author: JUSTICE McLAREN JUSTICE REINHARD, JUSTICE GEIGER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ETHEL JEAN SCHNURR, Defendant-Appellant.
    Second District
    No. 2—88—1050
    Opinion filed December 19, 1990.

      REINHARD and GEIGER, JJ., specially concurring.
    G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Ethel Jean Schnurr, was convicted of solicitation (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 1) and was sentenced to 10 years’ imprisonment. Defendant now appeals both her conviction and her sentence. We affirm.

Defendant approached Vernial Trotter (Trotter) on or about October 19, 1987, and offered him $1,000 to murder her husband, Emil Schnurr (Emil). At approximately 5:30 that evening, Trotter informed the police about defendant’s plan. Later that evening, Trotter was fitted with an electronic eavesdropping device, which he wore as he and defendant traveled to Emil’s home in the early morning hours of October 20. Parts of the conversation between defendant and Trotter were recorded. Trotter entered Emil’s home and waited briefly with Emil and a police detective. He then returned to defendant’s vehicle and informed defendant that Emil was dead. Moments later, police stopped defendant’s vehicle and arrested defendant. Trial by jury resulted in defendant’s conviction for solicitation and a 10-year prison term.

Defendant first raises several issues which, by her own admission, were not raised in her motion for a new trial. These issues are (1) whether a proper foundation was laid for admission of the eavesdropping tape; (2) whether the court erred in admitting testimony regarding the accuracy of a transcript of the eavesdropping tape; (3) whether the court erred in refusing to allow testimony that Trotter was on probation for a prior conviction; (4) whether the court erred in admitting testimony that defendant had previously lied to her husband about matters having no connection to the case; and (5) whether the court erred in admitting testimony that defendant stood to inherit Emil’s estate upon his death. Defendant acknowledges that failure to raise an error in both a trial objection and a written post-trial motion constitutes waiver of the issue. (See People v. Enoch (1988), 122 Ill. 2d 176, 186-87.) However, defendant argues that these issues should not be considered waived because the failure to raise the issues in the post-trial motion is a result of ineffective assistance of counsel.

To prove ineffective assistance of counsel, a defendant must establish that counsel’s performance was deficient and that there is a reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been different. (People v. Al banese (1984), 104 Ill. 2d 504, 525.) We find that defendant has failed to prove either prong of the test adopted in Albanese. Defendant’s only argument regarding the deficiency of her counsel’s performance is that the failure to raise in a post-trial motion all objections raised at trial drags counsel’s performance below an objective standard of reasonableness. We do not find this persuasive. Defense counsel raised 19 issues in the post-trial motion. Counsel is not required to raise every trial objection in a post-trial motion. The inclusion of an issue is a matter of trial strategy; such strategy is entitled to great deference on review. (People v. Ptak (1990), 193 Ill. App. 3d 782, 789.) Defendant concedes that counsel’s performance was otherwise not objectionable. We conclude that defense counsel’s performance was reasonable and effective.

In addition, defendant has failed to prove that she was prejudiced by her counsel’s performance. In Enoch, the court found that the defendant failed to show ineffective assistance of counsel because he did not show that, but for counsel’s failure to file a post-trial motion, he would not have been convicted. (Enoch, 122 Ill. 2d at 202; see also People v. Williams (1989), 180 Ill. App. 3d 294, 300-01.) Under this analysis, we find that counsel’s failure to raise the five contested issues in the post-trial motion did not affect the outcome of the trial and defendant’s conviction.

Defendant’s first contention is that the State failed to demonstrate a proper foundation for the admission of the eavesdropping tape. The original tape was sent to the Federal Bureau of Investigation (FBI), pursuant to court order, for “cleansing,” i.e., removing static to enhance the sound of the tape. The court allowed the cleansing of the tape on the condition “that Mr. Berry [defense counsel] will be present when the copies are made, exchanged mutually between you [trial counsel].” Defendant now argues that admission of the tape was error because the State did not demonstrate that no changes were made affecting the integrity of the tape. Defendant cites People v. Nieves (1982), 92 Ill. 2d 452, for the proposition that once some evidence of tampering or disturbing the integrity of a recording is introduced, the State must show a lack of alteration. Nieves dealt with section 108A — 7(b) of the Code of Criminal Procedure of 1963, which provides that all recordings of eavesdropped conversations must be made available to the judge issuing the eavesdropping order immediately after the expiration of the order; the court is then to seal the recordings. (See Ill. Rev. Stat. 1989, ch. 38, par. 108A — 7(b).) Our supreme court determined that the purpose of this requirement was “to prevent tampering, alteration or editing and to preserve the integrity of the tapes.” (Nieves, 92 Ill. 2d at 462.) The court then held that, “[w]here the issue is immediacy, *** if a defendant challenges the integrity and presents some evidence to support the challenge, the burden should shift to the State, *** and the State must show that the tapes have not been altered.” Nieves, 92 Ill. 2d at 462.

Defendant now argues that the State must prove that the tape was not altered. Assuming, arguendo, the applicability of the Nieves standard, defendant has failed to introduce any evidence to challenge the integrity of the tape. While defendant has shown that the tape was sent to the FBI, she has not shown any evidence that the FBI disturbed the integrity of the tape. The fact that the tape was sent away is not a specific challenge to its integrity. The closest defendant comes to a challenge of the tape’s integrity was stating that the first words she spoke to Trotter as he returned to the van were not the first words heard on the tape. This, however, was not raised in conjunction with a challenge to the tape and is insufficient in any event. We find no error in the admission of the eavesdropping tape.

The next issue not raised in the post-trial motion is whether it was error to place before the jury foundational testimony that a transcript of the eavesdropping tape was an accurate reflection of the contents of the tape. The court admitted testimony that the transcript accurately reproduced the content of the tape from Karen Larson, who transcribed the tape, Officer Pirages of the Rockford police department, who assisted in the transcription, and Trotter. Defendant acknowledges that evidence of the accuracy of a transcript is necessary for admission of the transcript. (See People v. Dogoda (1956), 9 Ill. 2d 198, 202; People v. Rogers (1989), 187 Ill. App. 3d 126, 132-34.) However, defendant argues that evidence of the accuracy of the transcript was offered to the jury as substantive evidence and not merely as a foundation.

We find this argument unpersuasive. Before the transcripts were distributed to the jury and the tape was played, the court admonished the jury as followed:

“THE COURT: Don’t look at them until I give you the statement, please.
Ladies and gentlemen, you’re receiving a transcript of the tape for the limited purpose of aiding you in consideration of the contents of the tape you’re going to hear shortly and should not be considered for any other purpose, that is the transcript, or should only be considered as a guide [sic]. The tape should be and is a controlling factor. When and if you find conflicting facts between the tape and transcript, the transcript should not be considered as evidence.”

We conclude that this admonition, which was tendered to the court by defendant, was adequate to inform the jury of the limited nature and value of the transcript. Given the fact that the accuracy of the transcript must be attested to, the court could do no more to limit the jury’s consideration of the transcript. Defendant argues that testimony regarding the accuracy of the transcript should have been given outside the jury’s presence. However, defendant can cite no authority for this position, and we see no reason to adopt this new rule. We find no error in the admission of the foundational testimony.

The next allegation not raised in the post-trial motion is that the court erred in limiting defendant’s cross-examination of Vemial Trotter. Defendant elicited testimony from Trotter regarding Trotter’s convictions of armed robbery, attempted murder, and burglary. However, when defendant asked Trotter if he were on probation for his latest burglary conviction, the State’s objection was sustained by the court. Defendant now argues that the court’s ruling erroneously limited her right to reveal Trotter’s possible bias, prejudice, or ulterior motive.

Cross-examination to show bias, interest, or motive to testify falsely is a matter of right. (People v. Triplett (1985), 108 Ill. 2d 463, 475.) However, this right is not unfettered. Questioning cannot be repetitive or unduly harassing, and the evidence must give rise to an inference that the witness has something to lose or gain by his testimony; therefore, the evidence must not be remote or uncertain. Triplett, 108 Ill. 2d at 475-76.

In the case before us, defendant was grasping at straws when she asked Trotter about his probation. It is undisputed that Trotter voluntarily approached the police with information about the solicitation and cooperated with their investigation. Trotter had nothing to gain by going to the police and nothing to lose if he had simply told defendant “No” and never mentioned this episode again. Defendant cites People v. Paisley (1986), 149 Ill. App. 3d 556, for the proposition that, when impeaching a witness’ credibility, there is a distinction between evidence of prior convictions and evidence of bias; therefore, according to defendant, the evidence of Trotter’s prior convictions was not sufficient to impeach Trotter’s integrity. Paisley is distinguishable. The witness in Paisley had a current charge pending against him; the possibility of bias or motive there was evident. Here, however, no charges were pending against Trotter. The police had nothing to offer Trotter, and he had no reason to report the incident to the police other than to report the crime. Because defendant’s question about probation would have revealed nothing of value, defendant has failed to show any prejudice. Therefore, it was not error to limit the cross-examination of Trotter.

Next, defendant argues that certain testimony, both her own and that of Emil, should not have been elicited by the State. Emil testified that, approximately a year before the solicitation, defendant lied to him about her employment and that she often was gone from home over entire weekends. In the course of her own testimony, defendant was forced to admit that she never told Emil that the custody of her five children, all from previous relationships, had been irrevocably terminated and that, in spite of this fact, she often spoke to Emil about having the children live with them. Defendant contends that this evidence only tends to show that she lied on prior occasions about unrelated matters, such evidence being inadmissible per People v. Garza (1981), 92 Ill. App. 3d 723. However, the State contends that this evidence was introduced to show that the entire marriage of Emil and Ethel Schnurr was not one based on love or trust, but one founded on deceit and hidden motives.

Defendant’s reliance on Garza is misplaced. Garza held that “[i]t is not permissible to reflect on a witness’ credibility by establishing that on a former occasion that witness lied about a totally unrelated matter.” (Garza, 92 Ill. App. 3d at 737.) However, in the case before us, Ethel Schnurr was not merely a witness but also the defendant. The State was attempting to show the nature of the marriage and defendant’s relationship with her husband. The State’s theory was that the marriage was “one big lie.” The objected-to testimony was relevant to show the nature of the marriage. As such, it should not be excluded simply because it tends to prejudice defendant; the trial court must balance the relevance of the evidence and the prejudice to the defendant. (See People v. Daniels (1987), 164 Ill. App. 3d 1055, 1078.) A reviewing court will not reverse a trial court’s determination to admit evidence absent an abuse of discretion to the defendant’s prejudice. (Daniels, 164 Ill. App. 3d at 1078.) We conclude that the trial court did not abuse its discretion in admitting the testimony. Therefore, no error is present.

Defendant also contests the introduction of testimony that she stood to inherit all of Emil’s estate upon his death. Defendant contends that this testimony was inadmissible evidence of a motive for murder. To support this argument, defendant cites People v. Holtz (1920), 294 Ill. 143. In Holtz, our supreme court held that the evidence of life insurance policies with defendant as beneficiary and ownership of property in joint tenancy with the murder victim was insufficient, in the absence of other evidence, to show motive for the defendant to murder the victim. (Holtz, 294 Ill. at 161-62.) Defendant here argues that Holtz makes inadmissible the testimony of Paul Cicero, an attorney, regarding the intestate distribution of Emil’s estate in the event of his death. However, this court does not read Holtz to prohibit the introduction of such evidence. In People v. Erickson (1980), 89 Ill0. App. 3d 56, this court similarly held that the existence of a life insurance policy on defendant’s wife had little significance in establishing defendant’s motive to murder her. (Erickson, 89 Ill. App. 3d at 58.) However, the introduction of evidence of the policy was not found to be error, let alone reversible error. Holtz and Erickson dealt with the sufficiency of the evidence, not the admissibility of it; defendant does not make any persuasive argument as to why this court should issue such a new rule. The admission of the evidence was not error.

Because none of the issues above would have been decided in defendant’s favor had they been preserved in a post-trial motion, the omission of these issues did not affect defendant’s conviction. Therefore, counsel’s representation of defendant was not ineffective. The five issues not raised in the post-trial motion are waived.

Defendant next contends that the court erred in denying her motion to suppress the eavesdropping tape of portions of her conversation with Trotter. The police obtained an order authorizing the prior use of an eavesdropping device on October 20, contending that an emergency situation existed which rendered unreasonable an attempt to secure a prior order the night before. Defendant argues here, as she did unsuccessfully in her motion to suppress, that no emergency existed and that a prior order should have been obtained. We disagree.

Emergency use of eavesdropping devices is covered in section 108A — 6 of the Code of Criminal Procedure of 1963, which provides in part:

“An emergency situation exists when, without previous notice to the law enforcement officer sufficient to obtain prior judicial approval, the conversation to be overheard or recorded will occur within a short period of time, the use of the device is necessary for the protection of the law enforcement officer or it will occur in a situation involving a clear and present danger of imminent death or great bodily harm to persons resulting from: (1) a kidnapping or the holding of a hostage by force or the threat of the imminent use of force; or (2) the occupation by force or the threat of the imminent use of force of any premises, place, vehicle, vessel or aircraft.” (Emphasis added.) (Ill.. Rev. Stat. 1989, ch. 38, par. 108A — 6.)

Defendant argues that the police monitored the conversation between her and Trotter eight hours after receiving a sufficient basis for seeking an eavesdropping application prior to the eavesdropping.

Trotter first spoke to the police about the solicitation at approximately 5:30 p.m. on October 19. He spoke to police again at 9:50 p.m. after having gone with defendant to view Emil’s house. Trotter finally met with police sometime after 11 p.m. when he showed two detectives a knife, a key to Emil’s house, and a pair of gloves given to him by defendant. Trotter, at the police’s behest, phoned defendant to try to convince her to employ the services of a “hit man” known by Trotter; in reality, the police were attempting to place an undercover officer in the role of the hit man. Defendant refused to meet anyone else and insisted that Trotter kill Emil. At approximately 12:40 a.m. on October 20, Trotter phoned defendant again in an effort to delay the commission of the murder. Defendant insisted that the murder had to be committed immediately for her alibi to work. Defendant and Trotter agreed to meet at 1:30 a.m. Trotter was then fitted with the eavesdropping device.

In these circumstances, we deem it reasonable to conclude that the police did not know definitely that an eavesdropping device would be required that evening or even who would be outfitted with such a device. Attempts to infiltrate an undercover officer or even delay the murder were defeated at approximately 12:40 a.m., 50 minutes before defendant was to pick up Trotter and take him to Emil’s house. We determine that this 50-minute period was the type of “short period of time” provided for in the statute.

Defendant’s argument that the police had over eight hours’ notice before the conversation was to take place is meritless. Defendant argues that Trotter provided the police during the 5:30 phone call with all the evidence necessary to establish probable cause to believe that the offense of solicitation had been committed. Therefore, according to defendant, a judge could have authorized the eavesdropping based on this information. The police had nothing more than information regarding an alleged offense from a man with whom they had never before dealt. They had no reason to believe at that time that any eavesdropping would necessarily take place that evening. The police did not impermissibly delay seeking an eavesdropping permit during that period. We therefore conclude that the trial court did not err in denying defendant’s motion to suppress the eavesdropping tape.

Defendant next contends that the court erred in refusing her tendered jury instructions on theft and solicitation to commit theft. Defendant argues that she presented evidence that she solicited Trotter not to murder Emil, but to commit the crime of theft. Therefore, according to defendant, she was entitled to a jury instruction on her theory of the case. We disagree.

In general, a defendant is entitled to have the jury instructed on his theory of the case and on the law applicable to any statement of facts which the jury may properly find to have been proved. (People v. Isbell (1988), 177 Ill. App. 3d 854, 865.) In a criminal case, very slight evidence on a given theory will justify giving an instruction on that theory. (People v. Cobb (1989), 186 Ill. App. 3d 898, 906.) However, a defendant charged with a single offense cannot be convicted of an offense not charged unless the offense of which he is found guilty is a lesser-included offense of the one charged. People v. Schmidt (1988), 126 Ill. 2d 179, 183.

Defendant did testify that she solicited Trotter to commit the offense of theft. However, solicitation to commit theft is not a lesser-included offense of solicitation to commit murder. For an offense to be lesser included, “[t]he offense charged must include every element of the lesser offense, plus an additional element or elements, so that one cannot commit the offense charged without committing the lesser offense.” (People v. Stroner (1983), 96 Ill. 2d 204, 209.) Clearly, one can solicit murder without soliciting theft. However, defendant argues that the State is not required to prove the solicitation of a specific offense to obtain a conviction of solicitation. According to defendant, to prove a solicitation the State need only prove that some offense was solicited. The offense of solicitation contains two elements: (1) an intent that an offense be committed; and (2) the encouragement, request or command on the part of the accused that the offense be committed. (See Ill. Rev. Stat. 1987, ch. 38, par. 8 — 1(a).) According to defendant, whether murder or theft was solicited, the elements of the offense are the same; therefore, the commission of one offense entails the commission of the other. We find this argument unpersuasive. The offense solicited is an essential part of both the charging instrument and the proofs adduced at trial. The State could not charge and present evidence that defendant solicited “an offense” without specifying what that offense was. (See People v. George (1978), 67 Ill. App. 3d 102, 106 (indictment must include the elements of the offense intended to be charged, apprise defendant of the offense to enable him to prepare a defense, and sufficiently identify the offense to sustain a plea of acquittal or conviction in bar of any further prosecutions for the same offense).) In addition, the Illinois Pattern Jury Instructions require the insertion of the offense solicited in the solicitation instructions. (See Illinois Pattern Jury Instructions, Criminal, Nos. 6.01, 6.02 (2d ed. 1981).) We note that defendant, contrary to her position, tendered instructions specifying the offense of theft. We conclude that solicitation to commit theft is not a lesser-included offense of solicitation to commit murder.

We are similarly unpersuaded by defendant’s argument that solicitation to commit theft is a lesser alternative offense to solicitation to commit murder. The concept of the lesser alternative offense was first raised in People v. Pedersen (1990), 195 Ill. App. 3d 121, 131-32 (McLaren, J., concurring). In the context of People v. Pedersen, the defendant is not entitled to an instruction on solicitation to commit theft. In Pedersen, defendant was charged with aggravated battery after he punched, bit, and kneed a police officer attempting to arrest him. The defendant tendered a jury instruction on resisting arrest which was refused by the trial court. The defendant there was not contending that he did not knee, punch and bite the officer; he merely argued that, given the facts presented, he could be found guilty of resisting arrest instead of aggravated battery.

In the case before us, defendant’s argument does not follow these lines. Defendant argues that she committed a different crime based on different facts, i.e., that she did not talk to Trotter about murder, but about theft. Clearly, there is no factual similarity between the facts alleged in the charge and those asserted by defendant. Without attempting to define how a lesser alternative offense might arise, we find this case to be factually inapposite to Pedersen.

We conclude that solicitation of theft is not a lesser-included offense, nor is there sufficient evidence to entitle the defendant to an instruction thereon. Therefore, the court did not err in refusing the defendant’s instructions.

Defendant next raises several issues regarding her sentence. She first argues that the trial court erred because it believed that a conviction of solicitation carried with it a minimum sentence. Therefore, defendant seeks a new sentencing hearing. We do not find a new hearing necessary.

The trial court stated, and both counsel concurred, that a conviction of solicitation entailed a minimum sentence of six years’ imprisonment. Both parties now agree that such a conviction involves no minimum term. (See Ill. Rev. Stat. 1987, ch. 38, par. 8 — 1(b); People v. Eddington (1979), 77 Ill. 2d 41, 47.) Defendant argues that the trial court’s misapprehension of the law requires a new sentencing hearing. We disagree. A trial court’s misapprehension of a minimum sentence requires a new sentencing hearing only when it appears that the court’s mistaken belief arguably influenced the sentencing decision. (Eddington, 77 Ill. 2d at 48.) In Eddington, the trial court incorrectly believed that the statute provided a minimum four-year sentence for solicitation to commit murder; defendant was sentenced to a term of 20 to 40 years. (Eddington, 77 Ill. 2d at 47.) The court in Eddington, after stating the general rule above, found that there was no indication that the trial court used the incorrect minimum term as a reference point in determining the sentence ultimately imposed. (Eddington, 77 Ill. 2d at 48.) We conclude that the misapprehension of the law by the trial court in the case before us similarly was not used as a reference point in passing sentence. The court found factors in aggravation, including the fact that Emil was a paraplegic, and also stated that it sought to use the sentence to deter others from committing that crime. These facts lead us to conclude that the court did not use the incorrect minimum sentence as a reference point in determining defendant’s ultimate sentence. We, therefore, hold that the error was harmless.

Defendant next seeks a new sentencing hearing because the trial court allegedly incorrectly concluded that defendant was eligible to receive an extended-term sentence. Assuming, arguendo, defendant was not eligible for an extended-term sentence, defendant has not even attempted to show that the court’s error affected the sentence actually imposed. (See People v. White (1986), 114 Ill. 2d 61, 68.) Even without enhancement, defendant faced up to 30 years’ imprisonment; she received only 10 years. Clearly, the sentence imposed was not exaggerated by the court’s consideration of the enhancement provisions. We, therefore, need not remand for resentencing.

Defendant finally contends that the trial court’s judgment and sentence order must be amended. The mittimus in this case declares that defendant was found guilty of “Solicitation to Commit Murder [sic].” Defendant argues that she was convicted of solicitation, not solicitation to commit murder, which crime did not exist at the time of her conviction. However, we see no prejudice to defendant from the mittimus as it reads. Defendant’s argument that someone may confuse her conviction with a conviction of the later-enacted “Solicitation of Murder” (Ill. Rev. Stat. 1989, ch. 38, par. 8 — 1.1) is weak; the titles are not the same, and “Solicitation of Murder” did not become effective until July 1, 1988, well after the date of defendant’s crime. In addition, solicitation of murder carries a minimum sentence of 15 years; defendant was only sentenced to 10 years. There is little possibility that any confusion will result. Because we find no prejudice, we will not remand this cause for issuance of a new mittimus.

For these reasons, the judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

JUSTICE REINHARD,

specially concurring:

While I concur in the affirmance of the judgment of the circuit court, I do not believe that the term “lesser alternative offense” employed by defendant and Justice McLaren serves any useful purpose in the analysis of whether to give a lesser offense instruction. I am uncertain precisely what the term “lesser alternative offense” means as first coined by Justice McLaren in People v. Pedersen (1990), 195 Ill. App. 3d 121, 131-32 (McLaren, J., concurring), nor is his creation of the term “lesser non-included offense” in Pedersen enlightening on this subject. Rather, I rely on the authority of our supreme court in People v. Bryant (1986), 113 Ill. 2d 497, which states the appropriate analysis with respect to an instruction on a lesser offense which is not a lesser-included offense to the offense charged, as follows:

“To the extent that the lesser offense must have a broad foundation in the instrument charging the greater, we believe that the indictment in this case set out the main outline of the lesser offense proposed by the defendant here. The property damage to the building was the obvious foundation of the charge; that the indictment did not expressly allege all the elements of the lesser offense is not, in our view, fatal under these circumstances. Notably, in the two cases consolidated in Dace, the lesser offense, theft, was simply named in the charging instruments, and, taken with the evidence introduced at the defendants’ trials, that was found sufficient to warrant instructions on the lesser offenses.” (113 Ill. 2d at 505.)

(See also People v. Dace (1984), 104 Ill. 2d 96, 102-03.) Applying that analysis here, solicitation to commit theft does not have a foundation in the charging instrument because theft, or the elements thereof, were never mentioned in the information.

I would further point out that this holding in Bryant may have been called into question in People v. Schmidt (1988), 126 Ill. 2d 179, wherein the court stated, “where an accused is charged with a single offense he cannot be found guilty of an offense not charged unless it is a lesser included offense.” (126 Ill. 2d at 184-85; see Pedersen, 195 Ill. App. 3d at 134 (Reinhard, J., dissenting).) Thus, under Schmidt the defendant here is not entitled to an instruction on solicitation to commit theft because it was neither charged nor is it a lesser-included offense. Whether there is a conflict between Bryant and Schmidt is a question which the supreme court may address in a future case.

JUSTICE GEIGER,

specially concurring:

Subject to the following exception I join in Justice Reinhard’s special concurrence.

Like Justice Reinhard, I disagree with Justice McLaren’s term “lesser alternative offense”; rather, I believe that it is more appropriate to look to the criteria set forth in People v. Bryant (1986), 113 Ill. 2d 497, with consideration of People v. Schmidt (1988), 126 Ill. 2d 179.

I would emphasize that in the context of determining whether the defendant was entitled to an instruction on a lesser offense, the Bryant court did not simply give a traditional included offense analysis of the offense charged by the charging instrument. Rather, the court in Bryant looked to whether the lesser offense had a broad foundation in the charging instrument and whether the evidence presented at trial could have rationally sustained a conviction of the lesser offense and an acquittal of the greater. See 113 Ill. 2d at 503-06.

As Justice Reinhard points out, the later Schmidt decision stated that a defendant could be convicted of only a charged offense or a lesser-included offense of a charged offense (126 I9ll. 2d at 184-85). However, in doing so it made no mention of Bryant or the Bryant discussion of the meaning of “included offense” in this context. Consequently, I would not find, as Justice Reinhard implies, that Bryant’s apparently broad interpretation of “included offense” is moribund.

Since the record in this appeal fails to satisfy the requirements set forth in Schmidt or the broader test in Bryant, I concur that the trial court should be affirmed.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
    ANITA D. AYALA, Plaintiff-Appellant, v. LAWRENCE R. FOX et al., Defendants-Appellees.
    Second District
    No. 2—89—1274
    Opinion filed December 19, 1990.
    Charles E. Petersen and William T. King, Jr., both of Presbrey & Amoni, of Aurora, for appellant.
    Daniel J. Kordik and John Panegasser, both of Caluwaert, Panegasser & Hancock, of Elmhurst, for appellees.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Anita Ayala, appeals from an order of the circuit court of Du Page County dismissing her five-count complaint against defendants, Lawrence Fox and NED Wheaton Bank (Bank). Plaintiff contends that the trial court erroneously dismissed her complaint based on Hewitt v. Hewitt (1979), 77 Ill. 2d 49. We disagree with plaintiff and therefore affirm the trial court’s order.

On June 20, 1989, plaintiff filed her complaint, the underlying factual allegations of which are as follows. Plaintiff and Fox met in July 1976 and began residing together shortly thereafter. In August 1976, Fox proposed that they jointly pay for the construction of a single-family home in Warrenville, Illinois. Fox promised plaintiff that title to the property would be transferred to their names as joint tenants with the right of survivorship and that plaintiff would receive one-half of the equity of the house in the event that they stopped residing together. In reliance on Fox’s promises, plaintiff obligated herself to pay a $48,000 mortgage, which was recorded on May 16, 1978. The proceeds of the mortgage were used to construct the house on the property. From September 1978 to October 1988, plaintiff and Fox lived in the house and jointly contributed to the mortgage payments. From 1978 to 1981, Fox was unemployed, and, consequently, plaintiff paid the majority of the mortgage payments, taxes and insurance during that period. Fox and plaintiff ceased living together in October 1988. Fox failed to transfer the title into joint tenancy and failed to pay plaintiff her half of the equity in the property. Instead, Fox transferred the title by deed in trust to the Bank.

Count I of the complaint was based on promissory estoppel and requested that the court find that Fox breached the contract between the parties by failing to transfer title to the property to the parties’ names as joint tenants, failing to reimburse plaintiff for taxes, mortgage and insurance payments she made from April 1978 to October 1988, and failing to pay plaintiff one-half of the equity in the property. In count II, plaintiff requested that the court declare an equitable lien on the property based on the theory of unjust enrichment.

In count III, plaintiff alleged that she and Fox “lived together as husband and wife” and that, by virtue of this relationship, Fox owed plaintiff a fiduciary duty. Plaintiff further alleged that Fox breached this fiduciary duty to her by failing to put the property in joint tenancy and failing to give her one-half of the equity in the house after she cosigned the mortgage and made payments on the house. Therefore, plaintiff concludes that she was entitled to have a constructive trust declared on the property. In count IV, plaintiff alleged that during the course of their husband-wife relationship, the parties acquired various items of personal property which were paid for out of their mutual funds. Plaintiff sought one-half of the equity of the personal property on the theory of unjust enrichment.

Defendants filed a motion to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619) based on the statute of limitations (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 205), the Statute of Frauds (Ill. Rev. Stat. 1989, ch. 59, par. 2), and the public policy of Blinois disfavoring the granting of mutual property rights to knowingly unmarried cohabitants as set forth in Hewitt. Prior to the hearing on the motion to dismiss, plaintiff was granted leave to file an additional count. In count V, plaintiff alleged that she and Fox had an oral agreement to be partners in the construction and ownership for profit of the house in Warrenville. In October 1988, the parties dissolved the partnership, and plaintiff demanded a winding up of the partnership affairs. Plaintiff requested that the court order Fox to wind up the partnership affairs and make a distribution of the partnership assets.

On September 19, 1989, the trial court held a hearing on the motion to dismiss. The court limited the arguments of counsel to the effects of Hewitt, stating that it was not “impressed by the argument on statute of limitations or statute of frauds.” At the conclusion of the hearing, the trial court explained its interpretation of Hewitt. The court stated that Hewitt stood for the proposition that “property disputes between persons who lived together without the benefit of marriage are not going to be recognized by the Court.” Accordingly, the court held that due to the parties’ cohabitation, Hewitt barred plaintiff’s claims. The court then granted the motion to dismiss without prejudice. Thereafter, the court denied plaintiff’s motion for reconsideration, and this appeal followed.

Plaintiff contends that the trial court misapplied Hewitt to the complaint in this case when it granted defendants’ motion to dismiss. The basis of a section 2 — 619(a)(9) motion to dismiss is that the claim must be dismissed because of an affirmative matter avoiding the legal effect of or defeating the claim. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(9); Venezky v. Central Illinois Light Co. (1988), 168 Ill. App. 3d 612, 613.) For the purpose of such a motion to dismiss, all well-pleaded facts and inferences are accepted as true. Carrillo v. Hamling (1990), 198 Ill. App. 3d 758, 760; Basler v. Webb (1989), 188 Ill. App. 3d 178, 180.

In Hewitt, our supreme court held that it would not grant mutual property rights to unmarried cohabitants because to do so would reinstate common-law marriage and violate the public policy of this State. (See Hewitt, 77 Ill. 2d at 65-66.) Plaintiff argues that the holding of Hewitt is inapplicable in the present case because her complaint is based on the principle, recognized by Hewitt, “that cohabitation by the parties may not prevent them from forming valid contracts about independent matters, for which it is said the sexual relations do not form part of the consideration.” Hewitt, 77 Ill. 2d at 59.

Plaintiff maintains that this case is more similar to Spafford v. Coats (1983), 118 Ill. App. 3d 566. In Spafford, this court explained the basis underlying the decision in Hewitt:

“[T]he real and underlying concern of the supreme court in Hewitt was that judicial recognition of mutual property rights between knowingly unmarried cohabitants — where the claim is based upon or intimately related to the cohabitation of the parties — would in effect grant to unmarried cohabitants substantially the same marital rights enjoyed by married persons, resurrect the doctrine of common law marriage, and contravene the public policy enunciated by the Illinois legislature to strengthen and preserve the integrity of marriage.” (Spafford, 118 Ill. App. 3d at 572.)

The court then went on to distinguish the case before it from Hewitt. The plaintiff in Spafford was seeking a constructive trust on several vehicles that the parties purchased during their cohabitation, several of which were financed by a loan which the plaintiff obtained, and others to which the plaintiff contributed a substantial portion of the purchase price. The court concluded that the plaintiff’s claims were substantially independent of the nonmarital relationship and were not based on rights arising from the cohabitation or the performance of domestic services. Spafford, 118 Ill. App. 3d at 572.

Defendants disagree with plaintiff, arguing instead that Hewitt, and not Spafford, must control our decision. Defendants seek to distinguish Spafford by emphasizing that the plaintiff in Spafford sought the specific vehicles which she had paid for and which were placed in the defendant’s name for insurance purposes only. Defendants assert that the Hewitt rationale is applicable in the present case because plaintiff is seeking equity in the real and personal property of her former boyfriend for the duration of their cohabitation.

We agree with defendants and find that Spafford is distinguishable from the specific facts in this case. In Spafford, the plaintiff did not seek recovery based on rights closely resembling those arising from a conventional marriage or on rights founded on proof of cohabitation; therefore, the court allowed recovery to prevent an unjust enrichment. (Spafford, 118 Ill. App. 3d at 572.) In the present case, plaintiff is seeking recovery based on rights closely resembling those arising from a conventional marriage, namely, an equitable interest in the “marital” residence. Unlike Spafford, plaintiff’s claim here is intimately related to her cohabitation with Fox. If we were to agree with plaintiff, we would, in effect, be granting to an unmarried cohabitant substantially the same marital rights as those which married persons enjoy. Such a holding would contravene the public policy of this State. (See Hewitt, 77 Ill. 2d at 65-66; In re Marriage of Hughes (1987), 160 Ill. App. 3d 680, 685-86.) Thus, we hold that plaintiff, as an unmarried cohabitant, is not entitled to an equitable interest in the property at issue in this case.

For these reasons, the order of the circuit court of Du Page County is affirmed.

Affirmed.

BOWMAN and NICKELS, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE JOHNSON, Defendant-Appellant.
    Second District
    No. 2—89—0223
    Opinion filed December 18, 1990.

      G. Joseph Weller and David W. Devinger, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Willie Johnson, appeals the seven-year sentence of incarceration the trial court imposed upon him after he pleaded guilty to and the court convicted him of the offense of second degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9—2(a)(2)). His sole contention on appeal is that the trial court abused its discretion in imposing the sentence because the court improperly considered, as aggravating factors, that defendant used a weapon in committing the crime and caused a death.

On December 12, 1988, defendant, whom the State originally charged with first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)(1)), pleaded guilty to second degree murder. As part of the plea negotiations, the parties agreed that the trial court itself would determine the appropriate sentence. After hearing the factual basis for the plea, which we summarize below, the court accepted the plea of guilty, convicted defendant of second degree murder and, after conducting a sentencing hearing, imposed the seven-year period of imprisonment. The court then denied defendant’s motion to reconsider the sentence, and defendant filed a timely notice of appeal.

The incident that led to defendant’s conviction and sentence took place in Rockford, Illinois, on August 13, 1988. That evening, David Berry, the murder victim, and his friends, Lavertis Coble and Michael Anderson, were gathered with other friends in a parking lot in front of a housing project. Defendant and two other individuals joined the group; an argument ensued among various individuals but eventually subsided. Shortly thereafter, Lee Lilly and Brian Simmons approached the gathering; Lilly said something to Anderson, and then both Lilly and Simmons punched Anderson in the face.

At that point various individuals commenced fighting while others ran. Lavertis Coble retrieved a .25 caliber handgun that belonged to David Berry, and Coble’s friend, Chuckie Owens, began to chase defendant with a club. Defendant pulled out a .38 caliber revolver and pointed it at Owens. Both defendant and Coble then fired their handguns. One of the bullets from defendant’s revolver struck David Berry, who was in close proximity to Coble, in the head and caused Berry’s death, while one of the slugs from Coble’s gun injured Lee Lilly.

According to the statement defendant gave to the police three days later, defendant believed Chuckie Owens was chasing him with a gun. When defendant heard gunshots and saw Coble possessing a gun, defendant shot in the direction of Coble to scare him.

Inasmuch as the gravamen of defendant’s appellate argument is that the trial court considered two improper factors in aggravation, we deem it necessary to set forth a summary of the court’s remarks during the sentencing hearing that took place on February 6, 1989, as well as the hearing held on February 10, 1989, to adjudicate defendant’s motion to reconsider his sentence.

At the outset of the February 6 hearing, the court determined, over defendant’s objection, that the State could present a “victim impact statement” (see generally People v. Miller (1989), 193 Ill. App. 3d 918, 932-38; People v. Scott (1989), 180 Ill. App. 3d 418, 424-25) that David Berry’s mother prepared. In reaching its decision to consider the impact statement, the court recognized that “in a homicide case where death is always a factor,” the aggravating factor that defendant’s conduct caused serious harm to another (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005—5—3.2(a)(1)) is “pretty much encompassed in the offense itself.” However, the court noted that it was appropriate to consider the effect the present offense had on the victim’s family.

After hearing the testimony defendant presented in his behalf and the arguments of counsel, the court concluded that a sentence of probation would deprecate the seriousness of the offense and would be inconsistent with the ends of justice (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005—6—1(a)(2)). The court stressed that a sentence in the penitentiary was necessary to deter others from committing the same crime (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005—5—3.2(a)(7)) and noted that defendant had a history of prior delinquency (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005—5—3.2(a)(3)). The presentence report reflects that defendant was adjudged a juvenile delinquent three times between 1983 and 1987 for committing the offenses of disorderly conduct, theft, and criminal damage to property.

The court mentioned that defendant did not intend to commit a murder but rather “got caught up in the situation” and that there was a big difference between the current offense and an intentional murder which the perpetrator facilitated by using a gun. Nonetheless, the court commented twice that defendant had carried a weapon, and the court placed significance on this fact. Emphasizing that defendant did not take advantage of prior opportunities to rehabilitate himself, the court determined that the minimum sentence of four years’ imprisonment was inappropriate in light of defendant’s prior record. The court then remarked that the offense in question involved a death and that a four-year term of incarceration was the minimum sentence the court could impose. The court then sentenced defendant to seven years’ imprisonment in the Department of Corrections.

In considering and denying defendant’s motion for reconsideration four days later, the court correctly pointed out that the range of imprisonment for second degree murder, which is a Class 1 felony (Ill. Rev. Stat. 1989, ch. 38, par. 9—2(d)), is a determinate term of not less than 4 and not more than 15 years (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(a)(4)). Observing that a defendant who did not have any prior record might receive a minimum sentence of incarceration, the court stressed that Willie Johnson did have a previous record. Although the trial judge stated that, in fixing an appropriate sentence, he had taken into consideration that defendant did not plan or contemplate the commission of this offense, the judge also remarked he had weighed the fact that defendant had carried a weapon and allowed himself to get involved in the current situation. Too, the court mentioned that it had evaluated the factors in mitigation and aggravation (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.1; Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005—5—3.2) and, again, placed special emphasis on the need to deter others from committing a similar crime. Lastly, the court remarked that it had considered the seriousness of the offense, the taking of a life.

Defendant’s contention that the court abused its discretion in imposing the seven-year sentence of imprisonment he received is premised primarily on the argument that the court below improperly considered two factors in aggravation — that defendant caused the death of the victim, David Berry, and employed a gun in committing the second degree murder. In this regard, defendant’s argument is twofold. First, relying principally upon People v. Saldivar (1986), 113 Ill. 2d 256, and People v. Martin (1988), 119 Ill. 2d 453, defendant maintains that, in applying in the context of a second degree murder the statutory aggravating factor that defendant’s conduct caused serious harm (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005—5—3.2(a)(1)), the trial court may not consider the death of the victim, because death is implicit in the offense itself. Second, placing sole reliance on People v. Alejos (1983), 97 Ill. 2d 502, defendant asserts that the sentencing court may not consider, as a factor in aggravation in a prosecution for second degree murder, that defendant employed a weapon in perpetrating the crime. In a more general sense, defendant also argues that, absent the improper aggravating factors and based upon his potential for rehabilitation, his unfortunate background or poor social environment and his remorse for the death of Mr. Berry, he is entitled to receive a sentence not in excess of four years’ imprisonment. Accordingly, he asks this court to exercise its authority pursuant to Supreme Court Rule 615(b)(4) (107 Ill. 2d R. 615(b)(4)) and reduce his sentence or, in the alternative, to remand the cause to the trial court for a new sentencing hearing.

As defendant correctly reminds us, the current second degree murder statute is essentially the same as the former voluntary manslaughter law for the purpose of determining whether the trial court properly considered the two aggravating factors in question. (Compare Ill. Rev. Stat. 1989, ch. 38, par. 9—2, with Ill. Rev. Stat. 1985, ch. 38, par. 9—2; see also People v. Shumpert (1989), 126 Ill. 2d 344, 351-52; People v. Moore (1987), 159 Ill. App. 3d 1070, 1074 n.2.) Therefore, jurisprudence under the former statute is relevant and helpful to our consideration and resolution of the same legal issue in the context of the second degree murder enactment.

In addressing the argument that the court below improperly considered the death of David Berry as a factor in aggravation pursuant to section 5—5—3.2(aXl) of the Unified Code of Corrections (Code) (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005—5—3.2(aXl)X we begin our analysis with People v. Saldivar. In Saldivar, the trial court sentenced the defendant to a seven-year period of imprisonment for the offense of voluntary manslaughter. During argument at the sentencing hearing, the prosecutor had stressed that Saldivar had killed the victim; the trial court determined that the primary statutory factor in aggravation was the terrible harm the defendant caused the victim and then remarked that the victim was dead. In concluding that the trial court in Saldivar erred in considering this aggravating factor, our supreme court explained that it was impermissible for the trial court to impose a more severe sentence on the ground the defendant caused the victim serious bodily harm, namely, death, because death is inherent in the offense of voluntary manslaughter. (Saldivar, 113 Ill. 2d at 271-72.) The supreme court further elaborated, however, that, in applying the aggravating factor that the defendant caused the victim serious harm, the sentencing court could consider “the force employed and the physical manner in which the victim’s death was brought about,” which comprehends the degree or gravity of the defendant’s conduct rather than the end result, that is, the victim’s demise. 113 Ill. 2d at 271-72.

Our supreme court reached the same result in People v. Martin (1988), 119 Ill. 2d 453, which involved a conviction of and maximum five-year sentence of imprisonment for involuntary manslaughter resulting from the unintentional discharge of a single bullet from a gun. In Martin, before imposing sentence, the trial judge expressly commented that he had considered as an aggravating factor that the defendant had inflicted serious bodily harm that resulted in a death. 119 Ill. 2d at 461.

The seminal Saldivar case has spawned numerous appellate court decisions which have applied the teachings of Saldivar in varying factual settings involving challenges to sentences on the ground the courts considered, as aggravating factors, an element that was inherent in the particular offense. Compare People v. Colclasure (1990), 200 Ill. App. 3d 1038, 1046 (no error where the court recognized death was an element implicit in voluntary manslaughter, did not give the death undue influence, and emphasized the manner in which the death was inflicted); People v. Verser (1990), 200 Ill. App. 3d 613, 620-21 (no error where the court merely mentioned that the victim had died and considered the circumstances surrounding the murder, or, at most, harmless error where the court considered other aggravating factors and placed insignificant emphasis on the death); and People v. Rose (1989), 191 Ill. App. 3d 1083, 1097-98 (no error in imposing sentence for voluntary manslaughter where the court only mentioned the defendant had killed without legal justification and did not state the sentence was based on the unjustified killing) with People v. Smith (1990), 195 Ill. App. 3d 878, 884 (error where the prosecutor argued, over defense counsel’s objection, that the court should consider the victim’s death as an aggravating, factor in a voluntary manslaughter prosecution, and the trial court’s remarks emphasized that the victim’s death was an aggravating factor); People v. Miller (1989), 193 Ill. App. 3d 918, 931-32 (error to rely upon the victim’s death to impose consecutive sentences for voluntary manslaughter); and People v. Stoneking (1990), 193 Ill. App. 3d 98, 100 (error in a murder prosecution where the trial court noted, without elaboration, that the defendant’s act caused serious injury, and it was unclear whether the court considered the degree of harm or the gravity of the accused’s conduct when it found the aggravating factor to be present).

When we apply Saldivar and its progeny to the particular facts of this cause, we must conclude that the trial court did not consider David Berry’s death as an aggravating factor in conjunction with section 5—5—3.2(a)(1) of the Code. Various important factors, which we discuss below, have influenced our decision and necessitated this conclusion.

After making the threshold determination that a sentence of imprisonment was necessary because probation would deprecate the seriousness of the offense and be inconsistent with the ends of justice, the court then expressly discussed two factors in aggravation it found applicable: (1) a term of imprisonment was necessary to deter others from committing the same crime (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005—5—3.2(a)(7)), which is a proper aggravating factor in this context (Smith, 195 Ill. App. 3d at 883-84; People v. Hall (1987), 159 Ill. App. 3d 1021, 1034); and (2) defendant’s record of prior juvenile delinquency (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005—5—3.2(a)(3)). The court stressed, during both the original sentencing hearing and the hearing concerning the motion to reconsider the sentence, that the minimum four-year sentence was inappropriate on account of defendant’s prior juvenile delinquency adjudications, of which the court was cognizant.

We deem it particularly significant that, unlike these two explicit references to and consideration of two proper aggravating factors, the court’s mere mention during the sentencing hearing that the offense involved a death was not associated with a reference to the potentially improper aggravating factor involving the causation of serious harm. We believe the same observation applies to the court’s isolated statement during the reconsideration hearing that it had considered originally the seriousness of the offense, that is, the taking of a life. In our view, the court’s failure to mention or discuss that the death was a factor in aggravation under section 5—5—3.2(a)(1) of the Code is not surprising. In conjunction with the earlier discussion concerning the admission of the victim impact statement, the trial judge recognized and stated expressly that death is always involved in a homicide and that the aggravating factor concerning the causation of serious harm is encompassed in the offense of voluntary manslaughter itself. (See Colclasure, 200 Ill. App. 3d at 1046.) Furthermore, unlike the situation present in Smith (195 Ill. App. 3d at 884), the prosecutor here did not argue that the court should consider the victim’s death as an aggravating factor and thus did not plant that seed in the trial court’s mind where, it appears, it would not have had fertile ground in any event.

Based upon our thorough review of the totality of the trial judge’s comments during the sentencing hearings, it is abundantly clear that the court’s two brief references to the victim’s death were no more than the court’s acknowledgment that a serious offense involving a death had taken place (see Hall, 159 Ill. App. 3d at 1034-35), for which the court concluded the minimum sentence was inappropriate given defendant’s history of prior juvenile delinquency. Such passing references to the victim’s death did not place undue emphasis on his demise or emphasize the end result of the crime and certainly did not establish that the court considered his death as an aggravating factor trader section 5—5—3.2(a)(1) of the Code. See Colclasure, 200 Ill. App. 3d at 1046; Verser, 200 Ill. App. 3d at 620-21; Rose, 191 Ill. App. 3d at 1098.

We turn next to the second prong of defendant’s twofold argument: that People v. Alejos (1983), 97 Ill. 2d 502, precluded the trial court from considering, as part of its sentencing decision, that defendant used a weapon in committing voluntary manslaughter. For the reasons that follow, we disagree.

In Alejos, the trial court convicted the defendant of voluntary manslaughter and armed violence based on voluntary manslaughter and imposed concurrent seven-year terms of imprisonment. The supreme court in Alejos concluded that an armed violence conviction could not be predicated on voluntary manslaughter and reversed the improper conviction. (Alejos, 97 Ill. 2d at 513.) The court then went on to consider whether the cause should be remanded for resentencing on the voluntary manslaughter conviction “to guard against the possibility that the presence of the improper armed-violence conviction *** might have influenced the trial court’s sentence on the manslaughter charge.” (97 Ill. 2d at 513.) Our supreme court determined that the cause had to be remanded for resentencing for voluntary manslaughter because the defendant’s use of a gun influenced the trial court in deciding the length of the sentence and because the lower court incorrectly concluded, in the words of the supreme court, that the use of the weapon “merited enhanced criminal punishment” in that case. (97 Ill. 2d at 514.) Rather than interpret Alejos broadly, as defendant suggests, to preclude a trial court from considering that defendant used a gun in perpetrating the crime of voluntary manslaughter, we elect to view Alejos narrowly and in its proper perspective, that is, circumscribed by its own factual underpinnings.

As we stated above, the supreme court’s concern in Alejos was whether the improper armed violence conviction impermissibly affected the sentence the trial court imposed for the voluntary manslaughter. The Alejos opinion aptly points out that the use of a dangerous weapon, such as a revolver, is an essential element of armed violence and the weapon is deemed an aggravating factor “which enhances the severity of the underlying felony and upgrades the punishment available for it to Class X.” (97 Ill. 2d at 508; see Ill. Rev. Stat. 1989, ch. 38, pars. 33A— 1, 33A — 2, 33A — -3.) Thus, in Alejos, the very factor which enhanced the underlying voluntary manslaughter in the armed violence context — the use of a gun — also assumed primary importance in the sentence for voluntary manslaughter itself. In light of the trial court’s sentencing remarks and the identical seven-year sentences imposed, the supreme court concluded that the presence of the inappropriate armed violence conviction affected the length of the voluntary manslaughter sentence. (97 Ill. 2d at 513-14.) It was in this singular context that the Alejos court made its sentencing comments concerning the improper consideration of the use of the gun. Cf Smith, 195 Ill. App. 3d at 883-84; Moore, 159 Ill. App. 3d at 1073-74.

At the risk of stating the obvious, the crime of second degree murder can be committed in different ways involving varying degrees of brutality. (Compare Moore, 159 Ill. App. 3d at 1071 (a prolonged beating inflicted with fists, a hammer, a knife, a stick, and a table leg with a nail protruding from its base) with People v. Evans (1981), 87 Ill. 2d 77, 87 (a stray bullet killed a bystander).) In our view, there is nothing in the Alejos opinion that would prevent a trial court from considering, when fixing an appropriate sentence for second degree murder, the defendant’s use of a handgun, whether the gun fired a stray bullet or was used to bludgeon a person to death. Also, to preclude the court from considering this factor flies in the face of the supreme court’s pronouncement in Saldivar that the sentencing judge may consider as part of his or her sentencing decision the force the defendant employed and the physical manner in which the victim’s death was occasioned. 113 Ill. 2d at 271.

We next address defendant’s more general argument that he is entitled to a reduced sentence of four years’ imprisonment based on his potential for rehabilitation, his unfortunate family background and poor social environment, and the remorse he demonstrated for the death he caused. It is well established in this State that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” (Ill. Const. 1970, art. I, §11.) Rehabilitation is an objective of the sentence and a factor which the trial court must consider. (People v. Haepp (1990), 194 Ill. App. 3d 207, 210.) However, it is equally manifest that the sentencing tribunal need not accord greater weight to the goal of restoring the defendant to useful citizenship than it places on the seriousness of the offense; rather, the responsibility for striking the appropriate balance between these two concerns reposes in the trial court. (People v. Torres (1990), 200 Ill. App. 3d 253, 267.) Of course, we will not alter the sentencing judge’s decision unless it is the result of an abuse of the court’s sentencing discretion. People v. Perruquet (1977), 68 Ill. 2d 149, 153; Torres, 200 Ill. App. 3d at 266.

We discern no abuse of discretion in the trial court’s sentencing decision. The record reflects that the court below considered defendant’s rehabilitative potential and concluded, based on defendant’s history of prior juvenile delinquency, that defendant had not taken advantage of previous opportunities to rehabilitate himself. The court was also cognizant of the factors defendant emphasizes in mitigation, and there is nothing in the record to suggest the court did not consider them. (Torres, 200 Ill. App. 3d at 267.) Given the constellation of factors present in this cause, we cannot conclude that the court abused its discretion in imposing a sentence that was three years above the minimum and eight years below the maximum. See Scott, 180 Ill. App. 3d at 425.

For these reasons, the judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

BOWMAN and NICKELS, JJ., concur.


text:
    THE CITY OF LAKE FOREST, Plaintiff-Appellant, v. BRETT M. DUGAN, Defendant-Appellee.
    Second District
    No. 2—90—0129
    Opinion filed December 19, 1990.

      Charles W. Smith and Lawrence R. LaLuzerne, both of Rosing, Applehans & Smith, Ltd., of Waukegan, for appellant.
    Peter A. Staben and Richard S. Kopsiek, both of Staben & Kopsick, P.C., of Waukegan, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Brett Dugan, was charged with the offense of driving while under the influence of alcohol in violation of a municipal ordinance of the City of Lake Forest. Defendant filed a motion to quash his arrest and suppress evidence based on the allegation that the arresting officer did not have reasonable grounds for making the initial investigatory stop of defendant’s vehicle. Following a hearing, the trial court granted the motion, and the City appeals. We affirm.

At the hearing, defendant testified that on October 8, 1989, he was at the home of a friend in Lake Forest; he was with several friends and they were drinking beer. Defendant drank four beers between the hours of 8 p.m. and midnight. When he left his friend’s house, he drove to a Mobil gas station on Old Elm Road in Highwood, Illinois. He had four passengers in the car. At the gas station, two of the passengers got out of the car and went into the station to buy tobacco. Defendant remained in the car. In defendant’s opinion, the two passengers who went into the station were probably under the influence of alcohol; they had been drinking earlier, and they were loud and obnoxious.

After leaving the gas station, defendant drove west on Old Elm Road and turned right onto Green Bay Road. After defendant passed Westleigh Road, he observed a police car with its lights on; he pulled over immediately. Defendant stated that he had not had any difficulty operating his vehicle that night. He did not believe that he had violated any traffic laws or that he was driving while under the influence of alcohol at the time he was pulled over.

Officer Rudolph Komin of the Lake Forest police department testified that on October 8, 1989, he was on routine patrol in the south end of Lake Forest. At approximately 1:45 a.m., he received a radio dispatch from the Highwood police department. The Highwood police had received a citizen’s complaint from the Mobil gas station on Old Elm Road in Highwood. The complainant stated that he believed the driver of a car that had just been in the gas station was intoxicated. The car, a white Honda bearing Illinois license plate number OR 6920, was driven by a white male, and there were several white male passengers. When Officer Komin received the dispatch, he was near the intersection of Green Bay Road and Westleigh Road. One or two minutes later, as he drove south on Green Bay Road, he saw a white Honda bearing license plate number OR 6920 heading north on Green Bay Road. The car contained several white males. Based on the information he had received through the radio dispatch, the officer turned his squad car around and followed the car. Near the intersection of Green Bay and Westleigh, he caught up with the car and activated his overhead lights. The car pulled over just north of Westleigh Road. The officer identified himself to the occupants of the car and informed them that he was investigating a complaint of a suspected drunk driver.

The trial court concluded that the officer had not witnessed any evidence of bad driving and that the information received in the radio dispatch amounted to no more than that the driver of a white Honda, license number OR 6920, was a “possible drunk driver.” The court granted the motion to suppress, and the City appeals.

A reviewing court will not reverse the trial court’s finding at a suppression hearing unless the finding is manifestly erroneous. (Village of Lincolnshire v. DiSpirito (1990), 195 Ill. App. 3d 859, 863.) Such a judgment will not be found to be against the manifest weight of the evidence unless the opposite conclusion is clearly evident. (People v. Houlihan (1988), 167 Ill. App. 3d 638, 642; People v. Bafia (1983), 112 Ill. App. 3d 710, 712.) A police officer may make a valid investigatory stop, even though there is no probable cause for an arrest, where the officer’s decision is based on specific and articulable facts which, when combined with rational inferences from those facts, reasonably warrant an investigative intrusion. (People v. Moffitt (1985), 138 Ill. App. 3d 106, 111; People v. Vena (1984), 122 Ill. App. 3d 154, 160.) However, a mere suspicion or hunch is insufficient. (DiSpirito, 195 Ill. App. 3d at 863; Houlihan, 167 Ill. App. 3d at 642.) Evaluation of an officer’s conduct in stopping a vehicle must focus on the facts available to the officer at the time the stop is made. DiSpirito, 195 Ill. App. 3d at 864.

In the present case, the officer was told that someone from the gas station thought that the driver of the Honda was intoxicated. The officer did not testify to any specific facts which had been reported to him or to the Highwood police department which might support the conclusion about the driver. The complainant did not state that defendant was loud or obnoxious at the gas station or that there was any unusual behavior or poor driving on the part of defendant. There was no evidence that Officer Komin himself observed any bad driving, and defendant responded in an appropriate and timely manner when the officer activated his overhead lights and pulled defendant over.

While reasonable grounds to stop an individual may be based on an informant’s tip, it is clear that some indicia of reliability must be provided to justify an investigative stop. (Village of Gurnee v. Gross (1988), 174 Ill. App. 3d 66, 69-70.) In Gross, we determined that a citizen complaint alleging reckless driving, standing alone, did not provide articulable facts sufficient to justify the investigatory stop. (Gross, 174 Ill. App. 3d at 69.) This was the case even though the complainant described the vehicle and provided the license plate number to the police. (174 Ill. App. 3d at 70.) However, we determined that the defendant’s refusal to stop his car following the police officer’s request to do so, coupled with the citizen complaint, did provide the officer with a sufficient basis to justify an investigatory stop. 174 Ill. App. 3d at 70-71.

In the instant case, the only fact in the officer’s possession at the time of the stop was that someone at the gas station believed that the driver of the Honda was intoxicated. The officer was not aware of any specific facts supporting the informant’s conclusion. The fact that Officer Komin observed a white Honda, license number OR 6920, in the area specified by the informant did not sufficiently corroborate the complaint to justify the stop (see Gross, 174 Ill. App. 3d at 70; People v. Moraca (1984), 124 Ill. App. 3d 561, 564-67), because the crucial part of the complaint was that the driver was intoxicated.

Based on the facts presented at the hearing on the motion to suppress, we conclude that the trial court’s ruling on the motion was not manifestly erroneous.

The judgment of the circuit court of Lake County is affirmed.

Affirmed.

BOWMAN and NICKELS, JJ., concur.