author: JUSTICE McMORROW

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JESUS VELASCO, Defendant-Appellant.
    First District (4th Division)
    No. 1—86—0918
    Opinion filed June 8, 1989.
    — Rehearing denied July 13, 1989.

      Paul P. Biebel, Jr., Public Defender, of Chicago (James N. Perlman, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Lynda Peters, and Gail Feiger, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McMORROW

delivered the opinion of the court:

Following a jury trial conducted in his absence, defendant was found not guilty of murder, but guilty of two counts of attempted murder. He was sentenced to concurrent terms of 30 years on the attempted murder convictions. On appeal, defendant contends that (1) he was improperly tried in absentia; (2) plain error occurred when the jury was incorrectly instructed on the mental state necessary to commit attempted murder; (3) he did not receive effective assistance of counsel; and (4) improper remarks by the trial judge constituted reversible error.

At trial, Able Vega (Able) testified that at approximately 8:30 p.m. on September 29, 1984, he, Enrique Vega (Enrique), Albino Correa (Albino) and Ruben Martinez (Ruben) drove in Ruben’s car from their apartment to a wedding reception in a hall near 35th Street and Western Avenue in Chicago. They left the reception at midnight and walked to the nearby vacant lot where Ruben’s car was parked. When they reached the car, Ruben was next to the driver’s door, Able was beside him, Albino was next to the passenger’s door and Enrique was near the rear of the passenger’s side of the car. As Ruben was unlocking the door, three men, followed by at least another four or five men, none of whom he had seen at the reception, approached them and said “26 Ambrose,” which Able understood to mean that the men were members of the “Ambrose” gang from 26th Street. Someone then said, “You are Latin Kings,” a rival street gang. Able, who formerly belonged to a different gang, responded, “We are not Latin Kings.” The men nevertheless began to punch him and his companions. Two or three men struck him in the face several times but he did not fight back and could not see what was happening on the other side of the car. He then heard a few shots from the other side of the car, and as his assailants ran, he looked back and saw a man coming around the rear of the car with a gun in his hand. He identified a lineup photograph of defendant as that man. Defendant was four to five feet away when he extended his arm, pointed the gun toward him and Ruben, who was standing next to him, and fired one “hard shot” which struck Ruben in the lower left abdomen. Defendant then ran into an alley. When Able looked toward the other side of the car, he saw Albino holding his arm and Enrique lying face-up on the ground. He was unable to lift Enrique into the car because he was too heavy. Shortly thereafter, an ambulance arrived and transported Enrique, Ruben and Albino to the hospital; he accompanied the police to the police station. The following evening he viewed a lineup and identified defendant as the gunman and another man as one of the other assailants.

On cross-examination, Able stated that he and his companions did not know the persons whose wedding reception it was and had not been invited to it; they heard about it from friends and simply walked in.

Albino’s testimony regarding the events prior to the shooting was substantially the same as Abie’s. Albino further testified that one of the men who accused them of being Latin Kings then stated that he and his group were “King Killers” and displayed the “[Latin] King Killers” hand signal. Although he and his friends denied being members of any gang, the men began punching Able. Meanwhile, 8 to 10 more men approached and surrounded the car. One of them began punching him and said “we are Ambrose of 26th and don’t forget that.” He heard three shots from his left side toward the rear of the car, whereupon his assailant stopped hitting him. He looked toward Enrique, who was standing near the rear of the car surrounded by at least six men and saw a hand six or seven feet away from him reach out with a small, dark gun and fire a shot, at which point most of the men began running away. The man with the gun, however, went around the rear of the car toward the driver’s side. Albino ducked down alongside the car and then heard one last shot. After the crowd had dispersed, he stood up and saw Enrique lying on the ground. He then realized that he had also been shot. When the police arrived, they took him to a hospital where he underwent surgery for injuries from the bullet, which passed through his left arm and entered the left side of his chest.

On cross-examination, Albino stated that he did not have anything to drink before or at the wedding reception, and although the men who initiated the fight had also been at the reception, no one bothered or threatened him or his friends while they were there. He was unable to describe the gunman’s face but recalled that he had a heavy build, was approximately 20 years old and 5 feet 9 inches or 5 feet 10 inches tall.

Ruben’s testimony was also essentially the same as Abie’s and Albino’s regarding the events that occurred and the description of the gunman. Ruben further testified that the gunman aimed the revolver and shot him in the stomach from a distance of four or five feet; and he identified defendant from a lineup photograph as the man who shot him. Ruben was hospitalized for two or three weeks during which time he underwent two surgical procedures necessitated by the bullet wounds.

Assistant Medical Examiner Yuksel Konakci testified that his post-mortem examination of Enrique revealed abrasions on the face and arms resulting from blunt trauma consistent with being punched. He concluded that Enrique died from wounds caused by a bullet which entered the left chest area and lacerated the stomach, liver, right lung and heart.

Officer Dennis Maderak, a gang crimes specialist, testified that he and his partner were riding in their squad car near 35th Street and Western Avenue when he saw a bottle being thrown and 20 to 25 people running toward a vacant lot. He then heard four shots and saw people running back toward the reception hall. They drove the squad car across the street, and as they were questioning some individuals whose car they had stopped, they saw Martin Velasco, defendant’s brother, driving away in a car they recognized to be defendant’s. They stopped him for questioning but were interrupted by an unidentified man who said that a man with a gun was hiding in some nearby bushes. When they reached the car, he saw two men on the ground bleeding and another man leaning against the car, bleeding from his mouth. They did not see anyone with a gun. The following evening, defendant was found hiding in a friend’s apartment and arrested.

Detective Thomas O’Connor testified that the following day, he recovered a bluesteel, .32-caliber revolver with a black plastic handle from an alley approximately 50 yards from the scene of the shooting. It contained two bullets and four expended cartridges. When defendant was brought in for questioning, he at first denied any involvement in the shooting, stating that he was at his girlfriend’s home at the time. However, later that evening, after being advised of conflicts between his alibi and statements made by his girlfriend and her mother, he admitted the shooting and agreed to give a written statement to an assistant State’s Attorney. He and some fellow officers then gave defendant some pizza and a soft drink in a cup and left the room. A few minutes later, they heard a thumping noise and, upon entering the room, saw that defendant, who was lying on the floor, had broken the glass cup and slit his left wrist with a piece of the handle. Defendant had also written messages on the wall and on a napkin stating, in substance, that he was ‘‘sorry” and wished “it never happened.” They transported defendant to the hospital for treatment and then, at about 10 p.m., returned him to the police station where he made a court-reported statement to Assistant State’s Attorney David Stoioff.

Stoioff testified that defendant was coherent and said he felt fine prior to making his statement. In that statement, which Stoioff read to the jury, defendant said that on the evening of the shooting, he had taken enough PCP “to get blown” and also smoked some marijuana. The combination of the drugs caused him to feel as if he were “moonwalking.” He left his girlfriend’s house at about 11:30 p.m. and drove to the wedding reception to find his brother, Martin, and drive him home because he knew, as a former gang member, that trouble sometimes erupted between invited and uninvited members of rival gangs at such events. When he arrived at the hall at about midnight, he noticed a crowd of people shoving, pushing and punching each other. He left his car running and double-parked on the street and ran toward the fight to look for Martin. As he was running, someone wearing a blue sweater thrust a small dark gun into his stomach area in a football-passing gesture. He juggled the gun as he continued to run but eventually gained control of it in his right hand. He considered putting the gun into his pocket but decided to carry it “in case something happened.” He pushed through the crowd to the car and saw a few people standing against it. The person next to the driver’s door then reached into his pocket. Not knowing whether the man was reaching for a key or a weapon, he said he didn’t take any chances; he pointed the gun in the man’s direction from about six feet away and started shooting “low down and level” in a “crazy wild,” horizontal, swinging motion. He intended only to scare the man away, not to hurt him. He believed that he had fired only two shots and recalled hearing another shot from somewhere in the area. He did not see the bullet(s) hit the man nor did he see anyone fall. The other men were still standing side by side in the center of a crowd on the other side of the car. Suddenly, everyone began to run. He stood there for a moment in shock and then ran into an alley where he dropped the gun. As he was running, he saw some men holding bats coming toward him in a white Mustang, but a friend, Carlos; picked him up before he was “jumped” by the men.

Stoioff also identified photographs of the apology defendant had written on the wall as well as the message on the napkin, which read, “I am sorry for what I did. I really did not mean to do it. Believe me, I feel hurt. Thank you for everything, for trying to help. Tell my girlfriend I love her and son [sic].”

Martin Velasco testified for the defense that he arrived at the wedding reception with some friends and fellow members of the “Ambrose 26” gang, between 10 and 10:30 p.m. and left at about midnight. Four men, whom he did not know, and a group of Ambrose 26 members also left the reception and walked toward the vacant lot. He then noticed defendant’s car running and double-parked outside the hall. He walked toward the lot and saw the two groups of men fighting, “like a rumble.” He ran back to defendant’s car and got in it. He then heard four to six shots and saw defendant among the group of people running away from the lot. He drove defendant’s car around the block two or three times and then stopped to speak with the police.

Defendant entered a plea of not guilty at his arraignment on December 7, 1984, and, on January 23, 1986, posted $25,000 bond. On February 4, he and his attorney appeared at a court proceeding at which trial was set, by agreement, for March 10. Defendant was then admonished as follows:

“THE COURT: Do you understand, Mr. Velasco, that you are now on bond[;] if on the 10th you should not be present your case would be tried anyway, do you know that?
DEFENDANT: I understand.
COURT: Before a jury. And if the jury found you guilty, you would be sentenced and thereafter when you were apprehended you would be brought directly to a penitentiary if that were the case, you would not come back to court. So, in other words, your case would go on whether you’re here or not. So have that in mind.”

On March 10, 1986, defendant failed to appear for trial. Defense counsel informed the court that defendant’s parents had received a note from defendant indicating his intention to leave the jurisdiction and requested that the case be held on call for at least one day to allow counsel to attempt to locate defendant. The trial court granted the State’s motion for bond forfeiture and issuance of an arrest warrant and, on the State’s suggestion, continued the case for two days. When defendant did not appear on March 12, the trial court ruled, over defense counsel’s objection, that defendant would be tried in absentia. Jury selection commenced on March 13, and on March 17, defendant was acquitted of the murder of Enrique but found guilty of the attempted murders of Albino and Ruben. The trial court denied defense counsel’s post-trial motion and, following a hearing, sentenced defendant to concurrent terms of 30 years on each attempted murder conviction. This appeal followed.

Opinion

Defendant first contends that he was improperly tried in absentia because notice of the trial date was not sent to him by certified mail as is required by statute. He maintains that he is therefore entitled to a new trial.

It is fundamental that an accused has the right to be present at all stages of his trial and to confront witnesses against him and that this right can be waived only by the defendant himself. (People v. Owens (1984), 102 Ill. 2d 145, 464 N.E.2d 252; People v. Steenbergen (1964), 31 Ill. 2d 615, 203 N.E.2d 404.) However, a defendant may not prevent his trial by voluntarily absenting himself from it, and where a defendant has been released on bond, he has not only the right but the duty to present himself for trial. (Steenbergen, 31 Ill. 2d 615, 203 N.E.2d 404; People v. Davis (1968), 39 Ill. 2d 325, 235 N.E.2d 634; People v. Burns (1983), 117 Ill. App. 3d 123, 453 N.E.2d 21.) To allow a defendant to impede trial proceedings by absenting himself therefrom would permit him to benefit from his own wrong (Steenbergen, 31 Ill. 2d 615, 203 N.E.2d 404). Thus, a defendant’s voluntary absence from the court is deemed a waiver of his right to be present and permits the court to proceed with trial in the same manner and with like effect as if he were present (Davis, 39 Ill. 2d 325, 235 N.E.2d 634), providing that defendant’s constitutional rights have been protected.

Illinois has enacted a legislative scheme designed to ensure that a trial in absentia is not held unless a defendant has made a valid waiver of his right to be present at trial and confront witnesses against him. (People v. Watson (1982), 109 Ill. App. 3d 880, 441 N.E.2d 152.) Section 113 — 4 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. .38, par. 113 — 4(e)) (the Code) requires:

“If a defendant pleads not guilty, the court shall advise him at that time or at any later court date on which he is present that if he *** is released on bond and fails to appear in court when required by the court that his failure to appear would constitute a waiver of his right to confront the witnesses against him and trial could proceed in his absence.”

The circumstances under which a trial in absentia may be held are then set forth in section 115 — 4.1 of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 4.1(a)), which provides in relevant part:

“When a defendant after arrest and an initial court appearance for a non-capital felony, fails to appear for trial, at the request of the State and after the State has affirmatively proven through substantial evidence that the defendant is willfully avoiding trial, the court may commence trial in the absence of the defendant. *** Trial in the defendant’s absence shall be by jury unless the defendant had previously waived trial by jury. *** If trial had previously commenced in the presence of the defendant and the defendant willfully absents himself for two successive court days, the court shall proceed to trial. *** The court may set the case for a trial which may be conducted under this Section despite the failure of the defendant to appear at the hearing at which the trial date is set. When such trial date is set the clerk shall send to the defendant, by certified mail at his last known address indicated on his bond slip, notice of the new date which has been set for trial. Such notification shall be required when the defendant was not personally present in open court at the time when the case was set for trial.”

Relying primarily on People v. Williams (1987), 151 Ill. App. 3d 1010, 503 N.E.2d 1092, defendant argues that the requirement in section 115 — 4.1 of notice by certified mail of a trial in absentia is mandatory and that the failure to comply therewith is reversible error. He maintains that because notice by certified mail of his trial date was not sent to him, he is entitled to a new trial. We disagree.

In Williams, the defendant pleaded not guilty at his arraignment after which the case was set for trial readiness call on April 14 and for jury trial on April 21. When Williams did not appear for the April 14 readiness call, it was rescheduled for April 17 and his counsel was to provide Williams with notice at the address shown on his bond form. When Williams failed to appear again on April 17, the trial court granted the State’s motion to proceed with trial in absentia on April 30, ordered a warrant for Williams’ arrest and that the clerk of the court send notice of the new trial date to Williams. On April 29, the court learned that special notice of the new trial date had not been sent to Williams and, thus, directed the State’s Attorney’s office to attempt to personally serve defendant with special notice of the trial. The following day, notice of defendant’s bond forfeiture was sent by certified mail but was returned marked “Moved, Left No Address.” The court was advised that attempts to serve Williams with special notice had been unsuccessful because Williams had allegedly vacated his apartment two months earlier and moved out of State. Williams was then tried, found guilty and sentenced in absentia.

Citing People v. Watson (1982), 109 Ill. App. 3d 880, 441 N.E.2d 152, for the proposition that notice of a trial in absentia by ordinary mail is not an adequate substitute for notice by certified mail, the Williams court declared that certified mail notice of a trial in absentia is mandatory under section 115 — 4.1 and that the failure to comply with that requirement was reversible error necessitating a new trial. We do not reach the same conclusion in the case at bar.

First, we believe that the Watson decision does not serve as direct support for the holding in Williams because the facts of those cases are clearly distinguishable. In Watson, after the entry of defendant’s plea of not guilty at his October arraignment, the trial court set the case “for jury trial on the January jury call.” (Watson, 109 Ill. App. 3d at 883.) Following the arraignment proceeding, a written order was entered by the court and sent by regular mail to Watson, stating that the case was set for jury trial on January 11. When Watson failed to appear on that date, he was tried in absentia and found guilty of burglary and theft. On appeal, the Watson court noted that the provisions of sections 113 — 4(e) and 115 — 4.1 were enacted to ensure that such a trial would not be held unless the accused made a valid waiver of his right to be present at trial. The appellate court then reversed Watson’s convictions, on the grounds that “[t]he trial court’s statement at Watson’s arraignment that the case was ‘set for jury trial on the January jury call’ was insufficient to set the date in open court in defendant’s presence” (109 Ill. App. 3d at 283), and that section 115 — 4.1 therefore required that Watson be sent notice of that date by certified, not ordinary, mail. In other words, the certified mail requirement was triggered in Watson because the specific trial date, January 11, was not set in open court in Watson’s presence. It was the absence of actual notice in the manner provided for in the statute which formed the basis of the Watson ruling that certified mail notice was required.

In the instant cáse, defendant was personally present in open court when the specific trial date was set. Thus, we do not agree, nor do we read Watson as holding, that additional notice by certified mail was required under section 115 — 4.1. To the extent Williams holds otherwise, we respectfully decline to follow that decision.

Moreover, the Watson court specifically noted that Watson was not admonished of his right to be present at trial or of the consequences of his failure to appear. Neither is there any statement in Williams or facts from which we can infer that the trial court admonished Williams, at the arraignment proceeding when his case was set for trial, that his failure to appear on that date could result in his being tried in absentia as is required by section 113 — 4(e). In contrast to those cases, it is undisputed in the instant case that defendant was admonished that if he failed to appear on March 10, trial would proceed in his absence and that he affirmatively responded “I understand.” Having been present in open court when his specific trial date was set and having been apprised of his right to be present and the consequences of his failure to appear, we find that there was compliance with the protective requirements of sections 113 — 4 and 115 — 4.1, and that the trial was therefore properly conducted in defendant’s absence.

We are not persuaded otherwise by the fact that trial was continued for two days. Section 115 — 4.1 does not require repeat notice, by certified mail or otherwise, where the defendant was present in open court when the original trial date was set. The continuation of trial for two days, which is mandated only “if trial had previously commenced in the presence of the defendant” who thereafter willfully absents himself from it (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 4.1(a)), was merely an additional safeguard of defendant’s right to be present at trial which was ordered by the court, on the State’s suggestion, to allow additional time within which to locate defendant or give him the opportunity to voluntarily present himself. See People v. Porter (1988), 170 Ill. App. 3d 835, 525 N.E.2d 211.

Defendant next contends that plain error occurred when the jury was incorrectly instructed on the mental state necessary for attempted murder in that the instructions given to the jury permitted it to convict him of attempted murder without finding that he acted with the specific intent to kill. The record reveals that the jury was given the following sequence of instructions.

First, the trial court gave the definitional attempted murder instruction which provides:

“A person commits the crime of attempt when he, with intent to commit the offense of murder, does any act which constitutes a substantial step toward the commission of the offense of murder.
The offense attempted need not have been committed.”

The jurors were then given the attempted murder directive or what is commonly called the “issues” instruction:

“To sustain the charge of attempt, the State must prove the following propositions:
First: That the defendant performed an act which constituted a substantial step toward the commission of the offense of murder; and
Second: That the defendant did so with the intent to commit the offense of murder.”

The court then gave the full definitional murder instruction which states:

“A person commits the offense of murder when he kills an individual without lawful justification if, in performing the acts which cause the death,
he intends to kill or do great bodily harm to that individual or another; or
he knows that such acts will cause death to that individual or another; or
he knows that such acts create a strong probability of death or great bodily harm to that individual or another.”

Finally, the jury was given the following “issues in murder” instruction:

“To sustain the charge of murder, the State must prove the following propositions:
First: that the defendant performed the acts which caused the death of Enrique Vega; and
Second: that when the defendant did so, he intended to kill or do great bodily harm to Enrique Vega; or
he knew that his acts would cause death or great bodily harm to Enrique Vega; or
he knew that his acts created a strong probability of death or great bodily harm to Enrique Vega.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”

Defendant correctly asserts that nothing less than proof of specific intent to kill will support a conviction for attempted murder. (People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28; People v. Beverly (1978), 63 Ill. App. 3d 186, 379 N.E.2d 753.) He argues that the failure to modify the definition of murder for purposes of the attempted murder charge so as to omit the alternative propositions, i.e., that knowledge that his acts would cause death or great bodily harm or would create a strong probability of death or great bodily harm, permitted the jury to convict him without finding that he acted with specific intent to kill.

Citing People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331, in which the defendant was held to have waived review of this issue, the State asserts that any error here was similarly waived by defense counsel’s failure to object to the instructions or tender any of his own. Defendant responds that the waiver rule does not apply in this case because (1) the evidence was closely balanced; (2) he has raised as a separate issue that his trial attorney, whose responsibility it was to object to the erroneous instructions, did not provide him with effective assistance of counsel; and (3) the Roberts case was decided prior to the revision of the Illinois Pattern Jury Instructions, which now require that a modified definitional murder instruction be given for attempted murder.

In Roberts, the court stated that “every error in the giving of an instruction impinges upon the right of a party to a fair trial” (75 Ill. 2d at 15) and that under Supreme Court Rule 451(c) “substantial defects [in instructions] are not waived by failure to make timely objections thereto if the interests of justice require.” (58 Ill. 2d R. 451(c).) The court, however, declined to apply the plain error exception to the waiver rule in the Roberts case, ruling that, on the facts before it, the inclusion of mental states other than an intent to kill in the “nonmandatory definitional instruction” did not rise to the level of grave error because the evidence was not closely balanced. Roberts, 75 Ill. 2d at 14.

However, in People v. Ogunsola (1981), 87 Ill. 2d 216, 429 N.E.2d 861, the supreme court, citing, inter alia, its decision in Roberts, stated:

“The interests of justice demand that the rule of waiver be modified, in criminal cases, where necessary to ensure the fundamental fairness of the trial. [Citations.] Fundamental fairness includes, among other things, seeing to it that certain basic instructions *** are given. Instructions on the elements of the offense are among these basic instructions, and we have recognized that the trial court has responsibility for ensuring that they are given. [Citations.] The failure correctly to inform the jury of the elements of the crime charged has been held to be error so grave and fundamental that the waiver rule should not apply. [Citations.]” 87 Ill. 2d at 222, 429 N.E.2d at 864.

In People v. McDaniel (1984), 125 Ill. App. 3d 694, 699, 466 N.E.2d 662, an attempted murder case in which the jury was instructed that murder occurs when a person “intends to kill or do great bodily harm,” the court applied the reasoning in Ogunsola and declined to apply the waiver rule. In People v. Jaffe (1986), 145 Ill. App. 3d 840, 493 N.E.2d 600, the jury was given attempted murder instructions virtually identical to those in the case before us. Although defendant did not raise the issue either at trial or on appeal, he did contend that his counsel was ineffective. In its review of counsel’s performance, the Jaffe court sua sponte raised the issue of the erroneous instructions and considered it under the plain error rule. Because an error in mandatory jury instructions poses a potential for deprivation of substantial rights, we elect to consider the issue under the plain error doctrine.

Our supreme court has unequivocally held that specific intent to kill is an essential element of the offense of attempted murder and, correlatively, that a finding of nothing less than specific intent to kill will sustain a conviction for attempted murder. (People v. Mitchell (1984), 105 Ill. 2d 1, 473 N.E.2d 346; People v. Jones (1979), 81 Ill. 2d 1, 405 N.E.2d 343; People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28; People v. Trinkle (1977), 68 Ill. 2d 198, 369 N.E.2d 888.) As the supreme court in Jones stated, “[k]nowledge that the consequences of an accused’s act may result in death (or grave bodily injury), *** is not enough; specific intent to kill is required [citation]. Both the indictment and the instructions must unambiguously reflect this.” (Emphasis in original.) Jones, 81 Ill. 2d at 8-9, 405 N.E.2d at 345.

Where the defendant is tried for both murder and attempted murder at the same time, the trial court, for the purpose of the attempted murder charge (People v. Beverly (1978), 63 Ill. App. 3d 186, 379 N.E.2d 753), must give a separate instruction defining murder which limits the murder definition to acts committed with the specific intent to kill. People v. Kraft (1985), 133 Ill. App. 3d 294, 478 N.E.2d 1154; People v. Beverly (1978), 63 Ill. App. 3d 186, 379 N.E.2d 753; see Illinois Pattern Jury Instructions, Criminal, No. 6.05, Committee Notes (2d ed. 1981) (IPI Criminal 2d); IPI Criminal 2d No. 27.02 (which suggests the following definitional murder instruction for attempted murder: “A person commits the offense of murder when he kills an individual if, in performing the acts which cause the death, he intends to kill that individual or another”).

Reviewing courts of this State have repeatedly stated that attempted murder instructions such as those given here, which include the full definition of murder (IPI Criminal 2d. No. 7.01), are erroneous. (E.g., Jones, 81 Ill. 2d 1, 405 N.E.2d 343; Harris, 72 Ill. 2d 17, 377 N.E.2d 28; Trinkle, 68 Ill. 2d 198, 369 N.E.2d 888; People v. Fields (1988), 170 Ill. App. 3d 1, 523 N.E.2d 1126; People v. Page (1987), 163 Ill. App. 3d 959, 516 N.E.2d 1371; People v. Cantu (1987), 157 Ill. App. 3d 899, 510 N.E.2d 963; People v. Lincoln (1987), 157 Ill. App. 3d 700, 510 N.E.2d 1026; People v. Cloyd (1987), 152 Ill. App. 3d 50, 504 N.E.2d 126; People v. Jaffe (1986), 145 Ill. App. 3d 840, 493 N.E.2d 600; People v. Kraft (1985), 133 Ill. App 3d 294, 478 N.E.2d 1154; People v. Smith (1984), 127 Ill. App. 3d 622, 469 N.E.2d 634; People v. McDaniel (1984), 125 Ill. App. 3d 694, 466 N.E.2d 662.) Nevertheless, as the volume of cases in which this issue is presented demonstrates, attempted murder instructions which erroneously include the full definitional murder language inexplicably continue to be given.

The State does not argue that the instructions were not erroneous but, rather, that “assuming arguendo that the jury should have received a modified instruction *** any alleged error is harmless.” The State maintains that an error in instructions will not justify reversal where, as here, the evidence of defendant’s guilt is so clear and convincing that even if properly instructed the jury could not reasonably have found him not guilty. People v. Jones (1979), 85 Ill. 2d 1, 405 N.E.2d 343; People v. Cloyd (1987), 152 Ill. App. 3d 50, 504 N.E.2d 126.

As we noted in People v. Gentry (1987), 157 Ill. App. 3d 899, 510 N.E.2d 963, two lines of analysis have developed in cases in which this issue has been raised. Courts have reasoned that because intent is an essential element of the State’s case, where intent is at issue, the giving of an erroneous instruction with respect to the mental state required to commit attempted murder deprives the jury of the legal tools necessary to determine defendant’s guilt or innocence. The courts have therefore held the erroneous instruction to be plain error and reversed the convictions without extensive consideration of the evidence. E.g., People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28; People v. Trinkle (1977), 68 Ill. 2d 198, 369 N.E.2d 888; People v. Cantu (1987), 157 Ill. App. 3d 934, 510 N.E.2d 1183; People v. Gentry (1987), 157 Ill. App. 3d 899, 510 N.E.2d 963; People v. Lincoln (1987), 157 Ill. App. 3d 700, 510 N.E.2d 1026; People v. Kraft (1985), 133 Ill. App. 3d 294, 478 N.E.2d 1154; People v. McDaniel (1984), 125 Ill. App. 3d 694, 466 N.E.2d 662.

The other line of analysis has been applied in cases where the defendant’s intent is not at issue or is blatantly evident from the facts. In these circumstances courts have reasoned that even if properly instructed on the mental state necessary for attempted murder, the jury could not reasonably have found defendant not guilty. The courts have thus held that the giving of an incorrect instruction, though error, was harmless error and have therefore upheld the defendants’ convictions. E.g., People v. Jones (1979), 81 Ill. 2d 1, 405 N.E.2d 343; People v. Page (1987), 163 Ill. App. 3d 959, 516 N.E.2d 1371; People v. Cloyd, (1987), 152 Ill. App. 3d 50, 504 N.E.2d 126; People v. Smith (1984), 127 Ill. App. 3d 622, 469 N.E.2d 634.

In the case at bar, defendant was charged with the attempted murder of two individuals and each conviction must be reviewed independently. Initially, we note that defendant’s intent was one of the central issues in this case. Although defendant admitted limited participation in the shooting, he maintained that he did not intend to kill anyone. The question, then, is whether the State’s evidence clearly and convincingly established otherwise.

With respect to the attempted murder of Ruben, the State’s witnesses testified that defendant was approximately four feet from Ruben on the driver’s side of the car when he pointed the gun toward Ruben and fired one “hard shot” toward Ruben’s stomach. Ruben thereafter underwent two surgical procedures for injuries caused by the bullet. Defendant himself admitted that when the man on the driver’s side (Ruben) reached into his pocket he “didn’t take any chances” on whether Ruben was reaching for a key or a weapon and immediately pointed the gun at him from a distance of about five or six feet and shot “low and level.” Although defendant also stated that he “freaked out” and fired in a horizontal swinging motion, “going crazy wild,” and that his intent was to scare Ruben, not to hurt him, the largely undisputed circumstances of the shooting and the seriousness of Ruben’s injuries are sufficient to clearly and convincingly establish defendant’s intent to kill Ruben. Thus, we conclude that the jury could not reasonably have acquitted defendant of the attempted murder of Ruben even if it had been properly instructed on the issue of intent.

With regard to the attempted murder of Albino, however, we are constrained to conclude that the evidence was not so blatantly clear on the question of defendant’s intent to kill Albino as to withstand the damage of the erroneous instructions. The record discloses that defendant’s intent was raised as an issue in defense counsel’s opening statement and remained at issue through the trial. The evidence presented by the State consisted of the testimony of Able, who stated that once his assailants began beating him, he was unable to see what was occurring on the passenger’s side of the car where Enrique and Albino were standing. Able testified only that as he was being struck, he “heard a few shots” from the other side of the car. At that point, his assailants ran, and it was only then that he saw defendant come around the rear of the car and shoot Ruben.

Ruben also testified that he did not witness the shooting of Albino. He merely stated that he was on the driver’s side of the car when he heard two or three shots from the passenger’s side of the car and saw Enrique fall.

According to Albino’s own testimony, he was backed up against the front right side of the car and shielding his face when his assailant was punching him. He heard three shots being fired from his left and, when he looked up, saw a “hand with a gun” emerge from the crowd and reach out toward Enrique, who was standing near the rear of the car. He saw a bullet being fired and then saw a man he identified as defendant run around the rear of the car with a gun in his hand. He ducked alongside the car and, while in that position, heard one more shot. It was only after the group dispersed and Able came around to the passenger’s side and told Albino to lift Enrique into the car that he realized that he, too, had been shot.

Moreover, defendant did not admit shooting either Enrique or Albino. According to his statement, he did shoot Ruben but at no time was he on the passenger’s side of the car, where Albino and Enrique were standing. The credibility of defendant’s statements on the issue of intent, like the testimony of any other witness, was a matter for the jury and they were free to disbelieve any or all of it. However, the significance of the jury having found the defendant not guilty of the murder of Enrique cannot be ignored. In our view, the jury’s acquittal of defendant of the most serious charge, on which the jury was properly instructed, further supports our opinion that it was critical that they also be correctly instructed on the elements of attempted murder, not only because there was conflicting evidence but because defendant’s intent was a central issue in this case.

Indeed, the record discloses that the first of the State’s closing arguments was devoted almost exclusively to the issue of intent. Specifically, the assistant State’s Attorney quoted that portion of the “issues in murder” instruction requiring proof that defendant “performed the acts which caused the death of Enrique Vega” and argued:

“[T]here is no dispute *** that defendant fired the gun and that firing the gun caused the death of Enrique Vega. There is no dispute that the act of firing the gun caused serious bodily harm to *** Able [sic] Correa and *** Ruben Martinez. There is no dispute as to that. The evidence of that is overwhelming.” (Emphasis added.)

The prosecutor then inaccurately stated that three eyewitnesses identified defendant as “the person who performed these acts” and that defendant himself made a statement wherein he “tells you that, yes, I did, in fact, fire the shots at these guys; that I drew a bead low in [sic] level and fired shots.”

Counsel for the State then quoted what she referred to as “the second part of the definition of murder,” but which is actually the standard “issues in murder” instruction (IPI Criminal 2d No. 7.02), which required the State to prove that defendant intended to kill or do great bodily harm to Enrique or acted with knowledge that the acts would cause or created a strong probability of causing death or great bodily harm to Enrique. Notwithstanding the instruction’s specific and exclusive reference to Enrique, the prosecutor then argued:

“Now [defense counsel] told you this [intent] was the only issue in the case. As you know now, *** the evidence in this case against the defendant is overwhelming. *** The witnesses testified how he stood four to seven feet away from each one of these individuals; how Able testified that he saw the defendant draw a bead on his partner, Ruben *** and how he was about five or six feet away and fired that gun; how it hit Abel [sic] *** in the chest area or hit Ruben *** in the chest area and the stomach area right where all the vital bodily organs are.” (Emphasis added.)

The prosecutor also argued that the medical examiner’s testimony concerning the trajectory of and damage done by the bullet which struck Enrique and the evidence that defendant shot him from a short distance “shows his intent to kill.” Once again, however, the assistant State’s Attorney commingled the evidence relating to each offense charged and failed to delineate what evidence of mental state(s) applied to which crime. She argued as follows:

“After he pushed [the people in the crowd] away, *** he drew a bead and he fired low and level. He fired directly at these individuals. *** He told you about his intent. You know from his actions that he had intent to kill. * * *
Furthermore, he knew that his acts would cause death or great bodily harm to this individual.
As to each one of these propositions, you will see in the second part here *** the State only has to prove one.
It only has to be proven, one, that he intended to kill or cause great bodily harm or that he knew his acts would cause death or great bodily harm. We do not have to prove each of these. Just one is enough to show his intent.
I submit to you *** that we have proved each and every one because not only do you intend to kill someone, you come up and draw a bead on them low and level four or five feet away, but you also know when you do that act it creates a strong probability of death or great bodily harm.
You also know when you do that act it is going to cause death or great bodily harm when you aim at the interior, the vital organs in here. The evidence is overwhelming.” (Emphasis added.)

We note that the evidence to which the prosecutor referred regarding shooting “low and level” from a distance of “four to five feet” was introduced with sole reference to the shooting of Ruben.

Toward the end of her argument, the prosecutor quoted the definition of attempted murder and remarked that there was “no dispute” that defendant shot Ruben and Albino. Counsel then quoted the issue in the attempt instruction and argued the distance from which defendant shot and the location and seriousness of the injuries as overwhelming evidence that “what he had intended to do was murder somebody.” Counsel did not, however, define murder for purposes of attempted murder; and when we read the State’s argument in its totality, we are not convinced that the jurors understood or could have understood that in order to convict defendant of attempted murder, it was necessary to find that he possessed nothing less than the intent to kill. Rather, it is our view that the jurors reasonably could have concluded that attempted murder can be committed if the defendant knew that his acts would or probably would cause either death or great bodily harm.

Following closing argument, the trial court gave exactly the same erroneous instructions quoted by the prosecutor in her closing argument and which are set out earlier in this opinion. The trial court bears the burden of ensuring that the jury is properly instructed (People v. Parks (1976), 65 Ill. 2d 132, 357 N.E.2d 487; People v. Sanders (1984), 129 Ill. App. 3d 552, 472 N.E.2d 1176); and, in fact, the trial judge advised the jurors at the outset of voir dire that it is the function of the court to instruct as to the applicable law and the “absolute duty of the jury to accept the law as it is stated in the instructions and then to follow it.” The jurors, therefore, had no option but to apply the inapplicable murder instructions, which were erroneous as to the attempted murder charges, given by the trial court and explained by the prosecutor.

In summary, we cannot conclude that defendant’s intent to kill Albino was so “blatantly clear” from the evidence to overcome the damage of the erroneous instructions. We are unable to reasonably find that the jury would have found him guilty of the attempted murder of Albino even if they had been correctly instructed so as to find the error harmless beyond a reasonable doubt. We therefore hold that the misinstruction constituted plain error necessitating reversal and remandment for a new trial on the charge of the attempted murder of Albino Correa.

Defendant next contends that he did not receive effective assistance of counsel. Defendant raises numerous examples of allegedly incompetent performance by his trial attorney, most of which fall into one or more of the following general categories: defense counsel was unprepared for trial; conceded a major issue (defendant’s participation in the shootings) in the case; failed to effectively cross-examine the State’s witnesses; failed to make appropriate objections; failed to ensure that the jury was properly instructed; and overall did little to promote his .own defense theory that defendant lacked the requisite intent to commit the offenses of murder and attempted murder. Defendant argues that as a result thereof, the State’s case “with respect to the attempted murder charges was not subjected to any meaningful adversarial test.

To establish a denial of his constitutional right to representation by competent counsel, defendant must establish that his representation fell below an objective standard of reasonableness and that his attorney’s shortcomings were so serious as to deprive him of his right to a fair trial. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Johnson (1989), 128 Ill. 2d 253, 265-70; People v. Jaffe (1986), 145 Ill. App. 3d 840, 493 N.E.2d 600.) Defendant must clearly establish not only that his attorney was actually incompetent in the performance of his duties but also that were it not for that incompetence the outcome of the trial would likely have been different. (Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; Johnson, 128 Ill. 2d 253; People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246; People v. McNutt (1986), 146 Ill. App. 3d 357, 496 N.E.2d 1089.) In determining the adequacy of counsel, a reviewing court will not focus on isolated instances of alleged deficiencies but, rather, must consider the totality of the circumstances; a defendant is entitled to competent, not perfect, representation. (McNutt, 146 Ill. App. 3d 387, 496 N.E.2d 1089.) Neither will the court extend its review to areas involving the exercise of judgment, trial tactics or strategy, or indulge in speculation as to whether the outcome of trial might have been different had the representation been of higher caliber. McNutt, 146 Ill. App. 3d 357, 469 N.E.2d 1089.

In this regard, the record discloses that counsel filed motions to quash defendant’s arrest and to suppress evidence, made attempts to locate defendant before commencement of the trial in absentia, objected to the trial proceeding in defendant’s absence on the ground that the statute allowing for trials in absentia was unconstitutional as applied to defendant, participated in discovery, presented an opening statement in which he raised the critical issue of intent, cross-examined the State’s witnesses, made numerous objections, moved for a directed verdict, presented defense witnesses, successfully objected to a circumstantial evidence instruction, made a closing argument which challenged the sufficiency of the State’s case, and filed a post-trial motion.

Furthermore, it is noteworthy that defendant qualifies his argument on this issue by contending that “with respect to the attempted murders the State’s case was not subjected to a meaningful adversarial test.” The significance of this qualification is, of course, that defendant was acquitted of the murder charge which, as we stated earlier, cannot be overlooked in reviewing the alleged errors in this case and what, if any, prejudice resulted therefrom. Moreover, defense counsel in this case was faced with the additional burdens of overcoming whatever prejudice the jurors may have formed against defendant by reason of his absence from trial and of defending a client who failed, by his absence, to assist in his own defense. Our reversal of defendant’s conviction of the attempted murder of Albino does not alter our conclusion since, as we have discussed at length, the misinstruction of the jury in this case constituted plain error which cannot be said was attributable solely to defense counsel. In summary, we have reviewed the record in its entirety and conclude that defense counsel’s overall performance constituted competent and effective representation.

Defendant’s final contention is that the trial court committed reversible error and demonstrated his bias against defendant by certain improper remarks. The first comment of which defendant complains occurred during the cross-examination of Albino. The following colloquy took place:

“DEFENSE COUNSEL: Do you know the signal for the Villalobos [street gang]?
WITNESS: Yes.
DEFENSE COUNSEL: What is the signal?
THE COURT: Is that relevant here?
PROSECUTOR: Object.
THE COURT: Is it relevant?
DEFENSE COUNSEL: Yes, it is relevant. He purports to indicate that he is not a gang member. It is funney [sic] he know [sic] the gang signals.
THE COURT: No, all of the streets for miles around know the hand signals.
DEFENSE COUNSEL: I don’t know that this is true.
THE COURT: I can assure you that it is. This is a gang-dominated city. That is a matter we won’t go into any further. The objection is sustained. Next question.”

Defendant asserts that it is reversible error to make references to gang activity which prey upon the deep, bitter and widespread prejudice against street gangs, and that the remark here was especially egregious because it reflected the trial judge’s bias against defendant, who had admitted former membership in a gang.

The State argues that this issue also should be considered waived by defendant’s failure to object or include it in a post-trial motion. However, as stated in People v. Heidorn (1983), 114 Ill. App. 3d 933, 449 N.E.2d 568, citing People v. Sprinkle (1963), 27 Ill. 2d 398, 189 N.E.2d 295, “given the fundamental importance of a fair trial and the practical difficulties involved in objecting to the conduct of the trial judge, the waiver rule is applied less rigidly when the judge’s conduct is the basis for the objection.” 114 Ill. App. 3d at 936.

Every defendant, irrespective of the nature of the proof against him, is entitled to a trial that is free from improper or prejudicial comments by the trial judge. Although vested with wide discretion in the conduct of the trial, the trial judge must refrain from interjecting opinions or making comments or insinuations reflecting prejudice against or favor toward any party. Because jurors are generally watchful of the conduct of the trial judge, the court must exercise a high degree of care to avoid influencing the jury. Sprinkle, 27 Ill. 2d 398, 189 N.E.2d 295; Heidorn, 114 Ill. App. 3d 933, 449 N.E.2d 568; see People v. Merz (1984), 122 Ill. App. 3d 972, 461 N.E.2d 1380 (noting Supreme Court Rule 61 (107 Ill. 2d R. 61), and ABA Standards, Function of the Trial Judge §6.4 (1972)).

Nevertheless, for comments by the trial judge to constitute reversible error the defendant must show that the remarks were prejudicial and that he or she was harmed thereby. Even when the court’s method of ruling on an objection indicates an opinion as to the validity of a party’s position, the context of the judge’s remark must be considered in determining whether prejudice resulted. Heidorn, 114 Ill. App. 3d 933, 449 N.E.2d 568.

Although the court’s reference to gang domination of the city might have been improper under other circumstances, in the case at bar the charges arose from a gang-related shooting. The record is replete with testimony regarding gang membership and activity. Defendant and Able both admitted that they were former gang members, and defendant’s brother admitted being a member of the Ambrose 26 gang at the time of trial. Indeed, the line of questioning by defense counsel which prompted the remark concerned Abie’s familiarity with the hand signals of various street gangs, including the gang known as the “Villalobos” which, according to the evidence, was not involved in the incident leading to the shootings at issue. Thus, the court correctly ruled that the question was irrelevant; and it was only after defense counsel disputed that ruling that the remark complained of was made.

The second comment was made as the trial court was discharging the jury. After thanking the jurors for their service, the trial judge added, “I must say that your verdicts will forever be a mystery to me, but they are your verdicts.” Defendant argues that “when a trial court has displayed his prejudice against a defendant and his predisposition to act in a certain manner is evident, the case should be reassigned to a different judge upon remand.”

We have examined the entire record carefully and determine that the trial court conducted the trial fairly and with particular concern that defendant’s rights were protected in his absence. Consequently, we decline to enter any directions concerning the court assignment of this case upon remand.

For the reasons stated, we affirm defendant’s conviction and sentence for the attempted murder of Ruben Martinez. However, we reverse the conviction for the attempted murder of Albino Correa and we remand this case for a new trial on that charge.

Affirmed in part; reversed in part and remanded for further proceedings.

JIGANTI, P.J., and JOHNSON, J., concur.


source: Caselaw Access Project

author: JUSTICE NASH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. JOHN P. REYMAR, Defendant-Appellee (Jim Edgar, Secretary of State, Appellant).
    Second District
    No. 2—88—0514
    Opinion filed June 16, 1989.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Rosalyn B. Kaplan, Assistant Attorney General, of Chicago, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Jim Edgar, Secretary of State, appeals from an order of the circuit court which directed the Secretary to issue a judicial driving permit to defendant, John P. Reymar. Neither the defendant nor the State’s Attorney of Du Page County, Illinois, has filed a responsive appellee’s brief, and no party to the circuit court proceeding has sought to appeal from the order in question.

In his brief, the Secretary acknowledges that the purported appeal represents the same circumstances addressed by this court in People v. Bluett (1988), 166 Ill. App. 3d 593, 520 N.E.2d 395, appeal denied (1988), 121 Ill. 2d 573, in which it was held that as a nonparty to the proceeding below, the Secretary had no standing to appeal from a circuit court order that he issue a judicial driving permit (JDP). In this case, as in Bluett, the Secretary made no effort to intervene in the trial court proceeding to seek to cause the order to be vacated and to there present his arguments why the order was unauthorized or incorrect. Instead, as in other cases, on receiving the court’s order, a supervising employee of the Secretary’s Judicial Driving Permit Review Unit wrote a letter to the circuit clerk stating that, contrary to the terms of the order, defendant was not eligible for the JDP. The circuit clerk was advised to request the judge to reassess the order, and, if the judge again officially ordered issuance of the JDP, the Secretary would then comply. Defendant’s counsel thereupon petitioned the court on May 3, 1988, to cause issuance of the JDP ordered by it on March 28, 1988, and the court again ordered the Secretary to do so.

The notice of appeal filed by the Secretary on May 27, 1988, is stated to be from the order of the circuit court entered on May 3, 1988, which, for the second time, directed the Secretary to issue the JDP to defendant. Lost in this process is any effort by the Secretary to follow the requirement of Supreme Court Rule 303(a) (107 Ill. 2d R. 303(a)) that notice of appeal must be filed within 30 days of entry of a final order; that order in this case was entered on March 23, 1988. The Secretary’s letter to the circuit clerk advising he would not issue the JDP until the court had reassessed its original order is unauthorized and could not be considered to have extended the time for filing a notice of appeal, even had the Secretary been authorized to appeal in this case.

In his brief, the Secretary states that “[he] has determined that the statute does not authorize the issuance of a JDP to Reymar because he is not a first offender as defined by Section 11 — 500,” and requests that the order be vacated by this court. For the reasons stated in People v. Bluett, we find that the Secretary lacks standing to appeal as he was not a party to the trial court proceeding and did not seek to intervene therein. See also People v. Sales (1989), 180 Ill. App. 3d 743, 536 N.E.2d 182.

Accordingly, the appeal is dismissed.

Appeal dismissed.

McLAREN and REINHARD, JJ., concur.


author: JUSTICE DUNN

text:
      In re MARRIAGE OF JUDITH C. ARVIN, Petitioner-Appellee, and ROBERT E. ARVIN, Respondent-Appellant.
    Second District
    No. 2—88—0149
    Opinion filed June 16, 1989.

      Eugene L. Shepp and Judith S. Sherwin, both of Shepp & Sherwin, of Chicago, for appellant.
    William J. Scott, Jr., of Mirabella & Kincaid, of Wheaton, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Robert Arvin appeals from a circuit court order denying his petition to terminate maintenance payable to his former wife, Judith. Robert makes the following contentions on appeal: (1) that the trial court erroneously concluded that under the terms of the parties’ marital settlement agreement, maintenance could only be terminated in the event of death or remarriage; (2) that Judith’s conjugal cohabitation with a man on a resident, continuing basis should have resulted in termination; and (3) that Judith’s substantial increase in income since the judgment for dissolution justified termination. We affirm.

The circuit court entered a judgment for dissolution of the parties’ marriage on May 19, 1978. The judgment incorporates the terms of a marital settlement agreement previously entered into by the parties. With regard to maintenance, the agreement states in relevant part as follows:

“The husband agrees to pay to the wife as and for maintenance the sum of Two Hundred Dollars ($200.00) per month. The parties agree that the maintenance provided for herein shall be terminable upon the wife’s remarriage or upon the wife’s death.”

The agreement also states that Robert was earning $21,500 per year at the time while Judith was earning $50 per week working part time.

Robert filed his petition to terminate maintenance on June 24, 1987. The circuit court held a hearing on the petition on September 21, 1987. Copies of Judith’s Federal tax return for the years 1979-86 were introduced into evidence. The returns showed that Judith’s net wages were $11,246 in 1979; $14,815 in 1980; $20,235 in 1981; $24,555 in 1982; $27,921 in 1983; $21,882 in 1984; $23,195 in 1985; and $25,272 in 1986. Judith testified that she was currently earning about $325 per week. In addition, she received $100 per month from renting a room in her house in Seattle. Judith stated that she filed each of her returns for the years 1980-86 between April and September 1987. The returns showed that she was entitled to refunds total-ling $7,720 for those years.

Judith testified further that a man named George Hamilton resided in her home from November 1985 until March 1987. He did not pay any rent. Judith attempted to have sexual relations with him on several occasions between November 1985 and March 1986 but was unable to do so because he was impotent. Judith and Hamilton did not attempt to have sexual relations at any time after March 1986. Hamilton paid her about $100 as a contribution toward an oil bill, but this was the only contribution he made toward household expenses. Judith and Hamilton did not have a joint checking account and did not commingle funds in any manner. They occasionally went out together socially and occasionally slept in the same room. Judith testified that she and Hamilton seldom ate together and she never did his laundry.

The trial judge subsequently issued a letter opinion in which he concluded that Judith had cohabited with George Hamilton on a resident, continuing, conjugal basis, which would ordinarily result in automatic termination of maintenance under section 510(b) of the Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 510(b)), which is now section 510(c) of the Act (see Pub. Act 85 — 1001, §1, eff. July 1, 1988). For purposes of this opinion, we will refer to this provision as section 510(b). The judge concluded, however, that this was not a ground for termination in the present case because the settlement agreement only provides for termination in the event of Judith’s death or remarriage. The trial judge also ruled that the maintenance award could not be modified pursuant to section 510(a) of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 510(a)) on the basis of Judith’s increased income since dissolution because the maintenance award was permanent, not rehabilitative. Robert filed a timely notice of appeal from the denial of his petition.

Robert argues that Judith’s cohabitation with George Hamilton on a resident, continuing, conjugal basis should have resulted in termination of his maintenance provision under section 510(b) of the Act. That provision states as follows:

“Unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved by the court, the obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.” (Ill. Rev. Stat. 1987, ch. 40, par. 510(b).)

Judith maintains that the trial court correctly concluded the parties otherwise agreed because their marital settlement agreement states that maintenance shall be terminable upon her death or remarriage and does not mention conjugal cohabitation.

At the time the judgment of dissolution was entered, section 510(b) did not contain the language, “Unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved by the court” (see Ill. Rev. Stat. 1977, ch. 40, par. 510(b)). Our supreme court has held, however, that the 1981 amendment adding this language was not intended to change the law but was instead intended to clarify the law. (See In re Marriage of Kozloff (1984), 101 Ill. 2d 526, 533.) Although the marital settlement agreement predated the 1981 amendment to section 510(b), it would have been possible for the parties to supersede the automatic termination provisions of that section.

The case at bar is similar to In re Marriage of Tucker (1986), 148 Ill. App. 3d 1097. In Tucker, respondent sought termination of maintenance because his former wife was cohabiting with another man on a resident, continuing, conjugal basis. The marital settlement agreement, however, provided that maintenance payments “shall continue until the first to happen of the following” and then listed three events: (1) death of the ex-wife; (2) remarriage of the ex-wife; and (3) payment of the 121st installment. The court concluded that this agreement was intended to supersede the statutory termination provision and that conjugal cohabitation was not a basis for termination of maintenance. (Emphasis in original.) Tucker, 148 Ill. App. 3d at 1098.

Although the language of the marital settlement agreement is somewhat different in this case, we reach the same conclusion as the court did in Tucker. The agreement states that Robert is to pay $200 per month in maintenance, and this obligation is terminable upon Judith’s death or remarriage. The omission of conjugal cohabitation as a condition for termination indicates that the parties did not intend to have this statutory condition apply.

The normal rules of contract construction apply to marital settlement agreements. (Ingrassia v. Ingrassia (1987), 156 Ill. App. 3d 483, 494.) An interpretation of an agreement which would render some provisions superfluous should be avoided. (Lukasik v. Riddell, Inc. (1983), 116 Ill. App. 3d 339, 347.) Under Robert’s interpretation, each of the statutory termination conditions in section 510(b) remains effective. This renders the provision of the agreement stating that maintenance is terminable upon Judith’s death or remarriage superfluous. The provision only has meaning if it is interpreted in such a manner that Judith’s death or remarriage are the only grounds for automatic termination of maintenance. We conclude that under the terms of the agreement, conjugal cohabitation is not a basis for termination.

Even if we adopted Robert’s interpretation of the agreement, he would not prevail. Robert maintains that Judith may not challenge the trial court’s ruling that she engaged in conjugal cohabitation with George Hamilton because she did not file a cross-appeal. Since Judith obtained by judgment the relief which she asked for in the trial court, denial of the petition to terminate maintenance, she could not have cross-appealed in this case. (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 386.) Since a judgment may be sustained by a reviewing court upon any ground warranted by the record regardless of whether the trial court relied upon it, an appellee who does not seek modification of the judgment may challenge adverse findings of the trial court without filing a cross-appeal. (Material Service Corp., 98 Ill. 2d at 387.) Judith’s contention that the trial court’s finding concerning conjugal cohabitation was erroneous is properly before this court.

The trial court’s finding that Robert would have been entitled to a termination of maintenance because of Judith’s conjugal cohabitation with Hamilton were it not for the terms of the marital settlement agreement was manifestly erroneous. The fact that Judith lived with another man would not automatically justify termination of maintenance. (In re Marriage of Reeder (1986), 145 Ill. App. 3d 1013, 1018.) The rationale behind statutory termination of maintenance when the recipient spouse cohabits with another on a continuing, resident, conjugal basis is that it addresses the inequity created when that spouse becomes involved in a husband-wife relationship but does not legally formalize it so that he or she can continue receiving maintenance. (Reeder, 145 Ill. App. 3d at 1017.) Termination of maintenance on this basis therefore requires a showing that the recipient spouse is involved in a de facto husband-wife relationship. 145 Ill. App. 3d at 1017; In re Marriage of Clark (1983), 111 Ill. App. 3d 960, 961; In re Marriage of Bramson (1980), 83 Ill. App. 3d 657, 662.

Robert failed to show that Judith and George Hamilton were involved in a de facto husband-wife relationship. In Bramson, the court stated as follows:

“Moreover, the legislative intent does not appear to be an attempt to control public morals. *** Rather, an important com sideration, divorced from the morality of conduct, is whether the cohabitation has materially affected the recipient spouse’s need for support because she either received support from her co-resident or used maintenance monies to support him.” (83 Ill. App. 3d at 663.)

Our supreme court has quoted the above language with approval. See In re Marriage of Sappington (1985), 106 Ill. 2d 456, 467-68.

In the present case, Judith testified that Hamilton’s $100 contribution toward the oil bill was the only contribution he made toward household expenses. The couple did not have a joint checking account and did not commingle funds in any manner. Robert did not present any evidence that Judith’s cohabitation with Hamilton affected her need for support in any manner. Robert also failed to present any evidence that Judith used maintenance payments to support Hamilton. Additionally, Judith testified that she and Hamilton seldom ate together, she never did his laundry, and they only occasionally slept in the same bedroom. Under these circumstances, Judith’s cohabitation with Hamilton does not justify termination of maintenance under section 510(b) of the Act.

Finally, Robert argues that Judith’s increase in income following the 1978 dissolution of their marriage justifies termination of maintenance. In this context, Robert contends that her higher income constitutes a substantial change of circumstances which supports modification of maintenance payments under section 510(a) of the Act from $200 per month to nothing.

Section 510(a) states in relevant part as follows:

“Except as otherwise provided in paragraph (f) of Section 502, the provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification and only upon a showing of a substantial change in circumstances.” (Ill. Rev. Stat. 1987, ch. 40, par. 510(a).)

The relevant portion of section 502(f), referred to above, states:

“Except for terms concerning the support, custody or visitation of children, the judgment may expressly preclude or limit modification of terms set forth in the judgment if the agreement so provides.” Ill. Rev. Stat. 1987, ch. 40, par. 502(f).

We have ruled that the parties intended the provision of their agreement concerning termination of maintenance to supersede section 510(b) of the Act and the grounds for termination set forth therein. The language of the agreement does not expressly preclude or limit modification of the terms of the judgment, however. The specific enumeration of reasons for termination of maintenance in a marital settlement agreement is not sufficient to preclude modification. (In re Marriage of Martino (1988), 166 Ill. App. 3d 692, 698.) The terms of the marital settlement agreement did not preclude Robert -from seeking modification of maintenance pursuant to section 510(a).

The trial court concluded that the maintenance award could not be modified pursuant to section 510(a) because it was an award of permanent maintenance. There is no language in section 510(a), however, which prohibits modification of a permanent maintenance award. Such awards are therefore modifiable. (Martino, 166 Ill. App. 3d at 698; Schoenhard v. Schoenhard (1979), 74 Ill. App. 3d 296, 300.) It is possible that the trial judge confused permanent maintenance with maintenance in gross. Maintenance in gross is a nonmodifiable sum certain to be received by the former spouse regardless of any change of circumstances. (In re Marriage of Freeman (1985), 106 Ill. 2d 290, 298.) The award of $200 per month for an indefinite period in the case at bar was not a sum certain, and the award cannot be considered maintenance in gross. Robert was entitled to a modification of the permanent maintenance award if he established that a substantial change of circumstances occurred. Schoenhard, 74 Ill. App. 3d at 300.

The party seeking modification of maintenance has the burden of demonstrating that a substantial change of circumstances has taken place. (In re Marriage of Chalkley (1981), 99 Ill. App. 3d 478, 482.) We conclude from our review of the record that Robert failed to meet this burden. In determining whether and to what extent maintenance should be modified, the trial court should consider the same factors which are relevant in making the initial award. (Chalkley, 99 Ill. App. 3d at 482.) Section 504 of the Act authorizes the trial court to award maintenance if it finds that the spouse seeking such an award:

“(1) lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs, and
(2) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home, or
(3) is otherwise without sufficient income.” Ill. Rev. Stat. 1987, ch. 40, par. 504(a).

The reasonable needs of a party as that term is employed in section 504(a)(1) are determined in light of his or her overall circumstances, including the standard of living during the marriage. (In re Marriage of Holman (1984), 122 Ill. App. 3d 1001, 1014.) In awarding maintenance, the court should consider the financial resources of the spouse seeking maintenance along with the ability of the other spouse to meet his reasonable needs and the maintenance obligation. Holman, 122 Ill. App. 3d at 1014.

Robert presented little evidence at the hearing concerning the factors to be taken into account by the trial court in awarding or modifying maintenance. He presented no evidence concerning his reasonable needs or his ability to continue paying maintenance. The only evidence concerning Judith’s reasonable needs is the recital in the settlement agreement that the Arvin family income at the time of the 1978 dissolution was about $24,000 for a family of four. No evidence was presented concerning the cost of living or Judith’s expenses as of 1987.

Judith testified that her current salary was about $325 per week, or about $16,900 per year. In addition, she received $1,200 in rental income, about $450 in dividends, $2,400 in maintenance and, it appears from the record, $2,400 in child support for one child residing with her. Without any evidence concerning Judith’s expenses or the cost of living, we cannot say that Judith’s estimated income of $20,900 for a family of two, plus $2,400 in child support, would justify modification of maintenance by itself. (See Pearlman v. Pearlman (1970), 131 Ill. App. 2d 388, 392 (increase in wife’s income insufficient by itself to justify alimony modification).) This is especially true since the family income prior to the 1978 dissolution was about $24,000 per year, a higher sum. Based on the evidence presented at the hearing, a conclusion that Judith could enjoy as high a standard of living as she did during the marriage without maintenance would be sheer speculation.

Robert argues that Judith’s late filing of tax returns for 1980-1986 showing that she is entitled to over $7,700 in refunds for this period demonstrates that she is not in need of funds. The record does not reveal, however, why Judith failed to file the returns on time. Moreover, the fact that Judith found it necessary to rent a room in her home for additional income leads to the opposite conclusion. We are not persuaded by Robert’s argument. Robert failed to present sufficient evidence at the hearing to justify modification of maintenance under section 510(a).

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

Affirmed.

UNVERZAGT, P.J., and INGLIS, J., concur.


text:
    MICHAEL AIARDO et al, Plaintiffs-Appellants, v. THE VILLAGE OF LIBERTYVILLE et al., Defendants-Appellees.
    Second District
    No. 2—88—0675
    Opinion filed June 14, 1989.

      Erwin Cohn, of Cohn & Associates, of Chicago (Charles A. Cohn, of counsel), for appellants.
    Seyfarth, Shaw, Fairweather & Geraldson, of Chicago (John T. Weise, of counsel), for appellees.
   JUSTICE NASH

delivered the opinion of the court:

Plaintiffs, Michael Aiardo et al., who are police officers employed by the Village of Libertyville, appeal from a summary judgment entered in this declaratory judgment action in favor of defendants, Village of Libertyville, its police department, and Roger H. Strieker, chief of police. Plaintiffs contend the trial court erred in entering summary judgment and making findings (1) that the time allotted for lunch was not work time, the officers’ actual workday was hours and they were not entitled to overtime compensation for working in excess of eight hours in a day; (2) that the Village of Libertyville did not have to pay this overtime compensation because no appropriation had been made for it; (3) that plaintiffs were guilty of laches; and (4) they failed to exhaust their administrative remedies by not pursuing their claim under the grievance procedures established by the Village of Libertyville. We reverse the summary judgment and remand.

This action was brought by certain supervisory and nonsupervisory officers of the Libertyville police department seeking declaration they are entitled to compensation for the 15 minutes each working day that they spent at roll call, which, they alleged, has been uncompensated since a new roll-call policy was instituted by the chief of police in September 1982. The record discloses that prior to that time, the police officers regularly worked an 8-hour day and 40-hour week. Departmental general order 83 — 3, effective January 24, 1983, states that there are three shifts which start and end as follows: 0700 through 1500 hours, 1500 through 2300 hours, and 2300 through 0700 hours. In August 1982, Roger H. Strieker became chief of police and established a policy, effective September 26, 1982, requiring officers to be present at work 15 minutes prior to the start of their shift for roll call. On March 23, 1983, Chief Strieker issued departmental general order 83 — 20, which provided that at roll call the shift commander will assign duties, read bulletins, orders and other necessary information, and that smoking, drinking, eating, or inattention would not be permitted during roll call. Departmental general order 83 — 6 issued shortly thereafter related to the police officers’ daily activity reports, and provided that roll-call time was not to be included there as on-duty time. Defendants admitted in their answer to the complaint that the roll-call period was work time, but alleged that the officers’ regular salary included compensation for this period.

The personnel policy which was adopted, apparently by ordinance of the Village of Libertyville on August 5, 1980, provided for hours of work and overtime compensation, as follows:

“4.0 HOURS OF WORK 4.1 Work Week Defined
The hours of work comprising full-time employment are forty hours per week ***.
*** The work day for each employee shall be the 24-hour period from the time that he or she is scheduled to begin work until that time shall occur again.
4.3 Overtime Compensation
Employees shall be compensated for overtime work as follows:
Police Department
Sworn Police personnel shall be compensated at one and one-half times their regular hourly rate for all police work in excess of eight hours per working day and forty hours per working wéek. This shall apply to police work when called back after normal working hours or on regularly scheduled days off.”

The village personnel policy ordinance relating to police department overtime was amended on May 20, 1986, to state:

“Sworn Police personnel shall be compensated at one and one-half times their regular hourly rate for all police work in excess of the established hours per work period. This shall apply to police work when called back after normal working hours or on regularly scheduled days off.”

An affidavit in support of defendants’ motion for summary judgment by Allen Schertz, the village administrator, states that he is responsible for preparing and submitting appropriation ordinances; that during the fiscal years between May 1, 1982, and April 30, 1987, he did not budget or request an appropriation for roll-call overtime pay; that during the same time period, the Village of Libertyville did not pass an appropriation ordinance for roll-call overtime pay; and that the sample appropriation ordinance for the fiscal year ending April 30, 1987, attached to his affidavit was a representative sample of the appropriation ordinances passed during the fiscal years to which this case relates. The representative ordinance contains a general line item appropriation for police officer salary and compensation, and there is no separate line item for overtime or roll-call compensation. There is also no separate line item for overtime compensation for any other municipal employee.

Affidavits of various patrolmen in support of plaintiffs’ motion for summary judgment, and in response to defendants’ motion for summary judgment, set forth certain lunch-break restrictions. Officers cannot take lunch at the same place as another officer; at times, no lunch break is available; officers must remain in uniform; at all times the police radio must be monitored for the suburbs of Libertyville, Lincolnshire, Mundelein, and Vernon Hills, and the officer must be available for all calls; and, with minor exceptions, lunch must be taken in Libertyville. Departmental general order 83 — 18 states that all officers out of service during lunch are subject to calls. Chief Strieker’s affidavit states that officers are not required to work during lunch but are subject to emergency calls at that time; if the officer must answer a call, lunch is rescheduled.

The Village’s personnel policy, as shown in its ordinance, contains a grievance procedure. Section 6.0, titled Discipline and Grievance Procedures, has three subsections: subsection 6.1, Disciplinary Policy, lists conduct warranting discipline, and subsection 6.2, Disciplinary Actions, lists permitted disciplinary actions. Subsection 6.3, Grievance Procedures, provides that grievances should be discussed with the employee’s supervisor and, if no resolution is reached, a grievance interview should be requested with the department head. If the grievance still remains unresolved, “the employee may petition the Village Administrator for a review of his or her case. The decisions of the Administrator shall be considered final.” Patrolman affidavits state that the grievance policy is only for misconduct issues and does not apply to complaints relating to compensation. The grievance procedure contained in the personnel policy makes no reference to complaints relating to monetary matters.

Summary judgment should be granted only when the pleadings, depositions, and affidavits show that there is no disputed question of fact and that the movant is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005; Elliott v. Chicago Title Insurance Co. (1984), 123 Ill. App. 3d 226, 231, 462 N.E.2d 640.) If different inferences can be drawn from the undisputed facts, summary judgment should be denied. (Gagliardo v. Vodica (1978), 58 Ill. App. 3d 1053, 1055, 374 N.E.2d 1302.) The movant’s right to summary judgment must be clear and free from doubt (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867), and the trial court must consider the entire record and construe evidence strictly against the moving party and liberally in favor of the opposing party. Serritos v. Chicago Transit Authority (1987), 153 Ill. App. 3d 265, 268, 505 N.E.2d 1034.

Plaintiffs contend first that the trial court erred when it found that the lunch break was not work time, and we agree that in resolving that disputed issue, the fact finder could find to the contrary. The village personnel policy states that a workweek consists of 40 hours and that overtime will be paid when an employee works over 40 hours in a week or 8 hours in a day. Departmental general order 83 — 3 establishes 8-hour workday shifts which start at times after the 15-minute roll-call period. If the lunch break was intended to be uncompensated personal time, plaintiffs’ actual work time would be hours, which would contradict the personnel policy’s definition of a workday and week.

Defendants argue that section 4.3 of the personnel policy defines “overtime” only as time worked “when called back after normal working hours or on regularly scheduled days off,” thus excluding the roll-call period. They fail to recognize, however, that the roll-call time period would fall within the personnel policy’s definition of overtime. Section 4.1 of the personnel policy defines a workday as “the 24-hour period from the time that he or she is scheduled to begin work until that time shall occur again.” For example, when an officer working the 0700 through 1500 hour shift is called in at 0645 hour the next day, the officer has been, theoretically, called back to work within the 24-hour period commencing with his prior shift. Furthermore, extending defendants’ argument, if the officers were required to report two hours early instead of the present 15 minutes, this time would also be deemed noncompensable time, and would contradict other provisions of the personnel policy defining a workday and week as 8 and 40 hours, respectively. Defendants also argue that because plaintiffs are salaried employees and their salary compensates them for performing a normal schedule of work, roll-call time is not compensable. This argument again ignores the personnel policy’s definition of a workday and week, and departmental general order 83 — 3, which sets forth the hours of each shift. Furthermore, departmental general order 83 — 6 supports an inference that plaintiffs were denied overtime compensation for roll call, as it states that roll-call time should not be included on an officer’s daily activity report as on-duty time.

Plaintiffs next contend that the trial court erred when it found that the Village of Libertyville did not have to pay overtime compensation because no appropriation was made for that purpose. Section 8 — 1—7 of the Illinois Municipal Code provides:

“[N]o contract shall be made by the corporate authorities, or by any committee or member thereof, and no expense shall be incurred by any of the officers or departments of any municipality, whether the object of the expenditure has been ordered by the corporate authorities or not, unless an appropriation has been previously made concerning that contract or expense. Any contract made, or any expense otherwise incurred, in violation of the provisions of this section shall be null and void as to the municipality ***.” (Ill. Rev. Stat. 1987, ch. 24, par. 8— 1 — 7(a).)

This provision applies to a municipality’s liability for overtime compensation. Koudelka v. Village of Woodridge (1980), 91 Ill. App. 3d 884, 888, 413 N.E.2d 1381.

We find that the record does not establish a right for the village to deny plaintiffs overtime compensation for the roll-call time on this ground. Overtime compensation is expressly provided for in the village’s personnel policy. While the village administrator’s affidavit stated that no appropriation had been made for roll-call overtime pay, that does not establish that compensation for overtime by its employees was not otherwise appropriated. Apparently, the village contemplates the payment of any overtime compensation out of the general line item appropriation in its ordinance for police officer salaries and compensation.

Koudelka v. Village of Woodridge, relied on by defendants and the trial judge, is distinguishable. There, the plaintiff had accumulated 1,594 hours of “earned time due,” a purpose not provided for in its appropriation ordinance. However, the defendant village had an unwritten policy permitting compensatory time off, and, after the plaintiff was terminated from employment, she sought payment for her accumulated hours of earned time due. The court held that the village was not liable for overtime compensation because there had been no prior appropriation. (Koudelka v. Village of Woodridge (1980), 91 Ill. App. 3d 884, 885-88, 413 N.E.2d 1381.) The distinguishable fact is that the Village of Libertyville makes a single line item appropriation for police salaries and compensation which includes compensation for working overtime. In Koudelka, there was a general appropriation for salaries, including overtime, but there was no appropriation for the type of extraordinary expense, i.e., “earned time due,” there claimed by the plaintiff. (91 Ill. App. 3d at 887.) Here, plaintiffs are merely seeking compensation for ordinary overtime services to the village. Assuming that a police officer has worked in excess of an 8-hour day or a 40-hour week, the roll-call time period will apply towards overtime; there is no basis shown to draw a fine-line distinction between roll-call and other overtime compensation, as urged by the village.

Plaintiffs contend next that the trial court erred when it found that their claim was barred by laches. There is no dispute that plaintiffs’ claim was filed within the applicable statute of limitations, and defendants assert only that the doctrine of laches applies. When a claim or right is not barred by a limitation period, laches will not apply unless a party’s conduct or special circumstances make it inequitable to grant the requested relief. (Beynon Building Corp. v. National Guardian Life Insurance Co. (1983), 118 Ill. App. 3d 754, 764, 455 N.E.2d 246.) Laches is not merely a matter of delay; an action will be barred by laches only if the plaintiff’s unreasonable delay in asserting a right or claim has prejudiced and misled the defendant, or caused the defendant to pursue a course of action different from what he would have otherwise taken. (DeBruyn v. Elrod (1981), 84 Ill. 2d 128, 136, 418 N.E.2d 413.) On this record, we cannot find that defendants were prejudiced by any delay in asserting plaintiffs’ claim. The village adopted ordinances appropriating funds for police officer salaries and compensation, which apparently included overtime compensation, but since 1982 has declined to pay for all overtime services it actually received from its police officers. Plaintiffs timely asserted their right for on-duty service during roll-call compensation, and granting summary judgment on the basis of laches was error.

Plaintiffs also contend that they were not required to bring their wage-claim dispute before a grievance board before commencing this action and that the trial court erred when it found that their claim was barred for failure to exhaust administrative remedies. A review of the discipline and grievance procedures contained in the village personnel policy discloses that a wage claim is not subject to the grievance procedures. Section 6.0 of Libertyville’s personnel policy addresses only conduct which is subject to discipline and permitted disciplinary actions; the subject of wage disputes is not addressed in that section. Clearly, the grievance procedure applies only to disciplinary actions taken because of misconduct, and plaintiffs were not required to submit their wage-claim dispute to the grievance procedures set forth in the personnel policy.

Defendants also contend, without citation to authority, that plaintiffs waived their right to a trial by agreeing to a statement of the trial judge that because both parties filed motions for summary judgment they agreed there was no genuine issue of material fact to be resolved in the case. We have considered defendants’ argument and find it to be without merit.

Accordingly, the summary judgment is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

DUNN and REINHARD, JJ., concur.