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    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EUGENE McDANIEL, Defendant-Appellant.
    Second District
    No. 2—91—1308
    Opinion filed August 20, 1993.

      Andre LaBerge, of Donald Hubert & Associates, of Chicago (Donald Hubert, of counsel), for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE QUETSCH

delivered the opinion of the court:

Following a jury trial in the circuit court of Du Page County, the defendant, Eugene McDaniel, was convicted of murdering his wife and sentenced to 60 years’ imprisonment. The defendant appeals, contending that: (1) the trial court erred in denying his motion to suppress statements he made to law enforcement officials prior to his arrest; (2) his public defenders denied him the effective assistance of counsel; (3) the prosecutor improperly focused the jury’s attention on his failure to testify at trial; and (4) the State failed to prove his guilt beyond a reasonable doubt. We affirm.

The following evidence was adduced at trial. Officer Stacy Gangestad of the Winfield police department testified that on May 18, 1990, at 1:22 a.m., she was dispatched to the defendant’s residence in order to investigate a prowler in progress. Upon arriving at the defendant’s house at 1:23 a.m., she observed the defendant and two other males standing in the driveway. The defendant stated that his wife was hurt inside. Gangestad and the defendant entered the house through a door leading from the garage to the residence. They went directly to the master bedroom, where Gangestad observed the defendant’s wife lying on the bed, unconscious and bleeding from the nostrils, mouth and ear. Various drawers and pieces of personal property were strewn about the room. Gangestad requested backup and she then stepped into the hallway and observed an infant in a crib in the room next to the master bedroom. Gangestad went into the baby’s bedroom and saw that the baby was awake and in good condition.

Gangestad asked the defendant to exit the residence, and she and Officer Hunger, her backup, then went through each room in the house to ensure that it was safe. Gangestad observed that some of the rooms had various items strewn about, but they did not find anyone in the house. Gangestad noticed that the front door was closed and locked and that a rear sliding glass door leading to the backyard was ajar approximately six inches.

After looking through the house, Gangestad suggested to the defendant that he make some phone calls to have someone come and take care of the baby. After the defendant made three phone calls, Gangestad asked him what had happened that night. The defendant told her that after coming home from work and opening the garage door, he observed some wires hanging out of the vehicle in the garage. He also saw that the door from the garage into the residence was open and he then went across the street to awaken a neighbor to call 911.

After Gangestad and the defendant finished talking, a family friend came by to pick up the infant and an ambulance left with the defendant’s wife. The defendant then left in his pickup truck to go to the hospital. Dr. Larry Blum testified that at 10 a.m. on May 18, 1990, he performed an autopsy on the defendant’s wife. In his opinion, she died of a gunshot wound to the head.

Detective William Selby testified that he arrived at the defendant’s house at 2:36 a.m. on May 18, 1990. Selby went into the garage, where he saw an unlocked car with its passenger doors open. Selby noticed that the keys were inserted in the ignition and that the following items were inside the vehicle: a cassette recorder, telephone answering machine, television, briefcase, and a bag with jewelry and coins. An AM-FM stereo receiver was on top of the hood.

Selby testified that the locks on the front door, rear sliding glass door, and interior garage door were functional and did not appear to have been jimmied, pried or manipulated. All windows in the house were closed. Some jewelry, money, a checkbook, and Wheaton police department shoulder badges were on the floor in the master bedroom. An infant’s car seat, exercise bike, and pillows were in front of the sliding glass door leading to the backyard, which was open six to eight inches. Officer Jeffrey Hunger testified that he and other officers shined their flashlights across the grass in the defendant’s backyard. The only footprints they saw were their own.

Detective Donald Mitchell testified that at about 4 a.m. on May 18, 1990, he and Sergeant Rizer interviewed the defendant at the hospital for about 20 minutes. The defendant told them that after arriving home and discovering the car with the doors open and wires hanging out, he ran inside and discovered his wife bleeding from the ear. He then went across the street to wake one of his neighbors so that he could call 911. The defendant later stated that he woke up his neighbors and called 911 before entering his house. The defendant also told them that his wife was happy with the marriage and the baby, and he denied having a girlfriend. -

Detective Dennis Kurzawa testified that at 4:20 a.m. he met Detective Mitchell at the hospital and then began to question the defendant. The defendant told him that he used to be a Wheaton police officer, but that he had been employed as a ramp manager with United Airlines for the last four years. The defendant said that he used to own a .38-caliber Smith & Wesson chief special handgun, but did not know where it was because his wife had given it away to a friend. The defendant stated that his wife had once pulled a gun on him and that she was “militaristically clean” and hard to live with.

The defendant told Kurzawa that on May 17, 1990, he left work around 11:15 or 11:30 p.m. Before arriving home he stopped and purchased gasoline at the Standard gas station at Geneva and Main Street in Wheaton. He described the clerk at the Standard as a 200-pound white female. However, Brad Hamesk, an employee of the Standard gas station on the corner of Main and Geneva, testified that the station closed at 11:30 p.m. during May 1990, and that no females worked for them during that month.

The defendant also said that he stopped at a 7-Eleven store in a shopping mall at County Farm and Geneva and bought a cup of coffee, arriving home at 12:30 a.m. However, Virginia Thulis testified that she went to the 7-Eleven store near the comer of Geneva and County Farm Road at 1:09 a.m. on May 18, 1990. Thulis noticed a black man in dark clothing purchasing coffee. Thulis testified that she “believed” that the man she saw in the 7-Eleven store was in court. Detective Mitchell testified that on May 25, 1990, he showed Thulis a picture of the defendant, whom she identified as the man she had observed at the 7-Eleven store.

The defendant initially told Kurzawa that after arriving home and finding his wife bleeding, he ran to a neighbor’s house and the neighbor called 911. However, the defendant later stated that he did not enter his house before calling 911. He could provide no explanation for why, if he arrived home at 12:30 a.m., he did not call the police until 1:21 a.m. However, the defendant denied killing his wife.

Assistant State’s Attorney Joseph Birkett testified that he began to question the defendant in the hospital at 5:45 a.m. on May 18, 1990. The defendant initially denied killing his wife. However, he later told Birkett that the robbery looked staged and that he would “find the missing 45 minutes” after telling his family first. The defendant spoke with some family members, and at 11:40 a.m. he, Birkett, and Detectives Kurzawa and Mitchell drove to the defendant’s house in order to get clothes for the baby. At the house, the defendant asked Birkett to come into the baby’s room with him, and he closed the door. The defendant told Birkett that he would have “the whole case solved today.” Birkett told the defendant that he should tell why he killed his wife. The defendant responded “I did it, I can’t tell you why now, I will tell you later.” Birkett then opened the door and asked Detective Panacchia to come into the room. The defendant told Birkett and Panacchia that they did not have to worry about the gun because he was going to solve the whole case today.

Detective Panacchia testified that he was working on the second floor of the defendant’s house when he saw Birkett and the defendant arrive. He heard the defendant ask Birkett to come into the baby’s room, and he saw the defendant close the door. A few moments later the two men exited the room, and Panacchia heard the defendant tell Birkett that he would get the gun today and “clear it up.” Panacchia then asked the defendant for the location of the gun, and the defendant replied “[d]on’t worry, I will get the gun today. I won’t leave any stones unturned.”

Detective Clyde Motter testified that at noon on May 18, 1990, he discovered a revolver under the passenger seat of the defendant’s pickup truck. Detective Michael Quiroz testified that he removed the gun from underneath the passenger seat of the defendant’s vehicle. The gun was a five-shot, .38-caliber Smith & Wesson. One of the shells had been discharged. Quiroz did not recover any fingerprints from the gun.

Richard Vaughn, a forensic sergeant, was certified as an expert in the field of firearms identification. Vaughn opined that the bullet recovered from the defendant’s wife could have been the same type as the bullets recovered from the gun discovered in the defendant’s truck, but he could not say for sure.

James McGinley, a Wheaton police officer, testified that he and the defendant once traded guns when the defendant worked with him at the Wheaton police department. McGinley stated that the gun recovered from the defendant’s vehicle looked like the weapon he had traded to the defendant. The front sight still had the orange paint McGinley had put on it in order to get a better sight picture.

Assistant Public Defender Steven Baker testified that he went to the sheriff’s office at approximately 2 p.m. on May 18, 1990. Birkett asked him to talk to the defendant about the gun. Baker told the defendant that Birkett wanted to know where the gun was located. The defendant told Baker that the gun was in the pickup truck, and Baker relayed that information to Birkett. Birkett then indicated that the gun had already been found.

Darlene Williams, a customer service representative for United Airlines, testified that she first met the defendant while working at United in March of 1986, and that they became sexually intimate six to nine months later. In January 1990, the defendant told Williams that he was going to divorce his wife and marry her.

The defendant called several witnesses who testified to the defendant’s good reputation for being a peaceful person.

Following closing arguments, the jury returned guilty verdicts on two counts of first-degree murder. The trial court sentenced the defendant to a term of imprisonment of 60 years. This appeal followed.

The defendant first contends that the trial court erred in denying his motion to suppress his statements made to Assistant State’s Attorney Birkett and the other law enforcement officials on May 18, 1990. The defendant argues that those statements were involuntarily made while he was in custody and before he was told his rights under Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. The defendant further argues that those statements were impermissibly obtained after he invoked his right to counsel. The following evidence was adduced at the suppression hearing.

Sergeant Rizer and Detective Mitchell testified that they talked with the defendant in the meditation room at the hospital at approximately 4 a.m. on May 18, 1990. They described the meditation room as having a sofa, phone, chairs, an end table and a couple of lamps. Restroom facilities were across the hall. During the course of the conversation the defendant was not handcuffed or threatened and the door to the meditation room was not locked. The defendant did not ask for an attorney and he did not appear to be upset. After the conversation ended, the defendant left the meditation room and talked with his family.

At approximately 4:20 a.m., Detectives Mitchell and Kurzawa began a second conversation with the defendant in the meditation room. Mitchell testified that the defendant was not handcuffed or restrained in any way and the door was not locked. During this second conversation, the defendant was provided coffee and he may have been offered food. The defendant used the phone at least twice. The defendant’s family was in the emergency room lobby area, which was “not too far away.”

Assistant State’s Attorney Birkett began speaking with the defendant in the meditation room at 5:45 a.m., just as the defendant was signing consent forms to have his home and vehicle searched. Birkett testified that the defendant was not handcuffed or restrained in any way. Birkett specifically told the defendant that he was not in custody and that he could “get up and walk out at any time.” The defendant responded that he wanted to cooperate and that he would stay as long as necessary.

At approximately 6:46 a.m., the defendant called one of his coworkers. After the defendant made that phone call, Birkett told him that he was free to leave. The defendant again indicated that he wanted to stay and cooperate. The two men then discussed the time gap from when the defendant returned home to when he called the police. At approximately 7:15 a.m., the defendant called his boss at United Airlines, Jim Dougill. At 7:21 a.m., the defendant used the bathroom and spoke with his family.

After the defendant returned from the rest room, Birkett again told him that he had a right to leave. The defendant agreed to stay and said that if the roles were reversed, he would be asking the same questions. The defendant then acknowledged that it “didn’t look good for him.” Birkett told the defendant that even if he exercised his right to leave, a grand jury might still indict him.

Birkett then stated that there had been a change in the murder statute and that under the facts of this case he would be charged with first-degree murder. At 8:15 a.m., another break was taken and the defendant was offered coffee and food. He was also allowed to smoke. During that break, the defendant left the room twice and came back on his own accord.

The defendant left the meditation room at 8:45. At 9:30 a.m. the defendant again left and spoke with his family in the hallway. At this time Reverend Anderson came into the meditation room and asked Birkett if they could go to another part of the hospital. Birkett asked the defendant if he would continue the conversation, and he agreed to do so. They moved to a conference room in another area of the hospital.

At 9:52 a.m., Birkett gave the defendant his Miranda warnings. However, he continued to tell the defendant that he was not in custody. The defendant said that he had thought about suicide. Birkett told him that he was a “good man,” but the defendant responded that he did not feel like a good man anymore. Birkett then told the defendant about Barbara Lang, a woman who murdered her husband while he was sleeping. Lang initially denied committing the crime, but then admitted that she had stabbed him because he had repeatedly abused her. Birkett informed the defendant that based upon these mitigating factors Lang had been convicted of second-degree murder and given probation. Birkett stated that if the defendant had some mitigating factor, he should say so now.

At 10:55 a.m., the defendant indicated that he would tell them what had happened at his house, but that he first wanted to speak with his family. The defendant was allowed to speak with his father and brother in the conference room while Birkett and the other detectives waited in the hallway. After 10 minutes, the defendant’s father opened the door. Birkett saw that the defendant was using the phone. The defendant’s father told Birkett that the defendant wanted to speak to an attorney. Birkett stated that if the defendant wanted an attorney, he would have to ask for one himself.

At approximately 11:40 a.m., Birkett and the defendant drove in a squad car to the defendant’s house, where, in response to questions about the murder, the defendant stated that he “did it” and would clear up the whole case. The defendant then stated for the first time that he wanted to speak to an attorney. Birkett again told the defendant that he was free to leave. Birkett and the defendant then drove to the sheriff’s office.

At approximately 1:30 p.m., the defendant made some phone calls in order to locate his attorney. The defendant was unable to reach his lawyer, so Birkett asked the defendant if he wanted to have a public defender appointed until his private counsel arrived. The defendant agreed and Birkett called Judge Bongiomo, who appointed the public defender. The defendant was charged with first-degree murder at 3 p.m.

Assistant Public Defender Nicholas Kirkeles testified that he and his supervisor, Stephen Baker, arrived at the sheriff’s office in the afternoon hours on May 18, 1990. Kirkeles, Baker, and the defendant stepped into an office and talked. Birkett subsequently knocked on the office door, and Kirkeles, Baker, and Birkett then walked into the hallway. Birkett indicated that if the defendant would tell him where the gun was located, he would contemplate a charge of voluntary manslaughter. Kirkeles and Baker went back and talked to the defendant. Baker recommended that the defendant disclose the location of the gun to Birkett, and the defendant agreed. Baker and Kirkeles then told Birkett that the gun was under the front seat of the defendant’s track.

Assistant Public Defender Stephen Baker’s testimony was similar to that of Kirkeles. Baker testified that Birkett asked him at the sheriff’s office whether the defendant would disclose the location of the gun. “Some mention” was made about the possibility of voluntary manslaughter. Baker advised the defendant to comply with Birkett’s request, and the defendant agreed that Baker and Kirkeles could tell Birkett where the gun was located.

The defendant testified at the hearing on his motion to suppress that he had “constantly” asked to leave the hospital. However, each time he asked to leave, Kurzawa, Mitchell and Birkett told him that he would be permitted to leave after a few more minutes of questioning. The defendant also testified that Birkett told him “a couple dozen times” that he did not believe his story, and that if the defendant left the hospital he would be indicted for first-degree murder. The defendant was also told that if he cooperated, Birkett would arrange for the same type of work release sentence which Barbara Lang had received.

The defendant testified that he was not aware that he could just walk out of the hospital, and he did not recall Birkett telling him that he was free to leave. From 2 a.m. to 4 p.m., he never left the presence of the police. However, the defendant did admit to one occasion in which he was allowed to leave the meditation room to answer a phone call in the lobby. The defendant stated that although the exit was about 10 feet away. and he had the keys to the track in his pocket, he voluntarily returned to the meditation room after taking the phone call.

The defendant further stated that Birkett never told him his Miranda rights. The defendant testified that he first asked for an attorney at 10:30 a.m., but that Birkett continued to question him about the homicide. The defendant said that he “forgot” that he did not have to answer questions after requesting the presence of counsel. The defendant also denied ever telling Birkett that he would find the gun.

The defendant’s brother, Wayne McDaniel, testified that he arrived at the hospital at approximately 2 a.m. on May 18, 1990, and spoke with the defendant until 4 a.m. At approximately 4 a.m., law enforcement officials asked Wayne to leave the meditation room so that they could speak with the defendant. Between 6 a.m and 7 a.m, Wayne demanded to talk to the defendant. However, Wayne was not allowed to talk to his brother again until approximately 10:30 a.m. After speaking with the defendant, Wayne told Birkett that he was going to get a lawyer. Wayne also testified that as he left the room, he heard his brother ask for an attorney. Wayne further testified that he never saw the defendant walking freely about the corridors.

Samuella Bosby, the defendant’s sister, testified that she arrived at the hospital at 8 a.m. on May 18, 1990, and asked to see the defendant. A policeman standing outside the room in which the defendant was being questioned “did not invite” her into the room. When the defendant came out of the room at 9 a.m., she was allowed to embrace him for only a second before he was shoved onto an elevator by police officers. Another sister, Betty Brown, testified that she asked to see the defendant at 9:30 a.m. on May 18, 1990, but was not permitted to do so.

Hospital chaplain David Anderson testified that he was with the defendant in the meditation room of the hospital “off and on” from 2 a.m. to 4:45 a.m. on May 18, 1990. At 4:45 a.m., the police asked Anderson to leave the meditation room and the door to the room was then shut. Dr. Victor Trinkus testified that he was at the hospital on May 18, 1990, but was not permitted to stay with the defendant in the meditation room while he was answering questions.

The trial court denied the defendant’s motion to suppress. The court ruled that the defendant had been given his Miranda rights at 9:52 a.m. and had not been in custody prior to that time. The court further found that the statements obtained from the defendant were voluntary and “not as result of force, threats, intimidation or promises of any kind.”

The first issue before this court is whether the trial court erred in ruling that the defendant was not in custody prior to being given his Miranda rights at 9:52 a.m. Only statements made during the course of custodial interrogation or where an individual’s freedom has otherwise been significantly restrained must be preceded by Miranda warnings. (People v. Smith (1986), 150 Ill. App. 3d 524, 527.) In determining whether an interrogation is custodial, the court must focus on all of the circumstances surrounding the questioning and then objectively evaluate whether a reasonable innocent man would have believed himself to be in custody if he were in the defendant’s position. Smith, 150 Ill. App. 3d at 528.

Relevant factors in determining whether statements were made in a custodial setting include: the location, length, mood and mode of the interrogation; the number of police officers present; any indicia of formal arrest or evidence of restraint, the intention of the officers; and the extent of knowledge of the officers and the focus of their investigation. (People v. Brown (1990), 136 Ill. 2d 116, 124-25.) The court should also consider the presence or absence of family and friends of the accused; the manner in which the person questioned got to the place of interrogation, whether he was allowed to walk within and from the location of interrogation unaccompanied by police, and the age and intelligence of the accused. (Smith, 150 Ill. App. 3d at 528.) A reviewing court may not disturb the trial court’s ruling on a motion to suppress unless it is manifestly erroneous. People v. Savory (1982), 105 Ill. App. 3d 1023, 1028.

In this case, a reasonable innocent person in the defendant’s position would not have believed himself to be in custody prior to being given his Miranda rights at 9:52 a.m. The defendant voluntarily drove himself to the hospital, where he spoke with his brother for approximately two hours. Detectives Mitchell and Kurzawa then began to question the defendant in the meditation room at the hospital, where he was offered food and coffee. Mitchell testified that the defendant was not handcuffed, restrained or threatened. Assistant State’s Attorney Birkett later joined Mitchell in questioning the defendant. The defendant was not restrained in any manner, and Birkett testified that he continually told the defendant that he was not in custody. The defendant stated that he wanted to stay and cooperate. Birkett further testified that the defendant left the meditation room on several occasions, talked with his family, used the rest room, and made phone calls. In considering the circumstances of the interrogation, we are also mindful that the defendant holds bachelor’s and master’s degrees and is a former police officer.

Although the defendant presented testimony contradicting Mitchell, Kurzawa, and Birkett, it is the province of the trial court in a hearing on a motion to suppress to determine the credibility of witnesses and the weight to accord their testimony. (People v. Pinkham (1985), 139 Ill. App. 3d 554, 557.) The trial court found the testimony of Mitchell, Kurzawa and Birkett to be credible and it denied the defendant’s motion to suppress. On review of the record, we cannot say that the trial court’s decision was manifestly erroneous.

The cases cited by the defendant, People v. Savory (1982), 105 Ill. App. 3d 1023, and People v. Gorman (1991), 207 Ill. App. 3d 461, are inapposite. In Savory, the defendant was a 14-year-old boy who was convicted of two offenses of murder. The court held that the defendant was in custody when he was interrogated at the police station and the officers pointed out discrepancies between his story and their own information. (Savory, 105 Ill. App. 3d at 1029.) However, unlike this case, the court held that relevant to their finding was the fact that the defendant was only 14 years of age and that the officers testified that the defendant was not free to leave the police station. Savory, 105 Ill. App. 3d at 1029.

In Gorman, the three defendants were charged with two counts of arson arising from a fire at the University of Illinois. They were individually questioned by university police department investigators, but none of them was given Miranda warnings prior to being interviewed. The trial court granted the defendants’ motion to suppress and the appellate court affirmed, holding that the trial court’s determination was not manifestly erroneous. Unlike this case, though, the record revealed that one of the defendants was told that he could not talk to his friends or leave until the interview was over, another defendant was ordered back to the office by a police officer, and the third defendant was interviewed as a police investigator blocked the door. Gorman, 207 Ill. App. 3d at 476.

We next address the defendant’s argument that incriminating statements were impermissibly obtained from him after he allegedly invoked his right to counsel while at the hospital at approximately 10:30 a.m. on May 18, 1990. In Miranda, the United States Supreme Court established certain procedural safeguards which were designed to protect an accused’s fifth amendment right against self-incrimination. One of these procedural safeguards mandates that if an accused indicates that he wishes to consult with an attorney before speaking there can be no questioning. However, this right to counsel guarantee relates only to custodial interrogation. Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706, 86 S. Ct. at 1612; McNeil v. Wisconsin (1991), 501 U.S. 171, 177-78, 115 L. Ed. 2d 158, 168, 111 S. Ct. 2204, 2208-09.

The defendant argues that he was in custody after being given Miranda warnings at 9:52 a.m. However, a custodial situation cannot be created by the mere giving of Miranda warnings. (People v. Wipfler (1977), 68 Ill. 2d 158, 171.) Our review of the circumstances surrounding the questioning of the defendant from the time he was given his Miranda warnings until he was taken to the sheriff’s office indicates that Birkett repeatedly told the defendant that he was not in custody. The defendant responded that he understood. The defendant was not threatened or restrained in any manner. Further, he was allowed to take breaks from the questioning and speak with his family. A reasonable innocent man in the defendant’s position would not have believed himself to be in custody. (Smith, 150 Ill. App. 3d at 528.) Since the defendant was not in custody until he was taken to the sheriff’s office, the assistant State’s Attorney and other law enforcement officials were not required prior thereto to cease questioning the defendant after he requested an attorney. The trial court’s ruling that the defendant was not denied the right to counsel is not manifestly erroneous.

We recognize that the Appellate Court for the First District in People v. Spivey (1991), 209 Ill. App. 3d 584, held that a defendant may invoke his fifth amendment right to counsel prior to the initiation of custodial interrogation. In Spivey, a 14-year-old girl was raped and murdered. Police detectives attempted to interview the defendant at a hospital while he was recuperating from injuries suffered when he jumped from a second-floor window. The defendant, who was neither under arrest nor in police custody, requested the presence of counsel. The detectives left. Shortly thereafter, the defendant was released from the hospital, and as he attempted to get in his car, he was arrested and transported to the police station. Spivey, 209 Ill. App. 3d at 586-87.

The trial court granted the defendant’s motion to suppress a statement he made at the police station, ruling that the giving of Miranda warnings after the arrest was ineffective to overcome the prior invocation of the defendant’s rights. (Spivey, 209 Ill. App. 3d at 589.) The Appellate Court, First District, affirmed, holding that once the invocation of counsel is made, even prior to custodial interrogation, all questioning must cease. Spivey, 209 Ill. App. 3d at 592.

We decline to follow Spivey because it conflicts with Miranda’s holding that an individual can invoke the fifth amendment right to counsel only when he is in custody. As our supreme court stated in People v. Patterson (1992), 146 Ill. 2d 445, 451:

“The Miranda safeguards arose out of a concern that individuals interrogated while in custody might incriminate themselves due to physical or psychological coercion. (Miranda, 384 U.S. at 446-58, 16 L. Ed. 2d at 707-14, 86 S. Ct. at 1613-19.) The Miranda Court pointed out that the object of custodial interrogation is to subjugate the individual to the will of his examiner. The interrogation environment ‘carries its own badge of intimidation.’ (Miranda, 384 U.S. at 457, 16 L. Ed. 2d at 714, 86 S. Ct. at 1619.) Thus, unless adequate protective measures are employed to dispel the coercion inherent in the custodial environment, no statement obtained from the individual can truly be the product of his free choice. Miranda, 384 U.S. at 457, 16 L. Ed. 2d at 714, 86 S. Ct. at 1619.”

The defendant in this case was not in custody when he allegedly requested counsel at 10:30 a.m., and he could have simply left without answering any further questions. The trial court did not err in ruling that the defendant’s right to counsel was not violated.

The defendant next argues that his incriminating statements, including an alleged confession, were not made voluntarily. Although the defendant was not in custody at the time he made those statements, a noncustodial interrogation might, in special circumstances, be characterized as one where “ ‘the behavior of . . . law enforcement officials was such as to overbear [the suspect’s] will to resist and bring about confessions not freely self-determined. ’ ” (Beckwith v. United States (1976), 425 U.S. 341, 348, 48 L. Ed. 2d 1, 8, 96 S. Ct. 1612, 1617, quoting Rogers v. Richmond (1961), 365 U.S. 534, 544, 5 L. Ed. 2d 760, 768, 81 S. Ct. 735, 741.) We must therefore examine the record in order to determine that the defendant’s statements were voluntary.

Whether a statement is given voluntarily depends on the totality of the circumstances. (People v. Melock (1992), 149 Ill. 2d 423, 447.) The question is whether the statement was made freely, voluntarily, and without any compulsion or inducement of any sort, or whether the defendant’s will was overcome at the time he confessed. (People v. Clark (1986), 114 Ill. 2d 450, 457.) Factors to be considered include the duration of the questioning, the age, education and intelligence of the accused, and whether he was subjected to any physical punishment. (Melock, 149 Ill. 2d at 447.) The accused’s emotional state and experience in criminal matters are also relevant. (People v. Stevens (1989), 188 Ill. App. 3d 865, 876.) The trial court’s finding on a question of the voluntariness of a confession will not be reversed unless it is against the manifest weight of the evidence. Melock, 149 Ill. 2d at 448.

The defendant first contends that Assistant State’s Attorney Birkett’s initial hostility towards him overcame his will. The defendant argues that Birkett repeatedly accused him of killing his wife and staging the burglary, and that this interrogation occurred while the defendant was fatigued, distraught and emotionally overwhelmed from seeing his wife’s body. However, rigorous and accusatorial questioning does not render a subsequent confession involuntary. (See Melock, 149 Ill. 2d at 452.) Furthermore, although the defendant may have been emotionally overwhelmed from viewing his wife’s body, he testified that he was able to understand and answer the questions posed to him.

The defendant next contends that Birkett threatened him with a grand jury indictment if he walked out of the interrogation. However, Birkett testified that he told the defendant that he was free to leave, but that if he left, the case would still go to the grand jury where he might be indicted. This case is similar to People v. Pinkham (1985), 139 Ill. App. 3d 554, in which the defendant testified that police officers told him the victim was in “real bad shape” and the defendant could face attempted murder and, if the victim died, murder. (Pinkham, 139 Ill. App. 3d at 556.) This court held that a truthful representation to the defendant about the possibility of a murder charge was not inherently coercive. (Pinkham, 139 Ill. App. 3d at 559.) Similarly, Birkett’s truthful representation to the defendant about the possibility of a grand jury indictment did not render the defendant’s confession involuntary.

The defendant next argues that Birkett induced him to confess by telling him that his case was similar to Barbara Lang and that, like her, he would receive a work release sentence. An offer of leniency is a factor to be considered in determining whether a -statement is voluntary. (People v. Ruegger (1975), 32 Ill. App. 3d 765, 769.) In Ruegger, the defendant testified that a police detective told him that he had gotten probation for one of the defendant’s friends who had pled guilty and that other people who had made statements received probation. The defendant also testified that the detective offered to “go to bat” for him if he confessed. (Ruegger, 32 Ill. App. 3d at 767.) The detective denied offering to help the defendant or telling the defendant that he had helped others in the past. (Ruegger, 32 Ill. App. 3d at 768.) The trial court granted the defendant’s motion to suppress, ruling that the State had not met its burden of showing that his confession was not a product of compulsion exerted on him in the form of offers of assistance. (Ruegger, 32 Ill. App. 3d at 768.) The appellate court affirmed, holding that the trial court’s finding was not against the manifest weight of the evidence. Ruegger, 32 Ill. App. 3d at 771.

In this case, Birkett testified that he told defendant about Barbara Lang. However, he never admitted to promising the defendant that he would receive probation or work release if he confessed. Unlike Ruegger, the trial court found Birkett to be credible and it ruled that he made no promises of leniency. It is the function of the trial court to determine the credibility of witnesses and to resolve any conflict in their testimony. (Melock, 149 Ill. 2d at 432.) From the record before us, we cannot say that the trial court’s finding was against the manifest weight of the evidence.

The defendant claims that the length of questioning is another factor showing that his confession was involuntary. The defendant argues that he did not make any incriminating statements until about 10:30 a.m, more than six hours after the interrogation began. However, the defendant was not subject to continuous questioning during that time. He was allowed to take breaks, go to the rest room and talk with his family. We do not find that the length of the interrogation renders his subsequent confession involuntary. See People v. Patterson (1986), 140 Ill. App. 3d 421, 426 (the defendant’s 43-hour confinement did not render a subsequent incriminating statement involuntary where he was not refused access to family and friends or denied food or opportunities for rest).

Finally, the defendant argues that his confession was involuntary because it was elicited as a result of a deliberate misrepresentation by Birkett. The claimed misrepresentation concerned statements by Birkett that the defendant was a “good man” whose act of killing his wife in her sleep showed that he did not want her to suffer. Birkett admitted that he did not believe those statements.

Our supreme court has held that a misrepresentation which prompts inculpatory statements does not invalidate a confession as a matter of law. (People v. Martin (1984), 102 Ill. 2d 412, 427; People v. Kashney (1986), 111 Ill. 2d 454.) In Martin, the police and the assistant State’s Attorney falsely told the defendant that his codefendant had named him as the “triggerman” in a homicide. (Martin, 102 Ill. 2d at 427.) The defendant then made incriminating statements. The court examined the totality of the circumstances and held that the incriminating statements were voluntarily given. (Martin, 102 Ill. 2d at 427-28.) In Kashney, the assistant State’s Attorney falsely told the defendant, as he was being questioned about a murder, that his fingerprints “were found all over the apartment.” (Kashney, 111 Ill. 2d at 465.) The defendant subsequently confessed to the crime. The court held that the misrepresentation by the assistant State’s Attorney did not vitiate the otherwise voluntary statements. Kashney, 111 Ill. 2d at 466-67.

Birkett’s statements were less likely to overcome the defendant’s will than those made in Martin and Kashney because they were not a misrepresentation that the police possessed some direct evidence of guilt. After examining the totality of the circumstances, we find that the defendant’s inculpatory statements were made freely and voluntarily.

We next address the defendant’s argument that the public defenders, who were appointed to represent the defendant at the sheriff’s office, denied him effective assistance of counsel. In order to succeed on a claim of ineffective assistance of counsel, the defendant must show that his counsel’s representation fell below an objective standard of reasonableness and deprived him of a trial “ ‘whose result is reliable.’ ” (People v. Albanese (1984), 104 Ill. 2d 504, 525, quoting Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.) The defendant must also demonstrate sufficient prejudice that “ ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” (Albanese, 104 Ill. 2d at 525, quoting Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) If the ineffective assistance claim can be disposed of on the ground that the defendant did not suffer prejudice, the court need not decide whether his counsel’s errors were serious enough to constitute less than reasonably effective assistance. People v. Caballero (1992), 152 Ill. 2d 347, 365.

The defendant argues that the public defenders’ conduct fell below an objective standard of reasonableness because at the sheriff’s office they disclosed to Birkett the location of the gun. The defendant contends that he was prejudiced because at trial the State was able to call Assistant Public Defender Baker as a witness and elicit his testimony that the defendant told him that the gun was in the pickup truck. This testimony contradicted the defendant’s statement to Birkett that he had not seen the gun in some time because he had given it to his wife.

We first note that Baker’s testimony did not violate the attorney-client privilege. The attorney-client privilege exists in order that a person may consult freely and openly with an attorney without any fear of compelled disclosure of the information communicated. (People v. Adam (1972), 51 Ill. 2d 46, 48, cert. denied (1972), 409 U.S. 948, 34 L. Ed. 2d 218, 93 S. Ct. 289.) However, matters a client intends to disclose to third parties, who are not agents of either the attorney or the client, are not privileged. (In re Himmel (1988), 125 Ill. 2d 531, 542; Cesena v. Du Page County (1990), 201 Ill. App. 3d 96, 112, rev’d on other grounds (1991), 145 Ill. 2d 32.) In this case, the defendant intended that his statement to Baker concerning the location of the gun be disclosed to a third party, Birkett. We therefore find that the defendant waived any privilege he had with respect to this statement.

Furthermore, the evidence against the defendant was overwhelming, even without Baker’s testimony about the location of the gun. The defendant waited approximately 45 minutes after allegedly discovering that his wife had been shot before calling 911 and he provided conflicting testimony about whether he entered his house before calling for help. The defendant claimed that he stopped at a gas station and 7-Eleven store before returning home on the night of the murder, but the State presented witnesses who disputéd the defendant’s testimony. When the police arrived at the defendant’s home, they found no evidence of a forced entry and no footprints in the backyard. The defendant told investigators that he did not have a girlfriend, but a co-worker testified that she and the defendant were sexually intimate and were planning on marrying. Birkett testified that the defendant confessed to the crime and Detective Panacchia testified that the defendant told him that he did not have to worry about the gun because he would solve the case today.

Further, at approximately 12:05 p.m. on May 18, 1990, police detectives found a gun in the pickup truck which the defendant had driven home from work. That gun had been discharged one time. This discovery was made approximately two hours before Assistant Public Defender Baker told Birkett the location of the gun.

We find that there is no reasonable probability that the defendant would have been found innocent if Assistant Public Defender Baker had not testified against him. Since the defendant did not suffer prejudice from the assistant public defender’s testimony, he cannot prevail on his claim for ineffective assistance of counsel.

The defendant next argues that the prosecutor improperly referred to his failure to testify at trial. The comments complained of were made during rebuttal argument. The prosecutor stated:

“And defense counsel in his argument goes through every witness. And I guess when you have nothing to say or very little to say, you go through every witness and take up some time. I don’t know.
But one thing that was not commented upon was this: This was found in the Defendant’s truck. What is the explanation for that?
MR. LYNCH [Defense counsel]: We will object, motion for mistrial. Motion for mistrial.
THE COURT: Motion is denied.
MR. BURKE: [Prosecutor]: Ladies and gentlemen, what you have is proof beyond a reasonable doubt, that gun is proof beyond a reasonable doubt.”

The defendant also complains of a comment made by the prosecutor later in his rebuttal. The prosecutor said “[h]ow did the gun get in the truck? You have no evidence how that gun got in the truck.” However, defense counsel waived review of that comment by not objecting to it at trial. People v. Enoch (1988), 122 Ill. 2d 176, 186.

An accused has a constitutional right not to testify as a witness in his own behalf and the prosecutor cannot directly or indirectly comment on the exercise of that right. (People v. Arman (1989), 131 Ill. 2d 115, 125-26.) However, the prosecution may describe the State’s evidence as uncontradicted, even though the defendant is the only one who.can contradict it, as long as the comments are not intended to direct the jury’s attention to the defendant’s silence. (People v. Leonard (1988), 171 Ill. App. 3d 380, 386.) When determining whether the accused’s right not to testify has been violated, a reviewing court should examine the challenged comments in the context of the entire proceeding. Arman, 131 Ill. 2d at 126.

The defendant contends that the prosecutor’s comments were similar to those held improper in People v. Burton (1969), 44 Ill. 2d 53. There, the court held that the prosecutor had specifically referred to the defendant’s failure to testify by stating that “he’s got to explain the blood on the pants” and by pointing out that there was no explanation “from him” as to the source of the bloodstains. (Emphasis in original.) (Burton, 44 Ill. 2d at 57.) However, unlike Burton, the prosecutor in this case refers to defense counsel’s failure to present witnesses who can explain why the gun was found in the defendant’s truck.

The defendant also argues that this case is like People v. Arman (1989), 131 Ill. 2d 115. There, the defendant was convicted of narcotics racketeering. Evidence introduced at trial included a series of photographs that showed the defendant allegedly engaged in a drug transaction with an undercover police officer in the parking lot of a Wendy’s restaurant. (Arman, 131 Ill. 2d at 122.) In closing argument, defense counsel asserted that the photographs showing the defendant at the restaurant did not establish that he was there to complete a narcotics transaction. In rebuttal, the prosecutor referred to the failure of the defense to provide an explanation for the defendant’s presence at the restaurant. (Arman, 131 Ill. 2d at 126.) The court held that the prosecutor’s argument constituted an impermissible comment on the defendant’s failure to testify. Arman, 131 Ill. 2d at 126.

However, our supreme court has also held that a defendant cannot claim error where the prosecutor’s remarks are in reply to and were invited by defense counsel’s argument. (People v. Dixon (1982), 91 Ill. 2d 346, 350-51.) In Dixon, defense counsel advised the jury during closing argument to “keep in mind what is going on in [defendant’s] mind.” (Dixon, 91 Ill. 2d at 350.) In rebuttal, the prosecutor stated: “Do you know what was happening in [defendant’s] mind? Did you hear any testimony whatsoever of what was going on in [defendant’s] mind?” (Dixon, 91 Ill. 2d at 350.) The court held that the prosecutor’s remarks were made in response to defense counsel’s argument and were not a reference to the defendant’s decision not to testify. Dixon, 91 Ill. 2d at 351.

Here, the prosecutor’s comments about defense counsel’s failure to call witnesses explaining why the gun was found in the defendant’s truck were made after defense counsel had commented on the State’s failure to prove that the defendant had fired the gun or that the bullet came from that gun. We believe that the prosecutor’s comments in this case, in the context of the entire proceedings, were not made for the purpose of calling attention to the defendant’s failure to testify but were proper rebuttal invited by defense counsel’s argument.

Lastly, the defendant argues that the evidence at trial was insufficient to prove that he was guilty of murder. When reviewing the sufficiency of evidence, “ ‘the relevant question is whether, after viewing 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.’ ” (Emphasis omitted.) (People v. Young (1989), 128 Ill. 2d 1, 49, quoting Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573-74, 99 S. Ct. 2781, 2788-89.) As we discussed in our analysis of the defendant’s ineffective assistance of counsel claim, the evidence was sufficient to support the defendant’s conviction.

For the foregoing reasons, we affirm the trial court.

Affirmed.

COLWELL and BOWMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE QUETSCH

license: Public Domain

text:
      In re MARRIAGE OF WILLIAM T. CLABAULT, Petitioner-Appellee, and SUSAN R. CLABAULT, Respondent-Appellant.
    Second District
    No. 2—92—0711
    Opinion filed July 1, 1993.
    Rehearing denied September 23, 1993.

      Susan Clabault, of Wheaton, appellant pro se.

    Harold G. Field, of Harold G. Field & Associates, of Wheaton, for appellee.
   JUSTICE QUETSCH

delivered the opinion of the court:

Respondent, Susan Clabault, appeals from the trial court’s order granting the dissolution of her marriage to petitioner, William T. Clabault. Respondent contends the trial court erred in: (1) the apportionment of petitioner’s pension benefits; (2) ordering the sale of the marital home; (3) awarding the 1991 tax exemption for the parties’ son, Edward, to petitioner; (4) awarding respondent’s 1991 tax refund of $1,250 to petitioner; (5) failing to award respondent the statutory minimum amount of child support; and (6) failing to award respondent sufficient maintenance. We affirm in part, vacate in part and remand the cause for further proceedings.

The parties were married on August 22, 1970, and had three children during the course of their marriage: Kathryn, Edward and Jonathan. At the time of dissolution on February 14, 1992, Kathryn was emancipated, Edward was in his last year of high school and was scheduled to graduate in June 1992, and Jonathan was in his second year of high school. Kathryn resides with petitioner and Edward and Jonathan reside with respondent.

At the time of dissolution, respondent was 50 years old and petitioner was 46 years old. In 1990, petitioner began working as a trial attorney with the Department of Justice in Washington, D.C., earning $83,306 per year. Prior to that time, he had been employed as an assistant United States Attorney in the Northern District of Illinois. He has worked continuously as a lawyer since the parties married in 1970.

Respondent was employed as a teacher at the time the parties married. She stopped working outside the home two months before the birth of their first child, Kathryn, in 1971. She did not work outside the home again until 1987-88 when she occasionally worked as a substitute teacher. In August 1989, respondent began working full-time as a kindergarten teacher. She received good reviews in her first year of teaching. However, after the school appointed a new principal, respondent did not receive a good rating.

Respondent testified that during 1990-91 she was under so much stress she could not function. In spite of an outpouring of support from the parents of her students, respondent’s contract was not renewed for the 1991-92 school year. She filed a claim against the school with the Illinois Human Rights Commission, but was unable to regain her position with the school. At the time of trial she was unemployed and receiving therapy and medication for severe depression. However, expert testimony revealed a good prognosis for respondent’s recovery provided she continue therapy.

In its order of dissolution, the court granted custody of Edward and Jonathan to respondent and ordered petitioner to pay $1,100 per month in child support until Edward graduated from high school on June 13, 1992, at which time support payments dropped to $880 per month. In addition, the court ordered petitioner to pay $880 per month in rehabilitative maintenance. The parties agreed that the value of the equity in the marital home was $123,600. The court ordered the home be sold and awarded 60% of the proceeds to respondent and 40% of the proceeds to petitioner. The court initially valued petitioner’s pension at $83,205 and awarded respondent an amount equal to 50% of the monthly pension benefits based on the benefits accrued during the course of their marriage.

Respondent filed a post-trial motion requesting the reopening of proofs regarding the value of petitioner’s pension benefits based on “newly discovered evidence” which respondent alleged revealed the value of the pension benefits accrued to be higher than initially determined. She also requested the modification of other portions of the judgment. Petitioner filed a “motion to clarify the judgment” requesting the court conform the wording of its order regarding the apportionment of the pension benefits to the format suggested in the Federal register. The court denied the motion to reopen proofs and granted the motion to clarify the judgment. Respondent timely appeals.

Respondent contends a new trial should be granted regarding the apportionment of petitioner’s pension benefits. Respondent argues the trial court erred in valuing the pension as of a date more than eight months prior to trial, in disregarding the testimony of respondent’s actuarial expert, in refusing to reopen proofs regarding “newly discovered” evidence relating to the value of the pension plan, and in “clarifying” its judgment thereby reducing respondent’s portion of the benefits. These arguments reveal a fundamental misunderstanding of what transpired at the trial level.

Retirement benefits earned during a marriage in the form of pensions and profit sharing interests are designated marital property. (In re Marriage of Davis (1991), 215 Ill. App. 3d 763, 773.) We note the difficulty in attempting to present evidence of the value of something that, under actuarial methods, is difficult to determine within a reasonable degree of certainty. (See Robinson v. Robinson (1986), 146 Ill. App. 3d 474, 476.) Because the valuation of such benefits is so problematic, Hlinois courts have developed two methods to apportion pension benefits upon dissolution.

The first method is known as the “immediate offset” approach under which a trial court may, upon the determination of the present value of the pension benefits, award the value of the benefit to the employee spouse and offset that award with other marital property of similar value. (Robinson v. Robinson (1986), 146 Ill. App. 3d 474, 476; see also In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 663.) This method is best used when there is sufficient actuarial evidence to determine the present value of the benefits, when the employee spouse is close to retirement age, and when there is sufficient marital property to allow an offset. Robinson, 146 Ill. App. 3d at 476.

The second method is known as the “reserved jurisdiction” approach. Under this approach, the court orders the employee spouse to pay an allocated portion of the pension fund to the former spouse, as it is disbursed, while retaining jurisdiction to enforce the decree. (Robinson, 146 Ill. App. 3d at 476; In re Marriage of Korper (1985), 131 Ill. App. 3d 753, 759-60.) Applying this method in apportioning benefits accrued during the marriage helps alleviate the inequities inherent in being unable to determine the present value of benefits which are dependent upon future events.

Although the trial court assigned á present value to the pension plan in this case, it used the reserved jurisdiction approach to determine the proper apportionment of benefits. Therefore, respondent’s arguments regarding the valuation of the benefits are irrelevant because the valuation of benefits at the time of dissolution was not involved in the court’s apportionment of benefits under the reserved jurisdiction approach. In the case at bar, the trial court awarded respondent 50% of the petitioner’s future benefits based on the number of years the parties were married. It used the following formula:

15 (number of years of service accrued during marriage)
----------------------x monthly pension x 50 percent
Total years of service

Accordingly, the present estimated value of the pension plan was irrelevant.

However, because the number of years of service accrued under petitioner’s pension plan was uncertain as of the trial date due to the fact petitioner left the employ of the Federal government for a period of time early in his career, the court included a second formula in its order. At the time of trial, both parties believed petitioner had the option of redepositing the retirement funds he had withdrawn when he left the government’s employ to receive credit for those years of service. If petitioner chose to redeposit the funds, he would be given credit for an additional 3 years and 10 months of service toward his pension. The second formula was to be utilized if petitioner exercised this option. The formula was as follows:

15 (number of years of service accrued during marriage) plus number of years of service repurchased
----------------------x monthly pension x 50 percent
Total years of service

Petitioner was later informed it was not necessary for him to redeposit the withdrawn funds in order to receive credit for the total number of years he was in service to the government. Thus, the number of years of petitioner’s service accrued during the course of the parties’ marriage could be fixed at 18 years, 10 months, rather than 15 years, plus the number of years repurchased, if any, if petitioner exercised the option to repurchase. Petitioner notified respondent of this information on March 7,1992.

Respondent filed a motion for a new trial based on what she termed the “newly discovered” evidence regarding the present estimated value of the pension benefits. Respondent argued that because the number of years of service could be fixed at 18 years, 10 months, rather than the 15 years used in the court’s original formula, the estimated present value of the benefits was larger than originally determined at trial. Petitioner filed a motion to clarify the judgment requesting the court change the format of its order to that preferred by the Federal government. The trial court denied respondent’s motion for a new trial and clarified its previous judgment order by striking the paragraph regarding the apportionment of the pension benefits and replacing it with the following language:

“Susan has never qualified for any pension. Due to her medical condition, the [c]ourt cannot determine if in fact she will ever qualify for her own pension. If petitioner, William T. Clabault, will be eligible for retirement benefits under the Civil Service Retirement System based on his employment with the United States Government from an adjusted service computation date of April 30, 1973, the respondent, Susan R. Clabault, is entitled to a share of William’s gross monthly annuity under the Civil Service Retirement System to be computed as follows:
.169584 (16.9584 [percent]) of the average of William’s high three years of salary as determined by the United States Office of Personnel Management upon William’s retirement from the United States Government, or, if he leaves the Government before retirement, upon the date he is eligible to receive full retirement benefits under the Civil Service Retirement System ***.”

On appeal, respondent contends the trial court erred in clarifying its judgment and reducing her portion of the pension benefits from 50% to 17%. She also argues the trial court should not have considered the proposed rules of the United States’ Office of Personnel Management, which administers the Civil Service Retirement System, tendered by petitioner at the post-trial hearing because she argues both exhibits constitute “new evidence.” The proposed rules suggest a format for use in court orders pertaining to the apportionment of pension benefits under the Federal pension plan. Because respondent failed to object to these exhibits at the time of the hearing, this argument is waived. However, after reviewing the language of the order, we conclude respondent’s argument that the trial court erred in clarifying its order regarding the apportionment of benefits is correct in part.

The record reveals petitioner’s pension benefits at the time of retirement are determined based on the number of years of service and the average of petitioner’s three highest years’ salary. If petitioner retired after 18 years, 10 months of service, he would receive .339167% or 33.9167% of the average of his three highest years’ salary. Thus, in clarifying its order, the trial court attempted to conform the language of its prior determination that respondent is to receive one-half of petitioner’s pension benefits accrued during the course of the marriage to the recommended language of the United States’ Office of Personnel Management by stating respondent is to receive 16.9584% of the average of petitioner’s three highest years’ salary. This percentage represents one-half of the benefits petitioner would receive if he were to retire after 18 years, 10 months of service. However, in changing the format of its order, the trial court failed to include the formula upon which its determination of the percentage to be awarded to respondent was based, as called for by the United States’ Office of Personnel Management.

In its modified order, the court stated that respondent was to receive .169584% or 16.9584% of petitioner’s three highest years’ salary upon petitioner’s retirement from the government, or if he leaves the government’s employ before retirement, upon the date he is to receive full retirement benefits, i.e., a lump sum payment of benefits. However, 16.9584% of petitioner’s three highest years’ salary at the time petitioner retires will be more than 16.9584% of his three highest years’ salary at the time of dissolution assuming petitioner’s salary will increase over time, thus increasing respondent’s portion of the benefits. Moreover, 16.9584% of a lump sum payment upon petitioner’s early departure grossly decreases respondent’s portion of the benefits.

Although the trial court attempted to follow the suggested format of the United States’ Office of Personnel Management (57 Fed. Reg. 141 (1992)), it fáiled to include the formula upon which its judgment was based. This creates a problem because, although respondent is entitled to receive 16.9584% of petitioner’s three highest years’ salary at the time of dissolution, petitioner’s benefits will be determined based on his three highest years’ salary at the time of retirement. No mention was made of the term of years for which the parties were married while petitioner accrued benefits which is vital to the apportionment of benefits because petitioner will continue to accrue benefits throughout the years.

Because it does not appear from the record the trial court intended this result, we vacate the portion of the trial court’s May 19, 1992, order pertaining to the apportionment of pension benefits, and we remand the cause for further proceedings consistent with this opinion. The trial court should incorporate the formula used in its initial judgment order into the format preferred by the Federal government as provided in section 211 of the proposed rules of the United States’ Office of Personnel Management (57 Fed. Reg. 141 (1992)), as follows:

18 years, 10 months
----------------------x monthly benefits x 50 percent.
Total years of service

In the alternative, upon finding sufficient evidence of present value, as well as other relevant factors, the court may employ the offset method based on 16.9584% of petitioner’s three highest years’ salary at the time of dissolution.

Respondent’s next argument on appeal is that the trial court erred in its distribution of the marital property. First, respondent contends the trial court erred in ordering the sale of the marital home. Respondent argues she needs the home to maintain stability for her two sons and for herself in her depressed state. She contends the court should have awarded her exclusive possession of the home until the parties’ youngest child finishes high school and she recovers from her severe depression.

Section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (Act) requires a trial court to divide the marital property in just proportions, taking into consideration 11 numerated factors. (Ill. Rev. Stat. 1991, ch. 40, par. 503(d).) The trial court’s distribution of property rests within its sound discretion and will not be disturbed on appeal absent an abuse of that discretion. (In re Marriage of Agazim (1988), 176 Ill. App. 3d 225, 231.) Such an abuse of discretion occurs only where no reasonable person would take the view adopted by the trial court. (In re Marriage of Los (1985), 136 Ill. App. 3d 26, 30.) Here, the trial court ordered the marital home be sold and the net proceeds be distributed 60% to respondent and 40% to the petitioner. The parties stipulated at trial the value of the equity in the home was $123,600.

The record on appeal reveals the following. Respondent requested that she be awarded the marital residence. She testified that she is unable to keep current on her bills while receiving $1,500 per month. Respondent is short approximately $10,000 in meeting expenses since the separation. Moreover, the treatment of respondent’s depression requires intensive therapy and medication, necessitating additional expenditures each month. The parties’ son, Jonathan, still resides with respondent, but Edward has gone away to college. Petitioner pays for Edward’s college expenses, as well as for continued therapy for the parties’ daughter, Kathryn. Petitioner testified he is short approximately $796 a month in meeting expenses. In addition, petitioner owes over $11,000 in outstanding credit card debt which he maintains he incurred as a result of the separation.

The parties essentially had only two assets: the marital residence valued at $123,600, and petitioner’s pension. The trial court ordered petitioner to pay $1,100 per month in child support and $880 in maintenance. These payments would increase petitioner’s monthly expenses by $490 per month until the time Edward graduated from high school and $160 per month thereafter. In addition, the parties incurred attorney fees exceeding $30,000 in pursuing the dissolution.

On appeal, respondent contends the trial court abused its discretion in ordering the sale of the marital residence without considering the tax consequences for respondent or the fact that the parties’ youngest son was still attending high school while residing with respondent. We note respondent failed to present evidence regarding the tax consequences of the sale of the residence. Even so, the tax consequences of the sale and the desirability of keeping the children in the family home are but two factors to be considered in distributing the marital property. (See In re Marriage of Agazim, 176 Ill. App. 3d at 236.) In the case at bar, those factors are clearly outweighed by the need to give the parties sufficient income upon which to rebuild their lives.

Specifically, respondent will need to purchase medical insurance in the future, and petitioner must be able to pay child support as well as assist in paying the children’s college expenses. In addition, although respondent contends she will not be able afford to purchase another home in Jonathan’s school district, there is no evidence that respondent cannot continue to reside within the district. Moreover, it is likely that by the time this appeal is resolved Jonathan will have graduated from high school. Thus, under the circumstances of this case, we conclude the trial court did not abuse its discretion in ordering the sale of the marital residence.

Next, respondent contends the trial court erred in awarding the 1991 dependency tax exemption for Edward to petitioner. In its order of dissolution, the trial court awarded the exemption to petitioner based on its finding that petitioner supported Edward more than 51%. Respondent argues this contention was unsupported by the evidence at trial.

It is within the authority of the trial court to allocate an exemption to the noncustodial parent and to order the custodial parent to sign a declaration for Internal Revenue Service purposes that he or she not claim the exemption. (In re Marriage of Rogliano (1990), 198 Ill. App. 3d 404, 415.) We conclude, as did the court in In re Marriage of Rogliano (198 Ill. App. 3d 404), the court should make the allocation based on which parent will be contributing the majority of the child’s support. In re Marriage of Rogliano, 198 Ill. App. 3d at 415.

The evidence reveals that respondent earned $1,853.64 per month in net pay for approximately eight months of 1991, while she was employed as a teacher. However, respondent’s contract was not renewed for the 1991-92 school year. In November 1990, the parties entered an agreed order whereby petitioner would pay $1,396 per month in unallocated support to respondent. Petitioner continued to pay this amount through December 1991. Thus, the trial court did not abuse its discretion in concluding petitioner contributed more than 51% toward Edward’s support and awarding the tax exemption to petitioner.

■ Respondent also contends the trial court erred in concluding respondent violated the court order regarding the 1990 tax refund and awarding the refund to petitioner. Although the parties were instructed to file a joint return, petitioner persuaded respondent to file separate returns to minimize their tax liability. Petitioner testified that if the parties had filed a joint return, their tax liability would have been something in excess of $2,500. Because respondent would receive a $1,250 refund if she filed separately and petitioner would owe approximately $1,273, the parties agreed verbally to file separate returns so they would “net out” on their tax liability. However, respondent did not turn over the refund to petitioner.

The parties entered into an agreed order whereby the court permitted each party to file a separate tax return and ordered respondent to place her refund in escrow until the case was resolved. However, the court entered an order on June 4, 1991, permitting respondent to use the refund money to the extent it would cost her to hire an actuarial expert. Although petitioner testified that he believed respondent was given permission to use $500 of the refund to hire an expert, in her post-trial motion respondent states she used approximately $200 to hire an expert.

The record is unclear as to exactly how much of the refund respondent was ultimately given permission to spend. To the extent respondent used the refund money to hire an actuarial expert, she was not in violation of the court order. Therefore, the court abused its discretion in so holding and awarding the entire refund amount to petitioner. However, the remaining portion of the refund should not have been used by respondent. To that extent, the trial court’s award of the refund to petitioner was not an abuse of discretion. On remand, the trial court should determine the exact amount of the refund used by respondent to hire an expert and award to petitioner only the remaining portion of the refund.

Respondent also contends on appeal the trial court erred in its award of $1,100 per month in child support because petitioner underreported his net income per month. Petitioner testified that his net income per month was $4,400 per month. He proposed to pay $1,100 per month in child support for Edward and Jonathan until Edward graduated from school at which time the amount would decrease to $880 per month. He also proposed to pay the full cost of the children’s college tuition and expenses, in addition to providing health insurance for the two boys and maintaining a life insurance policy of $200,000. The trial court support order mirrored petitioner’s proposal with the exception that it required petitioner to maintain his life insurance policy at a level of $300,000, rather than $200,000, for the benefit of the children.

The amount of an award of child support is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. (In re Marriage of Scafuri (1990), 203 Ill. App. 3d 385, 391.) The statutory guidelines contained in section 505 of the Act (Ill. Rev. Stat. 1991, ch. 40, par. 505) establish a beginning point for analysis. In re Marriage of Scafuri, 203 Ill. App. 3d at 391.

Respondent contends the trial court abused its discretion in setting child support below the statutory mínimums based on her contention that petitioner underestimated his net income by taking zero exemptions toward his withholding tax and failed to report the insurance reimbursements for Kathryn’s therapy. However, a close examination of the record reveals this argument lacks merit.

As to respondent’s contention regarding the tax exemptions, an examination of petitioner’s pay stub reveals four exemptions for Federal tax purposes and three for State tax purposes. Regarding the insurance reimbursement, it is true that petitioner spends $400 per month on his daughter’s therapy and is reimbursed at 60% for a total of $240 per month. However, even if the $240 per month is added to the trial court’s determination of petitioner’s base pay of $4,400, the trial court’s award of $1,100 was only $60 under the statutory minimum of 25% for the two boys. Since Edward is now attending college, respondent is to receive $880 per month in support which is $48 less than the statutory minimum of 20% of petitioner’s net income.

Considering that, in addition to the $880 per month in child support for Jonathan, petitioner is paying the full costs of the college educations for all three children and their health insurance while maintaining a life insurance policy for their benefit, the circuit court did not abuse its discretion in its award of child support. (See In re Marriage of Eddy (1991), 210 Ill. App. 3d 450, 461.) However, on remand, the court may choose to increase Jonathan’s support to $928 per month based on petitioner’s net income of $4,640.

Lastly, respondent contends the trial court abused its discretion in awarding only $880 per month in rehabilitative maintenance. An award of maintenance is within the discretion of the trial court and will not be reversed absent an abuse of that discretion. (In re Marriage of Hart (1990), 194 Ill. App. 3d 839, 851.) Section 504(b) of the Act sets forth a number of relevant factors to be considered by the court in determining the amount of maintenance to be awarded, including but not limited to: the financial resources of the party seeking maintenance; the standard of living established during the marriage; the duration of the marriage; the age and the physical and emotional condition of both parties; and the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance. (Ill. Rev. Stat. 1991, ch. 40, par. 504(b).) The amount of marital property apportioned to each party is also a factor to be considered in determining maintenance.

Respondent in- this case was 50 years old at the time of trial and petitioner was 46. The parties were married for almost 22 years, and they enjoyed a comfortable standard of living prior to dissolution. Petitioner’s ability to earn income and acquire assets in the future is far superior to that of respondent. Moreover, the evidence reveals respondent is suffering from severe depression and is unable to work. As a teacher, respondent will be able to support herself adequately once she recovers from her illness. Although her prognosis for recovery is quite good, the evidence presented below reveals she will need to continue therapy on an intensive basis in order to recover. It is in the best interests of both petitioner and respondent that she recover so that she will become self-reliant and not depend on maintenance for support.

The trial court awarded respondent rehabilitative maintenance in the amount of $880 per month. Respondent contends that amount does not permit her to continue medical treatment for her illness. At the same time, petitioner contends his monthly expenses exceed his income.

In her post-trial motion, respondent requested $2,500 total support from petitioner, including child support. The trial court awarded her $l,760-per-month total support, including $880 per month in child support. The evidence below is unclear as to the exact cost of the medical treatments necessary to enable respondent to recover. On remand, the trial court should determine the medical expenditures necessary to enable respondent to continue therapy, including any reimbursement received through medical insurance, and reconsider its award of maintenance if necessary. We reiterate it is the best interest of both parties to enable respondent to recover so that she can support herself rather than depend upon petitioner for support while never recovering from her illness.

Accordingly, the judgment of the circuit court of Du Page County is affirmed in part and vacated in part, and the cause is remanded with instructions.

Affirmed in part; vacated in part and remanded with instructions.

GEIGER and DOYLE, JJ., concur.