author: JUSTICE INGLIS

text:
      In re ADOPTION OF DANIEL KINDGREN, a Minor (Clarence Samuel et al., Petitioners-Appellants and Cross-Appellees, v. Kathleen J. Kindgren, Respondent-Appellee and Cross-Appellant; William E. Boylan, Guardian ad litem, Appellant and Cross-Appellee).
    Second District
    Nos. 2—88—0650, 2—88—1121 cons.
    Opinion filed June 14, 1989.

      William E. Boylan, of Glen Ellyn, guardian ad litem, appellant pro se.

    No brief filed for appellants Clarence Samuel and Susan Samuel.

      John Panegasser, of Caluwaert, Panegasser & Hancock, of Elmhurst, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

This is an appeal from two orders of the circuit court of Du Page County which (1) vacated and set aside the consent of Kathleen Kindgren to adopt her infant son, Daniel Patrick Kindgren; and (2) struck the petitions of the guardian ad litem and Clarence and Susan Samuel (adopting parents) to terminate the parental rights of Kathleen Kindgren based on unfitness. In addition, Kathleen Kindgren has filed a cross-appeal from an order which awarded attorney fees of $7,028 to the guardian ad litem. The payment of these fees was equally apportioned between Kathleen Kindgren and the adopting parents. We note that the adopting parents did file a notice of appeal on the trial court’s order vacating the adoption consent. However, they did not file a brief in either appeal. These appeals have been consolidated for our review.

On appeal, the guardian ad litem contends that (1) the trial court’s order vacating the adoption consent was against the manifest weight of the evidence; (2) the trial court erred in striking the petition to terminate the parental rights of Kathleen Kindgren; and (3) the court erred in striking the petition of the adopting parents to adopt the child. Kathleen Kindgren contends that the trial court improperly awarded attorney fees to the guardian ad litem or, in the alternative, improperly apportioned the payment of the fees. We affirm.

On December 11, 1986, Daniel Patrick Kindgren was born. Kathleen Kindgren testified that she considered putting her child up for adoption approximately one month before he was born. She stated that Kathryn Faydash, a friend of the adopting parents, contacted her about the possibility of adoption. Kindgren testified that Faydash obtained background information on her and told her that it would be worthwhile to put her child up for adoption. Faydash contacted Kindgren a day or two later and informed her that the adopting parents were willing to pay $5,000, plus medical expenses, if she would consent to the adoption. However, Kindgren decided not to put the child up for adoption at this time.

Kindgren further testified that in May 1987 she contacted Steven Cole, the attorney for the adopting parents, regarding the possibility of an adoption. Cole arranged for Kindgren to meet with the adopting parents on May 12, 1987. On May 11, 1987, Kindgren received a phone call from Kathryn Faydash. Faydash informed her that the adopting parents were willing to double their original $5,000 offer and also stated:

“That my parents and family had no right in knowing any of this, that she knew this would happen, it was a miracle and God just wanted it to be this way so it was going to be, and that I better not change my mind.”

On May 13, 1987, at approximately 9:30 a.m., the adopting parents picked up Kindgren and her child and drove to the Faydash residence. Kindgren stated that she wanted a meeting to see how her child interacted with the adopting parents. While at the Faydash home, Kindgren was informed that an appointment was set up for 1:30 p.m. at the Du Page County probation department. Kindgren was also informed that she would receive $10,000 after the adoption consent was signed. Kindgren executed the consent, returned to the Faydash residence, and received $10,000 in $20 bills.

Kathryn Faydash also testified at trial. She testified that she was a close friend of the adopting parents. She indicated that Kathleen Kindgren, a friend of a friend, contacted her in November 1986 concerning the possibility of the adoption of her child. Faydash informed Kindgren that the adopting parents were looking to adopt a child. However, Faydash denied stating that the adopting parents would make it “worthwhile” for Kindgren if she would consent to the adoption. Faydash also denied offering Kindgren $5,000 plus medical expenses if she would consent to the adoption. Instead, Faydash stated that Kindgren requested $5,000 from the adopting parents. However, the adopting parents refused to pay any money to Kindgren in exchange for her consent to the adoption. Faydash also denied telling Kindgren that the adoption was a miracle, that God wanted the adoption to occur, and that she had better not change her mind about the adoption. Faydash testified that she was later informed that Kindgren had changed her mind and had decided not to consent to the adoption.

Faydash further testified that on May 11, 1987, Kathleen Kindgren called her on the telephone and told her that she now wanted to consent to the adoption. However, she now wanted $10,000 from the adopting parents to cover her “expenses.” Faydash again denied offering any money to Kindgren in exchange for her consent to the adoption. Faydash stated that the adopting parents again rejected the monetary request, but she never informed Kindgren of the rejection.

Faydash indicated that, on May 13, 1987, at approximately 10 a.m., Kathleen Kindgren arrived at her house with the child and the adopting parents. Faydash knew that arrangements had been made with the probation department, but she did not discuss these arrangements with Kindgren. Faydash stated that she baby-sat for the child while Kindgren went to the probation department to sign the adoption consent. After Kindgren returned from the probation department, Faydash talked to Kindgren and prayed with her. Faydash stated that Kindgren was not confused, did not appear to be sad, and was very talkative.

Both of the adopting parents testified at trial. Each of them substantiated the testimony of Kathryn Faydash. In addition, they indicated that they had agreed to give Kathleen Kindgren $1,000 to cover her medical bills. However, neither of the adopting parents had seen any of the medical bills, nor were they aware of how the bills had been paid. Both of the adopting parents stated that they were aware that Kindgren demanded $10,000, but they decided that $1,000 was a sufficient amount. It was not until long after the adoption consent was signed, and Kindgren had left the Faydash residence, that the adopting parents became aware that Jenny, mother of adopting parent Susan, had given Kindgren an extra $9,000. It was later determined that the $10,000 had been withdrawn from a savings account bearing the names of Jenny, Susan, and Susan’s brother.

Susan’s mother, Jenny, also testified at trial. Jenny testified that she was aware that Kathleen Kindgren had requested $10,000 to cover her expenses and that Susan stated that she would only give her $1,000. Jenny stated that she went to the bank on May 12, 1987, and withdrew $2,500 and further withdrew $7,500 on May 13, 1987. Jenny indicated that she gave Kindgren the full $10,000 because she “had felt sorry for her and I — I loved the baby just like my kids had and I felt really sorry that she’s leaving her boys [sic] behind. She was going to make up a new life and this was going to be the mother of my grandson and I wanted to give her a start and I now know I have been told that I had done wrong.” Jenny denied giving the money to Kindgren in exchange for Kindgren’s consent to the adoption.

Dr. Richard Abrams, a psychiatrist, also testified at trial. Dr. Abrams stated that he treated Kathleen Kindgren from January 25, 1988, to February 6, 1988, as an inpatient at the Northwest Community Hospital Psychiatric Unit. It was Dr. Abram’s opinion that Kindgren lacked the requisite mental capacity to voluntarily execute an adoption consent in May 1987. Dr. Abrams indicated that Kindgren was suffering from major depression such that her thinking was sufficiently impaired to prevent her from making a rational decision. Dr. Abrams further indicated that she was unable to comprehend the nature and consequences of her decision to sign the adoption consent form.

The final witness, Kimberly Crawford, a Du Page County probation department officer, testified that she handled Kathleen Kindgren’s adoption consent. Crawford stated that she twice explained the consequences of signing the consent to Kindgren. Crawford also stated that she asked Kindgren if she was given or promised any money in exchange for her consent to the adoption. Kindgren responded that she did not receive any monetary compensation from the adopting parents and was not promised any money. Crawford further stated that it was her opinion that Kindgren understood the ramifications of signing the consent form.

On June 9, 1988, the trial court issued an order in which it determined that the consent was fraudulently given and, as such, must be vacated. The court found that compensation was given in exchange for Kathleen Kindgren’s consent in violation of the Adoption Act (Act) (111. Rev. Stat. 1987, ch. 40, par. 1501 et seq.). In addition, the court determined that Daniel Patrick Kindgren must be returned to his mother, Kathleen Kindgren. The court also struck the guardian ad litem’s pleadings alleging the unfitness of Kathleen Kindgren. The guardian ad litem filed a timely notice of appeal.

The trial court also conducted hearings on the guardian ad litem’s petition for attorney fees. On October 28, 1988, the trial court granted the guardian ad litem’s petition and apportioned the fees equally between Kathleen Kindgren and the adopting parents. Kathleen Kindgren filed a timely notice of appeal.

On appeal, the guardian first contends that Kathleen Kindgren failed to sustain her burden of proof by clear and convincing evidence that the adoption consent was procured by fraud or duress. As such, the guardian argues that the trial court’s order vitiating the consent was manifestly erroneous. Kathleen Kindgren responds by arguing that the trial court’s order was proper given the fact that the court affirmatively concluded that the adopting parents unlawfully paid $10,000 to obtain Kindgren’s consent to the adoption.

Initially, we note that section 11 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 1513) provides in pertinent part:

“A consent to adoption *** shall be irrevocable unless it shall have been obtained by fraud or duress on the part of *** the adopting parents or their agents and a court of competent jurisdiction shall so find.” (Ill. Rev. Stat. 1987, ch. 40, par. 1513.)

It has been held that the person seeking to invalidate the consent must prove by clear and convincing evidence that the consent was executed fraudulently or while under duress. (Regenold v. Baby Fold, Inc. (1977), 68 Ill. 2d 419, 432; In re Nolan (1981), 94 Ill. App. 3d 1081, 1086.) It is the opinion of this court that Kathleen Kindgren has sustained this burden of proof.

The evidence adduced at trial indicated that Kindgren was paid $10,000 in exchange for her consent to the adoption. While it is unclear as to who actually initiated the discussions concerning the monetary compensation, it is uncontroverted that financial compensation was made. The Illinois legislature has determined that the payment of any compensation in exchange for “placing out” a child for adoption is prohibited. (Ill. Rev. Stat. 1987, ch. 40, par. 1702.) The sole exception to this prohibition is that the adopting parents may pay for the actual hospital and other medical bills associated with the birth of the child. Ill. Rev. Stat. 1987, ch. 40, par. 1704.

In the case at bar, the adopting parents determined that they should give Kathleen Kindgren $1,000 to cover the medical expenses connected with the birth of her child. However, the adopting parents never requested to see the medical bills arid had no knowledge as to the actual amount of the bills. Furthermore, they were not aware that all medical expenses associated with the birth were paid for by the Illinois Department of Public Aid. Kathleen Kindgren testified that she was not aware of what the actual medical bills were because she never had to pay them.

We believe that the trial court properly held that the payment of money in excess of the reasonable and actual medical expenses of the birth of the child acts to vitiate the adoption. It is the opinion of this court that a consent given in exchange for an illegal payment of money renders such consent void as against public policy. A similar decision was reached in Willey v. Lawton (1956), 8 Ill. App. 2d 344. In Willey, the adopting parents paid the natural father $3,000 in cash and executed a note for $2,000, as consideration for the father’s consent to the adoption. The court held that the payment of money in exchange for a consent to an adoption is contrary to public policy and therefore void. (Willey, 8 Ill. App. 2d at 346-47.) In addition, we have found several decisions in other jurisdictions that have held that the unlawful payment of compensation vitiates a consent to an adoption. See Downs v. Wortman (1971), 228 Ga. 315, 185 S.E.2d 387; Gray v. Maxwell (1980), 206 Neb. 385, 293 N.W.2d 90; In re Biggs (1973), 14 Or. App. 450, 513 P.2d 1216; Gorden v. Cutler (1983), 324 Pa. Super. 61, 471 A.2d 449.

In Gray v. Maxwell (1980), 206 Neb. 385, 293 N.W.2d 90, the natural mother of a child was promised $1,500 for relinquishing her child. In addition, she was promised $1,400 to cover her medical expenses, even though all of the expenses would be paid for by the Department of Public Welfare. The Nebraska Supreme Court held that the payment of money for expenses already paid for by the welfare agency constituted the “payment of a consideration for the relinquishment.” (Gray, 206 Neb. at 392, 293 N.W.2d at 95.) The court noted that the payment of money in excess of the reasonable and legitimate medical expenses was in violation of the public policy of the State. (206 Neb. at 393, 293 N.W.2d at 95.) The court further held that the payment of compensation in this case acted to vitiate the relinquishment previously given. (206 Neb. at 393, 293 N.W.2d at 95.) We believe the reasoning in Gray is persuasive in the case at bar. This court cannot, in good conscience, approve of the buying or selling of any human being, let alone an infant child.

In addition, we do not agree with the guardian ad litem’s contention that Regenold v. Baby Fold, Inc. (1977), 68 Ill. 2d 419, is persuasive in the case at bar. In Regenold, the natural mother of a child executed an adoption consent and later claimed that the consent was not valid because it was executed as a result of fraud and duress. In particular, she alleged that the consent was not a free and voluntary act due to the amount of stress that she was under. (68 Ill. 2d at 424.) The trial court agreed, determining that the totality of the circumstances indicated that the consent was not voluntarily given. Specifically, the court considered that the natural mother’s recent divorce, the divorce of her parents, her medical condition, and her financial difficulties were all factors which vitiated her consent. The Appellate Court for the Fourth District reversed, holding that “mere haste coupled with environmental stress does not constitute duress” as a matter of law. (Regenold v. Baby Fold, Inc. (1976), 42 Ill. App. 3d 39, 44.) The supreme court affirmed the appellate court, holding that there was no fraud or duress in the execution of the consent. (68 Ill. 2d at 435-36.) The court noted that the natural mother was under a great deal of stress at the time of the consent, but refused to equate stress with fraud or duress. (68 Ill. 2d at 435-36.) We believe the holding in Regenold is factually distinguishable from the case at bar.

In Regenold, there was no allegation that the natural mother received any financial compensation in return for her consent to the adoption. The Regenold court simply relied on the irrevocable nature of the adoption consent, and determined that the evidence failed to indicate any fraud or duress in the execution of the consent. In the instant case, there was uncontroverted evidence of substantial monetary compensation paid to the natural mother, in violation of the public policy of this State. For this reason, we do not believe that Re genold controls the disposition of the case at bar.

The guardian ad litem last contends that the trial court improperly struck the guardian’s petition to terminate Kathleen Kindgren’s parental rights and also improperly struck the adopting parent’s petition to adopt the minor child. In addition, the guardian argues that the minor child was denied an opportunity for a hearing, in violation of his due process rights. We note that a party claiming a violation of a constitutional right has a duty to raise the argument at the earliest opportunity, and the failure to do so constitutes a waiver of that right. (Inwang v. Community College District No. 508 (1983), 117 Ill. App. 3d 608, 615; Feldman v. Board of Trustees (1982), 108 Ill. App. 3d 1127, 1134.) The guardian failed to allege any due process violations at trial. Consequently, we deem the argument to be waived on appeal. In addition, we also believe that the trial court was well within its discretion in striking the two petitions filed or amended after the court had ruled on the consent issue.

Kathleen Kindgren has also filed an appeal in this case, raising two issues. Kindgren first argues that the trial court erred in failing to find that she lacked the requisite mental capacity to knowingly give her consent to the adoption. Kindgren originally alleged that her consent should be vacated based on fraud, duress, or incapacity. The trial court held that the consent should be vacated because it was fraudulently procured and refused to make a determination concerning Kindgren’s mental state at the time she executed the consent. A trial court, in a nonjury civil case, is not required to state all findings of fact in its final order. (American Wheel & Engineering Co. v. Dana Molded Products, Inc. (1985), 132 Ill. App. 3d 205, 212.) We believe that the trial court properly refused to make any specific findings of fact relative to Kindgren’s mental state at the time of the consent.

Kindgren also argues that the trial court improperly awarded attorney fees to the guardian ad litem or, alternatively, improperly apportioned the fees equally between her and the adopting parents. We disagree.

Initially, we note that the trial court appointed the guardian ad litem to represent the interests of the minor child. The court further granted the guardian the right to conduct formal discovery. After so doing, the guardian discovered certain improprieties which led him to believe that the adoption consent was not valid. As a result of his work, the guardian petitioned the court to approve $7,028 in attorney fees. A hearing was held, at which time all parties agreed that the fee amount was fair and reasonable. The dispute concerned authority for allowance of fees and who would have to pay the fees.

Kathleen Kindgren is correct when she notes that the trial court did not have express statutory authority to award fees to the guardian ad litem. However, the court does have the inherent power to award fees to the guardian in a child-custody proceeding. (In re Estate of Azevedo (1983), 115 Ill. App. 3d 260, 264; Zalduendo v. Zalduendo (1977), 45 Ill. App. 3d 849, 858-59.) In the instant case, the appointment of the guardian was necessary to protect the interests of the minor child. Since the appointment was necessary, it was also well within the equitable powers of the trial court to ensure that the guardian received reasonable compensation.

We also believe that the trial court properly apportioned the fees equally between the adopting parents and Kathleen Kindgren. The trial court has broad discretion in determining the reasonableness of a guardian ad litem’s petition for attorney fees, and its decision will not be disturbed on appeal absent a clear abuse of this discretion. (In re Marriage of Soraparu (1986), 147 Ill. App. 3d 857, 864; Gibson v. Barton (1983), 118 Ill. App. 3d 576, 582.) In this case, the trial court determined that “equitable cause exists for the apportionment of said Guardian Ad Litem fees and costs between Kathleen J. Kindgren and [the adopting parents].” The court stated that it did not consider fault or culpability of the parties in reaching its decision. We cannot say that the equal apportionment of fees was a clear abuse of discretion.

The trial court determined that $7,028 was a reasonable compensation for the guardian. The court apportioned this amount equally between Kindgren and the adopting parents, or $3,514 from each party. We do note that the order stated that each party was to pay $5,314 to the guardian. However, we believe this figure was a typographical error, especially given the fact that all parties agree that $7,028 is the correct amount of fees for the guardian.

Accordingly, for the above stated reasons, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

UNVERZAGT, P.J., and LINDBERG, J., concur.


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RENE R. PANTOJA, Defendant-Appellant.
    Second District
    No. 2—88—0748
    Opinion filed June 15, 1989.

      Judith M. Brawka, Public Defender, of Geneva (Mary E. Dixon, Assistant Public Defender, of counsel), for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Colleen M. Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Rene R. Pantoja, was charged in the circuit court of Kane County with unlawful use of a weapon (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1(a)(4)), no firearm owner’s identification card (Ill. Rev. Stat. 1987, ch. 38, par. 83 — 2(a)), unlawful possession of fireworks (Ill. Rev. Stat. 1987, ch. 127½, par. 128), and defacing a firearm (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 5(a)). Following the denial of his motion to suppress evidence, defendant stipulated to the evidence presented at the suppression hearing and other facts presented to the court and was found guilty of unlawful use of a weapon and unlawful possession of fireworks. He was sentenced to a 12-month period of probation and a $150 fine on the former conviction and a concurrent 12-month period of probation and a $100 fine on the latter conviction. The remaining two charges were stricken with leave to reinstate.

On appeal, defendant contends that the circuit court erred in denying his motion to suppress, as both the stop and subsequent search of his person and vehicle were unreasonable.

Following his arrest, defendant filed a motion to suppress evidence asserting that his warrantless detention and arrest and the subsequent seizure of evidence were without probable cause and illegal. At the suppression hearing, defendant testified that, as he sat parked behind the wheel of his automobile on July 9, 1987, in Elgin, he was arrested without a warrant.

The only witness for the State, Elgin police detective Henry Smith, who was in charge of gang crimes and investigations, testified that while driving in his vehicle he heard a radio dispatch to other officers that defendant had been seen in Elgin with a handgun. A description of defendant’s car was also given. The information over the police radio dispatch had been provided to the police by an anonymous citizen complainant who was unwilling to give a name. All that was stated to the police was that defendant had a handgun and had left a location in a certain described vehicle. Smith knew defendant, his address, what vehicle he drove, and that defendant was considered to be a leader of a gang in Elgin. He also was aware that on last New Year’s Eve defendant and other persons were in the area where gunshots were fired and a gun was found. He proceeded to defendant’s residence and, upon finding that defendant’s vehicle was not there, proceeded down the street, where he located the parked vehicle. Defendant was seated behind the steering wheel, and a passenger was seated in the vehicle. A third person was standing beside the vehicle.

Smith had both persons exit the vehicle. There was nothing unusual about these persons’ activities. After backup officers arrived, he searched defendant and the other two persons. No weapon was found. Smith then searched the area of the vehicle where defendant was seated and found fireworks on the front floor. Defendant was placed under arrest for unlawful possession of fireworks. Before the vehicle was towed to the police station, an inventory search was conducted. While other officers conducted the inventory of the vehicle, Smith questioned defendant at the police station about the handgun and was told by defendant that he did have a gun in his possession, but had given it to another person before Smith arrived. When Smith later learned that a handgun was found near the glove compartment of the vehicle during the inventory search at the scene, he confronted defendant with that fact, and defendant admitted he had the gun in the dashboard area of the vehicle.

In denying the motion to suppress, the trial judge found the initial stop reasonable based on the anonymous citizen complaint that defendant had just been seen with a handgun in his possession, on Detective Smith’s previous knowledge of defendant and the incident of gunshots being fired and a gun being found on last New Year’s Eve when defendant was present, and on Smith’s corroborating observation shortly after the dispatch of defendant sitting in the vehicle described in the dispatch. The trial court further found the limited search yielding the fireworks to be justified and the further search of the vehicle at the scene to be legal.

We initially address whether there was a valid stop of defendant. Defendant contends that the anonymous informant’s tip which led to the stop was lacking in detail and reliability. Furthermore, he contends that Smith’s prior knowledge about defendant and the sole fact that defendant was in the described car were insufficient corroborating facts to overcome the lack of reliability of the anonymous tip. Defendant principally relies on this court’s decision in People v. Moraca (1984), 124 Ill. App. 3d 561, 464 N.E.2d 312.

The State contends that this is a valid stop under Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. While conceding that the information from the unknown informant “may not be enough facts on which to base a Terry stop,” the State argues that, because Detective Smith knew of defendant, knew where he lived, knew what vehicle he drove, knew he was a gang member, and knew of the New Year’s Eve incident involving a gun, there were sufficient corroborating facts to justify the stop in this case.

At the outset, we note that while defendant was already stopped in his vehicle before Detective Smith arrived, the act by Detective Smith in ordering defendant from his vehicle is clearly a seizure upon which the “stop and frisk” analysis under Terry is formulated. (Terry, 392 U.S. at 16-18, 20 L. Ed. 2d at 903-04, 88 S. Ct. at 1877-78.) In Terry, the Supreme Court recognized a limited exception to the probable cause requirement which allows a police officer, under appropriate circumstances and in an appropriate manner, to briefly detain a person for investigatory purposes and, if necessary for safety, to conduct a limited protective search of that person for concealed weapons. Specific and articulable facts, and not a mere hunch, must exist to justify a Terry stop and frisk for a weapon. (Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883.) These principles have been codified in our Code of Criminal Procedure of 1963. Ill. Rev. Stat. 1987, ch. 38, par. 107 — 14; see People v. Long (1983), 99 Ill. 2d 219, 228, 457 N.E.2d 1252.

The underlying inquiry in any Terry-type situation is whether the police officer’s conduct was reasonable under the circumstances known to the officer at the time he initiated the stop and frisk. (See Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883; People v. Long (1983), 99 Ill. 2d 219, 227-28, 457 N.E.2d 1252.) The reasonableness of such police conduct depends upon a balancing of the public’s interest and the individual’s right to personal security free from arbitrary interference by law officers. (People v. Smithers (1980), 83 Ill. 2d 430, 415 N.E.2d 327.) To be reasonable, the officer’s inferences must be based on more substantial facts than would support a mere hunch. In order for the police to justify a temporary detention and frisk for weapons, they must point to specific articulable facts which, when taken together with natural inferences, make the intrusion reasonable. Smithers, 83 Ill. 2d at 435-36, 415 N.E.2d at 331.

Our court in two recent decisions, People v. Moraca (1984), 124 Ill. App. 3d 561, 464 N.E.2d 312, and In re J.J. (1989), 183 Ill. App. 3d 381, has had occasion to consider application of the “stop and frisk” principles to situations similar to the instant case. We conclude that the facts in Moraca are quite comparable to the facts here and that decision is controlling.

In Moraca, this court held that a Terry stop based on an anonymous telephone tip to the Elgin police department, conveyed through an organization called CATCH, that a specified person, later determined to be the defendant, driving a certain van was in possession of a machine gun and in possession of cannabis, was unreasonable under the fourth amendment. (Moraca, 124 Ill. App. 3d at 565-67, 464 N.E.2d at 315-17.) There were no other suspicious circumstances or corroborating evidence to justify the stop other than the anonymous tip.

In contrast to Moraca, we held in In re J.J. that a citizen complaint of a particularly described person with a gun made directly to a security guard who immediately conveyed the complaint to the police, who minutes later stopped the described person, the defendant, was reasonable. (In re J.J., 183 Ill. App. 3d at 387.) We further held that an in-person citizen complaint need not be as rigorously scrutinized for reliability to justify the stop as would be the case of an anonymous informant’s unverified tip. In re J.J., 183 Ill. App. 3d at 387.

While apparently conceding that the anonymous tip alone was insufficient to justify a Terry stop, the State maintains that there were sufficient corroborating facts to justify the stop. In particular, the State relies on the testimony of Detective Smith that he knew defendant, knew where defendant lived, knew what vehicle he drove, and knew that defendant was a gang member and had been present on a previous occasion where there had been a report of shots being fired and a gun found. The facts that Detective Smith knew defendant was a gang member and had been present on a prior occasion where shots were fired and a gun was found do not corroborate the anonymous information that he possessed a gun at the time he was stopped, although, were Smith legally justified to make the stop, this information would tend to provide reason to believe defendant may be armed thereby justifying a limited weapons search to protect himself. (See Adams v. Williams (1972), 407 U.S. 143, 146, 32 L. Ed. 2d 612, 617, 92 S. Ct. 1921, 1923.) Nor do the facts that Smith knew defendant and his address and that the vehicle he was driving was the same as that described by the anonymous informant provide sufficient corroboration of the reliability of the anonymous information to justify a stop. There was no testimony that Smith viewed any suspicious conduct which might corroborate the anonymous tip. (See, e.g., Village of Gurnee v. Gross (1988), 174 Ill. App. 3d 66, 70-71, 528 N.E.2d 411.) Further, there are no other facts argued which might buttress the reasonableness of the belief that an immediate stop was necessary. See People v. Smithers (1980), 83 Ill. 2d 430, 438, 415 N.E.2d 327.

Based upon the above analysis of the stop of defendant, the denial of the motion to suppress evidence was manifestly erroneous. We, therefore, need not examine whether the subsequent searches of defendant and his vehicle were also unreasonable. The defendant’s conviction is reversed, and the cause is remanded for a new trial with directions that the motion to suppress evidence be granted.

Reversed and remanded with directions.

McLAREN and NASH, JJ., concur.


author: PRESIDING JUSTICE UNVERZAGT JUSTICE REINHARD,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARCUS GREGORY, Defendant-Appellant.
    Second District
    No. 2—88—0024
    Opinion filed June 14, 1989.

      REINHARD, J., dissenting.
    G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Robert Agostinelli and Joseph N. Ehmann, both of State Appellate Defender’s Office, of Ottawa, for appellant.

      Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Marcus Gregory, was convicted by a jury of burglary and criminal trespass to a motor vehicle. (Ill. Rev. Stat. 1987, ch. 38, pars. 19 — 1(a), 21 — 2.) The court vacated the criminal trespass conviction as a lesser included offense of burglary and sentenced the defendant to six years’ imprisonment in the Department of Corrections.

Defendant contends his burglary conviction must be reversed and the cause remanded for reinstatement of and sentencing on the criminal trespass conviction because the jury’s verdict finding him guilty of burglary was coerced.

Detailed recitation of the facts of the offenses is not required. Suffice it to say the defendant, a recently terminated Sears employee, was discovered on September 19, 1987, inside a semi-truck trailer parked in the Sears Roebuck loading area. He had a key for the trailer padlock, which was discovered open, and many of the boxes inside the frailer had been torn or cut open. The Sears security manager found a flashlight and glove in the trailer which he could identify as belonging to the defendant, and also found a sharpened stick stuck into one of the boxes.

Slightly more than two hours after the jury retired to deliberate, the following proceedings took place:

“(The following proceedings were had in open court outside the presence and hearing of the jury.)
THE COURT: The jury has sent a question.
THE BAILIFF: They have got a verdict now.
MR. SMITH [Assistant State’s Attorney]: What is the question?
THE COURT: ‘If the record is split on one charge, how do we fill out the guilty forms: guilty; not guilty? Both forms or one?’ Did they now reach a verdict?
MR. SMITH: That’s what Willis was saying.
THE COURT: Have they now reached a verdict? Did you say they have reached a verdict?
THE BAILIFF: That’s what they told me.
THE COURT: Okay. Then we don’t have to answer the question.
(The following proceedings were had in open court in the presence and hearing of the jury.)
THE COURT: Ladies and Gentlemen of the Jury, have we reached a verdict?
THE FOREMAN: Yes, your Honor, we have.
THE COURT: Do you want to hand the verdict forms to Mr. Payne, please? All of them.
THE FOREMAN: (Complying.)
THE COURT: (Reading verdict.) ‘We, the Jury, find the Defendant Marcus Gregory guilty of the offense of burglary.’
And, ‘We, the Jury, find the Defendant Marcus Gregory guilty of the offense of criminal trespass to motor vehicle.’
THE FOREMAN: No, I don’t think so, your Honor. You better look at the papers correctly.
UNIDENTIFIED JUROR: Look at the burglary again.
THE COURT: (Reading documents.) ‘We, the Jury, find the Defendant Marcus Gregory guilty of the offense of burglary.’
UNIDENTIFIED JUROR: There was an additional form there. There was a split.
THE COURT: Oh, Lord.
THE FOREMAN: That was the question that we had earlier about the—
THE COURT: Okay. Do you want to come up here?
(Whereupon the following proceedings were had at the bench out of the hearing of the jury.)
THE COURT: They’re right. We have twelve signatures on the criminal trespass to motor vehicle. We have ten signatures and two signatures on the—
[MR. SMITH]: They have got to go back and deliberate then.
THE COURT: Pardon?
[MR. SMITH]: They have got to go back and deliberate.
[MS. CECKOWSKI] (Assistant Public Defender): I agree that we don’t have any choice. I ask that they be hung as far as—
(Whereupon the following proceedings were had in open court in the presence and hearing of the jury.)
THE COURT: Ladies and Gentlemen of the Jury, as the instructions I have previously given you indicate, your verdict upon any charge must be unanimous. So, with that I’m going to return these forms, and. ask you to continue your deliberations, and with that I’d ask you to retire again.
The record should reflect that when I first looked at the verdict form I saw what looked like enough signatures on the guilty verdict to the burglary, and then I realized there was only ten on that and two on the not guilty verdict.”

Within the hour, the jury was brought back into open court and the verdict forms finding the defendant guilty of burglary and criminal trespass to a vehicle were read by the court. The two signatures on the “not guilty” of burglary verdict form were scratched off and there were 12 signatures on the “guilty” of burglary verdict form. The jury was polled at the defendant’s request and judgments entered on the verdicts. Defendant’s timely filed motion for new trial, which was denied, included as errors the court’s returning the jury to continue deliberation over his request that it be declared a hung jury and the court’s failure to declare a mistrial when the jury returned the nonunanimous verdict.

The defendant argues the manner in which the trial court caused the jury to continue its deliberations amounted to impermissible coercion. As a coerced verdict, he contends his conviction of burglary should be reversed outright because he was found guilty of the lesser-included offense of criminal trespass.

The State argues the defendant has waived the issue. Alternatively, the State contends the judge properly exercised his discretion in refusing to declare a mistrial, reiterating his previous instruction and ordering the jury back for further deliberations. It asserts it is the duty of a trial judge to review the verdict and determine if it is proper in form and substance and to provide guidance to a jury that is not hopelessly deadlocked.

It is well settled that the failure to raise an issue both at trial and in a post-trial motion waives the issue on appeal. (People v. Enoch (1988), 122 Ill. 2d 176.) “No magic words such as T object’ are required,” however (People v. Pankey (1978) 58 Ill. App. 3d 924, 926), and the right to a fair trial by an impartial jury is considered so basic as to warrant application of the plain-error rule (People v. Palmer (1984), 125 Ill. App. 3d 703, 712). The defendant here requested the jury be declared hung and had no reasonable opportunity to speak further before being cut off by the court’s instruction to the jury. His subsequent post-trial motion clearly presented the issue. We conclude no waiver occurred.

“The integrity of the jury’s verdict must be protected from coercion, duress or influence.” (People v. Patten (1982), 105 Ill. App. 3d 892, 894.) Thus, a court’s judgment must be reversed and the cause remanded when, taken in context and considering all the circumstances of the case, its supplemental instruction to a jury has the effect of coercing jurors into surrendering views conscientiously held. (Jenkins v. United States (1965), 380 U.S. 445, 13 L. Ed. 2d 957, 85 S. Ct. 1059.) “A verdict hastened by the action of the judge, however worthy the motive, cannot be the result of that deliberation which the law guarantees.” (People v. Golub (1929), 333 Ill. 554, 561.) The possibility of a hung jury is an inevitable by-product of a unanimous-verdict requirement, and the jury cannot be compelled to reach a verdict in all instances. Pankey, 58 Ill. App. 3d at 926.

Nevertheless, a trial judge has the duty to provide guidance to a jury that is not hopelessly deadlocked. (People v. Prim (1972), 53 Ill. 2d 62, 64.) The Illinois Supreme Court has directed that a trial court faced with a deadlocked jury is to comply with the standards suggested in section 5.4 of Standards Relating to Trial by Jury of the American Bar Association Project on Minimum Standards for Criminal Justice. (Prim, 53 Ill. 2d at 74-76.) The mere failure to give a Prim instruction to a deadlocked jury is not reversible error, however. The directive to the trial courts and the instruction framed in Prim were aimed primarily at eliminating supplemental instructions to the jurors to “heed the majority” as a means of securing a verdict. (Palmer, 125 Ill. App. 3d at 712.) A “heed the majority” instruction, also known as a “dynamite” or “Allen” charge (Allen v. United States (1896), 164 U.S. 492, 41 L. Ed. 528, 17 S. Ct. 154), has the effect of urging those members of the jury who are in the minority to reevaluate their position. (People v. Robertson (1981), 92 Ill. App. 3d 806, 808.) Such instructions have been soundly discredited, are discouraged and have been prohibited in certain jurisdictions. (Prim, 53 Ill. 2d at 72-73.) A court’s instruction to a jury to continue deliberating should be simple, neutral, and not coercive. (People v. Campbell (1987), 163 Ill. App. 3d 1023, 1032.) “ ‘In dealing with what appears to be a deadlocked jury, the trial judge should avoid instructions which imply that a majority view is the correct one.’ ” Prim, 53 Ill. 2d at 76, citing American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to the Function of the Trial Judge §5.12(b) (Tent. Draft 1972).

In reviewing the propriety of a deadlocked-jury instruction, the test is whether under the circumstances the language used actually coerced or interfered with the deliberations of the jurors to the prejudice of the defendant. (People v. Craddock (1987), 163 Ill. App. 3d 1039, 1045; Palmer, 125 Ill. App. 3d at 713; Pankey, 58 Ill. App. 3d at 927.) Because a determination of whether something has actually had a coercive effect or not requires knowledge of the jurors’ subjective thoughts, which this court has no way of obtaining, the test effectively turns on a consideration of whether the court’s instruction imposed such confusion or pressure on the jury to reach a verdict that the accuracy and integrity of the verdict returned becomes uncertain. (People v. Branch (1984), 123 Ill. App. 3d 245, 251; Pankey, 58 Ill. App. 3d at 927.) The length of the jury’s deliberations subsequent to the court’s instruction, standing alone, is not conclusive as to whether the verdict was the result of the pressure exerted by the court’s instruction. (Branch, 123 Ill. App. 3d at 252.) Rather, the determination must be made based on the totality of the circumstances. Lowenfield v. Phelps (1988), 484 U.S. 231, 237, 98 L. Ed. 2d 568, 576-77, 108 S. Ct. 546, 550; Branch, 123 Ill. App. 3d at 251.

The defendant does not question that it was within the trial judge’s discretion to grant a mistrial or not, or argue that he should have answered the jury’s question as to how to record its split vote. The record shows the judge had no opportunity to answer the question before he was informed the jury had reached a verdict. The trial judge also did not inquire improperly into the numerical division of the jury; he simply could not avoid knowing it. As shown above, the judge incorrectly announced the jury found the defendant guilty of burglary. The jury foreman told the judge he’d “better look at the papers correctly,” and an unidentified juror drew the judge’s attention to the burglary verdict in particular. The judge then announced again that the jury found the defendant guilty of burglary, and the unidentified juror stated, “There was an additional form there. There was a split.” The judge then exclaimed, “Oh, Lord.”

Witnessing this scene, the jury could well have concluded the judge’s inattention to the detail of the verdict forms was born of his expectation that the jury would return such guilty verdicts. Even after his attention specifically was drawn to the burglary verdict forms, he failed to observe the split, thus reinforcing the notion the guilty verdict was expected. We can only surmise with what inflection the judge exclaimed “Oh, Lord” when the split was pointed out to him, but it must have conveyed to the jury the impression something was awry. After a perfunctory sidebar with both counsel, the judge reminded the jury his previous instructions were that its verdict upon any charge “must be unanimous.” The judge then returned the used verdict forms to the jury and asked it to continue its deliberations.

The State’s position is that the court’s actions were not error since a verdict is not final until the court reviews and accepts it, and the court may require “emendations” (corrections) to the verdict so that it may truly reflect the finding of the jury. None of the cases cited by the State are in point, however, and the court in People v. Katalinich (1987), 153 Ill. App. 3d 778, 782, cautions that such “emendations” should be limited to the correction of “technical” errors.

In People v. Wilson (1972), 51 Ill. 2d 302, cited by the State, the defendant was charged with three offenses and the jury given a set of verdict forms for each offense. When the jury returned only one signed verdict (the record did not reflect which one), the court immediately informed the jury that it should have returned a verdict of either guilty or not guilty on each of the three counts and ordered it back to the jury room to affix signatures to the unsigned verdicts. Relying on People v. Arnett (1951), 408 Ill. 164, the court found it was not error for the court to have required the jury to retire to amend its verdict by putting it'in proper form.

In Arnett, rather than signing the separate verdict form as instructed, the jury signed the instruction containing the forms of verdict given them by the court. The instruction sheet contained a form for a verdict of guilty and likewise for a verdict of not guilty. When questioned, the jurors agreed they had found the defendant guilty. The jury retired again and returned its verdict of guilty on a separate sheet of paper as previously instructed.

In People v. Almo (1985), 108 Ill. 2d 54, also cited by the State, the jury returned guilty verdicts against the defendant for murder, voluntary manslaughter and armed violence. Realizing the verdicts for murder and voluntary manslaughter were inconsistent, the court changed a word in a previously given instruction, gave the jury new verdict forms for murder and voluntary manslaughter and charged it to continue to deliberate. The jury then returned only a verdict of guilty of murder; no verdict was returned for voluntary manslaughter. The trial court’s actions were approved against the defendant’s contentions on appeal the trial was over the moment the inconsistent verdict forms were returned and that a verdict of guilty of murder cannot be based upon the mental state of a genuine but unreasonable belief of self-defense. The State also relies upon People v. Rollins (1982), 108 Ill. App. 3d 480 (it is not inherently coercive to instruct the jury that it must return a verdict on all counts and to order them back for further deliberations), and People v. Thurman (1983), 120 Ill. App. 3d 975 (proper to inform the jury that verdicts must be returned on all charges and send them back for further deliberations; the trial judge may give brief explanatory remarks concerning the form of the verdict).

Unlike the unsigned verdict forms and inconsistent verdicts returned in the cases above, there was a split vote here on the burglary offense; the jury had not yet reached a “verdict” on the offense, and it had not neglected to sign a verdict form. As in People v. Santiago (1982), 108 Ill. App. 3d 787, cited by the defendant, the court here was aware the jury was split in favor of a guilty verdict. Unlike Santiago, however, it discovered this information inadvertently rather than through persistent questioning and forced, continual deliberations found to be reversible error in Santiago. Reversible error was also found in People v. Katalinich (1987), 153 Ill. App. 3d 778, where the court’s supplemental instruction to the jury did not meet the standard approved in Prim. The judge told the jury — which had returned verdicts of not guilty of one count of aggravated battery and one count of battery and guilty verdicts as to two counts of battery, but was silent as to the two remaining counts of aggravated battery— “[Y]ou must *** return two more verdicts. *** [Y]ou must find the defendant either guilty or not guilty [as to the two remaining counts].” (Katalinich, 153 Ill. App. 3d at 779.) Also, in People v. Robertson (1981), 92 Ill. App. 3d 806, 809, the judge’s statement to the jury, “[y]ou can’t be deadlocked,” was found tantamount to a “heed the majority” charge and, thus, reversible error.

Although factually distinguishable from Santiago, Katalinich and Robertson, the circumstances of the court’s supplemental charge to the jury here had the same “heed the majority” effect. Rather than providing the apparently deadlocked jury with new verdict forms, the court returned the already partially signed verdict forms to the jury, instructed it that its verdict upon any charge must be unanimous and ordered it back to the jury room. The court further noted for the record that it had thought at first that there were “enough” signatures on the guilty verdict but there were “only” 10 and there were two on the not guilty verdict. The judge’s failure to provide the jury with fresh, unsigned verdict forms conveyed to the jury the unmistakable impression he believed it would be able to add “enough” signatures to the guilty verdict form to make up for the deficit in what otherwise would have been the required “unanimous” verdict. The jury did not disappoint the judge. In less than an hour’s time, the two signatures on the “not guilty” of burglary verdict form were scratched out and appeared on the last two signature lines of the “guilty” of burglary verdict form.

Under strikingly similar circumstances, the procedure used by the trial court in the instant cause was found to constitute reversible error in United, States v. Arpan (8th Cir. 1988), 861 F.2d 1073, a case which we granted defendant leave to cite as additional authority. In Arpan, the jury also inquired how it should record a split decision, and the court responded:

“As to any count in the indictment, you may not return a verdict unless your verdict as to that count is unanimous.” (Emphasis in original.) (Arpan, 861 F.2d at 1077.)

The jury returned guilty verdicts on four of nine counts of embezzlement and theft. The circuit court of appeals found the trial court’s instruction given in response to the jury’s question effectively denied it the option of a hung verdict and, as such, it was reversible error.

Although the court here did not have the opportunity to respond to the jury’s question concerning how it should record a split verdict, the court’s instruction to it upon learning of the split vote had essentially the same effect by not accepting the split, advising it that its “verdict upon any charge must be unanimous” and sending it back with used verdict forms to deliberate further.

Acknowledging the dissent in Arpan (Arpan, 861 F.2d at 1078 (Beam, C.J., dissenting)), we point out the jury here, unlike the jury in Arpan, was not instructed that “In order to return a verdict, it is necessary that each juror agree thereto.” (Emphasis added.) Rather, it was instructed in pertinent part simply that “Your agreement on a verdict must be unanimous.” (Illinois Pattern Jury Instructions, Criminal, No. 26.01 (2d ed. 1981) (hereinafter IPI Criminal 2d).) The point of the dissent in Arpan was that the various notes from the jury there dealt with how to use the verdict form to return a verdict with less than unanimous support for the outcome which, per the instruction, could not be done. Thus, the dissent concluded, the court’s responses were to the point, accurate and proper. In contrast in the instant cause, there was nothing in the court’s original or supplemental instruction to the jury which suggested a hung verdict as a possibility. Notably, the Prim instruction tells the jury that “[i]n order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.” (Emphasis added.) IPI Criminal 2d No. 28.01 (Supp. 1989); Prim, 53 Ill. 2d at 75.

In light of all the circumstances, we find the court’s instruction to the jury imposed such pressure on it as to render the accuracy and integrity of its verdict uncertain.

Having concluded thusly, we nevertheless reject defendant’s further contention his conviction of burglary must be reversed outright and the cause remanded only for reinstatement of his conviction on the lesser included offense of trespass to a vehicle and for sentencing thereon. Defendant relies on People v. Katalinich (1987), 153 Ill. App. 3d 778, and People v. Hoffer (1985), 106 Ill. 2d 186, 198, in support of his contention that where there is a conviction for an included offense and a coerced guilty verdict on a greater offense, the conviction for the greater offense must be reversed and sentence imposed on the lesser offense.

In Katalinich, however, the jury was initially silent on the two aggravated battery charges, and the court did not inquire of the jury as to the reason for its silence. The silence could have signified an intent to acquit, a jury compromise, a hung jury, or an exercise of lenity. (Katalinich, 153 Ill. App. 3d at 783.) Because it found the jury’s subsequent verdicts on the two aggravated battery charges were coerced, and in view of its silence on those two counts in its initial verdicts, the court reversed outright with no remand for retrial. It believed the jury’s initial verdicts impliedly acquitted the defendant of the aggravated battery charges.

Hoffer held that section 3 — 4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 3 — 4(a) (“conviction of an included offense is an acquittal of the offense charged”)) applies only when the jury returns a guilty verdict on a lesser offense and, is silent as to the charged offense. Hoffer, 106 Ill. 2d at 198.

Here, the jury initially returned a split vote; it was not silent as to the charged offense. Had a hung jury been declared as the defendant requested, retrial would not have been barred under section 3 — 4. The jury’s subsequent verdict, albeit a coerced one, was that the defendant was guilty of the charged offense. As a coerced verdict, it was not “the result of that deliberation which the law guarantees” (Golub, 333 Ill. at 561), and the defendant is entitled to a new trial.

Accordingly, the defendant’s burglary conviction is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

INGLIS, J., concurs.

JUSTICE REINHARD,

dissenting:

Because I conclude that the brief remarks of the trial judge could not be understood by the jury as directing it to return a verdict of guilty on the burglary charge, I respectfully dissent.

The fundamental difference I have with the majority’s rationale and the cases relied on is the treatment of the issue in the context of an “apparently deadlocked jury.” The record reveals that the jury returned the verdicts in open court approximately two hours after submission of the case to it. While the note sent to the court and the returning of both the guilty verdict signed by 10 jurors and the not guilty verdict signed by two jurors on the charge of burglary obviously indicates the jury was split, there is no indication the situation was in fact a true deadlock. Thus, it is in this circumstance, upon the surprising discovery of the split verdict, that the trial judge stated to the jury that “as the instructions I have previously given you indicate, your verdict upon any charge must be unanimous. So, with that I’m going to return these forms, and ask you to continue your deliberations, and with that I’d ask you to retire again.” Within an hour of further deliberation, a unanimous verdict of guilty of burglary was returned.

It is apparent from the record that the trial judge did not view the jury as deadlocked, nor is there such showing by any of the comments of the jurors. (Cf. People v. Buckner (1984), 121 Ill. App. 3d 391, 400, 459 N.E.2d 1102.) It is primarily the function of the trial judge to determine whether a jury is deadlocked and in what manner to proceed. (See People v. Cowan (1985), 105 Ill. 2d 324, 327-29, 473 N.E.2d 1307.) Thus, in informing the jurors that their verdict must be unanimous and directing them to continue their deliberations, the trial judge was not confronting a deadlocked jury situation, but was only addressing their split verdict revealed to him after only two hours of deliberations. In this light, he was not telling the jurors that they must return a verdict, but only that their verdict must be unanimous, as they had been previously instructed. Under these circumstances, his action and comments in returning the jury for further deliberation was the practical way to proceed and was not error.

While I agree with the majority that new verdict forms should have been given to the jury, I disagree that this procedure, as the majority states, “conveyed to the jury the unmistakable impression he believed it [the jury] would be able to add ‘enough’ signatures to the guilty verdict form to make up for the deficit in what otherwise would have been the required ‘unanimous’ verdict.” (184 Ill. App. 3d at 684.) The jury did deliberate about another hour before returning the jury verdict, indicating the two jurors were not compelled in their verdict in direct response to the judge’s comments. A judge’s instruction to continue deliberations after an unsolicited disclosure of the split in the verdict does not imply approval, disapproval or anything else, nor does it suggest that minority jurors change their stance. (People v. Farella (1979), 79 Ill. App. 3d 440, 445-46, 398 N.E.2d 615.) Fairly considering this record, it cannot be concluded that the trial judge either intended or conveyed to the jurors an improper direction to return a guilty verdict.

For these reasons I dissent and would affirm the judgment below.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WARDELL WOODS, Defendant-Appellant.
    Second District
    No. 2—88—0188
    Opinion filed June 21, 1989.

      G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

After trial by jury defendant, Wardell Woods, was convicted of unlawful possession of a controlled substance (Ill. Rev. Stat. 1987, ch. 56½, pars. 1402(a)(1), (a)(2)); unlawful possession with intent to deliver a controlled substance (Ill. Rev. Stat. 1987, ch. 56½, pars. 1401(a)(1), (a)(2)); and unlawful possession of cannabis (Ill. Rev. Stat. 1987, ch. 56½, par. 704(c)). A charge of unlawful use of weapons by a felon (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1.1) had been severed, and defendant was tried and convicted of that offense by the court without a jury. He was thereafter sentenced to concurrent terms of 12 years’ imprisonment for possession with intent to deliver cocaine, eight years for possession with intent to deliver heroin, and 364 days for possession of cannabis. The possession of a controlled substance charges were dismissed by the State as lesser included offenses of possession with intent to deliver. For the unlawful use of weapons conviction, defendant was sentenced to three years’ imprisonment to be served consecutively to the drug-related sentences.

On appeal, defendant, who is black, contends that he was denied equal protection of the laws because the prosecution improperly exercised a peremptory challenge to exclude the only black person in the venire from defendant’s jury. Defendant argues that the prosecution’s explanation for challenging the black juror was merely a pretext because a white juror with the same allegedly objectionable characteristic was retained. We affirm.

During voir dire, the State exercised a peremptory challenge to exclude Jerome Waites from the jury. Defense counsel objected and asked the State to explain why Waites, the only black person in the venire, was excused. The assistant State’s Attorney responded that he excused Waites because Waites had been arrested in the past by the Waukegan police for driving under the influence (DUI), and Waites said that the police had treated him rudely. The defendant in this case was also arrested by the Waukegan police, and several Waukegan police officers would be witnesses at the trial.

The trial court found that the prosecution’s reason for excusing Waites was adequate. The court stated that it had also taken into consideration the fact that Waites said he had read about defendant’s arrest in the newspaper, that Waites had been the victim of a crime in the past, and that Waites had had a negative experience with the Waukegan police department.

Defendant concedes that, at the time the trial court ruled on the State’s peremptory challenge, the court was “probably correct” in ruling that the State had presented a race-neutral explanation for excusing Waites. Defendant now argues, however, that the prosecution was not candid in its explanation for excusing Waites because the prosecution did not remove a white juror for the same characteristic that it had found objectionable in Waites and, therefore, the prosecution’s challenge of Waites was racially motivated.

During the selection of alternate jurors, venireman Joseph Kukla, who is white, was questioned by the court and stated that he had been convicted of failure to possess a valid firearm owner’s identification card, and he was on probation for the offense. He also stated that when he was arrested he felt that “[he] got pretty much run through the wringer on it big time.” When the assistant State’s Attorney questioned Kukla, the following colloquy took place:

“Q. [Assistant State’s Attorney]: Once you were arrested you think that the police officer was doing his job?
A. [Kukla]: Apparently he was. That’s what the' law tells me. I paid the price for it. I think he could have been a little more human about it and understood my side of it. I never been in trouble with anything like that, but that’s water over the dam.
* * *
Q. Do you feel that the law enforcement itself is inadequate because you were arrested and convicted?
A. The law wasn’t. The officers were, I think.
* * *
Q. Do you feel you may hold it against police officers?
A. No. I think I was definitely wrong once I learned the law, but ignorance of the law is no excuse, but—
Q. You wouldn’t—
A. Right. I am just saying. I think I was cuffed and pushed around unnecessarily. I was like Clyde of Bonnie and Clyde. It was ridiculous.
Q. What police department?
A. Richmond Police.
Q. Perhaps in view of the fact, perhaps in view of the fact he didn’t know you at the time they may have to deal with you in that situation, and perhaps they were a little bit excessive, do you think that this might affect the situation here? It’s an entirely different factual situation.
A. Like I said, I will give it a whirl. I will do my best. I can’t say. I am not against the whole idea. I was out plinking cans. Before you know I am pushed around in a cell, thrown up against the car. My hands are all cuffed behind me and twisted. I think that’s pretty crappy treatment.”

The State and the defense accepted Kukla as an alternate juror.

Defendant now contends that the prosecution’s peremptory challenge to Waites was racially motivated, because, although the prosecution said Waites was excused because he was treated rudely by police, the prosecution subsequently accepted Kukla, who had had a similar experience. Defendant argues that the prosecutor’s inconsistent treatment of the jurors demonstrates a racially discriminatory purpose in the challenge to Waites and his conviction must be reversed.

In Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, the Supreme Court reaffirmed the principle that the State denies a defendant equal protection of the laws when it puts him on trial before a jury from which members of his race have been purposely excluded. (Batson, 476 U.S. at 85, 90 L. Ed. 2d at 80, 106 S. Ct. at 1716.) A defendant contending that the prosecution’s exercise of peremptory challenges was racially motivated has the burden of showing purposeful discrimination. (People v. Young (1989), 128 Ill. 2d 1, 15-16.) Under Batson, a defendant may rely solely on evidence concerning the prosecutor’s exercise of peremptory challenges at his trial in order to establish a prima facie case of discrimination. Bat-son, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1722.

To establish a prima facie case, the defendant must demonstrate that he is a member of a cognizable racial group and that the prosecutor has used peremptory challenges to remove members of that group from the venire. While defendant is entitled to rely upon the fact that the existence of peremptory challenges enables those who are of a mind to discriminate in the jury selection process to (jo so, he must show that these and any other relevant facts raise an inference that the prosecutor used peremptory challenges to exclude members of the venire from the jury on account of their race. (See People v. Jones (1988), 177 Ill. App. 3d 663, 665-66, 532 N.E.2d 543, 544.) If the defendant establishes a prima facie case of purposeful discrimination, the burden shifts to the prosecutor to articulate a neutral explanation for challenging the juror or jurors. Jones, 177 Ill. App. 3d at 666, 532 N.E.2d at 544.

In this case, when the defense objected to the challenge to Waites, the assistant State’s Attorney immediately responded with his reasons for excusing Waites. Because of the assistant State’s Attorney’s action, the trial court made no ruling concerning whether a prima facie case had been established. We need not express an opinion whether the defense established a prima facie case of racial discrimination because a determination of this issue is unnecessary to our resolution of this appeal. After hearing the State’s reason for excusing Waites, the court ruled that the State’s explanation was “adequate.” The court apparently believed that the State had come forward with a race-neutral explanation for challenging the black juror. We agree with the trial court that the State presented a race-neutral explanation for excusing Waites, and resolution of this issue makes it unnecessary to determine whether a prima facie case existed before the assistant State’s Attorney offered his explanation. A reviewing court ordinarily will not consider questions or contentions which are not essential to the determination or final disposition of the cause before it. People v. Berlin (1978), 58 Ill. App. 3d 612, 616, 374 N.E.2d 948, 951, rev’d on other grounds (1979), 75 Ill. 2d 266, 388 N.E.2d 412.

The State’s explanation for the exclusion of the black veniremen cannot be considered race neutral if the State failed to exclude white veniremen having the same or similar characteristics and there are no further characteristics meaningfully distinguishing the white veniremen who are retained from the black veniremen who were challenged. People v. Mack (1989), 128 Ill. 2d 231, 237-38.

Defendant points out that Kukla, like Waites, had been arrested and treated rudely by police, yet Kukla, who is white, was retained as a juror while Waites, who is black, was excused. In this case the defendant had been arrested by the Waukegan police, and several Waukegan police officers were scheduled as witnesses at the trial. Waites had been arrested for DUI by Waukegan police officers, and he felt he was treated rudely at the time of the arrest. Although juror Kukla also complained of ill-treatment at the time of his arrest, Kukla was arrested by officers of the Richmond police department and not by officers of the Waukegan police department, and no officers of the Richmond police department were involved in this trial. Furthermore, we note that the prosecution used only one other peremptory challenge in choosing the jury, and that was to excuse a white juror who had also been arrested by the Waukegan police.

The trial court’s finding that the State has provided race-neutral reasons for its peremptory challenge of a member of defendant’s race will not be reversed unless it is against the manifest weight of the evidence. (People v. McDonald (1988), 125 Ill. 2d 182, 199, 530 N.E.2d 1351.) We find that the race-neutral explanation for dismissing the black juror offered by the State is supported by the evidence.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

McLaren and REINHARD, JJ., concur.


text:
    CONTINENTAL BANK OF BUFFALO GROVE, N.A., Plaintiff-Appellee, v. ROBERT T. KREBS et al., Defendants-Appellants.
    Second District
    No. 2—88—1029
    Opinion filed June 21, 1989.

      Leonard O. Abrams and Murray Westler, both of Chicago, for appellants.
    Alan E. Richards, of Richards, Ralph, Eiden, Eckert & O’Donnell, Chartered, of Vernon Hills, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Sun Bank/South Florida, appeals from an order of the circuit court of Lake County which granted summary judgment in favor of plaintiff, Continental Bank of Buffalo Grove, and denied defendant’s own motion for summary judgment. On appeal, defendant contends that (1) the trial court erred in applying Florida law to determine whether plaintiff perfected a security interest in a vehicle, and (2) due to plaintiff’s failure to perfect a security interest in the vehicle, defendant was entitled to the proceeds from the sale of that vehicle.

We briefly summarize the pertinent facts which are uncontroverted in the pleadings and affidavits. On September 28, 1985, Robert T. Krebs, an Illinois resident, signed a security agreement in which plaintiff agreed to lend Krebs $45,000 for the purchase of a used 1985 Mercedes Benz 500 SEL automobile. On October 3, 1985, Krebs executed a secured promissory note in the amount of $53,000 representing the $45,000 automobile loan and the renewal of an $8,000 note. As collateral for the October 3 promissory note Krebs listed the Mercedes along with four other cars and two trucks. Sometime thereafter, Krebs purchased the Mercedes with $41,769.25 from the funds lent by plaintiff.

Subsequent to the execution of the October 3 promissory note, Krebs advised plaintiff that he desired to have the title to the Mercedes held in the name of Multi-Fastener, a company wholly owned by him. Accordingly, on December 3, 1985, plaintiff and MultiFastener executed a security agreement granting plaintiff a security interest in the Mercedes to secure repayment of the October 3 note. Plaintiff then gave the documentation necessary to obtain title to Krebs, and on December 13, 1985, the Illinois Secretary of State issued a certifícate of title for the Mercedes in the name of Multi-Fastener. The certificate of title did not list plaintiff as a lienholder.

On January 31, 1986, Krebs executed a promissory note in the amount of $26,000 in favor of defendant, a Florida bank. At this point, Krebs surrendered the Illinois certificate of title to defendant. Multi-Fastener signed a security agreement with defendant in which Multi-Fastener pledged the Mercedes as collateral for the January 31 note and for other existing loans from defendant to Krebs.

On April 18, 1986, after Krebs defaulted on his October 3 promissory note with plaintiff, plaintiff repossessed the Mercedes in Illinois. On May 29, 1986, plaintiff applied to the Illinois Secretary of State for a certificate of title to the Mercedes and filed an affidavit of repossession. On June 18, 1986, the Illinois Secretary of State issued a certificate of title for the Mercedes in plaintiff’s name. On December 12, 1986, plaintiff sold the Mercedes for $31,000.

On June 26, 1986, defendant applied to the Florida Secretary of State for a certificate of title to the Mercedes. On July 14, 1986, the Florida Secretary of State issued a certificate of title in Multi-Fastener’s name which listed defendant as the first and only lienholder.

On November 6, 1986, plaintiff brought suit against Krebs and Multi-Fastener on the October 3 promissory note and several other promissory notes. Plaintiff obtained a judgment against Krebs and Multi-Fastener in the amount of $110,008.66 on January 26, 1987. On May 21, 1987, plaintiff amended its complaint, adding a declaratory judgment count against defendant seeking a determination of its rights in the proceeds from the sale of the Mercedes.

Cross-motions for summary judgment were filed, and the circuit court determined that pursuant to section 9 — 103(2)(b) of the Uniform Commercial Code (UCC) (Ill. Rev. Stat. 1987, ch. 26, par. 9— 103(2)(b)), Florida law was controlling in deciding which party had a superior security interest in the Mercedes. The trial court concluded that under Florida law, plaintiff had a superior interest in the proceeds from the sale of the Mercedes and granted plaintiff’s motion for summary judgment, denying defendant’s motion.

On appeal, defendant contends that the trial court erred when it applied Florida law to determine the rights of the parties in the. Mercedes. Defendant maintains that Illinois law should have been applied to determine the parties’ rights because Krebs and Multi-Fastener resided in Illinois, the Mercedes was located in Illinois, the Mercedes was repossessed in Illinois, and plaintiff was an Illinois bank. Defendant asserts that under sections 3 — 202 and 3 — 203 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, pars. 3 — 202, 3— 203), plaintiff failed to perfect its lien on the Mercedes. Defendant concludes that, under Illinois law, it had a right to rely on the clear Illinois certificate of title when it extended credit and took a security interest in the Mercedes Benz and therefore had a superior interest in the vehicle. We note that the cases defendant relies on for this final proposition are inapplicable as they involve disputes between secured parties and subsequent purchasers, not between holders of conflicting security interests as is the case here.

Even were we to find that defendant’s security interest had priority over plaintiff’s, we do not believe that under either Illinois or Florida law defendant was entitled to share in the proceeds collected by plaintiff when it enforced its security interest. We note that in both Florida and Illinois, while perfection of a security interest is governed by certificate of title provisions, the UCC is applicable in other respects. (Ill. Rev. Stat. 1987, ch. 26, par. 9 — 302(3); Fla. Stat. Ann. §679.302(3) (West Supp. 1989).) The pertinent provisions of the UCC are substantially identical in Illinois and Florida.

Defendant has focused its argument on appeal on choice of law and priority questions, assuming that if it had a prior security interest in the Mercedes Benz, it has rights in the funds recovered by plaintiff upon plaintiff’s enforcement of its allegedly junior security interest. While plaintiff has not addressed this point, we nonetheless decline to adopt defendant’s assumption.

Our review of the case law suggests that, typically, questions of priority among security interests arise in the context of actions brought prior to disposition of the collateral under either security interest. (See, e.g., Decatur Production Credit Association v. Murphy (1983), 119 Ill. App. 3d 277, 456 N.E.2d 267; Central National Bank v. Worden-Martin, Inc. (1980), 90 Ill. App. 3d 601, 413 N.E.2d 539.) The instant case, however, having arisen following the sale of the collateral by one of the secured parties, is governed by section 9 — 504 of the UCC (Ill. Rev. Stat. 1987, ch. 26, par. 9 — 504), which sets forth the rules for distribution of the proceeds of such a sale. “[Njotwithstanding the regulation of security interests in motor vehicles by the Vehicle Code (Ill. Rev. Stat. ch. 9572, §§3 — 201 through 3 — 210), the provisions of Part 5 of Article 9 govern the rights and remedies of both debtors and creditors upon default under motor vehicle security agreements.” Ill. Ann. Stat., ch. 26, par. 9 — 501, Code Comment, at 318 (Smith-Hurd 1974).

We note that section 9 — 503 of the UCC provides that “[u]n-less otherwise agreed a secured party has on default the right to take possession of the collateral.” (Ill. Rev. Stat. 1987, ch. 26, par. 9 — 503.) Section 9 — 504 of the UCC provides in part that “[a] secured party after default may sell, lease or otherwise dispose of any or all of the collateral.” (Ill. Rev. Stat. 1987, ch. 26, par. 9 — 504(1).) Neither provision is limited by its language to the senior secured party. Plaintiff held a security interest which, even if unperfected as defendant asserts, was valid and enforceable against the debtor (see In re Estate of Yealick (1979), 69 Ill. App. 3d 353, 387 N.E.2d 399), and plaintiff was within its rights in repossessing and selling the Mercedes Benz.

Section 9 — 504 further provides:

“The proceeds of disposition shall be applied in the order following to
(a) the reasonable expenses of retaking, holding, preparing for sale or lease, selling, leasing and the like and, to the extent provided for in the agreement and not prohibited by law, the reasonable attorneys’ fees and legal expenses incurred by the secured party;
(b) the satisfaction of indebtedness secured by the security interest under which the disposition is made;
(c) the satisfaction of indebtedness secured by any subordinate security interest in the collateral if written notification of demand therefor is received before distribution of the proceeds is completed. If requested by the secured party, the holder of a subordinate security interest must seasonably furnish reasonable proof of his interest, and unless he does so, the secured party need not comply with his demand.” (Ill. Rev. Stat. 1987, ch. 26, par. 9 — 504(1).)

Nothing in this section either requires or authorizes application of the proceeds in satisfaction of a senior security interest. (9 W. Hawkland, Uniform Commercial Code Series §9 — 504:03, at 582 (1986).) The senior secured party retains his security interest, however, as the UCC only provides that disposition of the collateral after default discharges the security interest under which the disposition is made and any subordinate liens or security interests and a purchaser normally takes subject to the prior security interest. (Ill. Rev. Stat. 1987, ch. 26, par. 9 — 504; 9 W. Hawkland, Uniform Commercial Code Series §9 — 504:03, at 582 (1986).) Thus, the UCC provides no right in a senior secured party to the proceeds from the disposition of the collateral by the junior party under the circumstances here. We are not suggesting that, under the facts of this case, defendant has a right of action against the purchaser as the facts of the sale are not in this record, and we have merely assumed for purposes of argument that defendant’s security interest had priority. No other theory, except priority, has been advanced by defendant which might entitle it to relief against plaintiff. We, therefore, conclude that under either Florida or Illinois law defendant has no right to the proceeds from plaintiff’s sale of the Mercedes Benz.

Defendant further argues that this case is governed by the principle that as between two innocent parties, one of whom must sustain a loss occasioned by the wrongdoing of a third party, the loss is to be sustained by the party who could have prevented the loss and contends that plaintiff could have prevented any loss here by perfecting its security interest in Illinois. We need not resort to this general principle as the comprehensive provisions of article 9 of the UCC govern the rights of the parties in the instant case.

• 4 Summary judgment is appropriate where there is no genuine issue with respect to any material fact and the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1005(c); Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 112, 514 N.E.2d 188.) Because this case involved no questions of material fact and plaintiff was entitled to judgment as a matter of law, we affirm the trial court’s order granting plaintiff’s motion for summary judgment.

The judgment of the circuit court is affirmed.

Affirmed.

McLAREN and NASH, JJ., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    J.G. DUGGAN, Plaintiff-Appellant, v. STATE BANK OF ANTIOCH, Defendant-Appellee.
    Second District
    No. 2—88—0988
    Opinion filed June 22, 1989.

      J.G. Duggan, of Lake Forest, appellant pro se.

    No brief filed for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, J.G. Duggan, brought this small claims complaint in the circuit court of Lake County against defendant, State Bank of Antioch (the Bank), for wrongful dishonor of a personal money order payable to plaintiff in the sum of $400. Plaintiff, an attorney, sought payment of the $400 as well as $400 in attorney fees. The Bank filed a counterclaim for malicious prosecution of the lawsuit. Following a hearing, the trial court entered judgment for the Bank on the complaint and for plaintiff on the counterclaim. Plaintiff appeals, contending the Bank acted wrongfully in refusing to pay a personal money order by honoring a stop-payment request from the purchaser of the money order.

The evidence presented at the hearing showed that plaintiff is the owner of Sequoit Apartments in Antioch. On January 18, 1988, Helen Musolino purchased a money order from the Bank in the sum of $400. On that same date she completed the money order naming herself as remitter and plaintiff as payee and presented the money order to Robert Lausch, manager of the apartments. The sum represented the balance of a $500 security deposit due for rental of one of the apartments. Mrs. Musolino had previously given Mr. Lausch a deposit of $100 to hold the apartment.

On January 19, 1988, Mrs. Musolino filled out a stop-payment request on the money order. On January 20, Mr. Lausch, acting on behalf of plaintiff, deposited the money order in the account plaintiff maintained for Sequoit Apartments at the Bank. On or about January 21, plaintiff received a notice from the Bank that his account had been debited $400, the amount of the money order. Subsequently, plaintiff instituted the instant action, challenging the Bank’s act of honoring the stop-payment request of a money order.

At the conclusion of the hearing on plaintiff’s complaint, the trial court found that a personal money order, like a personal check, is subject to a stop-payment order to a bank by the remitter of the money order, notwithstanding that the party presenting the money order is a holder in due course. The court held that although the remitter of a personal money order would be obligated to a holder in due course, the drawee bank is not obligated, provided a stop-payment order has been received from the remitter. The court entered judgment in favor of the Bank. Additionally, the court denied plaintiff’s claim for attorney fees since plaintiff appeared pro se in the proceedings. The court also denied the Bank’s counterclaim for malicious prosecution of the suit.

On appeal, plaintiff argues that the Bank did not possess the right to stop payment on a personal money order. It is plaintiff’s position that a money order is akin to a cashier’s check upon which payment cannot be stopped and that, therefore, the Bank acted wrongfully in refusing to honor the money order. Although the Bank has not filed a brief on appeal, this court may nonetheless consider the plaintiff’s contention on the merits. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133.

In the instant case the parties do not dispute that plaintiff was a holder in due course. Nevertheless, even if plaintiff was a holder in due course, the Bank would not have been obligated to plaintiff provided the Bank was required to follow Mrs. Musolino’s stop-payment request on the money order, as the trial court concluded. Rather, Mrs. Musolino would remain liable on the instrument to plaintiff. See comment 8 to section 4 — 403 of the Uniform Commercial Code (Ill. Ann. Stat., ch. 26, §4 — 403, Uniform Commercial Code Comment, at 535 (Smith-Hurd 1963)).

Our research has failed to reveal any cases which have previously considered whether payment can be stopped on a money order.

By definition a “money order” is:

“A type of negotiable draft issued by banks, post offices, telegraph companies and express companies and used by the purchaser as a substitute for a check. Form of credit instrument calling for payment of money to named payee, and involving three parties: remitter, payee and drawee.” (Emphasis added.) Black’s Law Dictionary 907 (5th Ed. 1979).

Plaintiff, relying on Bank of Niles v. American State Bank (1973), 14 Ill. App. 3d 729, maintains that a money order is similar to a cashier’s check on which payment cannot be stopped since in issuing a cashier’s check a bank promises to pay out of its own funds a certain sum of money to a certain person or entity. (See 14 Ill. App. 3d at 733.) We, however, disagree with the court’s comparison in Bank of Niles, as we believe a money order is not akin to a cashier’s check. A “cashier’s check” is:

“A check drawn by the bank upon itself and issued by an authorized officer of a bank, directed to another person evidencing fact that payee is authorized to demand and receive from the bank, upon presentation, the amount of money represented by the check.” Black’s Law Dictionary 196 (5th Ed. 1979).

A money order and a cashier’s check, therefore, differ both by definition and by the very form the two instruments take. Ordinarily, when an individual purchases a money order, the bank fills in only the amount of the purchase. Such was the case here where the purchaser, Mrs. Musolino, filled in the date and the name of the payee and signed as remitter, or drawer, of the money order. In contrast, when a bank issues a cashier’s check, the bank fills in the date, the name of the payee, and the amount of the check. Additionally, an authorized signer of the bank signs as drawer of the check. By its act of issuance, a bank accepts a cashier’s check in advance (Able & Associates, Inc. v. Orchard Hill Farms of Illinois, Inc. (1979), 77 Ill. App. 3d 375, 381; see also Munson v. American National Bank & Trust Co. (7th Cir. 1973), 484 F.2d 620, 623-24), and any subsequent stop-payment order is ineffective. (Ill. Rev. Stat. 1987, ch. 26, par. 4 — 303.) In the case of a money order, we agree with the trial court, which relied on the findings in United Apparel Distributors, Inc. v. Chase Manhattan Bank (S.D.N.Y. 1982), 548 F. Supp. 672, that a personal money order functions as a personal check and not as a banker’s or cashier’s or traveler’s check. (548 F. Supp. at 673.) Since the only signature on a personal money order is that of the purchaser, since the instrument takes the form of an order to pay, and since it is drawn on a bank and payable on demand, it is within the classification of a check. (See Sequoyah State v. Union National Bank (1981), 274 Ark. 1, 5, 621 S.W.2d 683, 685 (Dudley, J., dissenting).) As such, a money order does not become the obligation of a bank unless or until it is signed by a bank official or it is accepted by a bank from a named payee. See United Apparel Distributors, 548 F. Supp. at 673.

In the instant case, the Bank had received the remitter’s stop-payment order prior to its acceptance of the money order. We conclude that the bank acted properly in stopping payment on the personal money order, especially where, as here, the Bank was not the drawer. Other jurisdictions have made similar findings. See, e.g., United Apparel Distributors, Inc. v. Chase Manhattan Bank (S.D.N.Y. 1982), 548 E Supp. 672; Thompson v. Lake County National Bank (1975), 47 Ohio App. 2d 249, 353 N.E.2d 895; State v. LaRue (1971), 5 Wash. App. 299, 487 P.2d 255. But see also Sequoyah State v. Union National Bank (1981), 274 Ark. 1, 621 S.W.2d 683 (wherein the Arkansas Supreme Court held a personal money order was the obligation of the issuing bank from the moment of its issuance, and the fact that no authorized representative of the bank signed the instrument did not negate the bank’s liability).

Under the particular circumstances presented in the instant case, the Bank was obligated to obey its customer’s stop-payment request on the personal money order.

Accordingly, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

LINDBERG and REINHARD, JJ., concur.