt and two attorneys practicing in the Peoria area who agreed that Kellstedt’s hourly charge of $75 was reasonable and that $2,137.50 was a reasonable fee considering the size of the estate and Kellstedt’s claimed expenditure of 28.5 hours of professional time on behalf of the estate. Kellstedt introduced copies of blank time records used in his office and a two-page handwritten “summary” of his activities in the case.

Miller testified that he had urged Kellstedt to proceed with the case numerous times between 1986 and 1988 and had in fact taken upon himself the task of communicating with corporate transfer agents with respect to some of the securities for which Kellstedt claimed responsibility. During the hearing Kellstedt admitted that he had retained possession of several of the stock certificates pursuant to his common law retaining lien for attorney fees.

The trial court, after hearing all of the evidence, concluded that much of the time claimed by Kellstedt was not, in fact, necessary to the orderly and efficient administration of this estate. The court questioned the evidentiary value of Kellstedt’s documentation of his time, finding the handwritten summary “virtually undecipherable.” With respect to the stock transfers, the court found Kellstedt’s efforts redundant and unproductive. Likewise, the court found Kellstedt’s claim of six trips to Pekin excessive, and reduced the number of reimbursable trips to three. Accordingly, the court determined that Kellstedt was entitled to fees for only 10 hours of professional time, and awarded him $75 per hour, or a total of $750, plus $239 in reimbursable costs. The court further ordered that Kellstedt turn over to Miller all of the retained assets within 14 days of its February 14,1989, order.

Kellstedt failed to comply with the court’s turnover order, and on March 14 Miller filed a petition for rule to show cause why Kellstedt should not be found in contempt. The court entered an order setting a hearing on the petition for April 3, 1989. Two days later, on March 16, Kellstedt filed his post-trial motion requesting a rehearing on his petition for fees. Kellstedt specifically “consented” to the court’s reduction of his claimed costs. On April 3, at Kellstedt’s insistence, the court agreed to entertain the show cause hearing prior to hearing Kellstedt’s post-trial motion. At the close of all testimony, the court found Kellstedt in indirect civil contempt of court. The court granted Miller’s request for attorney fees and costs incurred in connection with the show cause petition in amounts of $210 and $20, respectively, and committed Kellstedt to the county jail for six months or until he surrendered the retained certificates. On April 5, Kellstedt turned over three certificates, the combined value of which exceeded $12,000, to the clerk of the circuit court. He made it clear to the trial judge, however, that he did not intend to relinquish two other certificates, the combined value of which approximates Kellstedt’s fees claim. Kellstedt’s post-trial motion requesting reconsideration of this order was subsequently denied, as was his March 16 post-trial motion, and Kellstedt has appealed from both denials.

Kellstedt initially contends that the court’s decision to reduce the amount of attorney fees for the probate work was contrary to the manifest weight of the evidence and an abuse of discretion. We do not agree.

The trial court enjoys broad discretion in determining the reasonableness of compensation claimed by an attorney representing an executor. The ultimate determination must be based on the facts and circumstances of the particular case before the court. (In re Estate of Marshall (1988), 167 Ill. App. 3d 549, 553, 521 N.E.2d 637, 640.) Factors that may be considered include: “the size of the estate, the work involved, the skill evidenced by the work, time expended, the success of the efforts involved, and the good faith and efficiency with which the estate was administered.” (Marshall, 167 Ill. App. 3d at 553, citing In re Estate of Thomson (1986), 139 Ill. App. 3d 930, 939, 487 N.E.2d 1193, 1200.) It should also be noted that the trial court is not bound by the opinion of expert witnesses as to the reasonableness of fees claimed, but may rely on its own knowledge and experience and use independent judgment in setting the amount of compensation. Marshall, 167 Ill. App. 3d at 553, citing In re Estate of Brown (1978), 58 Ill. App. 3d 697, 374 N.E.2d 699.

It is apparent from the record on appeal that the trial court in this case rendered its decision giving ample consideration to all relevant factors based on the court’s knowledge about the particular estate in question, the evidence and testimony admitted at the hearing on fees and the court’s independent experience and judgment. Merely because the court chose not to abide by the opinion of Kellstedt’s expert witnesses that the amount claimed was reasonable does not suggest that the court’s determination was either contrary to the manifest weight of the evidence or an abuse of discretion. Kellstedt failed to present documentation adequate to support the expenditure of 28.5 hours of his time. Just as an attorney may not expect the court to look favorably upon a stack of time sheets dumped on the bench (see FMC Corp. v. Varonos (7th Cir. 1990), 892 F.2d 1308), neither should an attorney expect to support his claim with blank time forms and an unreadable scrawled “summary” such as Kellstedt submitted here. Kellstedt’s expert witnesses could not attest to Kellstedt’s actual expenditure of 28.5 hours, but only to the fact that Kellstedt had claimed that amount of billable time. Considering the small size of the probate estate and the general lack of complexity involved, the court was justified in reducing Kellstedt’s billable time to 10 hours. Accordingly, we affirm the circuit court’s fee determination.

Kellstedt next contends that the circuit court had no authority to order him to turn over the retained securities without providing any safeguard for his collection of fees. Initially, we do not agree that the court had no authority to enter the turnover order. The fact that Kellstedt had retained stock certificates pursuant to his common law lien for unpaid fees was a matter brought out during the hearing on Kellstedt’s fees. Kellstedt did not object to Miller’s turnover request during the course of those proceedings.

Further, Kellstedt’s argument that he could not relinquish the stock certificates without losing his retaining lien is not well taken. The law respecting common law retaining liens is that the involuntary relinquishment of retained property pursuant to a court order does not result in the loss of the lien. Brauer v. Hotel Associates, Inc. (1963), 40 N.J. 415, 192 A.2d 831; 7 Am. Jur. 2d Attorneys at Law §322, at 335 (1980).

Kellstedt does not assert that Miller refuses to pay him the fees determined by the court to be reasonable compensation for the estate case. In his appellate brief, Miller affirmatively states that he “has tendered and continues to tender to Attorney Kellstedt the full amount of the judgment contained in Judge Reardon’s order of February 14, 1989.” The record on appeal neither confirms nor refutes this statement. However, we find it significant that Kellstedt, an astute trial lawyer and appellate practitioner for several decades, has not taken issue with this statement either in his reply brief or in oral argument. Once the court determined the amount of fees Kellstedt was entitled to, Kellstedt had no right to both maintain his original claim and continue to hold the securities hostage upon Miller’s tender of fees as judicially determined. By maintaining his claim to a retaining lien, Kellstedt’s lien rights were adequately preserved. Brauer, 40 N.J. at 420, 192 A.2d at 835; see also People v. Altvater (1974), 78 Misc.2d 24, 355 N.Y.S.2d 736.

Kellstedt also complains that the court’s turnover order and enforcement of it via exercise of the court’s contempt power violated his constitutional guarantee of due process. This argument is without merit, given that Kellstedt was afforded every opportunity to be heard and to present factual and legal grounds in defense of his position. The fact that the court did not embrace Kellstedt’s arguments does not mean that due process was not afforded him.

With respect to the contempt proceedings, Kellstedt enjoyed the full protection of legal due process as well. The court has inherent authority to enforce its orders by the use of its contempt power. Generally, the failure to obey a court’s order is considered civil contempt, and where the refusal takes place outside the presence of the court, it is indirect civil contempt. (People v. Mowery (1983), 116 Ill. App. 3d 695, 701-02, 452 N.E.2d 363, 369; 12 Ill. L. & Prac. Contempt §5 (1983).) Civil contempt is coercive in nature rather than punitive, and to be sustained on review, an order of civil contempt must place within the hands of the contemnor “the key to his cell.” (People v. Mowery (1983), 116 Ill. App. 3d 695, 452 N.E.2d 363; People v. Gholson (1952), 412 Ill. 294, 106 N.E.2d 333; Eastman v. Dole (1919), 213 Ill. App. 364; 12 C.J.S. Contempt §93, at 269 (1963); 12 Ill. L. & Prac. Contempt §87 (1983).) As noted by the court in Mowery, “The inherent power of contempt is a powerful one; it is not to be used lightly nor when other adequate remedies are available; if it is used, it must conform strictly to the dictates of the law.” Mowery, 116 Ill. App. 3d at 704, 452 N.E.2d at 370.

In this case Kellstedt was given notice that his failure to comply with the court’s turnover order could result in a finding of contempt. Kellstedt was afforded an opportunity to show cause why such finding should not be entered against him and sanctions imposed. As we have stated above, Kellstedt’s unhappiness with the court’s reduction of his fees is not good cause to retain property subject to a common law retaining lien in the face of a court order to turn over the property. Moreover, there is no question but that Kellstedt was given the keys to his cell in the court’s provision for purging the contempt by turning over the stock certificates prior to the time set for him to be committed to the county jail. Although three of the certificates were surrendered subsequent to the court’s entry of a rule to show cause, Kellstedt continues to retain two. Under the circumstances, the court was entirely justified in finding that Kellstedt’s steadfast refusal to comply with the February 14 order was wilful and contumacious. The sanctions imposed, given the liberal opportunity to purge, are not unduly harsh.

In sum, we find that the trial court did not err in finding Kellstedt in indirect civil contempt of court and in imposing sanctions conditioned upon the contemner’s continued retention of his former client’s property.

The judgment of the circuit court is affirmed.

Affirmed.

HEIPLE, P.J., and SCOTT, J., concur.


author: JUSTICE SCOTT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VATENESS JOHNSON, Defendant-Appellant.
    Third District
    No. 3—89—0006
    Opinion filed April 23, 1990.
    Rehearing denied May 23, 1990.

      Thomas A. Lilien, of State Appellate Defender’s Office, of Elgin, for appellant.
    Edward Burmila, State’s Attorney, of Joliet (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

Defendant and her husband, Frank Johnson, were each indicted for two counts of murder and two counts of aggravated battery for the death of Judy Moses, age five, and the beating of her sister Quiana Moses, age three. After a jury trial, both were convicted on all counts, and defendant was sentenced to concurrent terms of 60 years’ imprisonment for each murder conviction and 10 years for each aggravated battery conviction. Frank Johnson was sentenced to concurrent terms of 22 years for murder and five years for aggravated battery. Defendant and her husband both appealed, and in each case, their respective convictions were reversed and new trials ordered on the basis that the trials of each should have been severed. See People v. Vateness Johnson (1987), 151 Ill. App. 3d 1049, 504 N.E.2d 178; People v. Frank Johnson (1986), 144 Ill. App. 3d 997, 495 N.E.2d 633.

Frank Johnson subsequently pleaded guilty to a reduced charge of involuntary manslaughter and was sentenced to an eight-year term of imprisonment. As part of this plea negotiation, Frank Johnson agreed to testify against defendant if necessary. Defendant was retried before a jury and convicted of two counts of murder and one count of aggravated battery. The trial court subsequently sentenced her to concurrent 60-year terms of imprisonment on the murder convictions and 10 years on the aggravated battery conviction. Defendant now appeals her convictions after retrial. No issues are raised concerning the indictment.

Defendant’s second trial was scheduled for November 9, 1988. Prior to selection of the jury, however, defendant moved to have the jury panel discharged on the ground that the Will County jury selection system violated defendant’s right to a fair and impartial jury. Defendant argued that the Will County Jury Commission excused numerous prospective jurors without proper grounds in substantial noncompliance with statutory requirements for the jury selection process. The trial court denied the motion after an evidentiary hearing and selection of the jury proceeded on November 11 and 14, 1988.

Judy and Quiana Moses resided with defendant and her family from January 12, 1985, to March 11, 1985. Prior to that time Valencia! Morris, the girls’ aunt, testified that she cared for the girls on four separate weekends in November and December of 1984 and at that time the girls appeared to be in good health. Evidence was further presented that on February 1, 1985, Garland Armstrong, an insurance agent, was at defendant’s home and observed Judy and Quiana Moses to be quiet but with no apparent injuries.

The next date for which evidence was presented was March 11, 1985. On this date defendant indicated that she had to separate the Moses girls after her sons had left for school. She tied Quiana to a bedpost downstairs and tied Judy’s wrists to a wrought iron chair in the garage after also binding her ankles together and placing a ligature over her mouth. About noon the same day, she received a ride from Reverend Johnson to the Harris Bank in Chicago and back. She then later contacted Jose Holmes (Holmes) for a ride to look for her apparent boyfriend, Richard Eames (Eames). Defendant and Holmes made several stops in search of Eames and drank beer, chámpale, and possibly smoked marijuana. Holmes eventually gave defendant a ride home sometime in the evening. Defendant indicated that when she arrived home that evening Judy had been brought into the house. One of the defendant’s sons then brought Judy upstairs and laid her down on the living room floor. Defendant described Judy as “fake sleeping” and further stated she went to bed but arose more than once that evening to check on Judy and called a few people, including two nurses, about Judy’s condition. One nurse told her the fake sleeping could result from chicken pox and another stated a coma could result, but that the girl would be alright in the morning.

Defendant stated that when she arose at 8 a.m. on March 12, 1985, Judy was still on the floor. Defendant then made breakfast, hoping it would awaken Judy, but it did not. That morning, Frank Johnson fixed the family van, and around noon, placed Judy on the van couch. Defendant, Frank, Quiana, Judy and defendant’s youngest son then went to an attorney’s office about other matters. Defendant, however, also mentioned to the attorney that Judy and Quiana were rebelling and was referred to the Department of Children and Family Services (DCFS). DCFS then referred defendant and the children to Silver Cross Hospital. Judy Moses was pronounced dead at the hospital, and an autopsy was subsequently performed by Dr. Mira Kalelkar. Dr. Kalekar described Judy’s body as dirty with injuries of various ages up to a month or older and in various stages of healing. Among the older injuries were abrasions or lacerations on the lips, cheeks, neck, back, arms, legs, labia and scalp. Some of the abrasions or lacerations had a looped pattern that could have resulted from a belt or electrical cord. The fresher injuries included abrasions on the nose, chin, ear, forehead and a bruised hand. Some of the facial abrasions followed a pattern as if a ligature had been used around the mouth. Dr. Kalekar’s internal examination revealed a subgaleal hemorrhage in the left frontal area of the scalp and the brain was swollen. Judy’s stomach and intestines were empty and the fecal matter in the intestines was hard, suggesting dehydration or lack of recent fluid intake. Dr. Kalelkar’s opinion was that Judy Moses died from multiple blunt force injuries or, in other words, had been beaten to death. The mechanism of death was neurogenic cardiovascular shock, which means the pain, resulting from repeated beatings over a period of time, caused her heart to fail. The shock could have taken several days to develop. No single injury could be singled out as the cause of death, but the injuries which were more than one month old were not a contributing factor.

Dr. Demetre Soder, defendant’s expert, testified that in his opinion the technical cause of death was cerebral edema, described as diffuse swelling of the brain with herniation through the skull at the base of the brain. The injury could have resulted from trauma, such as repeated blows to the head over a period of time. A child could not have caused Judy’s injuries.

Quiana Moses arrived at Silver Cross Hospital dirty, smelly and apparently without having eaten in some time. There were several open sores on her head, one of which being four inches in diameter and requiring skin grafting to close. Quiana also had wounds all over the rest of her body. There were burn-type wounds in the vaginal area, on one of her toes and her hand. Some of the wounds on her legs had a looped pattern as though inflicted with a belt or extension cord.

The evidence revealed defendant to be the primary caretaker of the Moses children. Defendant, in fact, admitted to spanking the girls with tree branches, a plastic bat, tying them to a bed, tying Judy’s arms and legs together and putting her in the garage, and putting cotton balls in their mouths or ears to prevent them from crying when being switched.

The evidence also revealed that Frank Johnson suffered a stroke on January 11, 1985, and was hospitalized until early February. After returning home, he was required to take high blood pressure medicine and slept 14 hours per day. Frank twice observed defendant hit Quiana with switches, but not with such a force as to cause significant injury. Frank also testified to retrieving Judy from the garage the day defendant tied her up, placed her out there, and left for the day. Frank was not called by the prosecution as a witness. After defendant called Frank to testify, she attempted to impeach Frank regarding the disposition of the charges against him and the sentence he received. The trial court sustained the prosecution’s objection to this line of questioning.

Defendant raises the following issues for review: First, (issue 1), whether the trial court erred in denying defendant’s motion to discharge the jury panel; second (issue 2), whether the trial court erred in sustaining the prosecution’s objection to defendant’s attempt to reveal Frank’s guilty plea and sentence to the jury; third issue (issue 3), whether the prosecution unfairly elicited prejudicial information and raised improper insinuations before the jury; fourth (issue 4), whether the jury should have been instructed on involuntary manslaughter as a lesser included offense of murder and reckless conduct as a lesser included offense of aggravated battery; and fifth (issue 5), whether one of the two murder convictions must be vacated and the defendant receive a new sentencing hearing on the remaining conviction, and whether the extended-term sentence for aggravated battery was unauthorized. Any necessary facts not outlined above will be discussed more thoroughly with regard to each issue.

Defendant maintains that the procedures used by the Will County Jury Commission in selecting jurors violated statutory mandates and resulted in hundreds of prospective jurors being excused from service without proper grounds. Defendant does not, however, allege that members of any particular racial or ethnic group were excluded from service.

Will County relies upon a voter registration list, updated yearly, in preparing an active jury list. Each prospective juror selected randomly for the active jury list is then sent a questionnaire which is supposed to be returned within 10 days. Returned questionnaires are then reviewed by a jury commissioner for a determination of whether the person is approved for or excused from jury duty. If a prospective juror fails to respond, a second duplicate notice is mailed one month later. If a completed questionnaire is not returned, the prospective juror is considered rejected from service.

At the evidentiary hearing on the issue, defendant submitted into evidence four exhibits. Exhibit 1 was a computer printout dated June 8, 1988, and comprised names of prospective jurors for the active list. All 2,000 individuals listed in exhibit 1 were sent questionnaires, and the list was later used to mark by each individual’s name whether that person was approved, excused, rejected, deceased or moved, depending on the responses received from the questionnaire. Some of the jurors summoned for defendant’s trial are on this list. Exhibit 2 was a sample questionnaire. Group exhibit 3 were returned questionnaires of prospective jurors who were excused from service, primarily in late January and February of 1988 by the jury selection commission based solely on the questionnaire. Part A of exhibit 3 consisted of 213 questionnaires which the trial defense attorney and trial prosecutor agreed showed justifiable reasons for the commissioners to excuse the jurors. Part B comprised 23 questionnaires on which, the trial attorneys agreed, no good reason for reason for excusing the jurors appeared on the face of the respective questionnaire. Part C was 300 questionnaires which the State contended showed legitimate reasons for excusing the prospective juror, but which defense counsel contested. Finally, exhibit 4 contained 41 questionnaires for the jurors comprising the venire from which the jury was drawn. Accompanying the questionnaires is a list of 75 names drawn for service; however, six of those jurors were permanently excused and 11 others were temporarily excused by either the jury commission or trial court.

Will County uses a jury commission for the jury process. As such, the commission has authority to submit questionnaires to prospective jurors, and upon prior approval of the chief judge of the judicial circuit, the commission

“shall excuse a prospective juror from jury service if the prospective juror shows that such service would impose an undue hardship on account of the nature of the prospective juror’s occupation, business affairs, physical health, family situation, active duty in the Illinois National Guard or Illinois Naval Militia, or other personal affairs, and cause his or her name to be returned to the jury list or general jury list.” (Ill. Rev. Stat. 1987, ch. 78, par. 10.2.)

Defendant has not argued that the commissioners in this case acted without authority of the chief judge of the circuit. Defendant maintains, however, that two substantial statutory violations occurred in the Will County procedure. First, defendant argues that no showing of undue hardship was made on a substantial number of questionnaires out of the 1,000 defendant reviewed, 23 of which the prosecution admitted showed no undue hardship. In this regard defendant asserts the commissioners acted arbitrarily in excusing jurors. As examples of her position, defendant cites situations where jurors were apparently excused because of their age, their care of young children, or their employers’ failure to compensate them while serving jury duty. Defendant then alleges that certain jurors on the venire also had similar circumstances but were not excused by the commission. Second, defendant states that those who do not return a questionnaire are automatically excluded from service. Defendant maintains these individuals should remain on the active list subject to summons.

Defendant principally relies on People v. Lembke (1926), 320 Ill. 553, 151 N.E. 535. In Lembke, the court was faced with a situation where the county board failed to properly have available eligible jurors from which a jury could be selected. The statute at the time required the county board to make a list of not less than 10% of the legal voters of the county and then select no less than 100 qualified persons from said list for each jury trial term of the year for the purpose of creating a juror pool to draw from. (Ill. Rev. Stat. 1921, ch. 78, pars. 1, 2.) The county board, however, merely prepared a list representing 6% of the legal voters and then failed to hone the list by selecting 100 qualified jurors for each court term. Thus, the trial court apparently exhausted the list provided by the county board and was required to draft talesmen to serve as jurors. The court held that when significant provisions of the statute are not substantially complied with in the selection and qualification of a regular panel, then a defense motion to dismiss the panel should be allowed. There was absolutely no pretense by the county board, or even an attempt, to comply with the statute, and, therefore, the regular panel was illegal. (Lembke, 320 Ill. 553.) The court further stated that defendant need not make a specific showing of prejudice to be entitled to relief, because to sustain such a contention would be to absolutely disregard the mandates of law. All litigants are entitled to the same fair consideration by legally selected qualified jurors. Lembke, 320 Ill. 553.

In 1931, our State legislature enacted section 35 of the jury selection statute, which states as follows:

“No objection, exception or challenge to any petit juror or grand juror or to any panel [of] petit or grand jurors shall be allowed at any time because of any failure to comply with the provisions of this act or of the said rules, unless the party urging the same shall show to the court that actual and substantial injustice has resulted or will result to him, because of the error or defect charged.” Ill. Rev. Stat. 1987, ch. 78, par. 35.

Defendant asserts that section 35 does not supersede the holding of Lembke stating that a defendant need not show actual prejudice before relief can be granted. We consider this a fair statement but, nonetheless, believe Lembke is not controlling. This is not a situation where the jury commissioners absolutely neglected to follow the required procedures for selecting a proper jury panel. At most, defendant can only argue that the jury commissioners were inconsistent in their determination of who should be excluded from the jury panel. It must also be kept in mind that much of what defendant maintains is nothing more than speculation or conjecture. Although we concur that it appears some of the prospective jurors were excused based on responses to questionnaires that failed to show undue hardship, we must keep in context the fact that the jury commissioners apparently review thousands of questionnaires. In this light, we consider it probable that any given defendant could cite examples of juror commission irregularities in practically any given case. We do not perceive in this case a total disregard of required procedure as was the situation in Lembke. As has been stated, “mere irregularities in the selection which are not prejudicial are not a basis for reversal where there is substantial compliance with the law.” (People v. Beacham (1980), 87 Ill. App. 3d 457, 468, 410 N.E.2d 87.) To hold otherwise would create a standard for county boards or jury commissions which would be extremely difficult to comply with in probably every instance. Defendant is not entitled to perfect compliance with the jury selection laws, just substantial compliance. The jury panel in this case was selected in substantial compliance with Illinois law.

Second (issue 2), defendant argues the trial court should have allowed her to elicit from her codefendant husband that he pleaded guilty to involuntary manslaughter and received a sentence of eight years. It is undisputed that both defendant and her husband, Frank, were originally charged with identical offenses and that both were found guilty after a jury trial, with said convictions being reversed on appeal for the failure of the trial court to sever their respective cases. Moreover, Frank subsequently pleaded guilty to involuntary manslaughter, agreed to testify against defendant if necessary, and received an eight-year prison sentence.

Frank was not called to testify by the prosecution, but instead was called by the defendant during her case in chief. Defendant maintains that evidence of Frank’s negotiated plea was either admissible as substantive evidence to support the theory of her defense or admissible in order to impeach Frank’s credibility as a prior inconsistent statement, a prior conviction, or as a means of showing Frank’s interest, bias or motive to testify falsely.

We are not persuaded that defendant is entitled to elicit Frank’s plea and sentence as substantive evidence in her defense. No evidence indicates that this is a case where only one person could have committed these crimes. In fact, the evidence indicates that defendant, not Frank, is responsible for these acts. Nonetheless, an accomplice’s guilt or innocence is irrelevant to defendant’s guilt. (People v. Williams (1983), 115 Ill. App. 3d 276, 450 N.E.2d 851.) The real question is whether this evidence was admissible to impeach Frank’s credibility as a witness. On this point we note that Supreme Court Rule 238, which applies to criminal cases under Rule 433, states that “[t]he credibility of a witness may be attacked by any party, including the party calling him.” (107 Ill. 2d Rules 238(a), 433. See also People v. Bolden (1987), 152 Ill. App. 3d 631, 504 N.E.2d 835.) Impeachment of a codefendant’s credibility may be done by showing that the codefendant has pleaded guilty or has been convicted of the same offense. (People v. Sullivan (1978), 72 Ill. 2d 36, 377 N.E.2d 17; People v. Burch (1974), 22 Ill. App. 3d 950, 317 N.E.2d 136.) A codefendant can likewise be impeached by evidence of the codefendants’ sentence for purposes of showing any interest, bias or motive to testify falsely and wide latitude must be accorded an examiner in doing same. (Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105; People v. Triplett (1985), 108 Ill. 2d 463, 485 N.E.2d 9; People v. Rogers (1976), 42 Ill. App. 3d 499, 356 N.E.2d 413; People v. Foley (1982), 109 Ill. App. 3d 1010, 441 N.E.2d 655.) Classically, a codefendant is impeached where his testimony has inculpated the defendant on trial. Here, however, the State did not call Frank as a witness and, therefore, no situation was presented where a codefendant was called as a witness by the State to “point the finger” at the defendant on trial. Instead, defendant called Frank to testify and attempted to get Frank to state that he was responsible for the death of Judy and the injuries to Quiana. In this regard, Frank testified that he did not know who was responsible for the crimes committed. Although, he did state that he did not commit the acts. Frank said nothing more than witnessing defendant strike the girls on two occasions and discovering Judy tied to a chair in the garage; things which defendant admitted doing. Thus, we cannot say that Frank’s credibility was called into question such that he was subject to impeachment regarding his plea and sentence to the charges against him.

Defendant next asserts (issue 3) that the prosecutor unfairly elicited prejudicial material from witnesses regarding defendant’s moral character. The sum and substance of these allegations are the State elicited that defendant smoked marijuana the day of Judy’s death; that Richard Fames was her boyfriend; that there was inquiry regarding defendant’s relationship with the girl’s father; and that there was questioning regarding defendant’s termination from a day care center. Without going into specific detail as to each specific allegation of error, we find that defendant has waived these issues on appeal by failing to include said objection in her post-trial motion for a new trial. (See People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) For most of these allegations, defendant further failed to object during the course of the trial. Nor do we believe these allegations should be considered under the plain error doctrine, as that doctrine is reserved for situations where fundamental fairness necessitates appellate review of an alleged error regardless of whether the issue was properly preserved for review. Although some of the allegations may have potentially had merit if properly preserved for review, we do not believe that defendant was denied a fair trial as a result.

Issue 4 regards the trial court’s refusal to give an involuntary manslaughter instruction to the jury. We note initially that defendant is entitled to instructions on her theory of the case. (People v. Lefler (1967), 38 Ill. 2d 216, 230 N.E.2d 827.) Undeniably, an involuntary manslaughter instruction is appropriate where evidence in the record, if believed by the jury, would reduce the degree of the offense charged. (People v. Foster (1987), 119 Ill. 2d 69, 518 N.E.2d 82.) Similarly, however, if no evidence was presented which could reduce defendant’s murder charge to involuntary manslaughter, then an instruction should not have been given. Basically, there must be evidence in the record which would cause a jury to believe that the defendant acted recklessly instead of knowingly in causing the death of Judy Moses.

“Recklessness” is defined in section 4 — 6 of the Illinois Criminal Code of 1961 as follows:

“A person is reckless or acts recklessly when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” Ill. Rev. Stat. 1987, ch. 38, par. 4 — 6.

Defendant principally argues that she was entitled to an involuntary manslaughter instruction because: the death of Judy Moses cannot be attributed to one specific injury; Frank was also responsible for Judy’s care at times; defendant admitted to striking Judy with various objects at various times; and defendant expressly denied intending to beat Judy to death. We find none of these arguments persuasive. The evidence in this case reveals that Judy Moses suffered injuries to practically every part of her body after coming into the care of defendant. Although one specific injury cannot be attributed to Judy’s death, both experts basically agreed that Judy Moses was literally beaten to death. It is therefore insignificant to this court whether Judy died as a result of one particular injury or a cumulation of many injuries, because the end result was the same. Considering the number and degree of injuries discovered at the autopsy, it is patently inconceivable that these injuries could possibly be the result of reckless conduct. In fact, it would be more believable that defendant acted recklessly if Judy had died from one single injury. The bottom line is that Judy Moses was tortured the last month of her life, and the jury concluded that defendant was responsible. No evidence, of reckless conduct can be found in the record. This opinion further finds support in People v. Ward (1984), 101 Ill. 2d 443, 463 N.E.2d 696. In Ward, the victim, a young child, was beaten with a mop stick on two occasions by his mother’s boyfriend. The injuries to the victim were too numerous to count and covered much of his body. A pathologist testified that the young child died from respiratory arrest due to cerebral edema. The boyfriend maintained that he did not touch the child the day the injuries were inflicted, but a jury thought otherwise and convicted him of murder. The appellate court reversed the conviction on the basis that an involuntary manslaughter instruction should have been given to the jury. The supreme court reversed the appellate court and held that the trial court correctly refused to give an involuntary manslaughter instruction. Basically, the court stated that since the boyfriend maintained he did not touch the child, he presented no evidence whatsoever of reckless conduct. Secondly, even if it were assumed that the boyfriend stated he did not intend to kill the child, the court considered the severity of the beatings inflicted negated any suggestion of recklessness. We find Ward controlling and believe the trial court properly refused to give defendant’s tendered instruction.

Defendant also states the trial court should have given a reckless conduct instruction as a lesser included offense of aggravated battery for the charge relating to Quiana Moses. We disagree. First, no reckless conduct instruction was tendered to the court for consideration, and therefore, the issue has been waived. Secondly, no plain error was committed for the same reason that the involuntarily manslaughter instruction was properly refused. Quiana also suffered injuries to most of her body, including large open wounds on her head, one of which required skin grafting to close. The number and severity of these injuries negate any suggestion of recklessness. It is simply fortunate that Quiana did not suffer the same fate as Judy.

Finally, defendant argues (issue 5) that defendant cannot be convicted and sentenced on two separate murder charges where there is only one underlying murder. Defendant therefore maintains that one of the convictions should be reversed and a new sentencing hearing should be had as to the remaining conviction. We agree that one conviction should be reversed but disagree that a new sentencing hearing is required as a result.

Defendant was convicted of murder and felony murder based on aggravated battery. Two convictions for one underlying murder cannot stand, and one of the convictions must be vacated. (People v. Payne (1983), 98 Ill. 2d 45, 456 N.E.2d 44.) In this regard, defendant maintains that a new sentencing hearing is necessary because the trial court may well have considered the vacated conviction in passing sentence upon the remaining conviction. Defendant was sentenced to a 60-year term of imprisonment for each murder conviction. A case need not be remanded for resentencing, however, where there is no indication that the trial court considered or was influenced by the vacated conviction in passing sentence. (People v. Sanford (1983), 119 Ill. App. 3d 160, 456 N.E.2d 333.) Defendant makes no citation to the record as support for her theory that the court was influenced by the presence of two murder convictions.

Secondly, defendant argues the trial court failed to properly take into consideration her rehabilitation and that she must be considered a “model prisoner.” The trial court, however, found that defendant’s conduct was exceptionally brutal or heinous behavior indicative of wanton cruelty and further found the acts to have been committed against a person under 12 years of age. Under section 5 — 8—1 of the Unified Code of Corrections, a person convicted of first degree murder shall be sentenced to a term of “not less than 20 years and not more than 60 years,” unless aggravating circumstances warrant an extended term or natural life imprisonment. (Ill. Rev. Stat. 1987, ch. 38, pars. 1005 — 8—1(a), 1005 — 8—2.) In light of the court’s finding that certain aggravating factors existed warranting the imposition of either one of the two more severe sentencing options, the trial court sentenced defendant to 60 years. This was clearly within the trial court’s discretion.

Regarding defendant’s aggravated battery conviction, the trial court imposed an extended-term sentence of 10 years. Section 5— 8 — 2 of the Unified Code of Corrections states that an extended term may be imposed when the trial court makes specific findings that one or more of the factors listed under paragraph (b) of section 5 — 5—3.2 are present. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—2.) Under section 5 — 5—3.2, two of the factors which the court found to exist were that the act was exceptionally brutal or heinous behavior indicative of wanton cruelty and the felony was against a person under 12 years of age. (Ill. Rev. Stat. 1987, ch. 38, par. 1005-5-3.2(b).) We do not quarrel with either of these express findings and, therefore, the trial court acted within its bounds of discretion.

For all of the foregoing reasons, the decision of the trial court is affirmed with the limited exception that the case be remanded with instructions that one of the two murder convictions and its sentence be vacated.

Affirmed in part; reversed and remanded in part.

STOUDER and BARRY, JJ., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KERWIN L. SMITH, Defendant-Appellant.
    Third District
    No. 3—88—0407
    Opinion filed April 30, 1990.

      Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Kerwin Smith, was charged by information with retail theft. Prior to trial, the defendant filed a petition to elect to undergo treatment as an addict pursuant to the Alcoholism and Substance Abuse Act (Ill. Rev. Stat. 1987, ch. IIIV2, par. 6301 et seq. (as amended Ill. Rev. Stat., 1988 Supp., ch. llD/a, par. 6354 — 1 et seq.)) (Act). After being placed in the treatment program, the defendant received a bench trial pursuant to section 22 of the Act. (Ill. Rev. Stat. 1987, ch. llU/a, par. 6322 (as amended HI. Rev. Stat. 1987, ch. llV-k, par. 6360 — 2).) Although the defendant was found guilty, entry of judgment was deferred. Subsequently, a petition to revoke the defendant’s supervision under section 22 was filed. Following a hearing, the trial court revoked the defendant’s supervision, entered judgment on the defendant’s conviction for retail theft, and sentenced him to six years in the Department of Corrections.

The defendant appealed, and we vacated his conviction based on the trial court’s alleged failure to follow the procedural guidelines set forth in section 22. Thereafter, the State filed a petition for rehearing contending that the trial court did in fact abide by the procedural guidelines set forth in section 22. The State also requested that the record be supplemented with a transcript illustrating the events surrounding the October 8, 1987, morning session at which the trial court admonished the defendant of his right to a jury trial. This transcript was inadvertently omitted from the record as originally filed. In the interest of judicial efficiency, we granted the State’s petition for rehearing, withdrew our original decision, and asked the parties to file supplemental briefs on two issues: (1) whether the State should be allowed to supplement the record after the court has made its decision, and (2) whether the defendant was properly admonished that he waived his right to a jury trial by electing to proceed to a bench trial under section 22.

Initially, with respect to supplementing the record, the Supreme Court authorizes this court, under Supreme Court Rule 329, to supplement a record on appeal. (107 Ill. 2d R. 329.) The rule provides:

“The record on appeal shall be taken as true and correct unless shown to be otherwise and corrected in a manner permitted by this rule. Material omissions or inaccuracies or improper authentication may be corrected by stipulation of the parties or by the trial court, either before or after the record is transmitted to the reviewing court, or by the reviewing court or a judge thereof.” (107 Ill. 2d R. 329.)

Rule 329 has been interpreted broadly. (People v. Petty (1987), 160 Ill. App. 3d 207, 513 N.E.2d 486.) Under the circumstances presented herein, contrary to the defendant’s assertion that supplementing the record would contravene the principles of finality and judicial economy, we find that the interests of justice require that the State be allowed to supplement the record.

In People v. Allen (1985), 109 Ill. 2d 177, 486 N.E.2d 873, our supreme court confronted the issue of when a record could be supplemented on appeal. There, the State argued that a court reporter inaccurately transcribed a jury instruction which later became the basis upon which the appellate court reversed the conviction. The court addressed the defendant’s argument, an argument made here as well, that fundamental fairness demands the appeal be decided on the original record. The defendant based his argument on the untimeliness of the State’s effort to correct the record on appeal. The court noted:

“Although we agree that the State should have realized the error sooner through better communication between its trial and appellate divisions, we do not agree that the failure to realize the error sooner should be fatal to its attempts to correct the error. *** Furthermore, fundamental fairness demands that the appeal be decided on the basis of the proceedings as they actually occurred in the trial court.” 109 Ill. 2d at 186-87, 486 N.E.2d at 876.

In the instant case, the original record does not indicate that a hearing was held both in the morning and afternoon of October 8, 1987. As a consequence, there was little evidence suggesting that the record was incomplete. We note that it was the trial judge who, after reviewing our earlier opinion, discovered the omission from the original record of the transcript for the October 8, 1987, morning session. The State urges this court to allow the omitted transcript to be placed into the record. We normally frown on the practice of supplementing a record on appeal; however, in the instant case no useful purpose would be served by denying the State’s motion to supplement the record. We find that a record may be supplemented on appeal, even after a reviewing court renders its decision, when the interests of justice so require. Therefore, pursuant to Supreme Court Rule 329, we hereby grant the State’s motion to supplement the record.

With respect to the issue whether the defendant waived his right to a jury trial, the supplemented record reveals that the defendant was charged with retail theft on March 5, 1987. On July 14, 1987, the defendant filed a petition to elect to undergo treatment as an addict pursuant to the Act. A hearing was held on October 8, 1987, which lasted throughout the morning and was continued into the afternoon. The parties do not dispute that the transcript of the morning session was inadvertently missing from the original record.

At the morning session, defense counsel told the court that the defendant was entitled to a bench trial and that if he was found guilty of the retail theft charges judgment would be deferred pending completion of Treatment Alternatives to Street Crimes (TASC) supervision. After the court explained to the defendant that he was approved for TASC treatment, the following dialogue took place:

“THE COURT: So that — and, you understand, Mr. Smith what we are doing here? We’re taking your plea of guilty, and we are going to find you guilty, assuming that the factual basis exists and all the rest of the things are taken care of. But, we don’t enter a judgment until we find out whether you can complete your TASC, then we dismiss the charges. If you fail to complete TASC, we bring you back and sentence you. *** If you plead not guilty or persist in your previously entered plea of not guilty, you have the right to be tried by a jury or by this court. But, if you plead guilty, you will not be tried by me. You will not have a trial of any kind; do you understand this?
THE DEFENDANT: Yes, sir.”

After the State gave a factual basis for the retail theft charges, the defendant informed the court that he found the State’s factual basis to be inaccurate. The court decided to continue the case until the afternoon. Prior to adjournment, however, the following dialogue took place:

“MR. BRADY: Judge, *** I think what the defendant needs to do is decide whether he wants a jury trial or whether he wants TASC treatment. And, I don’t know *** the solution for this problem is for the defendant to decide whether he wants a jury trial or TASC treatment. I -will be glad to go over that with him.
THE COURT: Yes, I think Mr. Brady can consult with you; but, you have to make the decision yourself because he will go either way with you.
THE DEFENDANT: Yes, sir.”

In the afternoon session, defense counsel advised the court that he had informed the defendant that he had a right to a bench trial in a TASC proceeding under section 22, and counsel stipulated, in the defendant’s presence, that it was the latter’s desire to proceed to a bench trial. As a result, the case was set for a bench trial.

The defendant’s bench trial was held on November 5, 1987. The court found the defendant guilty and placed him on TASC supervision for up to two years. On November 23, 1987, the defendant was accepted for outpatient services at the Touchstone treatment facility in Peoria. On March 8, 1988, the State filed a petition to revoke the defendant’s section 22 supervision. The State’s petition was based upon a February 1988 TASC report terminating the defendant’s treatment at Touchstone due to unexcused absences from scheduled appointments.

On April 21, 1988, the court revoked its order placing the defendant on TASC treatment supervision. A sentencing hearing was held on June 3, 1988. The court sentenced the defendant to a six-year term in the Department of Corrections.

The defendant asserts that even with the record supplemented, the trial court did not properly admonish him as to his right to a jury trial. The State contends that the record establishes that the trial court properly admonished the defendant as to his right to a jury trial. After reviewing the record, we find that the defendant had been informed of his right to a jury trial and that he waived said right by electing to proceed to a bench trial under section 22.

Here, the defendant expressed a desire to receive TASC treatment. At the TASC hearing, the defendant questioned the factual basis upon which the State predicated the retail theft charges. As a result, in order to challenge the State’s version of the facts and remain within the auspices of the TASC statute, the defendant waived his right to a jury trial and agreed to proceed to a bench trial. Moreover, it is evident from the above colloquy that the defendant’s waiver was informed and voluntary. (See People v. Madej (1985), 106 Ill. 2d 201, 478 N.E.2d 392.) As explained in detail earlier, the trial court informed the defendant of his right to a jury trial, the fact that if convicted under the TASC statute, said conviction would be deferred and eventually dismissed if the defendant successfully completed the TASC program, and that if the defendant failed to complete the TASC program, he would be sentenced on the conviction. In addition, we note that there is no precise catechism required under the sixth amendment to determine whether a jury waiver has been knowingly and intelligently made and each case will be decided on its own facts. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) Accordingly, we hold that the trial court properly admonished the defendant as to his right to a jury trial.

The defendant also argued, in the original appeal, that the trial court erred in failing to give credit against his sentence for time spent on supervision in the treatment program. The defendant argues that he is entitled to credit for time served in the treatment program, because when he committed the offense, section 22 read he shall be given credit for “time spent in treatment.” (Ill. Rev. Stat. 1985, ch. lll1^, par. 6322.) At the time the defendant’s supervision was terminated, however, section 22 was amended by Public Act 85 — 498, section 1, effective January 1, 1988. Prior to amendment, the relevant section provided as follows:

“Failure of an individual placed on probation and under the supervision of a licensed program designated by the Department to observe the requirements of a licensed program designated by the Department shall be a probation violation. Such failure shall be reported by a licensed program designated by the Department to the probation officer in charge of the individual and treated in accordance with probation regulations.” Ill. Rev. Stat. 1985, ch. HV-k, par. 6322.

The State argues that because the revocation of the defendant’s supervision occurred after section 22 had been amended, the amended statute controls the question of whether the trial court properly denied the defendant sentencing credit for the time he spent in the treatment program. In addition, the State suggests section 22 did not confer upon the defendant any substantive right. Rather, section 22 was a procedural requirement to be followed in the event that supervision was terminated.

Under the amended statute, whether the defendant should be granted credit for time served in the treatment program is discretionary with the trial court. Recently, in People v. Farmer (1988), 176 Ill. App. 3d 436, 531 N.E.2d 137, the court was faced with a similar question regarding which statute to apply in crediting or failing to credit a defendant’s sentence after a parole violation. There, at the time the defendant committed the offense, January 31, 1987, section 5 — 6—4(h) of the Unified Code of Corrections read, in part:

“Time served on probation, conditional discharge or supervision shall be credited by the court against a sentence of imprisonment or periodic imprisonment unless the court orders otherwise.” (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 6—4(h).)

At the time the defendant was resentenced after revocation of probation, February 17,1988, section 5 — 6—4(h) had been amended to read:

“Time served on probation, conditional discharge or supervision shall not be credited by the court against a sentence of imprisonment or periodic imprisonment unless the court orders otherwise.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 6—4(h).)

The defendant there, as here, argued that she was entitled to have her sentence credited for time served on probation, for when she committed the offense the statute read that she must receive credit unless the court ordered otherwise. The court disagreed. The court held a defendant’s entitlement to any sentencing credit for time spent on probation, conditional discharge or supervision would be controlled by the statute in effect at the time of sentencing for the revocation as opposed to the statute in effect at the time the defendant was originally placed on probation, conditional discharge or supervision. People v. Farmer (1988), 176 Ill. App. 3d 436, 531 N.E.2d 137.

Here, similarly, the defendant’s entitlement to any sentencing credit is controlled by the amended provision in effect when the defendant was actually sentenced for the offense of retail theft. The trial court sentenced the defendant following the termination of his treatment supervision status. The defendant, therefore, is not automatically entitled to credit. He is only entitled to credit if the court grants him such credit. Under the amended statute, it is the trial court’s decision to grant or deny the defendant credit for time spent in the treatment program. Accordingly, the trial court’s failure to credit the defendant for the time he was enrolled in the treatment program was not an abuse of discretion.

For these reasons, we affirm the judgment of the circuit court of Peoria County.

Affirmed.

HEIPLE, P.J., and SCOTT, J., concur.