text:
      In re J.J., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Brenda L. Johnson, Respondent-Appellant).
    Fourth District
    No. 4 — 92—0773
    Opinion filed June 17, 1993.
    Kelly James Lonergan and J. Steven Beckett, both of Beckett & Associates, P.C., of Urbana, for appellant.

      Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Brenda Johnson appeals from the order of the circuit court of Champaign County, adjudicating her daughter, J.J., a dependent minor. (Ill. Rev. Stat. 1991, ch. 37, par. 802 — 4(1)(b).) Johnson argues J.J. could not be a dependent minor within the definition of the statute, because J.J. was never in the care of Johnson. Johnson also argues the trial court’s determination J.J. is a dependent minor is against the manifest weight of the evidence. We disagree and affirm.

Facts

Johnson was 32 years old at the time of the adjudicatory hearing. Johnson graduated from high school with a special education diploma. She has a full-scale IQ of 77, which places her on the upper end of borderline intelligence. When Johnson was 21 or 22 years old, she moved out of her mother’s home. Johnson lived with her sister, Sharon Cinnamon, for three years. During this time, when Cinnamon’s daughter Laura was between the ages of one and four years old, Johnson cared for Laura 40 hours per week while Cinnamon worked. For approximately the last eight years, Johnson had lived independently and had been employed in various jobs, her length of employment at each job ranging from a few days to four years.

Johnson gave birth to J.J. on March 28, 1992, at Covenant Medical Center (Covenant). J.J. was taken from the hospital into protective custody by the Department of Children and Family Services (DCFS) on March 30, 1992. The primary reason DCFS was contacted was because Johnson had made a comment that she should kill the baby. There was some' inconsistency in the testimony regarding whether this comment was made during Johnson’s labor, or pre-term labor; however, the majority of the testimony indicates this comment was made during Johnson’s pre-term labor. The hospital staff was also concerned about Johnson’s ability to care for J.J. DCFS was awarded temporary custody of J.J. at. a shelter-care hearing on April 1, 1992. An adjudicatory hearing was held in two parts, June 1, 1992, and July 10, 1992. The trial court made a finding J.J. was a dependent minor. At a dispositional hearing on August 25, 1992, the court adjudicated J.J. to be a dependent minor and awarded custody and guardianship to DCFS.

The Adjudicatory Hearing

At the adjudicatory hearing, the State presented the testimony of several nurses from Covenant, two DCFS workers, and a Catholic Community Services worker.

Diane Ortel, a nurse at Covenant, testified she admitted Johnson to the hospital when Johnson was approximately 30 weeks pregnant, as a pre-term patient. While an IV and possibly a catheter were being inserted, Ortel heard Johnson state she should just kill her baby or have a pre-term baby and get it over with.

Dorothy Gray testified she was employed as a nurse at Covenant. Gray testified she was in charge of the care and education of Johnson after the birth of J.J. Gray testified she had to repeat and remind Johnson of instructions.

Cheryl Buckner, a nurse employed at Convenant, testified she helped to educate Johnson in the care of J.J. Buckner testified on one occasion she observed Johnson leaning over to put the telephone down while holding J.J. J.J. “kind of slumped over,” and Buckner heard Johnson say “Oh, I hope I don’t break her neck.” Buckner also testified that when told J.J. would need to be fed every four hours, Johnson asked if it were really necessary to feed J.J. that often. Buckner testified she had concerns regarding Johnson’s abilities to care for J.J.

Penny Graham, a Child Welfare Specialist II for DCFS, testified Johnson explained she made the statement about killing J.J. because she was upset for a variety of reasons, including the difficulty of her pregnancy and labor. Graham testified Johnson admitted to her that she (Johnson) recognized she needed more information or more classes to be able to take care of J.J. Graham testified she asked Johnson a series of hypothetical questions regarding how Johnson would care for J.J. in a variety of situations. Johnson had to think for awhile before answering the questions, but she was always able to give appropriate responses to the questions.

Summers, a DCFS worker, testified that when she told Johnson DCFS was going to take J.J. into protective custody, Johnson became upset and grabbed a telephone in a very quick motion. Summers testified she felt Johnson was going to throw the telephone at her. Two security guards stepped forward. Johnson asked why the guards stepped forward and Summers told Johnson it was because they feared Johnson was going to throw the telephone. Johnson replied she was not going to throw the telephone and stated she would “be nice.”

Nancy Abbott, a foster-care caseworker at Catholic Social Services, testified she worked in conjunction with DCFS. Abbott provided services to Johnson and monitored her visitation sessions with J.J. Abbott testified Johnson was unsure how to care for J.J. and needed prompting regarding what she needed to do. Abbott testified Johnson is careful about watching out for J.J.’s head and asks questions about how to take care of J.J. Abbott testified it is sometimes necessary to repeat or remind Johnson of instructions. After Johnson was instructed two or three times, she was able to take care of J.J. Abbott testified Johnson handles learning tasks easily. Abbott testified one incident caused her concern. One night at midnight, Johnson experienced pain. Rather than calling 911, a friend or relative, to request a ride to the hospital, Johnson began to walk the five or six blocks from her apartment to the hospital. Two police officers, in a police car, spotted Johnson en route, and drove her the remainder of the way to the hospital. Abbott believed walking to a hospital a few blocks away was a sign of poor judgment. Abbott testified she had been told Johnson has an IQ of 77, and has expressive aphasia, and as a result, needs to be spoken to and learns skills very slowly. On cross-examination, Abbott indicated Johnson exhibited loving behavior toward J.J., and had been concerned and indicated her desire to have J.J. come home.

The respondent presented the testimony of Johnson’s physician, mother, and sister. Dr. Lawrence Gratkins testified Johnson became his patient after she discovered she was pregnant. Gratkins testified Johnson’s pregnancy was complicated by an episode of pre-term labor, making her pregnancy a high-risk pregnancy. As a result, beginning in the 28th week of her pregnancy, Johnson was required to have antenatal testing performed twice per week, ultrasound examinations, and take medication on a regular basis. The antenatal testing required that Johnson follow instructions regarding whether to have a full or empty bladder at the time of the medical appointment, depending on the time of pregnancy. Gratkins testified he gave Johnson numerous instructions, which Johnson followed. Johnson attended her appointments regularly, and had good bonding with her baby during the pregnancy. Gratkins testified Johnson could see the baby on the video screen during sonographies, and asked questions regarding the parts of the baby. Gratkins visited Johnson in the hospital. Gratkins found Johnson’s behavior to be appropriate, and felt she would comply with instructions; accordingly, he authorized the hospital to release J.J. to her. In response to a question asked by the court, Gratkins testified he did not have concerns regarding Johnson having the sole responsibility for the care of J.J. Gratkins stated his concern was only regarding Johnson’s financial situation. Gratkins testified he has had many patients who were in worse intellectual straights than Johnson who have gone home with children and done quite well with them by using the available social agencies.

Carol Slack, Johnson’s mother, testified Johnson, in her youth, baby-sat for children. Johnson also took care of Laura, the daughter of Sharon Cinnamon, Johnson’s sister. Slack testified Johnson took good care of Laura, fed her properly, kept her clean, and disciplined her appropriately. Slack testified if Johnson were granted custody of J.J., Slack would be available to assist in the care of J.J. on evenings and weekends. Slack explained the circumstances under which Johnson made the statement about killing the baby. Johnson had been admitted to the hospital and was told by the nurse the baby needed to be monitored. Johnson asked why, and the nurse said “so you don’t have a preterm [sic] baby.” Johnson had a friend who had a pre-term baby, and it was born with birth defects. Johnson became hysterical thinking she was going to have a pre-term baby. It was under these circumstances she said she should kill the baby.

Cinnamon also testified regarding Johnson’s care of Laura. Johnson cared for Laura from the time Laura was one year old until she was three or four. During this time Johnson lived in the Cinnamon residence and cared for Laura 40 hours per week while Cinnamon worked. Cinnamon testified Johnson was able to follow through with child-care instructions and took good care of Laura. Johnson cared for Laura when Laura had a cold; however, she was not faced with any medical emergencies while responsible for Laura. Cinnamon testified she would be willing to assist in the care of J.J. on weekdays after 1:30 p.m. and on weekends.

At the close of this hearing, the court found the State had failed to prove either that J.J. was a neglected or an abused minor. However, finding the court had an unusual duty in juvenile cases, the court sua sponte raised the issue of whether J.J. was a dependent minor, ordered the pleadings be amended to allege J.J. was a dependent minor, and made a finding J.J. was, in fact, a dependent minor. The court specifically stated it was not making an adjudication but, rather, merely a finding of dependency. Explaining its finding, the court stated:

“[I]f we are to evaluate the ability of the Respondent Mother, as we sit here today, to act as a full custodial parent to the child, I think everyone would agree that she probably can’t do that; however, that’s not to say that she cannot do that with the proper level of support. The trick is to find that level of support.”

Between the shelter-care hearing and adjudicatory hearing, Johnson had visits with J.J. two or three times per week, for 21/2 hours each visit, supervised by caseworkers from Catholic Community Services. At the adjudicatory hearing, the court authorized DCFS to implement extended, including overnight, visitation and delegate the authority for supervision to a responsible family member or other responsible adult.

The Dispositional Hearing

At the dispositional hearing, the State submitted a report prepared by Abbott, and including a psychologist’s report. Abbott’s report indicated, after the adjudicatory hearing, visitation was scheduled from 2 to 7 p.m. on Wednesdays, and from 2 p.m. on Fridays to 7 a.m. on Mondays. This visitation schedule was interrupted due to a quarrel between Johnson and her mother and sister, who supervised the visits. When this arrangement terminated, Johnson requested that a member of Catholic Community Services supervise her visits with J.J.

Abbott stated Johnson is able to follow through with instructions regarding the care of J.J., provides adequate care for J.J., and requires little instruction on routine care and feeding. However, as J.J. grows and enters new phases of development, Johnson will require additional instruction. Johnson looks forward to visits with J.J. and is eager to demonstrate that she can physically care for her. Johnson states she recognizes potential hazards that J.J. could be exposed to and represents she will remove her from such situations. Johnson is disappointed when J.J. does not smile at her or show recognition Johnson is her mother. Abbott reported Johnson believes she can care for J.J. without help and was not interested in taking parenting classes or obtaining counseling.

Dr. Marty Traver, a clinical psychologist, examined Johnson, and his report was submitted to the court. Johnson told Traver she was a special education student because she needed glasses and did not study. Traver stated Johnson is unaware of her intellectual limitations and does not understand the concerns of others regarding her ability to care for a child. Johnson believes other people are responsible for her anger because they make her argue by saying negative things about her and do not listen to her.

Traver stated the results of his tests and evaluation of Johnson indicate she does not process information from social situations and does not retain information as well as her general IQ might indicate. She has difficulty understanding and interpreting social situations. Traver additionally stated, in his report, “[practical judgment, common sense, and reality testing would be reflected in these low scores. Memory and attention appear impaired. Planning related to social intelligence appears weak.” Traver indicated Johnson has not demonstrated good judgment in her personal and sexual life. Johnson reported doing things she did not want to do, and protecting the identities of men because they requested her to do so. Traver noted Johnson’s plans for her life included finding a man and having him take care of her. Johnson reported it was very difficult to baby-sit for J.J. all weekend with her mother supervising her. Traver took Johnson’s comment regarding killing the baby seriously, and recommended extreme caution should be used in allowing Johnson to attempt child care on her own.

When asked if there were any corrections which Johnson wished to make in the reports, Johnson’s counsel stated Johnson was willing to take parenting classes. The attorney stated Johnson was under the mistaken belief she had to have J.J. with her in order to take parenting classes, and it was based on this mistaken belief that she stated she was not going to go to parenting classes.

At the close of this hearing, the court adjudicated J.J. a dependent minor. In making this determination, the court stated:

“I do not question now nor have I ever questioned the love and dedication that the Respondent Mother has for her child nor do I question or challenge her willingness to undertake the burden of parenting. However, I do believe its a question of needing appropriate instruction and then support before she is able to exercise that care.
It’s apparent from the report and from the conclusions of everyone that while certainly Ms. Johnson is capable of learning how to care for her child, it takes a great deal of repetition and then someone there to reinforce it and then it has to be updated as the child develops, and, of course, the child is developing very quickly at this age, and for that reason, I don’t believe she is in a position today to exercise custody.
I’m very glad she does want to cooperate with parenting classes, and I hope she will certainly cooperate with counseling because I would have to honestly say that I would probably never return custody of [J.J.] to her unless and until she is able to complete a course of parenting instruction correctly and to successfully complete a course of counseling as well.”

Analysis

Section 2 — 4(l)(b) of the Juvenile Court Act of 1987 provides a dependent minor is one “who is without proper care because of the physical or mental disability of his parent, guardian or custodian.” (Ill. Rev. Stat. 1991, ch. 37, par. 802 — 4(1)(b).) Johnson’s first argument is that J.J. cannot be a minor without the care of her parent, under section 2 — 4(1)(b), because J.J. was never in the care of her parent. Under Johnson’s construction of section 2 — 4(1)(b), the court may not determine whether a minor is dependent within the scope of section 2 — 4(1)(b) unless the child has been in the care of the parent, and while in such care, did not receive proper care due to the parent’s disability. In other words, the parent must be given the opportunity to demonstrate that her disability will not impair her ability to provide proper care for the child. In support of her position, Johnson directs our attention to the fifth district’s decision in In re Gates (1978), 57 Ill. App. 3d 844, 373 N.E.2d 568.

In Gates, the minor was born with only one lung and an incomplete esophagus. Susie Gates, the mother, did not believe she could care for the minor and signed a release authorizing DCFS to place the minor in a foster home. The minor remained hospitalized for approximately two months after her birth, and then was placed in a foster home. (Gates, 57 Ill. App. 3d at 846, 373 N.E.2d at 571.) Four days later, a petition was filed alleging the minor was neglected in that her mother failed to cooperate with the hospital staff’s attempts to train her to care for the child’s special needs; this petition was amended to allege the child was a minor in need of supervision. About a week before the child’s first birthday, the State filed a petition alleging the minor to be neglected because Gates had failed to express a proper interest in the minor and refused to be trained regarding how to meet the minor’s special needs. (Gates, 57 Ill. App. 3d at 847, 373 N.E.2d at 571.) Reversing the trial court’s finding the minor was neglected because of her mother’s lack of attention and care, the appellate court stated a determination of whether a child is neglected involves a determination of whether the minor is receiving the care necessary for his well-being, not a determination of whether the parent has been neglectful. Gates, 57 Ill. App. 3d at 849, 373 N.E.2d at 573.

Thus, under Gates, a determination of whether a minor is neglected involves a focus on the child, namely an examination of whether the child’s needs have been met. Where the minor has been in the custody of DCFS since being released from the hospital after birth, the child may not be a neglected child unless he suffered such neglect at the hands of the hospital or DCFS, or the parent interfered in some way with the child’s care while hospitalized or in DCFS custody. Conversely, determination of whether a minor is a dependent child focuses on the parent rather than the child. Specifically the focus is on whether the disability of the parent is such that it impairs the abilities necessary for the care and parenting of the minor. Although the best evidence of whether a parent’s disabilities interfere with her ability to care for the minor is clearly an observation of how, when given the chance, that parent cares for that minor, it is not the only evidence of whether a disability will interfere with parenting abilities. Rather, the scope and extent of the disability may be determined from other evidence, including observations of the parent with the child during hospitalization after the birth of the child, observations of the parent in other contexts, and medical or other evidence regarding the parent’s limitation due to the disability.

Consequently, we hold where evidence demonstrates the parent’s disability is one which significantly impairs abilities necessary to the care and parenting of a child, the minor may be found and adjudicated to be a minor without proper care due to the physical or mental disability of the parent (Ill. Rev. Stat. 1991, ch. 37, par. 802 — 4(1)(b)), even if the parent has not had the opportunity to exercise sole physical custody over the minor. A contrary holding would require, e.g., that a minor born to a comatose mother be placed in the care and custody of the mother in a futile inquiry into whether the mother’s disability prevented her from providing proper care to the child.

Johnson next contends the trial court’s adjudication of J.J. as a dependent minor was manifestly erroneous. Dependency need only be established by a preponderance of the evidence. (In re Jackson (1980), 81 Ill. App. 3d 136, 138, 400 N.E.2d 1087, 1088.) A trial court’s determination regarding dependency will not be overturned unless it is manifestly erroneous. (Cf. In re Stilley (1977), 66 Ill. 2d 515, 517, 363 N.E.2d 820, 821 (neglect determination).) A trial court’s judgment is not manifestly erroneous merely because the reviewing court might have ruled otherwise. Rather, a judgment is against the manifest weight of the evidence if it is clearly evident a conclusion opposite to that reached by the trial court was the proper disposition. Stone v. City of Areola (1989), 181 Ill. App. 3d 513, 528, 536 N.E.2d 1329, 1338.

In the present case, the trial court was presented with this evidence: Johnson did not recognize her limitations; she had argued with her mother and sister and, as a result, they were unavailable to assist her in the care of J.J.; she found caring for J.J. under her mother’s supervision difficult; and while she currently provided adequate care for J.J. during the visitation sessions, she might have difficulty caring for J.J. 24 hours per day, and also might have difficulty dealing appropriately with new or unforeseen situations. Although the opinion of her physician that she could follow directions and care for J.J., Abbott’s statement that she provided J.J. with adequate care, her previous history of caring for her niece, her history of independent living, and her explanation, at the dispositional hearing, that she was willing to take parenting classes, might have enticed us to rule differently, we do not find the trial court’s determination J.J. was a dependent minor and that Johnson should attend parenting classes and counseling sessions prior to exercising custody of J.J. was against the manifest weight of the evidence. Accordingly, we affirm the decision of the circuit court of Champaign County.

Affirmed.

STEIGMANN, P.J., and GREEN, J., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    FIRST ILLINOIS NATIONAL BANK, Plaintiff-Appellee, v. KENNETH L. KNAPP, Defendant-Appellant (Joseph Haas et al., Defendants-Appellees).
    Second District
    No. 2 — 92—0731
    Opinion filed June 11, 1993.

      Bernard J. Natale, of Rockford, for appellant.
    John B. Whiton, of Snow, Hunter, Whiton & Fishburn, Ltd., of Free-port, for appellee Joseph Haas.
   JUSTICE UNVERZAGT

delivered the opinion of the court: Plaintiff, First Illinois National Bank (Bank), filed this declaratory judgment action to determine to whom to transfer a parcel of property. After a bench trial, the trial court determined that the Bank was obligated to transfer the property to defendant Joseph Haas. Defendant Kenneth Knapp appeals, arguing that the Bank was obligated to transfer the property to him, instead.

Defendant Emily Schoenhaar was the mother of defendants James Schoenhaar and Richard Schoenhaar, as well as Carl Schoenhaar, who is not named as a defendant. The four Schoenhaars were in default on a debt to the Bank. This debt was secured by property which Emily owned. On April 28, 1988, Richard, James, and Emily entered into an agreement with the Bank entitled “Deed in Lieu of Foreclosure” (the Agreement). Carl was not a party to the Agreement. The Agreement was amended on September 17, 1988. Under its terms, the Schoenhaars transferred 414 acres of the secured property to the Bank. They retained a 20-acre homestead. Paragraph 10 of the Agreement provided:

“Right of first refusal. In the event that Lender chooses to sell the surrendered parcel at private sale, borrowers shall be given 20 business days to match any bona fide offer received by Lender. Notice to James L.R. Schoenhaar shall be construed as notice to all borrowers. In the event that Lender chooses to sell said parcel at public auction, it shall, prior to 20 days beforehand, notify borrowers of the sale date, and borrowers shall not have any greater rights than any other bidder.”

Testimony at trial established that James Schoenhaar had primarily wanted, and negotiated for, the right of first refusal. The farm had been in the Schoenhaar family since 1913 and the 58-acre parcel in question had been in the Schoenhaar family since 1962. It was James’ “big dream” to buy back the family farm. Both Knapp and Haas owned farms that neighbored what had been the Schoenhaar farm. Testimony at trial suggested that when the Schoenhaar family purchased the 58-acre parcel in 1962, a feud between the Haas family and the Schoenhaar family had ensued.

Some time after the Agreement took effect, the Bank placed the property up for sale. On January 16, 1989, defendant Haas made a bona fide written offer to purchase the property for $28,500. The Bank notified the Schoenhaars of Haas’ offer. The offer stipulated that the Schoenhaars had 20 days to match the offer. Haas testified, however, that he did not expect the Schoenhaars to match the offer because they did not have the funds. Within 20 days of the notification, Richard Schoenhaar went to the Bank with Knapp. Richard informed Thomas Messer, a loan officer at the Bank, that he was giving Knapp permission to match the offer. Knapp tendered $28,500 in order to purchase the property. Messer informed Knapp and Richard that he did not know whether a valid assignment of the right of first refusal had occurred, and the Bank placed the $28,500 into a savings account until the matter could be resolved.

The Bank filed a declaratory judgment action in order to determine to whom to sell the property. The. Bank asked the trial court to determine (1) whether the Schoenhaars’ right of first refusal was assignable and (2) whether a valid assignment of that right had taken place. The Schoenhaars made no appearance in this action and a default judgment was entered against them. Knapp moved for summary judgment claiming that as a matter of law the Bank was obligated to transfer the property to him. Haas moved for judgment on the pleadings, claiming that it was apparent from the pleadings that there had been no valid exercise of the right of first refusal. After a hearing, the trial court granted partial summary judgment to Knapp. The trial court found that the right of first refusal was assignable as a matter of law. The trial court also found, however, that there were material questions of fact as to whether Richard Schoenhaar made a valid assignment of that right to Knapp. According to the trial court, the agreement was ambiguous concerning whether the right of first refusal was in each of the Schoenhaars individually or whether all of the Schoenhaars were required to act together in order to exercise the right. The trial court denied Haas’ motion for judgment on the pleadings.

After a bench trial, the trial court, in a memorandum decision, stated, “the right of first refusal was personal to the Schoenhaar family as a whole as those persons listed as Borrowers in the Agreement.” The trial court therefore ordered the Bank to transfer the property to Haas. Knapp appeals. Haas has filed a response. Neither the Schoenhaars nor the Bank has filed briefs in this appeal. We affirm the trial court’s finding in favor of Haas.

The general right of a party to choose with whom he or she contracts underlies any determination of whether a contract is assignable. (Ginsburg v. Bull Dog Auto Fire Insurance Association (1928), 328 Ill. 571, 573.) In Ginsburg, the victim of an auto theft assigned to plaintiff his right to recover under his automobile insurance policy. The court held that an insurance policy itself is not assignable because personal attributes of the policyholder are material to the terms of the policy. (Ginsburg, 328 Ill. at 574.) Where the “personal acts and qualities of one of the parties form a material part of the contract,” the contract is not assignable without both parties’ consent. (Ginsburg, 328 Ill. at 572-73.) Where the party entitled to performance has placed trust and confidence in the performing party, the performing party cannot unilaterally delegate his or her responsibilities. (See Ru ral Electric Convenience Cooperative Co. v. Soyland Power Cooperative, Inc. (1992), 239 Ill. App. 3d 969, 979.) Ginsburg held, however, that the policyholder’s right to recover after suffering a loss was assignable. “After the contract has been fully executed and nothing remains to be done except to pay the money,” the claim for that money becomes assignable. Ginsburg, 328 Ill. at 573; see also Loyola University Medical Center v. Med Care H M O (1989), 180 Ill. App. 3d 471, 477-78.

According to Haas, the Schoenhaars bargained for the right of first refusal because of their personal desire to repurchase the property. Haas argues, therefore, that the Schoenhaars’ right of first refusal was personal and unassignable. We disagree.

The Schoenhaars’ right of first refusal was not personal so as to preclude assignability. A rule preventing the Schoenhaars from assigning their right of first refusal would only exist to protect the Bank. It is undisputed, however, that the Bank had no interest in who bought the property. The Bank’s only concern was to convey the property in accordance with the law. Furthermore, at the time of the assignment, the Schoenhaars had fulfilled all of their obligations under the agreement. The Bank, therefore, had no interest in whether the Schoenhaars remained a party to the contract. “[T]here is no law forbidding one from assigning any property he may have.” First National Bank v. Taylor (1946), 329 Ill. App. 49, 56; see also Rovak v. Parkside Veteran’s Homes Project, Inc. (1956), 8 Ill. App. 2d 310, 314, citing Perkins v. Hadsell (1869), 50 Ill. 216 (“an instrument which gives to a person an option to buy land, upon his performance of certain conditions, which he may or may not perform, as he may elect, may not be assignable by such person before he has acquired any right of property under it by performing the conditions, but it is assignable, in equity, thereafter”).

The Appellate Court, First District, recently held that a similar right of first refusal was not assignable. (Marcy v. Markiewicz (1992), 233 Ill. App. 3d 801, 810.) In Marcy, plaintiffs and defendants formed a partnership in which they owned and developed two adjacent parcels of property. The parties subsequently dissolved the partnership. Plaintiffs took title to parcel A and defendants took title to parcel B. The dissolution agreement further provided that if defendants received a bona fide offer to purchase parcel B, plaintiffs had the right of first refusal. (Marcy, 233 Ill. App. 3d at 803-04.) The issue in Marcy was whether the right of first refusal violated the rule against perpetuities. The court determined that it did not, because plaintiffs’ right of first refusal was personal and did not continue after the parties’ death. The court reasoned that the agreement did not specifically provide for the assignability or transferability of the right of first refusal. (Marcy, 233 Ill. App. 3d at 810.) The court stated that “[cjlearly, the [contract provision] did not allow the right to be conveyed, by devise or sale or in any matter, to anyone.” Marcy, 233 Ill. App. 3d at 810.

To the extent that Marcy would dictate that the right of first refusal in this case was not assignable, we choose not to follow that decision. The court in Marcy fails to explain how the right of first refusal was personal to plaintiffs or how defendants’ ability to choose with whom they contract would be thwarted if plaintiffs assigned their right of first refusal to a third party. We know of no case which holds that a contract must specifically provide for the assignability of an otherwise assignable contract right.

Furthermore, the case relied on by the Marcy court is distinguishable from the present case. Vogel v. Melish (1964), 31 Ill. 2d 620, concerned a right of first refusal in a contract between the two sole shareholders in a corporation. The shareholders’ agreement also provided for other restrictions on the sale of the corporation’s shares. The court held that because of the personal nature of the shareholder agreement, that agreement did not survive the death of one of the shareholders. (Vogel, 31 Ill. 2d at 624.) Unlike the instant case, however, the agreement in Vogel was premised on the parties’ close relationship as the two sole shareholders in the business that employed them.

In addition, Richard Schoenhaar pointed out to the trial court that he could have circumvented any prohibition against his assignment of the right of first refusal by borrowing money from Knapp to purchase the property and then deeding the property to Knapp. “Where a purchaser enters into an independent contract of sale with a third party, and promises to convey if, as, and when the purchaser acquires title to the property, there is no assignment.” (Lake Shore Club v. Lakefront Realty Corp. (1979), 79 Ill. App. 3d 918, 923-24.) The fact that Richard could have effected the sale of the property to Knapp in this way underscores that the Schoenhaars’ right of first refusal was not personal in nature.

Although we agree with Knapp that the Schoenhaars’ right of first refusal was, in the abstract, assignable, we conclude that the trial court did not err in finding that Richard Schoenhaar did not properly assign the Schoenhaars’ right of first refusal to Knapp.

Paragraph 10 of the agreement provides that “[i]n the event that Lender chooses to sell the surrendered parcel at private sale, borrow ers shall be given 20 business days to match any bona fide offer received by Lender.” (Emphasis added.) The agreement defined “borrowers” as James Schoenhaar, Richard Schoenhaar, Carl Schoenhaar, and Emily Schoenhaar. The resolution of whether a valid assignment of the right of first refusal took place requires a determination of whether, by using the term “borrowers” in paragraph 10 of the agreement, the parties intended that the right of first refusal could be exercised individually by each of the four Schoenhaars, or whether they had to exercise the right as a group.

If the language in a contract is clear, then that language dictates, as a matter of law, the meaning of that contract. (General Motors Acceptance Corp. v. Kettelson (1991), 219 Ill. App. 3d 871, 876; Berutti v. Dierks Foods, Inc. (1986), 145 Ill. App. 3d 931, 934.) If a contract term can reasonably be understood in more than one way, however, then it is ambiguous. (Butler v. Kent (1991), 215 Ill. App. 3d 680, 685.) The interpretation of an ambiguous contract term is a question of fact, and the trial court may review extrinsic evidence in order to ascertain the intentions of the parties. Farm Credit Bank v. Whitlock (1991), 144 Ill. 2d 440, 447.

We agree with the trial court that the Agreement was ambiguous as to whether any Schoenhaar could exercise the right of first refusal individually or whether the Schoenhaars were required under the agreement to exercise the right as a group.

Thomas Potter represented the Bank throughout the negotiations preceding the execution of the Agreement. Potter testified at trial that the right of first refusal was not a central point in the Agreement and the parties never actually discussed whether the right was assignable or whether the Schoenhaars were required to exercise the right jointly. William Jegen, the attorney who represented the Schoenhaars when the Agreement was negotiated, testified at trial. Jegen testified that he only agreed to represent the Schoenhaars if they acted as a unit because he had not wanted to get involved in disputes between the Schoenhaar brothers. According to Jegen, therefore, the term “borrowers” throughout the Agreement, including paragraph 10, referred to the Schoenhaars jointly, not individually.

We conclude that under a reasonable interpretation of the contract, considering Jegen’s testimony and considering that the contract defines the term “borrowers” to include all four Schoenhaars, the right of first refusal applied to the Schoenhaars jointly. Richard Schoenhaar could only assign the rights that he possessed (3 Ill. L. & Prac. Assignments §52 (1953)), and he did not possess the right of first refusal individually. Consequently, he could not unilaterally assign the right of first refusal to Knapp.

Richard Schoenhaar claimed that he discussed with James and Emily Schoenhaar that he was going to let Knapp purchase the property. According to Richard, neither James nor Emily objected. Richard further testified that Carl, who refused to sign the Agreement, did not want to take part in decisions involving the property. Richard’s after-the-fact testimony, however, that the other Schoenhaars agreed to the assignment does not persuade us that the trial court was wrong to find that Richard did not make a valid assignment. When Richard brought Knapp into the Bank to purchase the property, he presented the Bank with no evidence, either written or otherwise, that either James, Emily, or Carl acquiesced in Knapp’s exercise of the family’s right of first refusal. The trial court’s finding, therefore, that Richard did not assign a valid right of first refusal to Knapp was not against the manifest weight of the evidence.

The judgment of the trial court of Carroll County is affirmed.

Affirmed.

WOODWARD and COLWELL, JJ., concur.

      In its “Memorandum Opinion After Bench Trial,” the trial court stated:
      “As the court previously indicated in ruling on pre-trial motions, the Agreement is vague and uncertain as to whether or not the right to repurchase was assignable, personal to anyone [sic] of the defaulted defendants or only able to be exercised by all of them.”
      This could suggest that the assignability of the right of first refusal was still at issue at the time of the bench trial. However, the following colloquy between the trial court and Knapp’s attorney at the January 8, 1990, hearing on Knapp’s motion for summary judgment clearly shows that the trial court resolved the assignability issue as a matter of law.
      “[KNAPP’S ATTORNEY]: Couple of questions. I guess I hear the Court maybe making a partial summary judgment ruling. I guess I want to limit our issues when we do get to trial so we don’t have to drag everyone and their brother into court. ***
      THE COURT: Okay. Let’s make it simple. Since the agreement is silent as to assignability, the Court will hold that it [sic] was assignable. That sticks, so you don’t have to argue about that. So I find no reference, no personal reference nor any lack of assignability. So that narrows it down ***.”


author: JUSTICE COLWELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK LALIBERTE, Defendant-Appellant.
    Second District
    No. 2 — 91—1040
    Opinion filed June 16, 1993.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Sherry R. Silvern, of Aurora, for appellant.

      Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COLWELL

delivered the opinion of the court:

Defendant, Mark A. Laliberte, was charged on June 8, 1990, with aggravated kidnaping. (Ill. Rev. Stat. 1989, ch. 38, pars. 10 — 1(a)(1), 10 — 2(a)(1).) Following a jury trial in the circuit court of Winnebago County, defendant was found guilty and sentenced to 30 years in prison. Defendant appeals both the conviction and the sentence.

Defendant contends on appeal: (1) defendant’s statements to police regarding the whereabouts of the kidnaping victim should have been suppressed; (2) tape recordings of conversations between defendant and the victim’s father should have been suppressed; and (3) the trial court’s sentence of 30 years’ imprisonment was an abuse of discretion. The State contests defendant’s assertions and further contends that regardless of this court’s disposition of defendant’s two suppression claims, the conviction should be affirmed due to the “overwhelming” nature of the evidence against defendant. We affirm.

On June 7, 1990, at approximately 9:50 a.m., defendant rang the doorbell at 1625 Shiloh Road in Rockford, Illinois, the residence of Dr. David Bartels. Home at the time were the Bartelses’ baby-sitter and their two children, Bradley Bartels, age seven years, and Douglas Bartels, age one year.

Bradley answered the bell. Defendant stood in the front door, holding a bouquet of flowers and a gun. When the baby-sitter came up the basement stairs with Douglas in her arms, the defendant ordered her and Bradley back downstairs. All four went to the basement, where the baby-sitter was handcuffed to a pole, Bradley to a laundry basin. Defendant then took one-year-old Douglas. He asked for Dr. Bartels’ office phone number, rummaged around upstairs until he found it, and left with the baby. Bradley was able to get free and telephoned the police.

Defendant drove the baby in a rented van to a wooded area in the northwest part of Rockford. There he zipped Douglas into a nylon duffel bag and left him in the woods.

Defendant telephoned Dr. Bartels in his office at about 10:15 a.m. and told him he had kidnaped his son. A few moments later, defendant called again and demanded $100,000 in return for the child. He told Dr. Bartels that he would call back at 5 p.m. Defendant returned the van to the rental agency around noon and later visited a hair salon, where he had his hair cut and highlighted.

Defendant called Dr. Bartels’ home at 12:50 p.m. and 5:58 p.m. Those calls were electronically recorded by the FBI with Dr. Bartels’ consent.

Learning that Dr. Bartels had accumulated the money, defendant directed him to three locations to wait for phone calls. Eventually, defendant told Dr. Bartels to leave the money at a mailbox on an island in a shopping center. When Dr. Bartels asked to see Douglas before handing over the money, defendant said that it would not be possible since the baby was out in the woods.

Observed by an FBI surveillance team, defendant picked up the money while on his motorcycle. He led officers on a high-speed chase before he was bumped from his motorcycle by an FBI squad car.

On the ground, surrounded by officers, defendant responded to police demands to reveal the location of the child by saying, “Fuck you, I want a lawyer.” He was handcuffed and placed in a squad car with FBI agent Gary Fuhr. According to defendant, he requested an attorney repeatedly during the ensuing interrogation. After approximately 40 minutes of intense questioning by Fuhr, defendant agreed to direct the police to the woods where he left Douglas that morning. He also revealed that he had worked alone and that he had placed the baby in a duffel bag. Douglas was found alive, lying outside the duffel bag, at about 9:30 p.m.

Later that evening, at the Winnebago County Public Safety Building, defendant signed a written waiver of his Miranda rights and gave Winnebago County sheriff’s police a detailed statement of the planning and execution of the kidnaping.

Defendant filed a motion to suppress all statements made to police from the moment of his apprehension. The motion was denied following a hearing. Defendant received a jury trial. A motion to suppress the tape-recorded telephone conversations with Dr. Bartels was argued and denied. Defendant’s statements made to Agent Fuhr in the backseat of the squad car and the taped telephone conversations were introduced into evidence at trial. The State did not introduce defendant’s later statement given to officers at the Public Safety Building.

Defendant was convicted of aggravated kidnaping for ransom and sentenced to 30 years’ imprisonment. Motions for a new trial and for reconsideration of the sentence were denied.

Defendant asserts on appeal that his statements to Agent Fuhr in the squad car were improperly admitted into evidence. Defendant claims that, by ignoring his demands to see a lawyer and by continuing to question him about the whereabouts of the child, Agent Fuhr violated his fifth amendment protection against self-incrimination. The State urges us to consider the exigent circumstances under which the police were operating and to apply a public safety exception to defendant’s privilege against self-incrimination.

The issue of whether a suspect’s invocation of his right to counsel in an emergency situation need result in the suppression of evidence requires our careful consideration. Fundamental questions arise involving the interpretation of the privilege against compelled self-incrimination as provided for by article I, section 10, of the Illinois Constitution (Ill. Const. 1970, art. I, §10) and the fifth amendment of the United States Constitution (U.S. Const., amend. V).

We are persuaded from our review of Federal constitutional jurisprudence that the fifth amendment’s privilege against compelled self-incrimination provides no constitutional right to counsel independent of the procedural protections of Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. A State case that may directly bear on a question of whether article I, section 10, of the Illinois Constitution provides a State constitutional right to counsel is currently pending in the Illinois Supreme Court. While nevertheless recognizing the validity of certain exceptions to the Miranda rule, specifically the public safety or “rescue doctrine” exceptions, we hesitate to adopt and apply such an exception where, as here, a suspect in custody immediately and unambiguously demands an attorney. Therefore, we conclude, based on current Illinois law, that the trial court erred in denying defendant’s motion to suppress his statements made to Agent Fuhr in the backseat of the squad car. However, we hold that the error is harmless, given the overwhelming nature of the remainder of the evidence against defendant, and affirm the conviction.

The right to counsel is associated with two amendments to the United States Constitution. The sixth amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel.” (U.S. Const., amend. VI.) The right to counsel under the sixth amendment attaches only when “judicial proceedings have been initiated against [the criminal defendant]— ‘whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’ ” (Brewer v. Williams (1977), 430 U.S. 387, 398, 51 L. Ed. 2d 424, 436, 97 S. Ct. 1232, 1239, quoting Kirby v. Illinois (1972), 406 U.S. 682, 689, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877, 1882.) A right to counsel is associated with the fifth amendment through the procedural safeguards provided by Miranda. Because, in the case before us, defendant was not charged with any crime at the time of his initial interrogation, any right to counsel must be analyzed under the fifth amendment.

The fifth amendment to the United States Constitution guarantees that “[n]o person *** shall be compelled in any criminal case to be a witness against himself.” (U.S. Const., amend. V.) In Miranda, the United States Supreme Court extended the fifth amendment privilege against self-incrimination to custodial interrogation.

Among other things, a suspect in a custodial interrogation setting must be warned that he has the right to counsel, either retained or appointed, during questioning. (Miranda, 384 U.S. at 479, 16 L. Ed. 2d at 726, 86 S. Ct. at 1630.) The Miranda Court explained that “the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege.” (Miranda, 384 U.S. at 469, 16 L. Ed. 2d at 721, 86 S. Ct. at 1625.) The primary purpose of counsel is to act as a “protective device[] *** to dispel the compulsion inherent in custodial surroundings.” Miranda, 384 U.S. at 458, 16 L. Ed. 2d at 714, 86 S. Ct. at 1619.

The fifth amendment right to counsel attaches only after the defendant’s invocation. (Miranda, 384 U.S. at 473-74, 16 L. Ed. 2d at 723, 86 S. Ct. at 1627-28.) If a suspect invokes his right to counsel in response to Miranda warnings, all interrogation must cease until an attorney is present. (Miranda, 384 U.S. at 474, 16 L. Ed. 2d at 723, 86 S. Ct. at 1628; see also Minnick v. Mississippi (1990), 498 U.S. 146, 112 L. Ed. 2d 489, 111 S. Ct. 486.) The Court in Miranda thus “fashioned *** the rigid rule that an accused’s request for an attorney is per se an invocation of his Fifth Amendment rights.” Fare v. Michael C. (1979), 442 U.S. 707, 719, 61 L. Ed. 2d 197, 209, 99 S. Ct. 2560, 2569.

Under Miranda, any statement taken from a suspect without the presence of an attorney is inadmissible in the prosecution’s case in chief unless the prosecution demonstrates that the defendant was given Miranda warnings and made a knowing and intelligent waiver of his privilege against self-incrimination. (Miranda, 384 U.S. at 475-77, 16 L. Ed. 2d at 724-25, 86 S. Ct. at 1628-29.) In Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, the Court went a step further, holding that once an accused has expressed his desire to deal with the police only through counsel, the State must establish both that it was the accused who initiated further discussions with the police and that he knowingly and intelligently waived the right he had invoked. Edwards, 451 U.S. at 484-85, 68 L. Ed. 2d at 386, 101 S. Ct. at 1884-85.

This Miranda “exclusionary rule” is intended to safeguard a suspect’s rights under the fifth amendment and applies even if the defendant’s constitutional rights under the fifth amendment were not violated. (See Oregon v. Elstad (1985), 470 U.S. 298, 84 L. Ed. 2d 222, 105 S. Ct. 1285.) The supreme court has explained that the fifth amendment bars only the use of statements which are compelled and that the Miranda exclusionary rule extends further than the fifth amendment’s protection against involuntary statements. (People v. Winsett (1992), 153 Ill. 2d 335, 352.) Miranda bars the prosecution from using a statement taken in violation of Miranda rules in its case in chief, even if that statement was not compelled within the meaning of the fifth amendment. See Oregon v. Elstad (1985), 470 U.S. 298, 84 L. Ed. 2d 222, 105 S. Ct. 1285.

The Court has drawn a distinction between police conduct that infringes directly upon an accused’s constitutional rights and conduct that violates only the prophylactic rules developed to protect those rights. (Michigan v. Tucker (1974), 417 U.S. 433, 41 L. Ed. 2d 182, 94 S. Ct. 2357; Oregon v. Elstad (1985), 470 U.S. 298, 84 L. Ed. 2d 222, 105 S. Ct. 1285.) The “fruit” of a statement obtained in violation of a constitutional right, such as the fourth amendment right against unlawful search and seizure, must be suppressed (Wong Son v. United States (1963), 371 U.S. 471, 484-85, 9 L. Ed. 2d 441, 453, 83 S. Ct. 407, 415-16), but the “fruit” of a statement obtained in violation of a prophylactic rule is not automatically subject to exclusion (Michigan v. Tucker (1974), 417 U.S. 433, 41 L. Ed. 2d 182, 94 S. Ct. 2357; Oregon v. Elstad (1985), 470 U.S. 298, 84 L. Ed. 2d 222, 105 S. Ct. 1285). Thus, where the police violate the prophylactic rules developed in Miranda, but do not actually violate the defendant’s fifth amendment privilege against self-incrimination, the fruit of the poisonous tree doctrine will not be applied to exclude physical or testimonial evidence derived from the defendant’s statements.

The fifth amendment prohibits only the use of compelled or involuntary statements. Miranda and its progeny create an irrebutable presumption that the defendant’s statement is compelled whenever the police question an unrepresented defendant, after that defendant invokes his right to counsel. (Miranda, 384 U.S. at 473-74, 16 L. Ed. 2d at 723, 86 S. Ct. at 1627-28; see Fare v. Michael C. (1979), 442 U.S. 707, 718, 61 L. Ed. 2d 197, 208, 99 S. Ct. 2560, 2568.) There are exceptions to the presumption of irrebutability. A suspect not in custody is, of course, not covered by Miranda. The Court has also held that Miranda violations do not preclude the use of elicited statements for impeachment purposes, provided that the statements are not otherwise involuntary. (Harris v. New York (1971), 401 U.S. 222, 224-25, 28 L. Ed. 2d 1, 4, 91 S. Ct. 643, 645.) Similarly, noncoerced statements are admissible under the public safety exception established in New York v. Quarles (1984), 467 U.S. 649, 81 L. Ed. 2d 550, 104 S. Ct. 2626, which we discuss below.

In general, then, Miranda rights are triggered by custodial interrogation. (Miranda v. Arizona (1966), 384 U.S. 436, 444-45, 16 L. Ed. 2d 694, 706-07, 86 S. Ct. 1602, 1612-13.) Statements made during a custodial interrogation cannot be admitted into evidence unless the suspect is given the Miranda warning and intelligently waives the right against self-incrimination. If an accused invokes the right to counsel, he is not subject to further interrogation until counsel is made available, unless he validly waives the earlier request for counsel. Edwards v. Arizona (1981), 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 386, 101 S. Ct. 1880, 1884-85.

However, the United States Supreme Court has enunciated limited exceptions to the Miranda requirement. (New York v. Quarles (1984), 467 U.S. 649, 81 L. Ed. 2d 550, 104 S. Ct. 2626.) Thus, police faced with an immediate threat to public safety may ask questions necessary to secure the safety of the public or themselves prior to issuing a Miranda warning. (Quarles, 467 U.S. at 655-57, 81 L. Ed. 2d at 556-58, 104 S. Ct. at 2631-32.) In the case before us, the State urges us to apply the Quarles public safety exception.

In Quarles, police officers chased a suspected rapist who was armed with a gun through a grocery store. When the officers apprehended the man, he did not have a gun. An officer frisked the man, found an empty shoulder holster, and asked him where the gun was. On the basis of his answer, the police retrieved the gun from a carton nearby, then arrested the man and read him the Miranda warning. (Quarles, 467 U.S. at 651-52, 81 L. Ed. 2d at 554-55, 104 S. Ct. at 2628-29.) The Quarles Court reasoned that requiring the police to read the Miranda warning before the gun was discovered might have deterred the man from responding and put the public safety at risk. (Quarles, 467 U.S. at 656, 81 L. Ed. at 557, 104 S. Ct. at 2631.) “[T]he need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.” Quarles, 467 U.S. at 657, 81 L. Ed. 2d at 558, 104 S. Ct. at 2632.

We agree with the State that the facts in the case before us are, if anything, even more compelling than those in Quarles. A baby was taken from his parents’ home by an armed abductor. The kidnaper threatened violence on the phone: “[y]ou better tell [the police] to get the hell out of there or you’ll never see your son again.” Police knew that as of 6 p.m. Douglas had not been fed or changed. Some two hours later they learned that he was “in the woods.” When they took the defendant into custody, it was growing dark and beginning to rain.

The State concedes that defendant, handcuffed in the backseat of the squad car, was in custody during Agent Fuhr’s questioning. Defendant’s invocation of the right to counsel was unambiguous. His statements to Agent Fuhr admitting knowledge of the kidnaping and of the victim’s whereabouts were incriminating. The trial court framed the controlling issue as whether “the life at stake here overrides the rights at stake.” The trial court determined that the exigency of saving Douglas’ life took precedence over defendant’s right to remain silent. Citing the Quarles public safety exception, the trial court denied defendant’s motion to suppress the incriminating statements.

Before ruling on the written order, the trial court appeared to vacillate between two rationales: the public safety exception of Quarles, on the one hand, and a “private safety exception” or “rescue doctrine,” on the other. The confusion is understandable, as both theories apply to emergency situations involving the public safety and are, at bottom, almost interchangeable.

Both the public safety exception and the “rescue doctrine/private safety exception” are based upon the concept that police need not choose between losing the opportunity either to protect the public or to save the life of one individual and losing the right to obtain evidence from a suspect in custody. (Quarles, 467 U.S. at 657-58, 81. L. Ed. 2d at 558, 104 S. Ct. at 2632; Wisconsin v. Camacho (1992), 170 Wis. 2d 53, 71, 487 N.W.2d 67, 75.) The Quarles Court weighed the danger to the public against the cost of losing evidence. Application of the “private safety exception” or “rescue doctrine” weighs the possible imminent loss of a known person’s life against that cost.

The public safety exception has been acknowledged by this court but never applied. (See, e.g., People v. Nau (1988), 167 Ill. App. 3d 338 (where a motion to suppress statements was allowed, the State waived the public safety exception argument by not raising it below); People v. Roundtree (1985), 135 Ill. App. 3d 1075 (where there was no threat to the public safety in fact and none perceived by the officer who secured control of the scene, the public safety exception had no application).) The “private safety exception” or “rescue doctrine” has been neither recognized nor applied in Illinois.

The State believes that a safety exception, however labelled, should apply to the facts before us, asserting that the Quarles decision, forged to protect the public, must extend equally to known individuals and the public at large. We agree in principle with the analysis of the State and the trial court but decline at this time to establish new precedent for the reasons stated below.

Several States have recognized a “private safety exception” or “rescue doctrine.” (See, e.g., People v. Willis (1980), 104 Cal. App. 3d 433, 163 Cal. Rptr. 718; State v. Provost (Minn. 1992), 490 N.W.2d 93; State v. Kunkel (1987), 137 Wis. 2d 172, 404 N.W.2d 69, cert. denied (1987), 484 U.S. 929, 98 L. Ed. 2d 256, 108 S. Ct. 297.) Faced with similar facts, the Wisconsin Court of Appeals adopted the “rescue doctrine” as a limited “companion” exception to the public safety exception. (State v. Kunkel (1987), 137 Wis. 2d 172, 404 N.W.2d 69.) In Kunkel, a nine-month-old infant was reported missing. Police took the baby’s father into custody and read him the Miranda warning. The father invoked his right to counsel by saying that he was unemployed and could not afford a lawyer. Nevertheless, the police proceeded to question him about the whereabouts of his child. Eventually, he led the police to the infant’s grave. Kunkel, 137 Wis. 2d at 178-80, 404 N.W.2d at 71-72.

The Kunkel court applied the “rescue doctrine” as developed in California. A California court set out the elements of an emergency sufficient to excuse the Miranda requirements: “1. [ujrgency of need in that no other course of action promises relief; 2. [t]he possibility of saving human life by rescuing a person whose life is in danger; 3. [rjescue as the primary purpose and motive of the interrogators.”-' People v. Riddle (1978), 83 Cal. App. 3d 563, 576, 148 Cal. Rptr. 170, 177, cert. denied (1979), 440 U.S. 937, 59 L. Ed. 2d 496, 99 S. Ct. 1283.

The Kunkel court found that the trial court’s factual findings fulfilled the elements of the “rescue doctrine.” Urgency of need existed because the child, missing since morning, was nine months old, and police conversations with his father did not occur until after midnight. Because the father, who was in charge of the infant that day, was the only source for the information the police sought, interrogation was the only course of action promising relief. Obtaining information from the father regarding the whereabouts of the child created the possibility of saving a human life. The court found that the police perceived the existence of a genuine emergency and a concern that the child might be alive and in need of assistance. Kunkel, 137 Wis. 2d at 184, 404 N.W.2d at 75.

Applying a similar analysis, the facts before us appear to satisfy the three elements of the “rescue doctrine.” Douglas was one year old and had been missing for nearly 11 hours. Urgency of need existed. Defendant was the only source for the information the police sought, making interrogation the only course of action promising relief. Information from defendant might save Douglas’ life. Agent Fuhr testified to the urgency of his concern for Douglas’ safety. He further testified that his questions regarding how long Douglas had been in the woods were designed to determine whether a medical team should be alerted. Similarly, questions about possible accomplices sprang from his concern for the safety of the search party.

Once the information necessary to finding Douglas was obtained, the officers ceased all questioning of the defendant. The threat to Douglas’ life was neutralized, and the basis for an exception no longer existed. The Quarles Court posited that “in each case [the public safety exception] will be circumscribed by the exigency which justifies it.” (Quarles, 467 U.S. at 658, 81 L. Ed. 2d at 559, 104 S. Ct. at 2633.) Questioning resumed only after the defendant had given a written waiver of his Miranda rights at the Winnebago County Public Safety Building.

The “rescue doctrine” is more limited than the public safety exception in that it specifies an interrogator’s purpose and motivation. Questioning must be driven by the desire to rescue. The Quarles Court did not place strictures on the subjective motivation of the questioner: “the availability of [the public safety] exception does not depend upon the motivation of the individual officers involved.” (Quarles, 467 U.S. at 656, 81 L. Ed. 2d at 557, 104 S. Ct. at 2631.) The case at hand conforms to both the public safety exception and the more limiting requirement of the “rescue doctrine.”

Kunkel, of course, is not binding on this court. However, we are persuaded by the Kunkel decision that the companion to the public safety exception must be a private safety exception, whether labelled as such or as a “rescue doctrine.” (Kunkel, 137 Wis. 2d at 189, 404 N.W.2d at 76.) The Quarles Court only theorized about the risk a missing gun might present to the public, suggesting that an accomplice might make use of it or that, later, a customer or an employee might come upon it. (Quarles, 467 U.S. at 657, 81 L. Ed. 2d at 558, 104 S. Ct. at 2632.) The danger in the present case was less hypothetical. A specific member of the public was in immediate danger of losing his life.

“If on the facts before it, the Quarles court could conclude that the need for answers to protect the public safety outweighed the need for Miranda warnings, then surely, on the facts before us, it is reasonable to conclude that the need for answers to protect the life of one person outweighs the same need.” Kunkel, 137 Wis. 2d at 189, 404 N.W.2d at 76.

However persuasive we might find this analysis to be, we are constrained by several factors from adopting and applying an exception to the Miranda rule in Illinois at this time.

The record below reveals that, unlike the suspect in Quarles, defendant in the instant case immediately and unambiguously invoked his right to counsel. The issue in Quarles was whether the police were required to give the defendant Miranda warnings before neutralizing a dangerous situation. The case before us raises a preliminary issue: whether there exists, independent of the Miranda prophylactic rules, an invocable fifth amendment right to counsel. We believe this preliminary issue must be resolved in order to determine whether an exception is being taken to a constitutional right or a prophylactic procedural rule.

We have found no Federal or Illinois Supreme Court cases providing determinative guidance on this question. As our above review of Federal constitutional law indicates, we do not think the United States Constitution affords a fifth amendment right to counsel independent of the Miranda procedural rules. The Illinois Constitution provides that “[n]o person shall be compelled in a criminal case to give evidence against himself.” (Ill. Const. 1970, art. I, §10.) The Illinois Supreme Court has emphasized analysis of both Federal and State constitutional law in Miranda cases. See, e.g., People v. Scott (1992), 148 Ill. 2d 479 (confessions must be voluntary according to both Federal and State law principles); People v. Bernasco (1990), 138 Ill. 2d 349 (same); People v. Brown (1990), 136 Ill. 2d 116 (both Federal and State law applied to determine whether an interrogation was custodial).

An appellate court case currently pending before the supreme court focuses the issue by distinguishing between State and Federal constitutional guarantees. (See People v. McCauley (1992), 228 Ill. App. 3d 893.) In McCauley, police denied a suspect access to an attorney retained by the suspect’s family after the attorney identified himself and requested access. The State urged the court to follow the United States Supreme Court’s decision in Moran v. Burbine (1986), 475 U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135, which held that the police did not violate the defendant’s fifth amendment rights by failing to inform the defendant that his family had hired an attorney who wanted to see him. The Appellate Court, First District, found that Moran was not controlling and held that the ensuing incommunicado interrogation violated the defendant’s self-incrimination protection under the Illinois Constitution. The court premised its decision on

“the fact that a State constitution may be interpreted to give its citizens greater degrees of constitutional protection than the Federal Constitution. [Citations.] The lockstep doctrine for interpreting Illinois constitutional provisions that have parallels in the U.S. Constitution reduces the Illinois Constitution of 1970 to a supernumerary document lacking any real constitutional dimension. Moreover, *** it is plain that the lockstep doctrine [may] exact[ ] too heavy a toll on the protections embodied in the Illinois Constitution of 1970. We therefore reject the lockstep doctrine.” McCauley, 228 Ill. App. 3d at 896.

The McCauley decision throws into question in Illinois the proposition that no right to counsel exists independent of the Miranda procedural rules. In the instant case, if it were to be determined that article I, section 10, affords greater protection of a defendant’s privilege against self-incrimination than the fifth amendment — that is, if it affords an absolute right to counsel upon invocation of that right — the evidence obtained during defendant’s interrogation in the squad car would have to be suppressed. The Quarles decision permits an exception only to the Miranda procedural requirements, not to the fifth amendment itself. (Quarles, 467 U.S. at 654-58, 81 L. Ed. 2d at 555-58, 104 S. Ct. at 2630-33.) If, however, the Illinois Constitution were deemed to afford the same protection as the Federal Constitution — that is, if it affords a right to counsel only by way of the Miranda procedural safeguards — then an exception to those safeguards would be viable. If the statements of the defendant passed the traditional fifth amendment voluntariness test, the evidence would be admissible.

We need not resolve this constitutional issue in order to dispose of the immediate question before us: whether the trial court properly denied defendant’s motion to suppress the statements made to Agent Fuhr in the backseat of the squad car. Since we decline to apply the Quarles public safety exception at this time, we find that the trial court erred in admitting those statements, but we hold that the error was harmless due to the overwhelming nature of the remaining evidence against defendant.

Before a constitutional error can be held harmless, the court must be able to declare a belief that it was harmless to the defendant beyond a reasonable doubt. (Chapman v. California (1967), 386 U.S. 18, 23-24, 17 L. Ed. 2d 705, 710-11, 87 S. Ct. 824, 827-28; People v. Griffin (1983), 117 Ill. App. 3d 177, 183.) The United States Supreme Court has extended the Chapman harmless-error rule to the erroneous admission of involuntary confessions. (Arizona v. Fulminante (1991), 499 U.S. 279, 307-12, 113 L. Ed. 2d 302, 329-33, 111 S. Ct. 1246, 1263-66; People v. Mitchell (1992), 152 Ill. 2d 274, 327; People v. Carlson (1992), 224 Ill. App. 3d 1034, 1041; see also People v. Toran (1991), 219 Ill. App. 3d 991, 995 (admission of an involuntary statement at a probation revocation hearing may also be harmless error).) The admission of such a confession is a “trial error,” which occurs during a case’s presentation to the trier of fact and may, therefore, be quantitatively assessed in the context of other evidence presented in order to determine whether the evidence’s admission was harmless beyond a reasonable doubt. Fulminante, 499 U.S. at 310-11, 113 L. Ed. 2d at 331-32, 111 S. Ct. at 1265; see also People v. Patterson (1992), 154 Ill. 2d 414, 436 (contrasting preponderance of the evidence standard of proof for voluntariness with beyond a reasonable doubt standard for guilt in criminal cases); People v. Traina (1992), 230 Ill. App. 3d 149, 154.

Because the State raises harmless error for the first time on review, defendant urges that the argument should be considered waived. Defendant misconstrues the waiver rule. “It is an accepted principle of law that an issue not presented to or considered by the trial court cannot be raised by the appellant for the first time on review.” (Emphasis added.) (People v. McAdrian (1972), 52 Ill. 2d 250, 253.) An appellant’s scope of review is limited by his assignment of errors, but an appellee “may sustain the lower court decree by any argument based upon issues appearing in the record.” (In re Estate of Leichtenberg (1956), 7 Ill. 2d 545, 549.) The issue of the propriety of denying defendant’s motion to suppress is well documented in the record, and an argument correlating the effect of that suppression with the remainder of the evidence is permissible.

Moreover, the purpose of the waiver rule does not pertain here. The rationale for the waiver rule is that a theory not urged before the trial court will often cause the opposing party to refrain from offering evidence which could have a positive bearing on the disposition of the case. (People v. McAdrian, 52 Ill. 2d at 254; People v. Nau (1988), 167 Ill. App. 3d 338, 349-50.) In the case before us, it is difficult to see how defendant could meaningfully argue that incriminating evidence, already made available to the jury, does not matter because the remaining evidence against defendant is not quantitatively overwhelming.

One test for harmless error is to examine the other evidence in the case to see if overwhelming evidence supports the conviction. (Milton v. Wainwright (1972), 407 U.S. 371, 33 L. Ed. 2d 1, 92 S. Ct. 2174; People v. Wilkerson (1981), 87 Ill. 2d 151, 157.) Defendant was implicated in Douglas’ kidnaping by many significant factors. First, the voice on the tape recordings made by the FBI of the two conversations between the kidnaper and Douglas’ father, the admissibility of which is discussed below, was identified by Dr. Bartels as the voice of the caller who phoned him at his office to tell the doctor he had kidnaped his son. It was also the voice Dr. Bartels heard directing him where to deliver the ransom money. Agent Fuhr, who spoke face-to-face with defendant approximately two hours after listening in on the recorded calls, also identified defendant’s voice as that of the caller.

The voice on the phone instructed Dr. Bartels to place a brown paper bag containing $100,000 under a mailbox. Two to three minutes after the bag was left, FBI agents observed the same motorcycle rider they had seen in the vicinity of the phone booths to which Dr. Bartels had been directed pick up the bag. The agents followed the motorcycle and demanded that it stop; instead, it accelerated, initiating a high-speed chase.

When defendant was apprehended with the money, a search of his wallet disclosed a receipt from a car rental agency, upon which were written telephone numbers of two of the public phones to which Dr. Bartels had been sent. Investigation established that defendant had rented a van from the rental agency in his own name, secured by his driver’s license and credit card. The interior of the van had not been cleaned, and a fibers expert testified that fibers found within the van showed no differences from the fibers of the outfit worn by the victim at the time of the kidnaping. It was also established at trial that defendant had altered his appearance by cutting and highlighting his hair following the time the victim was abducted and before the ransom pickup.

Defendant was identified by the Bartelses’ baby-sitter as the man who took Douglas from their home. He was identified by two workers at the car rental agency as the man who rented and returned the van. He was identified by the beauty salon worker as the man whose hair she cut and highlighted the afternoon of the kidnaping. He was identified by FBI agents as the man who had ridden the motorcycle and picked up the ransom money. Defendant presented no countervailing evidence at trial.

We conclude that, while the trial court erred in denying defendant’s first motion to suppress, the error was harmless in light of the weight of all the evidence.

The second issue raised on appeal is whether the trial court erred in refusing to suppress the tape recordings of defendant’s telephone conversations with Dr. Bartels. Defendant argues that, even though the investigation was a joint Federal and State undertaking and, therefore, Federal eavesdropping law controls, the tapes should have been suppressed because they were not made in compliance with Federal law. We disagree.

The use of an eavesdropping device to record all or part of any conversation is prohibited by the Illinois eavesdropping statute unless all parties to the conversation consent or unless one party consents and prior judicial authorization is obtained in accordance with statutory directives. (Ill. Rev. Stat. 1989, ch. 38, par. 14 — 2.) The Federal eavesdropping statute (title III of the Omnibus Crime Control and Safe Streets Act of 1968) (18 U.S.C. §2510 et seq. (1988)) is less stringent. Under Federal law, only one party is required to give prior consent to the eavesdrop.

“It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.” 18 U.S.C. §2511(2)(c) (1988).

When Federal and State agents are engaged in a joint investigatory enterprise, noncompliance with the Illinois eavesdropping statute does not require suppression of electronically obtained evidence so long as Federal directives are followed and in the absence of collusion among the authorities to evade the State law. People v. Mays (1989), 188 Ill. App. 3d 974; People v. Winchell (1986), 140 Ill. App. 3d 244; People v. Manna (1981), 96 Ill. App. 3d 506.

Since the kidnaping investigation at hand was a joint Federal and State enterprise and no issue of collusion was raised below, the only question to be answered is whether Federal directives were followed.

Defendant does not dispute that Dr. Bartels consented to the interception. Rather, defendant bases his objection to the eavesdrop on a combined reading of two other provisions of the Federal statute. Defendant maintains that these provisions apply to the circumstances of the present eavesdrop and, therefore, after-the-fact judicial authorization and notice to the party overheard were required. We find his reading of the statute’s provisions to be erroneous.

Defendant points to 18 U.S.C. §§2518(7)(a) and (7)(b) (1988) to support his assertion that an application for judicial authorization should have been filed within 48 hours of the interception. Section 2518(7) provides in pertinent part:

“(7) Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, *** or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that—
(a) an emergency situation exists with respect to conspiratorial activities threatening the national security interest or to conspiratorial activities characteristic of organized crime that requires a wire or oral communication to be intercepted before an order authorizing such interception can with due diligence be obtained, and
(b) there are grounds upon which an order could be entered under this chapter to authorize such interception,
may intercept such wire or oral communication if an application for an order approving the interception is made in accordance with this section within forty-eight hours after the interception has occurred, or begins to occur.” (Emphasis added.) (18 U.S.C. §2518(7) (1988).)

Clearly subsections (7)(a) and (7)(b) are meant to be read in conjunction with one another. Subsection (a) provides only for emergency situations involving conspiratorial activities threatening national security or characteristic of organized crime. The kidnaping of Dr. Bartels’ baby does not fall into either of those categories. Thus, judicial authority was not required.

To support his assertion that, as the party overheard, he was required to receive notice of the interception within 90 days, defendant looks to 18 U.S.C. §2518(8)(d) (1988), which reads in pertinent part:

“(d) Within a reasonable time but not later than ninety days after the filing of an application for an order of approval under section 2518(7)(b) which is denied or the termination of the period of an order or extensions thereof, the issuing or denying judge shall cause to be served, on the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice, an inventory ***.” (Emphasis added.) (18 U.S.C. §2518(8)(d) (1988).)

Subsection (8)(d) calls for 90-day notice only after an authorization application has been filed under section 2518(7)(b). Since subsection (7)(b) must be read in conjunction with subsection (7)(a), and subsection (7)(a) does not apply to these facts, subsection (8)(d) is equally inapplicable. Therefore, notice to the defendant as the party overheard was not required.

Clearly, neither judicial authority nor notice was required under Federal law where Dr. Bartels consented to the eavesdrop. The trial court’s denial of the motion to suppress the tapes is affirmed.

The final issue to be considered on appeal is whether the trial court abused its discretion in sentencing defendant to 30 years’ imprisonment. Defendant claims that the sentence is excessive. Specifically, defendant maintains that, because the trial court in imposing sentence did not mention factors in mitigation or the defendant’s rehabilitative potential, the trial court failed to consider them. We disagree and affirm the trial court’s sentence.

Aggravated kidnaping for ransom is a Class X felony (Ill. Rev. Stat. 1991, ch. 38, par. 10 — 2(b)(1)). The Unified Code of Corrections (Code) sets the sentence of imprisonment for a Class X felony at not less than 6 years and not more than 30 years (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8—1(3)). In addition, the Code prescribes a mandatory supervised release term of three years for a Class X felony. (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8—1(d)(1).) Defendant’s sentence of 30 years’ imprisonment plus 3 years’ mandatory supervised release falls within the statutory guidelines.

The Code requires that a sentencing hearing be held at which the court shall consider, among other factors, evidence and information offered by the parties in aggravation and mitigation. (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 4—1(a)(4).) The Illinois Constitution, as well as the Code, requires that the objective of restoring an offender to useful citizenship be considered along with the seriousness of the offense. Ill. Const. 1970, art. I, §11; Ill. Rev. Stat. 1991, ch. 38, pars. 1001 — 1—2(a), (d).

Where evidence is offered in mitigation and before the trial court, the sentencing judge will be presumed to have considered it unless there is some statement in the record, aside from the sentence imposed, which would tend to indicate otherwise. (People v. Foreman (1987), 153 Ill. App. 3d 346, 358; People v. Goodman (1983), 116 Ill. App. 3d 125, 127-28.) This is especially true where, as here, a review of the record establishes that defense counsel did, in fact, argue factors in mitigation, including defendant’s rehabilitative potential. (Foreman, 153 Ill. App. 3d at 358.) Although the trial court is required to consider a defendant’s potential for rehabilitation, it is not required to give greater weight to that factor than to the seriousness of the offense. People v. McGee (1991), 222 Ill. App. 3d 92, 98; People v. Mack (1985), 133 Ill. App. 3d 788, 793.

Here, defense counsel presented several factors in mitigation, namely, information about defendant’s military record, employment history, prior offenses, and the likelihood of a recurrence. Counsel also presented factors in support of defendant’s rehabilitative potential, namely, information regarding defendant’s educational history, family, professional motivation, intelligence, and age. Pertinent documents were included in the presentence report, and defense counsel argued both mitigating factors and rehabilitative potential at the sentencing hearing and in defendant’s motion for reconsideration of the sentence.

Defendant acknowledges that the trial court stated clearly the factors considered in fashioning the sentence. Presumably, defendant’s objection is that the trial court made no mention of mitigating factors or rehabilitative potential. Where a sentencing judge articulates factors in aggravation, as in this case, a court of review may assume the trial judge properly considered factors in mitigation. (People v. Bergman (1984), 121 Ill. App. 3d 100, 109.) Although we encourage greater elaboration of a trial court’s reasoning than is provided in the present case, we acknowledge that the trial court is not required to detail for the record the process by which it concluded that the penalty imposed was appropriate. Bergman, 121 Ill. App. 3d at 109; People v. Reynolds (1983), 116 Ill. App. 3d 328, 332.

The trial court stated that the reasons for imposing sentence in this case were based on an independent assessment of the evidence received at the trial, consideration of the presentence report, the arguments of counsel, the defendant’s statement, the victim impact statement, the purpose of the Code, and factors in aggravation. The court found that serious harm was threatened, that the defendant had a history of delinquency, that the defendant was eligible for an extended term due to the age of the victim, that a prison sentence was not only mandated but necessary to protect the public and the public interest, and that the sentence to be imposed was necessary to deter others from committing the same crime.

It has been stated repeatedly that a trial judge has wide discretion in sentencing a criminal defendant, in order to permit reasoned judgments as to the penalty appropriate to the particular circumstances of each case. (People v. La Pointe (1981), 88 Ill. 2d 482, 492.) We find that the trial court did not abuse its discretion here and, accordingly, affirm the sentence.

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

Affirmed.

McLAREN and BOWMAN, JJ., concur.