text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTOPHER CARLSON, Defendant-Appellant.
    Second District
    No. 2—90—0662
    Opinion filed February 10, 1992.

      G. Joseph Weller and Barbara R. Paschen, both of State Appellate Defender’s Office, of Elgin, and Kathleen T. Zellner, of Kathleen T. Zellner & Associates, of Naperville, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendant, Christopher A. Carlson, was found guilty of armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18—2(a)) after a jury trial and was sentenced to eight years’ imprisonment. The defendant appeals his conviction, arguing (1) that the trial court erred in denying his motion to suppress statements given to the police after he requested an attorney; (2) that the court erred in denying a motion for a new trial based on the State’s failure to comply with discovery; (3) that the court erred when it failed to give jury instructions tendered by the defense; (4) that the court erred in sentencing him to more than the minimum sentence; and (5) that he was not found guilty beyond a reasonable doubt.

On May 15, 1989, the defendant was working at Wag’s Restaurant. That evening, an individual entered Wag’s through the front door wearing a hat, a black cloth over his face, and carrying a gun and a knife. The individual took the manager, the waitresses and the defendant to the manager’s office. While holding a knife at the throat of a waitress, the robber told the manager to open the safe. The robber gave a pillow case to the defendant, and the defendant filled the case with the money removed from the safe. The robber then made the employees enter a utility room and told them to remain there until he left the restaurant.

Outside the front door, the police found a black hat, a bicycle, a piece of black cloth, a knife and a $5 bill. A canine unit followed a scent to a nearby apartment complex, the Walnut Manor apartments. On May 16, the police had already identified Kerry Everett as a suspect in the robbery. Two police detectives, Klinkhamer and Jannusch, went to the defendant’s home at the Walnut Manor apartments, to question him concerning the robbery and to determine if the defendant could identify Kerry Everett as the robber. At the defendant’s apartment, they noticed a number of persons asleep on the floor. At the detectives’ request, the defendant went to the police department to answer questions about the robbery.

During the police interview, the defendant told the detectives that Everett was an acquaintance of his and that Everett had been in his apartment on prior occasions. The defendant identified the bike found outside the restaurant as belonging to Kenneth Rogers, a friend of his who sometimes slept at his apartment. The defendant stated that the bike had recently been moved to Everett’s apartment. Later that day the police received a phone call stating that Everett was at the defendant’s apartment, and the police arrested Everett there.

On May 17, the defendant returned to the police department to identify items that the police had recovered from Everett’s apartment. The defendant identified a replica gun, shoes, and coin trays as being connected with the armed robbery at Wag’s. The detectives informed the defendant that they wished to question him again. He was read his Miranda rights, and the defendant signed a waiver to that effect. The defendant asked if he was under arrest and was told that he was not, but that he had been implicated as a suspect in the robbery.

The defendant admitted that he and Everett had conversations about the possibility of robbing Wag’s, the amount of money kept there, and the best night to rob the restaurant. The defendant stated that these discussions only represented fantasies. Thereafter, he stated that he did not wish to talk further to the detectives. On May 26, 1989, the defendant was arrested for his involvement in the Wag’s robbery. At the police station, the defendant was again advised of his rights. The defendant requested to speak to an attorney and was handed the telephone and told he could make one phone call. The defendant attempted to reach his attorney, but received no answer on the phone. According to the detectives, Detective Jannusch asked the defendant, “What do you want to do now?” The defendant stated that there was no one else he wanted to call, and he asked what his “options” were. According to Detective Jannusch, he answered the defendant by saying that the defendant could cooperate and speak with them or he could go to the booking area and complete the booking process. At his suppression hearing, the defendant stated that the detectives told him that either he could cooperate with them or they could charge him with five or six additional counts on conspiracy and that he could get an additional 30 years added to his prison sentence.

After this exchange, the defendant agreed to discuss his involvement in the robbery. He was again advised of his Miranda rights; he acknowledged that he understood them, and he again signed a written waiver. The detectives then questioned the defendant, writing out their questions and the answers given by the defendant. This handwritten material was then typed; the defendant read it and signed the typed statement.

In the typed statement, the defendant admitted to having between 5 and 10 conversations with Everett concerning plans to rob Wag’s. These conversations included details about the best days, hours and managers to rob. He stated that three distinct plans were discussed. The defendant related that in one of the plans he was to leave the rear door of the restaurant open, allowing Everett to enter the rear of the restaurant. On May 7 or 8, he opened the door, per the robbery plan, but quickly closed it to prevent the robbery because he did not like that plan. The defendant also stated that on May 14, prior to going to work, he had been at Everett’s apartment and Everett told him that the robbery would take place that night. The defendant said that the robbery went according to plan, with the only difference being that Everett unexpectedly used a knife whereas their plan called for the use of a replica gun. The defendant also admitted that he was to receive half of the stolen money.

At trial, several individuals who often lived at the defendant’s apartment testified. Kenneth Rogers testified that he heard the defendant talk about the amount of money in the safe at Wag’s. He also stated that he had seen the replica gun and the bike used in the robbery.

Randy Smith, who had also lived with the defendant at one time, testified that he remembered conversations between the defendant and Everett concerning plans to rob Wag’s. He stated that the defendant suggested the best times to commit the robbery and explained when the Brinks’ truck would be at the restaurant to pick up the money.

Robert Roberts also had lived with the defendant at different times. He testified that the defendant gave advice as to the best time and the best manager to rob, agreed to open the back door to permit the robber to enter, and advised that he should be taken hostage and that he should empty the safe. Roberts also testified that the defendant devised a plan to rob a Brinks’ employee picking up money from Wag’s. According to Roberts, this plan was attempted but abandoned one week before the actual robbery of Wag’s, and that he was present during that attempt. Additionally, he testified that he had seen the replica gun in the defendant’s apartment.

The defendant moved to suppress the statement he made to the police after he asked to make a phone call to his attorney. After a hearing, the court denied the defendant’s motion, stating that there was no duress, compulsion or pressure used to overcome the defendant’s free will.

The defendant first argues on appeal that the trial court erred in denying the motion to suppress his statements. In Miranda v. Arizona, the Supreme Court determined that the fifth and fourteenth amendment prohibitions against compelled self-incrimination required that custodial interrogation be preceded by advice to the defendant that he has the right to remain silent and the right to the presence of an attorney. (Miranda v. Arizona (1966), 384 U.S. 436, 444-45, 16 L. Ed. 2d 694, 706-07, 86 S. Ct. 1602, 1612.) The Supreme Court expanded this rule in Edwards v. Arizona (1981), 451 U.S. 477, 484, 68 L. Ed. 2d 378, 386, 101 S. Ct. 1880, 1884, holding that once a defendant invokes his right to have counsel present during interrogation, all questioning must cease until counsel is actually present.

In interpreting Edwards, the Illinois Supreme Court has determined that for a defendant to invoke his right to counsel, his request must only be sufficiently free of indecision or double meanings as to reasonably inform the authorities that he wishes to speak to counsel. (People v. Tackett (1986), 150 Ill. App. 3d 406, 418, citing People v. Krueger (1980), 82 Ill. 2d 305, 311.) Responses to further questioning may not be used to cast a retrospective doubt on the clarity of the initial request for counsel. People v. St. Pierre (1988), 122 Ill. 2d 95, 112.

In the case at bar, the defendant made a clear and unambiguous request for counsel when he asked to speak to his attorney. (See St. Pierre, 122 Ill. 2d at 111.) This invocation of the defendant’s right to counsel was understood by the detectives, and their understanding was evidenced by their giving the defendant a phone to call his attorney. See Tackett, 150 Ill. App. 3d at 418.

The State argues that the defendant’s equivocation about the necessity for his attorney’s presence, by asking the detectives what his “options” were and by his subsequent agreement to make a statement, casts a doubt on whether he actually invoked his right to counsel. However, we find that the defendant’s request for counsel was unambiguous and free from double meaning. (See Tackett, 150 Ill. App. 3d at 418.) His decision to talk to the detectives after he could not reach his attorney may not be used to cast a retrospective doubt on the clarity of his earlier invocation. (St. Pierre, 122 Ill. 2d at 112.) We find that the defendant invoked his fifth amendment right to counsel.

Once the defendant’s fifth amendment right has been invoked, he may validly waive this right by voluntarily responding to questioning. (St. Pierre, 122 Ill. 2d at 112.) The Supreme Court, in Oregon v. Bradshaw (1983), 462 U.S. 1039, 77 L. Ed. 2d 405, 103 S. Ct. 2830, refined the holding of Edwards regarding the test to be used to determine whether a defendant has voluntarily waived his fifth amendment right to counsel after once invoking it. The Illinois Supreme Court, following Bradshaw, held the preliminary inquiry to be whether the defendant initiated the conversation in a manner evincing a willingness and a desire for a generalized discussion about the investigation. (People v. Hicks (1989), 132 Ill. 2d 488, 493.) The second inquiry is whether, by the defendant’s initiation of a conversation, coupled with the totality of the other circumstances, he knowingly and intelligently waived his right to counsel’s presence during questioning. Hicks, 132 Ill. 2d at 493.

The defendant argues that his second waiver was not valid because the detectives questioned him after he invoked his right to counsel in violation of Miranda. Specifically, the defendant refers to the detectives’ question, “What do you want to do now?” The defendant asserts that he did not initiate this conversation and that his question about what his options were was an inquiry arising from the incidents of the custodial relationship and his inability to successfully phone his attorney. See Bradshaw, 462 U.S. at 1045, 77 L. Ed. 2d at 412, 103 S. Ct. at 2835.

The State argues that this dialog does not demonstrate continued police interrogation. The State argues that Bradshaw is indistinguishable from this case and argues that the defendant waived his right to counsel when he evidenced a desire for a generalized discussion with the detectives when he said, “What are my options?”

We find that Bradshaw is factually distinguishable. In that case, the defendant had invoked his right to counsel and was subsequently being transported to another jail. (Bradshaw, 462 U.S. at 1042, 77 L. Ed. 2d at 410, 103 S. Ct. at 2833.) While enroute, upon his own initiative, the defendant asked a police officer, “Well, what is going to happen to me now?” (Bradshaw, 462 U.S. at 1042, 77 L. Ed. 2d at 410, 103 S. Ct. at 2833.) The officer answered by saying: “You do not have to talk to me. You have requested an attorney and I don’t want you talking to me unless you so desire because anything you say — because—since [sic] you have requested an attorney, you know, it has to be at your own free will.” (Bradshaw, 462 U.S. at 1042, 77 L. Ed. 2d at 410, 103 S. Ct. at 2833.) In this case, on the other hand, when the defendant asked the detectives what his “options” were, they did not inform him that he could make an additional phone call or that he had the right to counsel present before speaking with them. (See, e.g., Hicks, 132 Ill. 2d at 493.) Rather, they asked him once again if he would answer their questions. In this context, we find that the detectives’ questioning following the defendant’s request to call his attorney to be “further police-initiated interrogation.” (See Bradshaw, 462 U.S. at 1043, 77 L. Ed. 2d at 411, 103 S. Ct. at 2834.) The defendant’s subsequent waiver obtained during the interrogation was not valid, and his resulting statements are not admissible. See St. Pierre, 122 Ill. 2d at 113.

The defendant argues that because the trial court erred in not suppressing his statement, this court should reverse his conviction. However, reversal is not automatic; the improper admission of involuntary statements can be harmless error. (Arizona v. Fulminante (1991), 499 U.S. 279, 284, 113 L. Ed. 2d 302, 314, 111 S. Ct. 1246, 1251.) The determination of harmless error must be analyzed considering the particular facts of each case and considering the record as a whole. (People v. Myles (1985), 131 Ill. App. 3d 1034, 1044.) Error is harmless where a reviewing court can safely conclude that a trial, without the error, would produce no different result. Myles, 131 Ill. App. 3d at 1044.

In this case, the defendant gave the police statements on May 16, before his custodial arrest. Those statements addressed his discussions about robbing Wag’s and were admissible and inculpatory. Additionally, the jury heard the testimony of Joel Clay, Randy Smith, Robert Roberts, and Kenneth Rogers, all of whom testified about the defendant’s involvement in the robbery. We find that the improperly admitted statements were at most cumulative, and due to the amount of other inculpatory testimony presented at trial, we find that their admission did not affect the outcome of the case and constituted harmless error. See People v. Wheeler (1990), 194 Ill. App. 3d 178, 183.

The defendant next argues that the trial court erred in denying his motion for a new trial, relying on the State’s failure to fully comply with discovery and on newly discovered exculpatory information obtained after trial. Specifically, the defendant claims that the State did not disclose the existence of an interview with Joel Worley, a cell mate of Kerry Everett, which included information tending to negate his guilt. The defendant did not learn of the interview until after his trial.

During the State’s investigation, Everett’s cell mate was interviewed, and he made a written, signed statement. In that statement, he stated that Everett implicated the defendant in the robbery scheme. After the trial, the defense attorney interviewed the cell mate and obtained an affidavit from him. The cell mate’s affidavit directly contradicted his earlier statement to the police and reflected that Everett told him that the defendant was not involved with the robbery.

First, we address whether the State failed to comply with required discovery by failing to divulge the contents of its interview with Everett’s cell mate. Supreme Court Rule 412(c) provides that “the State shall disclose to defense counsel any material or information within its possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce his punishment therefor.” (134 Ill. 2d R. 412(c).) The Illinois Supreme Court has stated, in part, that for the prosecution’s suppression of evidence to have violated due process, the evidence discoverable must have been both favorable to the defendant and material either as to guilt or punishment. People v. Lewis (1984), 105 Ill. 2d 226, 235.

In this case the interview with Everett’s cell mate was not favorable to the defendant since it did not tend to negate the guilt of the defendant. (See Lewis, 105 Ill. 2d at 235.) We, therefore, hold that the State did not violate the defendant’s due process rights when it did not give the defense counsel the statement of Everett’s cell mate. See People v. Sargent (1990), 207 Ill. App. 3d 631, 638.

Secondly, we address whether the subsequent affidavit of Everett’s cell mate warrants a new trial on the basis of newly discovered evidence. To warrant a new trial, the new evidence must be of such conclusive character that it will probably change the result on retrial. (People v. Molstad (1984), 101 Ill. 2d 128, 134.) In this case, even if Everett’s cell mate were to testify at a new trial to the information in his affidavit, he would be impeached with his earlier statement. The judge found, in ruling on the defendant’s post-trial motion, that the information contained in the affidavit would not be likely to produce a different result. We agree. We find that the trial court did not abuse its discretion in denying the motion for a new trial. See People v. Gray (1988), 166 Ill. App. 3d 586, 591-92.

The defendant next argues that the court erred in refusing to give instructions to the jury proposed by the defendant and in giving certain instructions over the defendant’s objections. We will address each contested instruction separately.

The defendant argues that the court erred when it refused to give the jury the accomplice instruction with respect to the testimony of Robert Roberts. (See Illinois Pattern Jury Instructions, Criminal, No. 3.17 (2d ed. 1981) (hereinafter IPI Criminal 2d).) Essentially, this instruction states that the testimony of an accomplice should be considered with suspicion. The defendant argues that Robert Roberts’ testimony that he had been involved in the planning of another robbery with the defendant made him an accomplice, although not to the crime in question, entitling him to the cautionary statement to the jury.

The accomplice instruction should be given “[w]hen a witness says he was involved in the commission of a crime with the defendant.” (IPI Criminal 2d No. 3.17.) The use of this instruction has been expanded to encompass those cases where probable cause exists to indict the witness as a principal or accessory. (People v. Cobb (1983), 97 Ill. 2d 465, 476.) However, the Illinois Supreme Court recently stated that an accomplice is not one who was an admitted participant in an offense distinct from the one at bar, even if that offense was related to the charge at issue. People v. Henderson (1990), 142 Ill. 2d 258, 314-17.

In this case, Roberts may have been a participant in a related crime, but this does not qualify him as an accomplice. (Henderson, 142 Ill. 2d at 314-17.) We hold that the court did not err in refusing to give this instruction.

The defendant next argues that the court erred by giving the accountability instruction to the jury over his objection. (See Ill. Rev. Stat. 1989, ch. 38, par. 5—2(c); IPI Criminal 2d No. 5.03.) It is a well-settled rule that a jury in a criminal case may be instructed as to any theory of the case that may reasonably be inferred from the facts. (People v. Carr (1986), 149 Ill. App. 3d 918, 929-30.) The prosecution, as well as the defense, is entitled to appropriate instructions which present its theories of the case, if such theories are supported by the evidence. (Carr, 149 Ill. App. 3d at 930.) Even slight evidence that a defendant participated in any part of a crime will justify the giving of an accountability instruction. People v. Daniels (1985), 139 Ill. App. 3d 475, 479.

In the case at bar, the State’s theory was that of accountability. The testimony at trial was replete with evidence that the defendant engaged in the planning of the Wag’s robbery. We find that based upon the evidence presented at trial the court did not err in instructing the jury on the issue of accountability. See Daniels, 139 Ill. App. 3d at 479.

The defendant also objects to the circumstantial evidence instruction given over the defense’s objection. Circumstantial evidence is the proof of facts or circumstances which tend to show the guilt or innocence of the defendant. (IPI Criminal 2d No. 3.02.) It has been held proper to give this instruction if there is circumstantial evidence tending to link the defendant with the crime. (People v. Levine (1981), 99 Ill. App. 3d 141, 167.) In the instant case, the circumstantial evidence, being the money, gun and clothing items, was evidence which tended to link the defendant to the crime, as some of the items were seen in the defendant’s apartment. We hold the court did not err in giving the jury the instruction on circumstantial evidence. See also Carr, 149 Ill. App. 3d at 929-30.

The defendant next argues on appeal that the trial court erred in sentencing him to more than the minimum sentence of six years for his Class X felony. The defendant cites his lack of criminal background, his age and his degree of participation in the robbery as mitigating factors. When the court sentenced the defendant, the judge stated that due to the planned nature of the offense the defendant should receive more than the minimum sentence allowed. After reviewing the presentence report, allowing for corrections, and giving the defendant an opportunity to speak, the judge sentenced the defendant to eight years’ imprisonment, two years over the statutory minimum.

Reviewing courts will not overturn the sentencing decision of a trial court, absent an abuse of discretion. (People v. Peve (1991), 209 Ill. App. 3d 1021, 1024.) Furthermore, reviewing courts will not substitute their judgment for that of the trial court merely because they might have balanced the sentencing factors differently. (People v. Rogers (1986), 141 Ill. App. 3d 374, 382.) As stated by our supreme court in People v. Perruquet (1977), 68 Ill. 2d 149, 154, a reasoned judgment as to the proper sentence to be imposed must be based upon the particular circumstances of each individual case. In this case, the court could have sentenced the defendant to between 6 and 30 years. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(a)(3).) The judge, however, gave the defendant two years over the statutory minimum and explained his reasoning. (See People v. Robinson (1987), 163 Ill. App. 3d 384, 396.) We find no abuse of discretion in the trial court’s sentencing. Peve, 209 Ill. App. 3d at 1024.

The defendant next argues on appeal that his conviction must be reversed because he was never charged under an accountability theory pursuant to section 5 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 5—2) but was charged only as the principal actor in the offense.

The law of accountability provides that where two or more individuals engage in a common criminal design, any acts committed by one party are considered the acts of all. (See People v. Fyke (1989), 190 Ill. App. 3d 713, 720.) An indictment charging a defendant as principal will also support the conviction of the defendant under the theory of accountability. (People v. Lawson (1990), 193 Ill. App. 3d 396, 399.) In this case, the jury was given the instruction on the State’s theory of accountability. We find that there was no error in failing to charge the defendant as an accomplice. See Lawson, 193 Ill. App. 3d 396.

The defendant lastly argues that he was not found guilty beyond a reasonable doubt. He argues that there was not sufficient evidence to link his conversations with Everett to the actual robbery of Wag’s.

Once a defendant had been found guilty by a jury, a reviewing court should affirm their decision if any rational trier of fact, after viewing the evidence in the light most favorable to the prosecution, could have found the defendant guilty beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261.) In this case, the defendant admitted to several conversations with Everett about robbing Wag’s, and there is testimony from several others that the defendant provided Everett information relating to the best time and manner to rob his place of work. Even omitting consideration of the defendant’s inadmissible statements, we find no insufficiency of evidence to support reversal of the conviction. See Collins, 106 Ill. 2d at 262.

Based on the foregoing, we affirm the judgment of the circuit court of Kane County.

Affirmed.

McLaren and NICKELS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    GEORGE HENDLE, as Sheriff of McHenry County, Plaintiff, v. WILLIAM H. STEVENS et al., Defendants-Appellants (Margaret E. Lucchetti et al., Defendants-Appellees; Michael E. Fryzel, as Director of the Department of Financial Institutions for the State of Illinois, Defendant).
    Second District
    No. 2—91—0429
    Opinion filed February 6, 1992.
    Rehearing denied March 5, 1992.

      William H. Stevens, of Crystal Lake, pro se, for appellants.
    Lahti & Cole, of Crystal Lake (Paul T. Lahti, of counsel), for appellees Alma R. Lopez, Thomas P. Farrell, Ryan T. Baassler, and Jennifer L. Moore.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, George Hendle, sheriff of McHenry County, brought a complaint for declaratory judgment against defendants William and Gladys Stevens (property owners), Margaret Lucchetti, Alma Lopez, Thomas Farrell, Ryan Baassler, Jennifer Moore and Michael Fryzel, Director of the Department of Financial Institutions for the State of Illinois (the Director). Plaintiff sought a judgment declaring the rights of the parties to currency found by the minors Lopez, Farrell, Baassler, and Moore on property owned by William and Gladys Stevens. Following a hearing on plaintiff’s complaint, the trial court denied the claims of plaintiff, the property owners, and the Director to the found money. Margaret Lucchetti made no claim to the money. The trial court determined that the minors, as finders, were entitled to the money pursuant to the applicable statutory provisions pertaining to estrays and lost property (Ill. Rev. Stat. 1989, ch. 50, par. 27 et seq.), subject to the claim of the true owner. The property owners appeal from the court’s judgment.

The evidence as presented at the hearing revealed that on May 4, 1990, at about 11:20 p.m. Detective Beverly Hendle of the McHenry County sheriff’s police went to the home of Margaret Lucchetti in Crystal Lake. Mrs. Lucchetti told the officer that her baby-sitter, Alma Lopez, had related to her that some teenagers had found a large sum of money during the previous week. At about noon on the following day, May 5, Detective Hendle and Mrs. Lucchetti proceeded to the wooded area described by Alma and looked for fresh holes. While looking, defendant William Stevens approached the two women and asked if he could help them. At the time, the officer knew she and Mrs. Lucchetti were on someone’s property, but she had no idea whose property, as the property was in an “abandoned” state. Detective Hendle testified that the property was wooded and overrun with weeds with piles of junk on it and trails leading throughout. Mr. Stevens did not tell the officer that she was trespassing on his property, and Detective Hendle did not observe any signs stating “no trespassing,” “keep out,” or anything else of that nature.

Mrs. Lucchetti informed Detective Hendle that kids rode their all-terrain vehicles on the wooded property. Kids were present on the property on the date that Detective Hendle and Mrs. Lucchetti were there, but the officer could not recall if they were on all-terrain vehicles or walking.

Detective Hendle and Mrs. Lucchetti returned to the Lucchetti residence, where they met with Alma Lopez. Alma then accompanied the detective back to the wooded area to show the officer where she and her friends had found the money. Alma pointed out two holes in the center of the property which were, according to the officer, about six to eight inches across and angled downward so that their depth was indeterminable. A pile of dirt was outside the holes as though an animal had burrowed into the ground. Alma told Detective Hendle that she had returned the money she found to the hole and thrown a little bit of dirt over it. The officer dug in the area with a stick but did not find anything.

Detective Hendle recalled that Alma asked the officer what would happen if the money could be found. The officer told Alma that if she and her friends had kept the money for safekeeping, she should tell Mrs. Lucchetti or the officer so that “everything could be handled properly.” If handled properly, the possibility existed that Alma and her friends might be able to claim the money in the future. Detective Hendle did not personally recover any money from Alma or her friends.

About 10:30 p.m. on May 5, 1990, Detective Tom Monday of the McHenry County sheriff’s police met with Jennifer Moore and her parents at their home. Jennifer told the officer that she and three of her friends (Alma Lopez, Thomas Farrell, and Ryan Baassler) had found a large amount of money in a vacant lot. According to Jennifer, Alma had lied to Detective Hendle because Alma still possessed the money she found. Jennifer admitted that she had some of the money, and she turned it over to the officer.

At about 11 p.m. of the same day the officer proceeded to the Lopez residence and recovered the money Alma possessed. At approximately 11:53 p.m. Detective Monday arrived at Thomas Farrell’s house and collected Thomas’ portion of the found money. From there the officer proceeded to the home of Ryan Baassler, where he recovered more of the money. At the home of each of the minors the officer prepared a property inventory sheet, depicting the amount of money recovered, and had the minor sign it. Detective Monday testified that he recovered the money from the minors for safekeeping purposes until the true owner or one determined to be the rightful owner came forward.

Jennifer Moore, who was 14 years old at the time of the discovery of the money, related that she found the money in the woods across the street from her house. Jennifer stated that kids customarily ventured into the wooded area, that no signs warned them not to go on the property, that the owner never asked them to stay off the property, that other neighborhood children played on the property, and that the property contained trails for all-terrain vehicles and bicycles. Jennifer stated that she found the money on April 30 or May 1 at about 4:30 or 5 p.m. She and Thomas Farrell were walking through the woods when she discovered two holes. Jennifer kicked a mound of dirt next to one of the holes and saw some loose money. Jennifer and Thomas were joined by Alma and Ryan. All four minors grabbed as much money as they could and ran to Jennifer’s house, where they went behind a shed and counted the money.

After Alma, Thomas, and Ryan went home Jennifer hid her money; she did not tell her parents about the money. The following Saturday Jennifer and two of her friends went shopping. Jennifer gave each friend $100 of the money. The friends returned to Jennifer any money which they did not spend. On that same day Jennifer told her mother about her discovery. That evening Detective Monday arrived, and Jennifer gave him all the money she possessed. Later, she recovered from her friends the items they bought and returned them. Jennifer was able to recover all the money spent except the money expended for a T-shirt, which could not be returned, and $5 to $10 spent on food. Jennifer gave the recovered money and the T-shirt to Detective Monday.

Jennifer acknowledged that she did not file any documents with the court within five days of May 1, 1990, claiming ownership of the money. Jennifer did not know whether her parents took such action.

According to Thomas Farrell, who was 13 years old at the time of the discovery, the money was found on May 1 while he and some friends were wandering in the woods behind a house (the Stevenses’ house). Thomas related that Jennifer was looking down a hole and that she turned around and kicked over some dirt, making the money visible. Thomas recalled that the money was not “really loose” but that he was “pretty sure it was organized by string or rubber band or just stacked together.” By the time Alma and Ryan joined Thomas and Jennifer, Jennifer was holding the money in her hands, and the others grabbed some money from her. The minors then ran to the shed behind Jennifer’s house and counted the larger bills.

When Thomas arrived home, he told his mother and father about the money. His father advised him to count the money, place it in an envelope, and put it with his deposit slips. Thomas stated that he did not spend any of the money.

Thomas recalled that on May 5 at about 10:30 p.m. Detective Monday picked up the money Thomas had kept. According to Thomas, the officer told him to wait six months to see if anyone claimed the money and if no one did, the money would belong to the minors. According to Thomas, the officer indicated that there was nothing further Thomas was required to do except to wait. Thomas acknowledged that he never filed any document at the courthouse claiming ownership of the money prior to the time Detective Monday arrived at his house.

Alma Lopez, 15 years old at the time of the discovery, described the place where the money was found as having lots of weeds, trees, and trails. Alma stated that she had been in the area many times and that she had never been asked by the owner to stay out of the area nor had she ever seen any “no trespassing” signs posted. Alma related that she and the other minors were just wandering around in the area on April 30 or May 1 when Jennifer called to Alma and Ryan. When they joined Jennifer, the money was, according to Alma, on the ground stacked together with a rubber band. Jennifer picked up the money, and the minors all took some of it. Alma recounted that she and the other minors went to Jennifer’s house and counted the money behind Jennifer’s shed before going home.

When Alma arrived home, her father told her not to do anything with the money. He took possession of the money and hid it. He never advised her to call the police. Alma admitted that when Detective Hendle and Mrs. Lucchetti spoke with her on May 4, she lied about knowing where the money was because she wanted to keep it. When Detective Monday appeared at her house on May 5, Alma turned the money over to him. The officer told her that she would have to wait six months to see if anybody claimed the money. Alma acknowledged that between the date on which she and the others found the money and May 5 she made no effort to find the true owner or to file any documents at the courthouse claiming ownership of the money.

Ryan Baassler, 13 years old at the time the minors discovered the money, described the property where the money was found as “wooded” or “wild” with a couple of trails through it. According to Ryan, Jennifer and Thomas were walking in the wooded area on May 1, 1990, with Alma and Ryan following behind when Jennifer found some money on the ground and picked it up. Ryan remembered the money was loose “with no fasteners around it.” Ryan said he took some money from Jennifer’s hands. Then, all the minors proceeded to Jennifer’s house, where they made a rough count of the money.

When Ryan arrived home, he put his money in his closet. He did not tell his parents about the money until Detective Monday came to recover it on May 5 because he wanted to keep the money. When Detective Monday arrived on the night of May 5, Ryan turned over to the officer the money he still possessed. Subsequently, Ryan recovered $145 he had given his mother to put in the bank and also replaced with his own money the money he had spent on a couple of T-shirts. Ryan recalled hearing Detective Monday state that there was a six-month waiting period and if no one claimed the money within that time, the money would be returned to the minors. Ryan acknowledged that he never tried to find the true owner of the money between the time of the discovery and the time of Detective Monday’s recovery nor did he file any documents at the courthouse claiming ownership of the money.

Thomas Farrell, Sr., testified that he was present on the evening of May 5 when Detective Monday came to collect the money found by his son. Mr. Farrell related that he wondered if his son was obligated to try to contact the rightful owner or if his son could claim ownership of the money if the rightful owner was not found. Consequently, he asked Detective Monday if there was any further action that needed to be undertaken. Detective Monday replied negatively. According to Mr. Farrell, he assumed from the officer’s negative response that his son had no further obligations or responsibilities under the law. Mr. Farrell acknowledged that he did not file any documents with the court claiming ownership of the money for his son nor did he attempt to find the true owner.

Subsequent to the hearing, the court entered its order finding that the minors were not trespassers, that the money was lost, that the discovery of the money on private property did not preclude the application of the statute pertaining to estrays and lost property (Ill. Rev. Stat. 1989, ch. 50, par. 27 et seq.), that the minors substantially complied with the requirements of the estrays statute, that the total value of the found money was $6,061, and that the minors were entitled to pursue their claim to the money subject to the claim of the true owner. This appeal by the property owners, William and Gladys Stevens, ensued. Neither plaintiff nor the Director of the Department of Financial Institutions for the State is a party to the appeal.

On appeal the property owners contend: (1) that the trial court erred in failing to consider the found money as embedded in the soil and, therefore, belonging to the property owners under common law; (2) that the trial court erred in finding the evidence failed to establish the minors as trespassers; (3) that the trial court erred in finding the evidence ambiguous as to whether the money constituted lost, mislaid, or abandoned property; and (4) that the trial court erred in applying the applicable provisions of the estrays statute to the money found by the minors.

The property owners first argue that the trial court erred in failing to consider that the money at issue was embedded in the soil on their property at the time of its discovery. They assert that, if embedded, the money belongs to them under common law. The property owners base their failure to consider claim on the fact that the trial court’s memorandum opinion made no specific finding of fact regarding the embedment theory. However, where a trial court fails to make a detailed finding of fact, this court must presume that the trial court found the issue and controverted facts in favor of the prevailing party. (Kern v. Rafferty (1985), 131 Ill. App. 3d 728, 731.) Here, the court’s opinion specifically mentioned that in reaching its decision it reviewed the written memoranda filed by the parties and considered the evidence, arguments, and authority presented. As the property owners’ embedment argument was set forth in its memorandum in support of its position, we must presume that the trial court considered it and rejected it.

We move on, therefore, to address whether the trial court was correct in rejecting the property owners’ embedment theory. At the same time we address the property owners’ contention that the minors were trespassers.

Relying on Bishop v. Ellsworth (1968), 91 Ill. App. 2d 386, the property owners maintain that the evidence established that the money was “embedded” in their land and that, therefore, under common law the money was rightfully theirs. In Bishop the owner of a salvage yard filed a complaint alleging that defendants, three small boys, entered his salvage yard without his permission and found a bottle containing a large sum of money partially embedded in the loose dirt on top of a landfill. Complainant asked the court to determine who had the right to possess the money. Minors filed a motion to dismiss on the ground that plaintiff’s complaint did not state a cause of action. After hearing arguments of the parties, the trial court dismissed plaintiff’s complaint. Plaintiff appealed, contending that an owner of land has a right to possession of all property in, on, and under it and that his complaint alleging that the boys, as trespassers, took the money from plaintiff’s private property was sufficient to state a claim to possession of the discovered money.

In dictum, the court discussed the estrays statute and concluded that this statute, governing the disposition of lost property, did not totally abrogate the common law with respect to possession of discovered property since the statute assumed that the discoverer had a right to be where he was when he discovered the lost property. (Bishop, 91 Ill. App. 2d at 390.) The court went on to point out that a presumption exists that the owner of land or premises has custody of property found on it or actually embedded in the land. According to the Bishop court, it would “appear” that if the discoverer is a trespasser on the premises where the lost property is discovered, such trespasser can have no claim to possession of such property even if it might otherwise be considered “lost.” 91 Ill. App. 2d at 391.

The court then determined that plaintiff’s complaint, which alleged that he was the owner of the land upon which the partially embedded bottle containing the money was discovered and removed by the finders as trespassers, stated a cause of action because it substantially informed defendants of the nature of and basis for the claim. The court reversed the trial court’s judgment and remanded the cause. The court made no determination whether the boys were trespassers nor any determination whether they were entitled to the found money. The minors in the instant case comment in their brief that, on retrial, the finders in the Bishop case were allowed to keep the money. Counsel for minors states that the retrial attorney is the authority for this comment. Counsel should know, however, that this court cannot and will not consider such unrecorded and unofficial information.

As officially reported, the Bishop case does not hold that a property owner’s right to lost property discovered on his land could not be abrogated by the terms of the estrays statute. Consequently, the case has no precedential value in deciding the outcome of the instant case. Moreover, we think the Bishop court’s statement that a trespasser has no claim to possession of lost property is erroneous, as the finder of lost property has a right of possession superior to that of the owner of the premises where the article is found. 1 Am. Jur. 2d Abandoned, Lost, & Unclaimed Property §19 (1962).

In a later case, Paset v. Old Orchard Bank & Trust Co. (1978), 62 Ill. App. 3d 534, the court determined, as have we, that the Bishop court’s reference in its decision to the inapplicability of the estrays statute to a situation where the discoverer of lost property is a trespasser was dictum. 62 Ill. App. 3d at 541.

Elsewhere in its decision, the Paset court pointed out that the estrays statute makes no distinction between “public” and “private” places of finding and that, therefore, whether property was discovered in a public or a private place should not be permitted to preclude application of the estrays statute. (62 Ill. App. 3d at 539.) The Paset court determined that by imposing liability on a finder of property who fails to comply with the provisions of the estrays statute (Ill. Rev. Stat. 1989, ch. 50, par. 34), the statute itself indicated that the legislature never intended to “circumscribe the word ‘lost’ with technical or restrictive concepts” such as determining whether the property was lost or mislaid, discovered in a public or private place, or in the constructive possession of the one on whose premises it is found. (Paset, 62 Ill. App. 3d at 539.) To impose a responsibility upon the finder “to wade through” such concepts to decide whether the statute required him to appear before the circuit court and report his discovery (Ill. Rev. Stat. 1989, ch. 50, par. 27) would be, in the opinion of the Paset court, insensible. We agree and find that to construe the statute in any other manner would defeat the statute’s purposes, as stated in Paset, of encouraging and facilitating the return of property to the true owner and of then rewarding the finder for his honesty if the property remains unclaimed. (See Paset, 62 Ill. App. 3d at 537.) Consequently, regardless of whether the minors in the instant case were on private property at the time of their discovery or that the money was embedded in or scattered loosely in dirt on the property, under Paset, the estrays statute applies to the find.

Moreover, even if Bishop established that a trespasser has no rights to property he finds, the holding would not apply here, as the trial court determined that the minors were not trespassing at the time of their discovery. The testimony of the minors indicated that they and other children customarily ventured into the wooded area where the money was found. Jennifer, Alma, Ryan, and Detective Hendle described the presence of trails throughout the area. Both Alma and Jennifer, who had been in the area many times, testified that no one had ever asked them to stay out of the wooded area nor were there any signs warning them not to enter. Detective Hendle described the area as in an “abandoned” state, wooded, overrun with weeds, and with piles of junk on the property. Detective Hendle related that on the date that she and Mrs. Lucchetti were wandering through the property kids were also present on the property.

A trespasser is one who enters the premises of another for his own purposes without permission, invitation or other right. (Lee v. Chicago Transit Authority (1990), 205 Ill. App. 3d 163, 168.) Habitual acquiescence in a trespass may constitute a license for persons to enter upon the land if the tolerance is so pronounced as to be tantamount to permission. (Sumner v. Hebenstreit (1988), 167 Ill. App. 3d 881, 885.) Relying only on the fact that all the minors acknowledged that they had never met the property owners, the property owners argue that no evidence was presented to show that they had knowledge of the trespasses by the minors so as to amount to consent or permission to enter upon their property.

On the occasion when Detective Hendle and Mrs. Lucchetti were present on the property, however, Mr. Stevens noted their presence and asked if he could be of assistance although he did not inform the women that they were on his property. We find it unlikely, therefore, that the property owners never noticed children traversing their property or playing on it especially when some of those children apparently rode all-terrain vehicles throughout the wooded area.

The trial court did not provide a detailed explanation for its finding that the minors were not trespassers. Nevertheless, the testimony established that the children and others frequented the property, that children were present on the property at the time Detective Hendle and Mrs. Lucchetti were there, that Mr. Stevens noticed the women’s presence on his property but did not mention they were trespassing, and that Mrs. Lucchetti told the officer that children rode all-terrain vehicles on the property. Given these facts, it is not unreasonable to presume that the trial court determined that the property owners knew, or should have known, that children were in the habit of entering their land and traversing it, that the property owners acquiesced in these repeated trespasses, and that, therefore, the minors were not trespassers.

On appeal, all reasonable presumptions are in favor of the trial court’s action, and the burden is on the appellant to show affirmatively the errors assigned on review. (In re Marriage of Smith (1985), 132 Ill. App. 3d 694, 702.) Here, we believe that the property owners have not met their burden and that the record supports the presumption that the trial court acted properly in finding that the minors were not trespassers.

We next address the property owners’ contention that the trial court erred in finding the evidence ambiguous as to whether the money constituted lost, mislaid, or abandoned property. Property is mislaid when it is intentionally put in a certain place and later forgotten; property is lost when it is unintentionally separated from the dominion of its owner; and property is abandoned when the owner, intending to relinquish all rights to the property, leaves it free to be appropriated by any other person. (Michael v. First Chicago Corp. (1985), 139 Ill. App. 3d 374, 382.) A finder of property acquires no rights to mislaid property, is entitled to possession of lost property against everyone except the true owner, and is entitled to keep abandoned property. (139 Ill. App. 3d at 382.) It is the property owners’ position that the money was not lost or abandoned but “probably mislaid” because it was buried in the soil in a stacked or organized fashion.

Contrary to the property owners’ contention in their brief, the evidence did not establish that the money was buried in a hole or that its location was marked by two holes in the ground. Rather, the evidence indicated that the money was found in a mound of dirt near the two holes when Jennifer Moore kicked it. None of the minors testified that the money was discovered in a hole or that they dug it up. Detective Hendle described the two holes, which property owners assert marked the location of the money, as approximately six to eight inches across and angling downward so that the bottom of the holes could not be seen. In the officer’s opinion the holes appeared to have been burrowed into the ground by some sort of animal.

The minors differed in their recollection of the condition of the money at the time of discovery. Jennifer, who actually discovered the money and picked it up, stated it was loose. Thomas Farrell, Jr., who was walking with Jennifer at the time of the discovery, was less certain regarding the state of the money. He testified that it was not “really loose” and that he was “pretty sure it was organized by string or rubber band or just stacked together.” Alma Lopez and Ryan Baassler, who joined Jennifer and Thomas after Jennifer’s discovery, did not agree regarding the appearance of the money. Alma stated that the money was stacked together with a rubber band, while Ryan remembered that the money was loose, “kind of a stack and a pile” but with no fasteners around it. All the minors testified that they grabbed or took some money out of Jennifer’s hands. This fact and the fact that the children ended up with varying and unequal amounts of money imply that the money was not fastened in one stack by a rubber band. Nevertheless, even if the money was in such a state, that state does not establish that it was mislaid. It could just have easily been abandoned or lost in that condition.

At any rate, it is unclear from the circumstances of the discovery of the money in a mound of loose dirt how the money got there or what the intent of the true owner was. Parenthetically, we agree with the minors that the property owners’ contention in their brief that the true owner “probably mislaid” the money demonstrates the ambiguity regarding the nature of the found property.

We conclude that the trial court did not err in finding that the evidence was ambiguous as to whether the money constituted lost, mislaid, or abandoned property and that any ambiguity, as a matter of public policy, should be resolved in favor of thé presumption that the money was lost. (See Paset v. Old Orchard Bank & Trust Co. (1978), 62 Ill. App. 3d 534, 538.) As “lost” property the minors were entitled to possession of the money against everyone except the true owner.

Last, we address the property owners’ contention that the trial court erred in applying the estrays statute (Ill. Rev. Stat. 1989, ch. 50, par. 1 et seq.) to the found money. Specifically, the property owners argue that because the minors failed to file an affidavit with the court within five days of the discovery of the money, stating where and when the money was found, that the money was unaltered in its appearance, and that none of it was secreted, disposed of, or withheld, the minors did not comply with the requirements of section 27 of the statute. (Ill. Rev. Stat. 1989, ch. 50, par. 27.) Therefore, they were barred from pursuing this statutory remedy.

We, however, agree with the minors’ contention that the property owners have no standing to contend that the minors violated the statute. In Chonowski v. Sikora (1968), 93 Ill. App. 2d 53, the court determined that one who was not found to be the true owner of livestock estrays possessed no standing to challenge compliance with the estrays statute. We believe this finding is equally applicable to the instant case involving lost property since, according to section 1 of the statute, estrays “may be taken up” in the “same manner as provided for lost goods.” As the money is lost property, or goods, and as the property owners admitted in their pleadings that they were not the true owners of the money, they lacked standing to challenge the minors’ compliance with the estrays statute.

Without citation to any authority, the property owners contend that the minors have waived this standing argument because they did not raise it in the trial court. Although an appellant is precluded from raising an issue for the first time on appeal, an appellee may urge any point in support of the judgment on appeal as long as a factual basis for such point was before the trial court. (Jackson v. Chicago Board of Education (1989), 192 Ill. App. 3d 1093, 1099.) Here, the factual basis for the minors’ point that the property owners were not the true owners of the property was before the lower court and, thus, the minors’ standing argument is properly before this court.

For all the reasons stated above, the judgment of the circuit court of McHenry County is affirmed.

Affirmed.

DUNN and BOWMAN, JJ., concur.


author: JUSTICE DUNN JUSTICE WOODWARD,

text:
    ROBERT L. MOSCARDINI, Plaintiff-Appellant, v. THE COUNTY OFFICERS ELECTORAL BOARD OF DU PAGE COUNTY et al., Defendants-Appellees.
    Second District
    No. 2—92—0174
    Opinion filed March 3, 1992.
    WOODWARD, J., dissenting.

      James Bryan Sullivan, of Oak Brook, for appellant.
    Thomas C. Kellegan, of Wheaton, and Patrick K. Bond and Mary E. Dickson, both of Schirott & Hervas, P.C., of Itasca, for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Robert Moscardini, appeals from a judgment of the circuit court of Du Page County in an action for judicial review of a decision of the County Officers Electoral Board of Du Page County (Board). The circuit court upheld the Board’s decision removing Moscardini’s name from the March 17, 1992, primary ballot for the office of Republican precinct committeeman for precinct 69 of York Township in Du Page County. Moscardini argues on appeal that the Board’s decision must be reversed because it was against the manifest weight of the evidence, it was reached during closed deliberations in violation of the Open Meetings Act (Ill. Rev. Stat. 1989, ch. 102, par. 41 et seq.), and it results in illegal discrimination against disabled people who circulate nominating petitions. We reverse and order the Board to place plaintiff’s name on the primary ballot.

Plaintiff submitted a nominating petition for the above office to the Board. The petition contained six sheets with a total of 75 signatures. Plaintiff’s wife, Geraldine, signed an affidavit at the bottom of each sheet which stated that each of the signatures was placed on the sheet in her presence, that the signatures are genuine and, to the best of her belief, the persons who signed the sheet were registered voters whose addresses were correctly set forth therein.

Defendant, Mary Guardalabene, filed objections to plaintiff’s petition with the Board. The objection at issue here is that Geraldine Moscardini did not actually circulate the petition even though she signed the affidavit at the bottom of all six sheets. At the Board’s hearing on the objections, Guardalabene submitted affidavits from six individuals. Each of these affiants had signed a different sheet of plaintiff’s petition. Each affidavit states that the affiant did not sign plaintiff’s petition “in the presence of Geraldine C. Moscardini.”

At the same hearing plaintiff submitted an affidavit from Geraldine Moscardini which states as follows. Geraldine saw all of the signatories actually place their signatures on her husband’s petition. She was never more than 20 feet away from any of them at the time they signed the petition. Geraldine did not walk up to the front door of each voter’s residence with the petition because she has a degenerative bone disease which makes walking painful. Her son accompanied her and took the petition to some of the voters at their front doors; her husband did so with other voters; and a woman named Joyce Krempasky did so with others. At the hearing plaintiff submitted affidavits from each of these individuals which corroborated the statements in Geraldine’s affidavit.

Plaintiff’s counsel argued at the hearing that although Geraldine did not carry the clipboard containing the petition and personally solicit each individual who signed the petition, she was present at the time of each signature within the meaning of section 7 — 10 of the Election Code (Code) (Ill. Rev. Stat. 1989, ch. 46, par. 7—10). In a written decision dated January 9, 1992, however, the Board concluded that plaintiff’s petition did not comply with section 7 — 10. The Board ruled that plaintiff’s name would not be placed on the primary ballot. Plaintiff sought judicial review of the Board’s ruling in the circuit court of Du Page County which upheld the decision in an order dated February 5,1992. Plaintiff now appeals.

Section 7 — 10 of the Code (Ill. Rev. Stat. 1989, ch. 46, par. 7—10) states that at the bottom of each sheet of a nominating petition there must be a statement signed by a registered voter from the political subdivision in which the candidate seeks election. In this statement the affiant must certify “that the signatures on that sheet of the petition were signed in his presence, *** that the signatures on the sheet are genuine, and *** to the best of his knowledge and belief the persons so signing were at the time of the signing qualified voters of the political party for which a nomination is sought.” (Ill. Rev. Stat. 1989, ch. 46, par. 7—10.) This portion of section 7 — 10 of the Code has been strictly enforced by courts because the requirements contained therein are important safeguards against fraud in the nominating process. Fortas v. Dixon (1984), 122 Ill. App. 3d 697, 700.

The Board made no finding in its written decision that Geraldine Moscardini was not present when any of the signatures were placed on her husband’s petition. The Board stated in the decision that it had considered the affidavits submitted by plaintiff and Guardalabene. In paragraph two of the decision it stated that it had also considered “statements and admissions by the candidate’s counsel that the actual circulator was not Geraldine Moscardini, who was described by the af-fiants in the counter-affidavits submitted in her behalf as being physically unable to present the petition to voters.” In the next paragraph the Board concluded that plaintiff had “not complied with section 7— 10 of the Election Code requiring the circulator to swear that the signatures on the petition sheet were signed in her presence.”

The only “admission” of the candidate’s counsel to which the Board could have been referring was an admission that Geraldine did not physically hand the clipboard containing the petition to each voter who signed the petition. The Board’s decision therefore appears to be premised upon a belief that the person who signs the so-called circulator’s affidavit at the bottom of each sheet of a nominating petition must be the person who physically presented the sheet to each voter who signed it. Section 7 — 10 of the Code contains no such requirement. Instead the only requirement of that provision which is relevant to the objection we are considering here is that the person who signs the circulator’s affidavit must have been present when each signatory signed the sheet.

It has been held that the witnessing of a will was done “in decedent’s presence” when the decedent, who was 12 to 15 feet away, had ample opportunity to see the witness sign the attestation clause. (In re Estate of Guinane (1965), 65 Ill. App. 2d 193, 198.) If Geraldine’s affidavit is true, she not only had ample opportunity to see each of the signatories sign her husband’s petition, since she was standing no more than 20 feet away from any of them when they did so, but she also actually did see each of these individuals sign the petition. Therefore, under Estate of Guinane, the signatures were placed on the petition in Geraldine’s presence if her affidavit and the supporting affidavits are true.

We recognize that in Huskey v. Municipal Officers Electoral Board (1987), 156 Ill. App. 3d 201, the court stated that section 7 — 10 was violated when the circulator allowed persons to sign the names of family members who were not present “and when someone other than the affiant actually presented the petition to signers.” (Huskey, 156 Ill. App. 3d at 204.) In Huskey, however, the affiant who signed the circulator’s affidavit at the bottom of each sheet admitted that some of the names on the petition were not signed in her presence. (156 Ill. App. 3d 201.) Therefore we do not interpret Huskey as requiring that the person who signs the circulator’s affidavit be the person who physically presented the sheet to each signatory.

To the extent that Huskey does impose such a requirement we decline to follow it. The purpose of the portion of section 7 — 10 that we are considering is to prevent the filing of nominating petitions with fraudulent signatures. (Williams v. Butler (1976), 35 Ill. App. 3d 532, 536.) Reading into section 7 — 10 of the Code a requirement that the person who signs the circulator’s affidavit be the one who physically presented the sheet to each signatory would do nothing to serve this purpose. The Board’s apparent conclusion that such a requirement exists is erroneous as a matter of law, and its decision must therefore be reversed. If Geraldine actually saw each of the signatories sign the petition, there was no violation of section 7 — 10 even if she did not physically present the petition to some of them.

Even if the Board relied upon the six affidavits from petition signers who stated that they did not sign in the presence of Geraldine Moscardini, its decision must be reversed. These six affidavits, which were the only evidence submitted in support of Guardalabene’s objections, clearly constituted hearsay evidence. Although certain evidentiary rules may be relaxed in administrative hearings, the rule against hearsay is a fundamental rather than a technical rule. (Saal v. County of Carroll (1989), 181 Ill. App. 3d 327, 338.) In Saal, we held that when the only evidence presented to a county board regarding a certain charge against plaintiff was hearsay the charge should have been rejected by the Board. Saal, 181 Ill. App. 3d at 338.

In the case at bar, unlike Saal, plaintiff failed to object to the proffered hearsay evidence. Hearsay evidence which is admitted without objection may be considered and given its natural probative value. (Jackson v. Board of Review of the Department of Labor (1985), 105 Ill. 2d 501, 508.) Because these affidavits were controverted by those submitted on plaintiff’s behalf, however, their value is minimal.

The purpose of allowing judicial review of election board decisions is to provide a remedy for arbitrary decisions. (Williams v. Butler (1976), 35 Ill. App. 3d 532, 538.) A decision based solely upon controverted affidavits could be nothing but arbitrary, unlike a decision based upon conflicting witness testimony where there is an opportunity to determine which witnesses are more credible by observing their demeanors. There was no reasonable basis to support a conclusion that the objector’s affidavits were more credible than those submitted on plaintiff’s behalf. Furthermore, Geraldine’s affidavit and the other affidavits submitted by plaintiff contain specific factual statements establishing that she was present when each voter signed plaintiff’s petition. The objector’s affidavits only make the conclusional statement that the affiant did not sign the petition in Geraldine’s presence. Conclusional matter in affidavits is generally inadmissible. See Milwaukee Cheese Co. v. Cornerstone Inn, Inc. (1986), 142 Ill. App. 3d 840, 843.

Access to a position on the ballot is a substantial right which should not be lightly denied. (Welch v. Johnson (1992), 147 Ill. 2d 40, 47.) Therefore, even if the Board did rely upon the controverted, con-clusional affidavits submitted by the objector, its decision cannot stand.

The Board has moved to dismiss this appeal because of the expense and other difficulties that would result from adding plaintiff’s name to the ballot. We will not deny plaintiff a substantial right because the Board’s own erroneous decision will necessitate the reprinting of ballots. The motion is denied.

In light of our ruling it is not necessary to consider the other issues raised by plaintiff. For the reasons expressed herein, the Board’s decision and the order of the circuit court of Du Page County upholding it are reversed. Pursuant to our authority under Supreme Court Rule 366(a)(5) (134 Ill. 2d R. 366(a)(5)), we order the Board to place plaintiff’s name on the March 17, 1992, primary ballot for the office which he seeks. Our mandate shall issue immediately upon the filing of this opinion.

Reversed.

GEIGER, J., concurs.

JUSTICE WOODWARD,

dissenting:

I respectfully dissent. The primary issue before us is whether the Board’s decision was against the manifest weight of the evidence. On administrative review, the findings and decision of the Board will not be overturned unless they are against the manifest weight of the evidence. Huskey v. Municipal Officers Electoral Board (1987), 156 Ill. App. 3d 201.

The documentary evidence submitted to the Board was as follows. Plaintiff filed six nominating petitions which contained 75 signatures. Each petition was signed by Geraldine Moscardini as circulator of same. At the hearing before the Board, Ms. Moscardini submitted a sworn affidavit which averred that, because she has a degenerative bone disease which makes stair climbing difficult, she enlisted the help of others to circulate plaintiff’s nominating petition. A number of affidavits confirmed the substance of Ms. Moscardini’s affidavit. Plaintiff also submitted the affidavit of Joyce Krempasky, which stated that she was accompanied by Ms. Moscardini because of Ms. Krem-pasky’s eye condition (macular degeneration). Due to this condition, she could not see exactly what the signers were writing on the subject petitions. Ms. Krempasky’s affidavit further averred that Ms. Moscardini watched the signers affix their signatures from a distance of 15 to 20 feet.

Defense counsel conceded that Ms. Krempasky carried the clipboard on which the subject petitions were signed. She went to the signers’ front doors. Upon the signature being affixed to the petition, she carried the clipboard back to Ms. Moscardini and handed it to her.

Defendant’s evidence consisted of six affidavits, several of which were signed by two people who lived at the same address. These affidavits, each of which related to a separate petition sheet, alleged that the affiants had not signed plaintiff’s nominating petition in the presence of Ms. Moscardini.

From the evidence in this record, which is admittedly spare, the Board was entitled to find that Ms. Moscardini was not in the presence of the signers at the time their signatures were affixed to the petition; therefore, the petitions signed by her as circulator were not valid.

For these reasons, the Board’s decision is not against the manifest weight of the evidence.


author: PRESIDING JUSTICE GOLDENHERSH HOWERTON, J.,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNY ORTIZ, Defendant-Appellant.
    Fifth District
    No. 5-88-0603
    Opinion filed February 14, 1992.

      HOWERTON, J., dissenting.
    Daniel M. Kirwan and Edwin J. Anderson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Mark Howard Clarke, State’s Attorney, of Cairo (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE GOLDENHERSH

delivered the opinion of the court:

After a jury trial, defendant, Johnny Ortiz, was found guilty of aggravated battery in violation of section 12 — 4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 12—4(a)) and was sentenced to five years in the Department of Corrections. On appeal, defendant seeks to have his conviction reversed and the cause remanded for a new trial. Defendant asserts that his appointed defense counsel committed errors which denied him effective assistance of counsel. We agree with defendant. Accordingly, we reverse and remand for a new trial.

Defendant was charged with the aggravated battery of his girl friend, Cassandra Harbor. The case went to trial on July 26, 1988. During opening statements both the State and defendant gave their synopsis of what they believed the evidence would show. Defense counsel stated that the defense would present evidence that the victim had another boyfriend, Joe Robbins, in addition to defendant. He also stated that the evidence would show that when police stopped Robbins to question him concerning the incident in question, Robbins was armed with two knives. After opening statements, the State presented its case.

The State first called the victim, Cassandra Harbor. She testified that on the evening of June 2, 1988, she was alone in the apartment she shared with defendant. She had taken off her clothes and was looking for a robe when she heard someone enter the apartment. The room was basically dark, but she heard someone mumbling. Through this mumbling, Harbor was able to identify defendant. She continued to look for her robe when she was hit on the back of her head. She fell to the floor and was kicked in her side, turned over, and cut on her face. She identified a carpet cutter, which was also referred to as a box cutter throughout the trial, as the weapon with which she was cut. This box cutter was retrieved by police from a chest of drawers in defendant’s apartment and introduced into evidence. Harbor identified defendant as her attacker. She stated that she was able to see him during the attack with the assistance from the light from the television which was operating in the room at the time of the attack. Harbor admitted that on June 2, 1988, she had consumed a pint of vodka, a “couple” of shots of whiskey, one shot of vodka, and some beer. Harbor stated that even though she could feel the effects of alcohol, she was not so impaired that she could not see or hear defendant. Harbor also admitted that she lost her eyesight when she was eight years old and is considered legally blind.

After the attack, Harbor went to the hospital where she received eight stitches for the lacerations above her eye. Upon her release from the hospital, she went to her grandmother’s residence. Soon thereafter, she returned to defendant’s apartment. Defense counsel attempted to ask Harbor about Joe Robbins during cross-examination. The State objected to this line of questioning on the basis that the evidence was irrelevant and beyond the scope of direct examination. This objection was sustained. During the course of the trial, defense counsel did not attempt to call Harbor in order to elicit information concerning Joe Robbins and his relationship with Harbor.

The next witness to testify was Dr. Carronogan, the victim’s personal physician, who treated her for injuries sustained on June 2, 1988. Dr. Carronogan stated that the victim’s injuries could have been the result of a beating and that the victim’s facial laceration, which required eight stitches, could have been caused by the box cutter retrieved by the police. On cross-examination, Dr. Carrono-gan admitted that any type of knife could have caused the victim’s facial cut.

Detective Sergeant Rushing of the Cairo police department investigated the incident. On June 2, 1988, at approximately 9 p.m., he received a call to go to defendant’s apartment. When Rushing arrived, he found Harbor on the floor, naked, with blood all over her head and arms and with a pool of blood underneath her. Harbor, who was unconscious, was then taken to the hospital by emergency medical technicians. According to Rushing, defendant gave the police permission to search his apartment. During the search, the box-cutter knife was found. There was no blood on it. Defendant was taken to the police station for questioning. He denied attacking Harbor. Defendant explained that he had found Harbor and had gone to a neighbor’s residence to summon help by calling the police and an ambulance. According to Rushing, defendant acknowledged having told persons at a bar earlier in the day that he was going to “go home and kill the bitch,” referring to Harbor. Defendant also told Rushing that he always makes threats concerning Harbor and it seems that every other night he “whips her ass” or “she whips his.” Defendant admitted to Rushing that earlier in the day he had been drunk. Defendant was allowed to leave the police station, but he returned later to say that Harbor was on his porch and that he wanted her removed. Harbor was removed and taken to the police station in the early hours of June 3, 1988. After Rushing’s testimony, the State rested.

Defendant took the stand in his own defense. He stated that for the past three years he has had a somewhat rocky relationship with Harbor. On June 2, 1988, the two were living together and getting along fine. On that morning, defendant woke up at about 9 a.m. and spent time watching television and working on stereo equipment. Harbor was with him, and the two began drinking. Harbor became extremely intoxicated and pulled a knife on defendant at 10 or 11 a.m. Defendant stated that he knocked Harbor down and she started acting more sensibly, so the two “laughed it off.” Defendant, Harbor, and their upstairs neighbor, Leroy Jones, ate lunch together. Later, defendant and Harbor went to a bar and drank. Harbor left on a bicycle but returned later. Defendant did not spend much more time with Harbor. Later in the evening, defendant went back to his apartment. There were no lights on when he entered the apartment, and he stumbled over something. Defendant turned on the lights and discovered Harbor lying facedown, unclothed, and bleeding. Defendant went to his neighbor’s house and called the police. Both an ambulance and the police arrived. Defendant was taken to the station and questioned. After he was released, he went home and found Harbor sitting on his porch. Defendant went back to the police station and asked the police to remove Harbor because “she’s a trouble maker, and she was drunk.” Defendant denied attacking Harbor. On cross-examination, defendant stated that he does not remember saying that he was going home “to kill the bitch.” On redirect examination, defense counsel attempted to question defendant about Joe Robbins and whether during conversations with police, defendant told police about Robbins. The State objected to this line of questioning on the basis that it was beyond the scope of cross-examination. The trial court sustained the objection. The defense rested.

A certified copy of defendant’s probation order and his plea of guilty in a 1985 retail theft was introduced into evidence. A judgment order showing defendant’s conviction for voluntary manslaughter and his release from prison within the last 10 years was also introduced by the State. The trial recessed for the day with the intention that on the next morning the instruction conference would be conducted and the parties would deliver their closing argument.

The next day, defense counsel made an oral motion to reopen defendant’s case. Defense counsel advised the court that Leroy Jones had not been present in court the previous day, but that defense counsel had just called him and Jones agreed to come to court and would be there momentarily. The State argued against allowing the defense to reopen its case, but the trial court allowed the testimony.

Jones testified that he is friends with defendant and lives in the apartment above defendant’s. He stated that on June 2, 1988, he had lunch with defendant, Harbor, and Brenda Jones. Later in the evening, he did not hear any disturbance in the apartment below him. The police came and took him and Brenda down to the station where both gave statements. Later in the evening, Harbor returned drunk to defendant’s apartment. Leroy Jones saw defendant come home from the police station only to return again in order to have Harbor removed. The defense rested again, and both sides presented closing arguments. The jury began deliberations. During deliberations, the jury sent two letters to the judge signed by the foreman. The second letter stated “some members feel he is guilty but didn’t see enough evidence to convict. They don’t know what to do.” The trial judge sent a letter in reply which stated, “Please, reread the jury instructions.” Ultimately, the jury convicted defendant. Prior to sentencing, defendant filed a pro se post-trial motion which, among other things, alleged that his trial counsel had incompetently represented him. The trial court denied defendant’s motion as both untimely filed and without merit.

Defendant’s contention on appeal is that he must receive a new trial because he was denied effective assistance of counsel due to his trial counsel’s demonstrated lack of knowledge of fundamental legal rules, procedures, and techniques. The State replies that defense counsel’s representation of defendant was not such that it adversely affected the outcome of the trial, and, therefore, cannot be considered ineffective.

In order to obtain a new trial premised on the denial of effective assistance of counsel, defendant must show both ineffective assistance and resulting prejudice. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Weir (1986), 111 Ill. 2d 334, 337, 490 N.E.2d 1, 2; People v. Del Vecchio (1985), 105 Ill. 2d 414, 425-26, 475 N.E.2d 840, 845; People v. Albanese (1984), 104 Ill. 2d 504, 526-27, 473 N.E.2d 1246, 1255.) To establish prejudice, the defendant must show a reasonable probability that absent his counsel’s unprofessional errors, the result would have been different. (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; Weir, 111 Ill. 2d at 338-39, 490 N.E.2d at 2.) A reasonable probability is one sufficient to “undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

The alleged ineffective assistance in the instant case came in three areas. First, defendant argues that his defense counsel failed to develop any evidence to support his assertion during his opening statement about the existence of another suspect, Joe Robbins. Second, somewhat related to the first issue, defendant contends that his appointed counsel did not realize that matters covered in cross-examination and redirect examination are limited to the scope of the preceding examination. Because these issues are related, we will address them together.

During his opening statement, defense counsel stated that the victim was having a relationship with a person named Joe Robbins in addition to her relationship with defendant. Defense counsel asserted that the evidence would show that when the police stopped Robbins, Robbins was armed with two knives. From these comments, it is apparent to us that defense counsel’s planned defense in this case was to show that Robbins, not defendant, committed the assault against Harbor or, at least, to leave a reasonable doubt in the jury’s mind as to who committed the assault. Defense counsel made some attempts to adduce testimony concerning Robbins. The first attempt came during cross-examination of the victim:

“Q. Do you remember talking to an individual named Joe Robbins?

A. No.

Q. Have you ever met any individual named Joe at 606 Walnut?

MR. CLARKE [STATE’S ATTORNEY]: Objection your Honor, this is irrelevant and beyond the scope of direct examination.”

The objection was sustained. No reason for the trial court’s ruling was given. It is clear that such testimony was beyond the scope of direct examination.

While a defendant may generally attempt to prove that someone else committed the crime with which he is charged, limitations to admissibility exist. (People v. Bryant (1982), 105 Ill. App. 3d 285, 291, 434 N.E.2d 316, 320; People v. King (1978), 61 Ill. App. 3d 49, 52, 377 N.E.2d 856, 859.) Such evidence may be rejected if speculative, irrelevant, or immaterial. (People v. Luigs (1981), 96 Ill. App. 3d 700, 706, 421 N.E.2d 961, 966.) The trial court has broad discretion in ruling on materiality and relevancy issues, and its ruling will only be reversed if there is a clear showing of abuse of such discretion. People v. Castro (1989), 190 Ill. App. 3d 227, 239, 546 N.E.2d 662, 669.

In the instant case, it is impossible for us to determine whether testimony concerning the existence of Joe Robbins was relevant or of probative value because defendant’s theory that Robbins was the perpetrator was left virtually unexplored. Defense counsel could have certainly attempted to elicit such testimony concerning Robbins had he called Harbor as an adverse witness during the defense portion of the trial. No such attempt was made. If defense counsel had called Harbor back to the stand, the State would have likely renewed its relevancy objection. If the objection was sustained, it would have been proper for defense counsel to make an offer of proof. Without defense counsel knowing the proper procedures in which to develop his stated theory of the case, that Joe Robbins, not defendant, committed this crime, the trial court was unable to determine whether such evidence was remote or relevant and we are unable to consider that determination on review.

The only other attempt by defense counsel to develop his theory of the case was during his redirect examination of defendant:

“Q. At what point in your conversation with the police did you tell them about Joe Robbins?

MR. CLARKE: Objection, this is beyond the scope of cross examination.

THE COURT: Overruled, he may answer.

A. I didn’t.

Q. You didn’t tell them about Joe Robbins.

A. If we’re talking about back on the 2nd at the police station, I did not mention a Joe Robbins.

Q. No, we’re talking about in general, did you ever tell—

MR. CLARKE: We renew our objection, this is beyond the scope of cross examination.

MR. BEARD: Your Honor, they are going into what the police report he made to the police and whether or not he had his Miranda rights and all —

THE COURT: And this is related? On some different occasions? You’re talking about some other dates now.

MR. BEARD: I didn’t know what date it was for sure.

THE COURT: It was a later date then, the objection will be sustained. Proceed.

Q. No further questions.”

These were the only references made about Joe Robbins during the presentation of evidence. The State’s Attorney rightly pointed out during closing statements that the defense had failed to produce the promised evidence concerning the existence of another suspect, Joe Robbins.

After a complete examination of the record, it is clear to us that defense counsel did not know fundamental rules concerning witness examination, specifically, that matters covered in cross-examination and redirect examination are limited to the scope of the preceding examination. (People v. Howell (1977), 53 Ill. App. 3d 465, 469, 368 N.E.2d 689, 692.) The prejudice necessary for a reversal in the instant case came from defense counsel’s failure to present any evidence concerning the existence of a person named Joe Robbins following defense counsel’s opening statement indicating to the jury that Robbins was another suspect in the case. A similar situation occurred in Anderson v. Butler (1st Cir. 1988), 858 F.2d 16, in which the defense counsel failed to present expert psychiatric testimony as promised in his opening statement.

In Anderson, the defense attorney indicated in his opening statement that he would call a psychiatrist and a psychologist who would testify in support of defendant’s claim of mental impairment. During the trial, the defense attorney failed to present any expert medical testimony concerning the defendant’s state of mind even though the experts were available. The defendant was found guilty of first-degree murder. The Anderson court concluded that the defense counsel’s failure to produce this promised expert testimony was prejudicial and constituted ineffective assistance of counsel. Specifically, the Anderson court stated:

“[W]e cannot but conclude that to promise even a condensed recital of such powerful evidence, and then not produce it, could not be disregarded as harmless. We find it prejudicial as matter of law.” (858 F.2d at 19.)

Likewise, in the instant case, we believe that defense counsel’s failure to produce promised evidence concerning the existence of another suspect, Joe Robbins, was prejudicial.

The note sent by the jury foreman to the judge stating that some of the jurors felt that defendant was guilty “but didn’t see enough evidence to convict” indicates that the evidence in the case was close. Clearly, the victim, who was legally blind and who was drunk at the time of her attack, was not the most convincing witness. There is a reasonable probability in our minds that absent defense counsel’s errors in failing to produce promised testimony and in failing to know the limitations of cross-examination and redirect examination, the result would have been different. Strickland v. Washington (1984), 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; People v. Weir (1986), 111 Ill. 2d at 338-39, 490 N.E.2d at 2.

For the foregoing reasons, the judgment of the circuit court of Alexander County is reversed and the cause remanded for a new trial.

Reversed and remanded.

RARICK, J., concurs.

HOWERTON, J.,

dissenting:

I respectfully dissent.

A defendant in a criminal case who chooses to defend by claiming someone else committed the crime must prove, not merely suggest, that that someone else in fact committed that crime. (See People v. Bruce (1989), 185 Ill. App. 3d 356, 541 N.E.2d 708, appeal denied (1990), 129 Ill. 2d 566, 550 N.E.2d 559; People v. Bryant (1982), 105 Ill. App. 3d 285, 434 N.E.2d 316; People v. Velillari (1980), 84 Ill. App. 3d 333, 405 N.E.2d 466.) Since counsel is presumed to know the law, defense counsel in this case must be taken to have known of this requirement. In this case, however, counsel did not prove the guilt of someone else and in fact did not even begin to undertake that proof. Instead, counsel suggested that a man named Robbins rather than defendant was guilty and “wafted” this suggestion into the jury box by innuendo and by asking questions to which objections were sustained.

In tandem with this improper technique, counsel, on cross-examination of the victim, the only eyewitness to this crime, established that she drank a pint of vodka, a “couple” of shots of whiskey, a shot of vodka, and some beer, and then went home to her apartment. It was the dead of night. She went in. She heard someone enter her apartment. The lights were off. It was dark. Her eyesight was so bad she is legally blind. She never saw whoever came in. She turned away to get her robe. She was hit on the back of the head. She fell facedown, rolled over and was kicked in the side and cut on the face and passed out. This seems to me to be a pretty “fair-to-middlin’ ” job of establishing that the victim, the only so-called, “eye” witness, lacked the ability and opportunity to see her assailant, and therefore, her credibility was suspect when she identified defendant.

Defense counsel may be generally competent or generally incompetent. We do not know, nor do we care, about general competence, for that is not the test. We care, rather, only about counsel’s performance in this specific case, and we can judge it only from what we see in the record.

I believe that implicit in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, is the notion that a case should be reversed for incompetency of counsel’s performance when incompetency is the only reasonable inference that can be drawn from the record. In this case, however, there are two reasonable inferences that may be drawn from the record: (1) the one the majority has drawn; and (2) the one which I have not expressly stated herein, but have imbedded in the facts above and allowed the reader to draw unassisted.

There being two inferences, one of which adds up to standing sort of at shadow’s edge of impropriety, but competent lawyering nevertheless, I must dissent.