author: PRESIDING JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EZEKIEL BROWN, Defendant-Appellant.
    Second District
    No. 2—88—0563
    Opinion filed March 12, 1990.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Daniel D. Yuhas and Gloria A. Carroll, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers, Robert J. Biderman, and Rebecca White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Ezekiel Brown, was tried in a bench trial in the circuit court of Lake County for the offenses of attempted first-degree murder, armed robbery, attempted armed robbery and seven counts of armed violence. (Ill. Rev. Stat. 1987, ch. 38, pars. 8—4, 9—1(a)(1), 18—2(a), 33A—2.) The State agreed to dismiss three of the armed violence charges during trial, and the defendant was convicted of the remaining charges. The court later vacated three of the four armed-violence convictions and did not impose a sentence on the fourth armed-violence conviction. The defendant was sentenced to terms of imprisonment of 60 years for attempted first-degree murder, 30 years for armed robbery to be served consecutively to the attempted first-degree murder sentence, and 15 years for attempted armed robbery. All sentences were ordered “to run consecutive with sentence imposed in the State of Michigan.”

The defendant raises these issues: (1) whether the court’s sentencing order is improperly vague; (2) whether the 60-year extended-term sentence for attempted first-degree murder was an abuse of the court’s sentencing discretion; (3) whether the “exceptionally brutal or heinous behavior indicative of wanton cruelty” aggravating factor in the extended-term sentencing statute is unconstitutionally vague under the eighth amendment; and (4) whether he is entitled to 192 days’ credit for time spent in custody prior to sentencing.

At approximately 8:20 p.m. on November 30, 1987, the defendant and a female companion, Gloria Christian, were traveling through Highland Park, Illinois, en route to Wisconsin. While monitoring traffic, Highland Park police officer Bruce Montgomery observed the defendant’s vehicle go through a red light. Montgomery activated his overhead lights, and, when the car pulled over, Montgomery observed two occupants. The driver, who was the defendant, made hand motions and appeared to bend down in his seat. As Montgomery began to get out of his vehicle, defendant pulled his car back onto the highway. Montgomery pursued the defendant’s car, traveling between 80 and 90 miles per hour. When the defendant’s car came to rest in the front yard of a residence, the defendant exited his car with a gun and turned toward Montgomery. Montgomery, about 25 feet away, saw the defendant “square off,” pointing the gun directly at Montgomery. Montgomery slid down in his seat while maintaining sight of the defendant. Montgomery heard a shot, which struck his right front headlight. Two other shots followed, shattering the windshield and hitting the front of the car. Montgomery’s car came to a stop about six inches from the defendant’s car. Montgomery dove out his car door and fired three shots at the defendant. The defendant turned and ran toward the rear of the residence.

During the course of the gunfire, Montgomery felt something hit the right side of his face, causing him pain. Montgomery estimated the defendant fired five shots before fleeing to the rear of the residence. Montgomery ran past the defendant’s car but did not see the passenger as he pursued the defendant. The occupants of the residence emerged, and Montgomery convinced them to go back inside. With only one bullet left, Montgomery ran back to his car for his shotgun. He also made some radio transmissions before continuing pursuit of the defendant. When Montgomery ran to the corner of the residence again, he saw the passenger, Gloria Christian, and he ordered her to the ground before taking her into custody. When Highland Park police sergeant Dahlberg arrived, he noticed blood on Montgomery’s cheek, nose, and ears. Montgomery left the scene in an ambulance. Montgomery testified that he has a lead, tattoo-type of scar from a bullet fragment on his face.

Subsequent examination of Montgomery’s squad car showed one bullet strike in the right side, one in the headlight area, one to the left of the center of the hood above the radiator grill, one above the grill on the lip of the hood, one in the center of the hood, one in the windshield, and another in the siren cone housing.

During the search which ensued for the defendant, it was learned that a female subject had been attacked in a subdivision located immediately south of the residence where the confrontation between the defendant and Montgomery had occurred. Later still, it was learned that a black male subject had been involved in an attempted armed robbery about one mile south of the subdivision where the woman had been attacked. The evidence showed the defendant was the perpetrator in both instances.

At about 10:15 p.m., the defendant was seen exiting a drainage ditch about 300 feet east of the area being searched. The defendant was shivering and his clothes tattered and ripped. He was transported by ambulance to Highland Park Hospital and was found to be suffering from hypothermia and a hand wound. His rights were read to him, and he acknowledged that he understood them. Defendant initially stated that he threw the weapon by a house but later stated that he threw it in the creek. He then made the statement that he did not care if he lived or died. Questioning was suspended until the defendant was taken to the police department.

At about 1 a.m., the defendant again was read his Miranda warnings, but he did not sign the waiver form due to the fact that his hand was bleeding. According to Sergeant Dahlberg’s testimony, the defendant related that he had been coming from Grunding, Alabama, en route to Wisconsin in search of work since his Alabama parole officer was going to get a warrant for his arrest. Dahlberg related the defendant said he lost control of his car and came out shooting at the police officer, who was attempting to stop him. He stopped shooting because he had been shot in the hand. Dahlberg testified the defendant also related the circumstances of the subsequent incidents with the female in the subdivision and the attempted armed robbery.

The State and the defendant agreed to several stipulations. The first two were from doctors who, if called to testify, would state that Bruce Montgomery had been treated for a puncture wound in his right cheek. The third was a stipulation that, if called to testify, Gloria Christian would state, inter alia, that when she and the defendant saw a police car pull out after them on Route 41, the defendant said, “If we get pulled over, it’s him or me.” The defendant pulled a handgun from under his seat, tried to elude the officer, and crashed into a yard. The defendant jumped from the car and shot at the policeman first. After the defendant shot all his bullets, he ran away. Christian stated the defendant always kept a loaded gun under his seat. The defendant had told her that he would not be caught and that, “It’ll be them or me.” Finally, Christian stated the defendant would pull out his gun and rest it between his legs whenever he would pass a police car.

After the defendant’s motions to suppress statements and to suppress identification were denied, the defendant testified. He stated he was driving on Route 41 on November 30, 1987, and that the snow was heavy. He ran a traffic light, and a policeman began to follow him with the lights on. Defendant stated he pulled over and waited but the officer never got out of his vehicle, so the defendant pulled out again. The defendant drove on, executing two right turns and pulling up into someone’s yard. The defendant stated he then ran into some trees. The police officer, defendant said, shot at him as he began to run. The defendant stated he was on the run because his parole officer in Alabama had told him that he was going to lock him up for some traffic violations, and it would be best for him to leave the State. The defendant claimed that after the officer shot at him, he retaliated by shooting back. He began shooting and running until he ran out of bullets. The defendant said that he never intended to kill the policeman but was only shooting to hold him down in order to get away.

Following arguments, the trial court found that the defendant had been proved guilty of all the charges with the exception of the three armed violence charges which were dismissed by the State. The trial court later denied the defendant’s motion for a new trial.

At sentencing, the State presented two witnesses in aggravation. The first witness, Officer Kenneth Laninger of the Michigan State Police, testified that the defendant was involved in an October 1980 incident similar to the instant offense. Laninger testified that after he had attempted to stop the defendant’s car twice, and the defendant had stopped and fled both times, the defendant’s car crashed into and became stuck in a pile of rubbish. The defendant jumped out and fired at Laninger and his partner, who returned the fire. The defendant’s female passenger stated that defendant told her he would not be taken alive and would try to kill one officer. As a result of that incident, the defendant pleaded guilty to assault with intent to murder and was sentenced to 9xk to 40 years’ imprisonment.

The second witness in aggravation, Highland Park police officer George Highland, testified that he interviewed the defendant on December 12, 1987, at about 1 a.m. The defendant told Highland that he had a parole violation in Alabama and that he would do anything to stay out of jail. The defendant also told Highland that a similar incident happened in Michigan seven years before and nothing much happened to him, so he had nothing to lose.

Defense counsel argued against the imposition of an extended-term sentence, contending that the defendant’s actions were not brutal or heinous actions indicative of wanton cruelty and that the statute authorizing extended-term sentences on that basis is unconstitutionally vague under Maynard v. Cartwright (1988), 486 U.S. 356, 100 L. Ed. 2d 372, 108 S. Ct. 1853. The trial judge found that the defendant’s actions were extremely heinous and indicative of wanton cruelty, and he sentenced him as set out above.

The defendant first contends the court’s sentencing order is improperly vague. Defendant correctly notes it is well settled that the sentence should be so complete that it does not require court construction or supplementation by a nonjudicial or ministerial officer to ascertain its meaning. (People ex rel. Clancy v. Graydon (1928), 329 Ill. 398, 402; People v. Combs (1940), 304 Ill. App. 467, 469-70.) Defendant states it is impossible to ascertain when his sentences will commence because the reference to the Michigan term in the sentence order is so vague. He requests reversal and remandment for resentencing.

The State concedes the order is vague under the authority of People v. Walton (1969), 118 Ill. App. 2d 324, and agrees the cause should be remanded but only for the purpose of entering a proper sentence and not for a new sentencing hearing.

We agree that remand for the limited purpose of entry of a proper sentence is the appropriate disposition of this issue. (See People v. George (1979), 75 Ill. App. 3d 140, 144-45.) Upon resentencing, the trial judge should specify the case number and description of the Michigan sentence the Illinois imprisonment is intended to follow so that the terms of the mittimus are explicit and require no supplemental interpretation.

The defendant next contends the court abused its discretion in imposing a 60-year extended-term sentence for attempted first-degree murder first, because the shooting was not exceptionally brutal or heinous and, therefore, not indicative of wanton cruelty and second, because the trial court gave undue consideration to the fact the victim was a police officer.

The State maintains the victim’s occupation did not have any untoward effect on the sentence the court imposed and that the record at bar clearly demonstrates exceptionally brutal and heinous behavior indicative of wanton cruelty.

In imposing the extended-term sentence pursuant to sections 5—8—2(a) and 5—5—3.2(b)(2) of the Unified Code of Corrections (the Code) (Ill. Rev. Stat. 1987, ch. 38, pars. 1005—8—2(a), 1005—5—3.2(b)(2)), the trial judge commented on the defendant’s degree of premeditation in the instant offense (“[He] made up his mind early on that if he got stopped he was going to blow somebody away”) and in the previous similar incident in Michigan, his total lack of remorse and his indifference toward police officers and the citizens of the community of Highland Park, “which he rampaged through.” The judge commented on the potential danger police officers face daily and the tremendous job they do in spite of it. Finally, the judge commended the cooperative police effort which resulted in the apprehension and conviction of the defendant in the instant cause. The judge then stated it “would be barbaric of [him] to allow [the defendant] back on the street to inflict that kind of danger to police officers again” and sentenced the defendant to the Department of Corrections for 60 years.

The defendant argues the comments show the judge found his behavior was heinous and indicative of wanton cruelty because his victim was a police officer, thereby placing the defendant in the judge’s “particular class of disfavored offenders.” The defendant posits the act of shooting a police officer in an attempt to escape capture is not per se exceptionally brutal or heinous behavior indicative of wanton cruelty and that his conduct was “no more brutal or heinous then [sic] the ‘average’ attempted murder.”

In defining the identical phrase “exceptionally brutal or heinous behavior indicative of wanton cruelty” as used in section 5 — 8—1 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(1)(b)), the court in People v. La Pointe (1981), 88 Ill. 2d 482, 501 stated:

“ ‘Heinous’ is defined by Webster’s Third New International Dictionary (unabridged) as ‘hatefully or shockingly evil: grossly bad: enormously and flagrantly criminal’; ‘brutal’ includes ‘grossly ruthless,’ ‘devoid of mercy or compassion: cruel and cold-blooded.’ ”

La Pointe was found instructive in the recent supreme court case People v. Andrews, which considered whether the court there properly found the defendant eligible for an extended-term sentence under section 5 — 5—3.2 of the Code. (People v. Andrews (1989), 132 Ill. 2d 451, 456.) The terms “wanton” and “cruelty” as used in section 5— 5 — 3.2 of the Code were defined in People v. Jones (1979), 73 Ill. App. 3d 99. “ ‘Cruelty’ [is] a ‘disposition to inflict pain or suffering or to enjoy it being inflicted’ ” and “ ‘[t]o constitute an act wanton, the party doing the act or failing to act must be conscious of his conduct, and, though having no intent to injure, must be conscious, from his knowledge of surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury.’ ” (Jones, 73 Ill. App. 3d at 103, quoting Webster’s Third New International Dictionary 546 (1976), and Bartolucci v. Falleti (1943), 382 Ill. 168, 174.) “A single act which causes death or injury may be sufficient to demonstrate the existence of wanton cruelty.” People v. Barfield (1989), 187 Ill. App. 3d 190, 202.

In Jones, the trial court’s imposition of an extended term was upheld on review where the defendant fired a gun in close proximity to the deputy-victim’s head and knew there was a strong possibility that the conduct would result in physical injury and mental suffering to the deputy. (Jones, 73 Ill. App. 3d at 103.) In La Pointe, the court found, contrary to the defendant’s argument there, that section 5— 8 — 1 of the Code did not limit the imposition of a sentence of natural-life imprisonment to only those murders involving torture or the infliction of unnecessary pain as evidence of brutality and heinousness. (La Pointe, 88 Ill. 2d at 501.) Accordingly, the court there found the trial judge had not abused his discretion in imposing a sentence of natural-life imprisonment on the defendant, who had a prior criminal history, premeditated the point-blank shooting death of a taxi driver and whose callous attitude and lack of remorse was demonstrated by wearing in the county jail a T-shirt bearing the words “Elmhurst Executioner.”

An extended-term sentence is not intended to enhance the punishment for every offense. (Andrews, 132 Ill. 2d at 466, citing People v. Evans (1981), 87 Ill. 2d 77, 88-89.) However, a defendant’s premeditation or lack of remorse — both of which factors apply to the instant defendant and were emphasized by the trial judge — clearly are factors which have been focused upon in considering whether behavior was exceptionally brutal or heinous and indicative of wanton cruelty. See, e.g., Andrews, 132 Ill. 2d at 466; People v. Lucas (1989), 132 Ill. 2d 399, 445; La Pointe, 88 Ill. 2d at 501; People v. Curtis (1989), 190 Ill. App. 3d 207, 216-17; Barfield, 187 Ill. App. 3d at 203; People v. Edens (1988), 174 Ill. App. 3d 1033, 1045-46; People v. Bedony (1988), 173 Ill. App. 3d 613, 621.

An extended-term sentence was recently upheld in the attempted murder of a police officer on the ground it was exceptionally brutal and heinous, indicative of wanton cruelty. In People v. Curtis (1989), 190 Ill. App. 3d 207, the defendants decided, for no particular reason, to shoot a police officer. A prank call was used to lure a police officer to the area where the defendants were hiding. When the officer arrived, one of the defendants shot him without regard for the possible fatality of the shot. In imposing sentence, the court stated, “Clearly, the senselessness, the premeditation, the possible fatality of such an act of violence evidence to this court exceptionally heinous behavior indicative of wanton cruelty.” 190 Ill. App. 3d at 217.

That the defendant here ostensibly had “a reason” to shoot the officer — in order to escape — cannot be viewed as any factor in mitigation of the wanton cruelty of the defendant’s act. The evidence showed the defendant was disposed to inflict pain. He kept a loaded gun under his car seat and would pull it out and rest it between his legs whenever he would pass a police car. He clearly was conscious the high-speed chase he initiated and his subsequent deliberate aiming and firing of this gun until it was empty would naturally and probably result in serious injury to, if not the death of, the officer. Under this evidence, we cannot conclude the defendant’s conduct fell within the range of the “average” attempted murder. His uncommon degree of ever-readiness to prevent police apprehension by lethal means made it exceptionally brutal and heinous conduct.

It is basic that it is within the court’s discretion to impose an extended-term sentence (People v. Lighthall (1988), 175 Ill. App. 3d 700) and to determine what constitutes “exceptionally brutal and heinous behavior indicative of wanton cruelty” for the purpose of imposing an extended sentence (Andrews, 132 Ill. 2d at 464; Edens, 174 Ill. App. 3d at 1045). As long as the trial court does not consider unreliable or incompetent evidence, improper aggravating factors, or ignore pertinent mitigating factors, the court has wide latitude in sentencing the defendant to any term within the statutory range prescribed for the offense. (People v. Glass (1986), 144 Ill. App. 3d 296.) The imposition of a sentence is an abuse of discretion only when the judgment of the trial court is manifestly unjust or palpably erroneous. (People v. Anderson (1986), 112 Ill. 2d 39; People v. Hominick (1988), 177 Ill. App. 3d 18.) Based on the record, we conclude the trial court’s judgment was neither manifestly unjust nor palpably erroneous.

We find unmeritorious defendant’s contention that the trial judge imposed the extended term simply because he fell within the judge’s “particular class of disfavored offenders.”

Defendant correctly notes that it has been found to be an abuse of discretion for a trial judge to base sentencing decisions on his or her own personal policy. (See, e.g., People v. Bolyard (1975), 61 Ill. 2d 583, 587 (new sentencing hearing warranted where trial judge denied probation based on personal policy that sex offenders who abuse children should not receive probation); People v. Clemons (1988), 175 Ill. App. 3d 7, 13 (error for trial judge to deny vacation of sentence based on judge’s policy of not disturbing a sentence without the victim’s approval); People v. Wilson (1977), 47 Ill. App. 3d 220, 222 (sentence reversed and cause remanded for a resentencing where, in imposing sentence, the trial judge disclosed his view or policy which made it virtually certain that no first-time offender in the traffic of drugs would be granted probation).) Here, however, the trial judge’s comments reveal no improper personal view or policy which served as the basis for his sentence of the defendant. Rather, the judge’s comments reflect his cognizance of what the record showed to be the defendant’s total disdain and disregard for the life of any police officer who would try to enforce the law against him. In short, the record supports the conclusion that the court’s sentence was a reasoned judgment prompted not by the judge’s personal policy, but by the defendant’s own callous “them or me” policy.

The defendant next contends the extended-term statute (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.2(b)(2)) is unconstitutionally vague under the eighth amendment’s prohibition against cruel and unusual punishment because it creates the possibility that extended-term sentences could be arbitrarily and capriciously imposed under it. He relies primarily on Maynard v. Cartwright (1988), 486 U.S. 356, 100 L. Ed. 2d 372, 108 S. Ct. 1853, People v. Odle (1989), 128 Ill. 2d 111, and Godfrey v. Georgia (1980), 446 U.S. 420, 64 L. Ed. 2d 398, 100 S. Ct. 1759, in support of his contention of vagueness. We granted defendant leave to cite as additional authority People v. Lucas (1989), 132 Ill. 2d 399, which found Odle controlling in rejecting the defendant’s contention there that section 9 — 1(b)(7) of the Criminal Code of 1961 (Criminal Code) is unconstitutionally vague. (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(b)(7).) He further relies on United States ex rel. Robinson v. Chrans (C.D. Ill. 1987), 660 F. Supp. 241, in support of his contention that the eighth amendment vagueness analysis is not limited to cases involving the death penalty.

Contrary to the defendant’s argument, the State contends that this issue has been determined in People v. Peeples (1989), 184 Ill. App. 3d 206, and that the Godfrey analysis applied in Maynard is limited in its application to death penalty sentences and not cases involving terms-of-years sentences.

The defendant asserts in reply that the court in Peeples did not reach the issue of whether an eighth amendment vagueness analysis applies to an extended-term sentencing statute and that there is no reason to limit eighth amendment analysis in noncapital cases to proportionality issues alone.

An eighth amendment vagueness analysis is not applicable to the instant extended-term sentencing statute where the defendant has not claimed that his term-of-years sentence of imprisonment is disproportionate to his offense.

In People v. Peeples (1989), 184 Ill. App. 3d 206, the defendant appealed the dismissal bn res judicata grounds of his post-conviction petition. His post-conviction petition alleged numerous grounds for relief but was based in particular on his assertion that section 5 — 5— 3.2(b)(2) of the Code specifying exceptionally brutal or heinous behavior indicative of wanton cruelty as a reason to impose an extended-term sentence was vague and violated the eighth amendment prohibition against cruel and unusual punishment because such a sentence could be capriciously and arbitrarily imposed.

On review, the State contended that the various issues raised by the defendant were either raised or could have been raised in earlier appeals and, as such, res judicata was properly applied in dismissing the petition. The defendant argued, however, that he fell "within the limited fundamental fairness exception to res judicata, which permits review where the right relied upon has been recognized for the first time after the direct appeal. The defendant posited that the recent case Maynard v. Cartwright (1988), 486 U.S. 356, 100 L. Ed. 2d 372, 108 S. Ct. 1853, provided such a right for the first time where the court in Maynard struck down, on eighth amendment vagueness grounds, an Oklahoma statute which allowed the death penalty to be imposed when the murder was “especially heinous, atrocious, or cruel.” The Supreme Court found such language did not sufficiently minimize the risk of wholly arbitrary and capricious action by the sentencer in imposing the death penalty.

The Peeples court disagreed that Maynard represented new law inasmuch as the result in Maynard was controlled by Godfrey v. Georgia (1980), 446 U.S. 420, 64 L. Ed. 2d 398, 100 S. Ct. 1759, and it also found the defendant had litigated the extended-term, eighth amendment vagueness issue in earlier State and Federal proceedings. Peeples, 184 Ill. App. 3d at 209, referring to People v. Peeples (1981), 97 Ill. App. 3d 1202 (unpublished order under Supreme Court Rule 23); United States ex rel. Peeples v. Greer (C.D. Ill. 1983), 566 F. Supp. 580; United States ex rel. Peeples v. Greer (7th Cir. 1984), 739 F.2d 262.

The Peeples decision includes excerpts from both the Federal district court and court of appeals opinions. Quoting from the district court opinion, the court stated:

“ ‘In short, Godfrey v. Georgia is an Eighth Amendment case and not a Fourteenth Amendment due process case. [Citations.] The Eighth Amendment analysis of Godfrey v. Georgia would not apply to an extended term of imprisonment. As noted above, the United States Supreme Court has never held a term of years within statutory limits to be cruel and unusual punishment. [Citation.] It follows that a substantial risk of the arbitrary and capricious imposition of an extended term of imprisonment is not cruel and unusual punishment.’ Peeples, 566 F. Supp. at 591.” (Emphasis added.) Peeples, 184 Ill. App. 3d at 210.

Subsequent to the district court’s opinion in Peeples, the Supreme Court decided Solem v. Helm (1983), 463 U.S. 277, 77 L. Ed. 2d 637, 103 S. Ct. 3001, which the defendant argued to the United States Court of Appeals for the Seventh Circuit made the district court’s refusal to undertake an eighth amendment analysis of his cause improper. The court of appeals wrote:

“ ‘[W]e find that Solem does not serve to change [the district court’s] decision. Put succinctly, Godfrey, Gregg and Proffitt still stand for the proposition that in a death penalty case there can be cruel and unusual punishment whenever there is a substantial risk that due to the language of the state statute the death penalty can be imposed in an arbitrary and capricious manner. Solem addresses an inherently different consideration — one which serves to permit limited federal court surveillance of state court term sentences. It is that imprisonment for a term of years can be found invalid under the Eight Amendment, when the term of years is significantly disproportionate to the offense. Both Solem and the Godfrey line of cases fall under the scrutiny of the Eighth Amendment, but they do not combine here to condemn Peeples’ sentence. The petitioner here has not claimed that his term of years is disproportionate to his offense. ***
*** [U]nder Solem, [the] concern *** is related more to the application of the statute than to the language of the statute. It is that in the term sentence itself there must be proportionality and balance that reflect the offense committed.’ ” (Emphasis added.) Peeples, 184 Ill. App. 3d at 210-11.

The defendant contends the self-imposed restriction by the Federal courts on the application of the eighth amendment to proportionality claims in considering noncapital sentencing statutes — evidenced in the court of appeals decision in Peeples (739 F.2d 262) — has been abandoned. In support of this contention, he cites United States ex rel. Robinson v. Chrans (C.D. Ill. 1987), 660 F. Supp. 241, and argues Chrans substantively considered eighth amendment challenges to the Illinois Habitual Criminal Act (Ill. Rev. Stat. 1987, ch. 38, par. 33B—1 et seq.) based on an alleged abuse of prosecutorial discretion provided in the statute, and that the statute did not allow for the consideration of mitigating factors.

Chrans did not decide the cause based on a substantive consideration of the eighth amendment. Rather, insofar as the prosecutorial discretion was concerned, it adhered to the interpretation afforded the statute in People v. Withers (1983), 115 Ill. App. 3d 1077, 1087-88, which was not based on an eighth amendment analysis. As to the lack of consideration of mitigating factors, Chrans relied on Rummel v. Estelle (1980), 445 U.S. 263, 63 L. Ed. 2d 382, 100 S. Ct. 1133, and, again, on Withers, which also relied on Rummel in upholding the constitutionality of the Illinois Habitual Criminal Act (People v. Withers (1983), 115 Ill. App. 3d 1077, 1088-91). The defendant in Rummel, sentenced to life imprisonment under a Texas recidivist statute, argued that the sentence was “grossly disproportionate” to the three felonies that formed the predicate for his sentence and that, therefore, the sentence violated the ban on cruel and unusual punishments under the eighth and fourteenth amendments. Rummel, 445 U.S. at 264-65, 63 L. Ed. 2d at 385, 100 S. Ct. at 1134.

Based on our reading of Chrans, we do not agree with the defendant’s contention that the Federal court’s “self-imposed restriction” on the application of the eighth amendment to proportionality claims in considering noncapital sentencing statutes has been abandoned. Inasmuch as the defendant here has not raised a proportionality challenge to his sentence, we believe Peeples (184 Ill. App. 3d 206) controls, and the defendant’s argument on this issue is without merit.

Our supreme court in People v. Odle (1989), 128 Ill. 2d 111, 139-41, considered the constitutionality of section 9--1(b)(7) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(b)(7) (person convicted of murder may be eligible for the death penalty if “the murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty”)) in light of the statute found invalid in Maynard v. Cartwright. The court in Odle found that section 9 — 1(b)(7) did not suffer from the same constitutional infirmity as the Oklahoma statute in Maynard in that it is much more specific in describing the conduct which qualifies an accused for the death penalty. The Oklahoma statute in Maynard was found vague and overly broad in that the words “especially heinous, atrocious, or cruel” failed to sufficiently guide or limit the discretion of the sentences The Odie court cautioned, however, that in applying section 9 — 1(b)(7), “[the] qualifying requirements of the statute cannot be omitted so that its application is left unchanneled. Thus, the victim must be under the age of 12, and the conduct which brings about the victim’s death must not only be exceptionally brutal or heinous, it must also be such that it is indicative of wanton cruelty.” (Emphasis in original.) Odle, 128 Ill. 2d at 141; see also Lucas, 132 Ill. 2d at 444; People v. Kidd (1989), 129 Ill. 2d 432, 456.

The defendant argues that because the extended-term statute lacks the narrowing requirement that the victim be under 12 years of age as was the case in Odle and Lucas, the inclusion of the “wanton cruelty” factor in the extended-term statute “is not of such magnitude as to save the statute” where the court in Godfrey v. Georgia (1980), 446 U.S. 420, 64 L. Ed. 2d 398, 100 S. Ct. 1759, considered similar language and found it, without narrowing requirements, constitutionally inadequate.

Defendant’s argument is without merit. As argued by the State, the extended-term statute is not unconstitutionally vague where — like the narrowing requirement in section 9 — 1(b)(7) emphasized in Odle and Lucas — it requires not only that the offense be exceptionally brutal or heinous, but that it be “indicative of wanton cruelty” as well. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.2(b)(2).) Godfrey does not support a contrary finding. The statutory language considered in Godfrey, to wit, that a person convicted of murder may be sentenced to death if it is found beyond a reasonable doubt that the offense “was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim” (Godfrey, 446 U.S. at 422, 64 L. Ed. 2d at 402-03, 100 S. Ct. at 1762), was not found unconstitutionally vague on its face under the eighth amendment. Rather, at issue in Godfrey was whether, in affirming the death sentences imposed there for crimes of murder which did not involve torture or aggravated battery, the Georgia Supreme Court had adopted such a broad and vague construction of the aggravating circumstances spelled out in the statute as to violate the eighth and fourteenth amendments. (446 U.S. at 423, 64 L. Ed. 2d at 403, 100 S. Ct. at 1762.) The court found that the Georgia Supreme Court’s affirmance of the sentences under the circumstances presented there was violative of the eighth and fourteenth amendments.

For these reasons we conclude the defendant’s contention that the extended-term sentencing statute is unconstitutionally vague under the eighth amendment is without merit.

The defendant’s final contention is that he is entitled to 192 days’ credit for time he spent in custody prior to sentencing pursuant to section 5 — 8—7(b) of the Code. Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—7(b).

The State concedes this issue under the authority of People v. Scheib (1979), 76 Ill. 2d 244 (mandatory credit under section 5 — 8—7 is meant to account for all the time a defendant has served in confinement for a particular offense). An amended mittimus should be issued to reflect sentence credit for time served of 192 days.

The defendant’s sentence is vacated in part. The cause is remanded to the trial court for the purpose of reimposition of a sentence in this cause which specifies by number and description the Michigan sentence which the sentence herein is to follow and for reissuance of the mittimus including a credit to the defendant for 192 days’ sentence served.

The judgment of the circuit court of Lake County in all other respects is affirmed.

Judgment of conviction affirmed; sentence vacated in part and cause remanded with directions.

McLAREN and REINHARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE REINHARD JUSTICE McLAREN,

license: Public Domain

text:
    THE COUNTY OF LAKE, Plaintiff-Appellant, v. JAMES SEMMERLING, Lake Villa Township Road Commissioner, Defendant-Appellee.
    Second District
    No. 2—89—0487
    Opinion filed March 12, 1990.

      McLAREN, J., dissenting.
    Fred L. Foreman, State’s Attorney, and James C. Bakk, of Lonchar, Nordigian & Bakk, both of Waukegan (Van J. Herrero, Assistant State’s Attorney, of counsel), for appellant.
    Hill, Van Santen, Steadman & Simpson, P.C., of Chicago (Scott W. Petersen, of counsel), for appellee.
    Jacqueline M. Gerber, of Brown, Hay & Stephens, of Springfield, for amicus curiae Township Officials of Illinois.
    Richard H. Hoffman, Victor J. Piekarski, and Michael Resis, all of Querrey & Harrow, Ltd., of Waukegan, for amicus curiae Urban Counties Council of Illinois.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, the County of Lake, filed suit in the circuit court of Lake County seeking, inter alia, a permanent mandatory injunction requiring defendant, James Semmerling, the Lake Villa Township road commissioner, to apply for and obtain a site-development permit pursuant to a Lake County ordinance for certain work to be done by defendant on various township roads located in unincorporated Lake County. Both parties moved for summary judgment, and the trial court denied plaintiff’s motion and granted defendant’s motion.

The sole issue on appeal is whether plaintiff can enforce its zoning ordinance, requiring, in pertinent part, a site-development permit for excavations exceeding three feet, for earth moving in excess of 1,000 square feet and for removal of plant cover exceeding 1,000 square feet, against the Lake Villa Township road commissioner performing work implicating those provisions on certain township roads in unincorporated Lake County.

Defendant is the Lake Villa Township road commissioner. The three situations which provide the basis for this litigation involve earth-moving operations by the township along the Glade Avenue right-of-way, construction of a berm at the southwest intersection of Chesney Drive and Park Court, and grading and drainage work on Alice Lane, all in unincorporated Lake County. All three projects involved excavation of land covered by the ordinance, and all three locations are township roadways within Lake Villa Township. There is no dispute that all three projects are encompassed by the Lake County zoning ordinance as to subject matter.

The Lake County zoning ordinance at issue requires, inter alia, that whenever “land is cleared, graded, transported, or otherwise disturbed by the movement of earth” and such activity involves excavation in excess of three vertical feet, excavation, fill, or combination exceeding 1,000 square feet, or removal of plant cover from an area exceeding 1,000 square feet, that a site-development permit be obtained from Lake County. (Lake County, Ill., Zoning Ordinance art. 4, §§IX D1(a)(3), (a)(4), (a)(5) (1987).) The ordinance contains no specific exemptions for township projects that fall within the purview of its requirements.

Defendant was “red tagged” for being in violation of the ordinance as to each of the three projects. Plaintiff subsequently filed a separate action as to each of the projects seeking a mandatory injunction to require defendant to apply for and obtain a site-development permit for each project. These three cases were consolidated in the trial court. Defendant filed an amended answer in which he raised as affirmative defenses that the section of the ordinance sought to be enforced does not apply because of his exclusive authority over Lake Villa township roads and that enforcement of the ordinance was arbitrary and aimed at thwarting or frustrating his statutory duties.

Defendant filed a motion for summary judgment on December 11, 1987, to which was attached the affidavits of defendant and Patrick Anderson. Anderson’s affidavit was subsequently stricken, and defendant’s affidavit stated, inter alia, that the ordinance at issue had not been previously applied to any work performed by the Lake Villa Township road district. On December 5, 1988, plaintiff filed its motion for summary judgment, and on December 22, 1988, defendant filed a second summary judgment motion, identical to the first except no affidavits were attached thereto. On January 5, 1989, defendant filed a brief in support of its motion for summary judgment to which it attached various newspaper articles, documents, affidavits of various township highway commissioners, and depositions. Plaintiff also filed a brief and attached an affidavit and an excerpt from a deposition. The trial court denied plaintiff’s motion and granted defendant’s, finding that the Lake Villa Township road district is a separately created entity and is not subservient to Lake County zoning laws requiring permits.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c); Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 112, 514 N.E.2d 188.) Summary judgment is a drastic measure which should be allowed only when a moving party’s right to it is clear and free from doubt. Pyne v. Witmer (1989), 129 Ill. 2d 351, 358, 543 N.E.2d 1304.

Plaintiff principally contends that its authority to enact an ordinance regulating and restricting land use is derived from section 1 of “An Act in relation to county zoning” (Ill. Rev. Stat. 1987, ch. 34, par. 3151) (Counties Act) and that there is no exemption in that statute preventing such regulation as it pertains to township roads. In addition, plaintiff points out that the Illinois Highway Code, as it provides for a township’s authority to build and maintain highways (Ill. Rev. Stat. 1987, ch. 121, par. 6—201 et seq.), contains no provision exempting the township road commissioners from the requirements imposed by county zoning regulations. Finally, it relies on Wilmette Park District v. Village of Wilmette (1986), 112 Ill. 2d 6, 490 N.E.2d 1282, to support enforcement of its ordinance against defendant.

Defendant essentially argues that the zoning ordinance cannot be applied to him because to do so would interfere with his statutory duty to maintain township roads. He further maintains that the ordinance excludes township uses and that enforcement of the ordinance against him constitutes selective enforcement. The township officials of Illinois filed an amicus curiae brief in which they basically contend that application of the zoning ordinance would unnecessarily disrupt defendant’s performance of his statutory duties.

Defendant initially raises the point that plaintiff cannot rely on section 1 of the Counties Act as support for authority to enact its ordinance because it did not rely on such authority in the trial court and, therefore, reliance on section 1 in that regard has been waived. Defendant’s contention is misplaced. Plaintiff’s failure to specifically refer to section 1 as authority for its enactment of the zoning ordinance at issue does not constitute a waiver of its reliance on section 1, where section 1 is a matter of statutory law which this court is obligated to consider whether raised below or not. Moreover, defendant conceded at oral argument that it does not challenge the authority of plaintiff to enact the zoning ordinance; consequently, we fail to recognize the significance of defendant’s waiver argument to this issue.

While neither party cites nor do we find any Illinois cases precisely addressing the principal issue presented here, we are persuaded by our supreme court’s decision in Wilmette Park District v. Village of Wilmette (1986), 112 Ill. 2d 6, 490 N.E.2d 1282. In that case, the supreme court addressed the issue of whether a park district, in exercising its statutory authority over the operation of its parks, is exempt from zoning ordinances of its host municipality. (Wilmette Park District, 112 Ill. 2d at 9-10, 490 N.E.2d at 1283.) In holding that the park district must submit to the process for acquiring a special-use permit from the host municipality to construct lights on one of its athletic fields, the court concluded that requiring the park district to submit to the permit process struck the best balance between the interests of the park district in operating parks in the municipality and the municipality’s interests in regulating the use of land within its borders. (112 Ill. 2d at 17-18, 490 N.E.2d at 1286-87.) In so holding, the court distinguished a previous line of cases which held that local governmental units are exempt from zoning ordinances of their host municipalities where application of those ordinances would frustrate the statutory duties of those local governmental units. 112 Ill. 2d at 15, 490 N.E.2d at 1286.

In the Wilmette Park District case, submission by the park district to the municipality’s zoning ordinance would not have prohibited the park district’s use of the land in question. (112 Ill. 2d at 15, 490 N.E.2d at 1286.) It is important to note the court’s emphasis that the municipality’s interest was not based upon any desire to manage park land, but rather was premised upon its interest in land-use planning and regulation. (112 Ill. 2d at 18, 490 N.E.2d at 1287.) Finally, the court noted that intergovernmental cooperation is symmetrical and should a municipality act unreasonably, arbitrarily or discriminatorily in denying a park district a special-use permit or otherwise abuse its zoning power to thwart or frustrate the park district’s statutory duties, such action will be subject to further review. 112 Ill. 2d at 19, 490 N.E.2d at 1287.

While we recognize the factual distinctions between the Wilmette Park District case and this case, we believe the principles enunciated in Wilmette Park District are applicable here. Applying those principles to the present case, we conclude that plaintiff could enforce its zoning ordinance requiring defendant to apply for and obtain site-development permits for the three projects at issue in this case. We recognize that defendant has certain duties regarding the maintenance and improvement of township roads within his jurisdiction (see Ill. Rev. Stat. 1987, ch. 121, par. 6—201 et seq.), but plaintiff also has obligations to the health, safety and welfare of its inhabitants, including the prevention of soil erosion, flooding and related problems. While we need not prioritize defendant’s or plaintiff’s statutory duties, it is necessary to establish the appropriate balance between their respective obligations under the particular facts of this case. (See Wilmette Park District, 112 Ill. 2d at 17, 490 N.E.2d at 1286-87.) In doing so, we recognize that the means for achieving cooperation between competing interests or overlapping responsibilities cannot be reduced to a rigid mathematical formula. Wilmette Park District, 112 Ill. 2d at 17, 490 N.E.2d at 1286-87.

Requiring defendant to submit to the site-development permit process strikes the appropriate balance between the competing interests present here. There is no indication here that having defendant apply for and obtain a site-development permit would unnecessarily or significantly interfere with defendant’s statutory obligations. Furthermore, the ordinance, by its terms, would not apply in every situation where defendant sought to perform work on the township roads. Rather, its applicability is limited to road construction projects which involve certain minimum amounts of excavation or earth moving. On the other hand, application of the ordinance to township road projects would serve the purpose of minimizing or eliminating potentially damaging soil erosion or flooding which might occur absent the zoning regulations. Requiring defendant to submit to the site-development permit process would not prohibit him from performing his statutory obligations to maintain township roads, but would merely place an affirmative duty on him to comply with the zoning ordinance as it applies to certain limited functions of defendant. See Wilmette Park District, 112 Ill. 2d at 15, 490 N.E.2d at 1286.

Although defendant and the dissent place heavy reliance on Village of Oak Brook v. County of Du Page (1988), 173 Ill. App. 3d 490, 527 N.E.2d 1066, we are unpersuaded. There, the County of Du Page, after obtaining State and Federal approval, sought to improve two county highways located within a flood-plain area in the corporate limits of Oak Brook. (Village of Oak Brook, 173 Ill. App. 3d at 491, 527 N.E.2d at 1067.) Oak Brook sought an injunction prohibiting Du Page County from performing the construction without first obtaining a variance from one of its ordinances concerning road construction in flood plains. (173 Ill. App. 3d at 491-96, 527 N.E.2d at 1067-70.) This court held that Du Page County was not required to submit to the municipal ordinance where it had already sought and received approval for the project from both the State and Federal governments. (173 Ill. App. 3d at 494-96, 527 N.E.2d at 1069-70.) To do so would result in chaos and undermine the coordinated structure between the various governmental bodies having jurisdiction over the areas involved and those having responsibility for maintenance of the roadways. 173 Ill. App. 3d at 494-96, 527 N.E.2d at 1069-70.

In the case before us, unlike in Village of Oak Brook, no chaos will result from application of the plaintiff’s ordinance to the defendant under these circumstances. Nor will its application potentially conflict with any other governmental entity that might exercise jurisdiction over the particular subject matter involved. Moreover, we do not believe that Village of Oak Brook is directly applicable here, because in that case the county had already submitted to extensive regulation by the State and Federal governments. The question in that case was not whether the county must submit to regulations of another governmental entity prior to performing work on roads over which it had a statutory duty to maintain, but, rather, whether a municipality could require the county to submit to its regulations after the county had already received approval from the State and Federal governments under regulations which effectively served the same purpose as the regulations sought to be enforced by Oak Brook.

Finally, we note that the dissent characterizes the question as one of “exclusive authority or nonexclusive authority which results in preemption.” (195 Ill. App. 3d at 101.) The discussion of the exclusive authority of the park district in the Wilmette Park District decision was in a completely different context than that relied upon by the dissenting judge to support his analysis.

In Wilmette Park District, the park district took the position that “because the General Assembly has granted park districts authority to operate parks, it impliedly follows that the legislature intended to confer zoning immunity to park districts in instances where zoning may affect park operations.” (Wilmette Park District, 112 Ill. 2d at 14, 490 N.E.2d at 1285.) The supreme court rejected that broad contention and stated that the General Assembly has not granted park districts the exclusive jurisdiction to operate parks as all municipalities are authorized to establish and operate parks. (Wilmette Park District, 112 Ill. 2d at 14, 490 N.E.2d at 1285.) “Absent an explicit statutory grant of immunity, the mere fact that the park district, a local unit of government, has a statutory duty to operate its parks cannot be extended to support the inference that it can exercise its authority without regard to the zoning ordinances of its host municipality.” Wilmette Park District, 112 Ill. 2d at 14-15, 490 N.E.2d at 1285.

As in the Wilmette Park District case, the General Assembly has not granted the township road commissioner an explicit statutory grant of immunity from the zoning ordinances of its host unit of local government even though it has been granted sole responsibility to maintain and operate township roads.

Defendant also contends that the ordinance by its own terms does not apply to township highway commissioners. In so arguing, he refers to a portion of the ordinance which lists “township structures and uses” as being permitted in all of the various zones. (Lake County, Ill., Zoning Ordinance art. 3, §II (1987).) We are unpersuaded by this argument, however, as that part of the ordinance referred to by defendant merely lists various uses that may be maintained within certain zones but does not address the issue before us, which is whether a township use must conform to certain permit requirements.

Consequently, the trial court erred in granting summary judgment on behalf of defendant on the basis that defendant is not subservient to plaintiff’s zoning laws requiring site-development permits. Of course, should plaintiff apply the zoning ordinance in an unreasonable, arbitrary or discriminatory manner in denying defendant a permit or otherwise abuse its zoning power to thwart or frustrate defendant’s statutory duties, a question not presented as defendant did not apply for a permit, its actions will be subject to further judicial review. See Wilmette Park District, 112 Ill. 2d at 19, 490 N.E.2d at 1287.

Defendant does raise a different, alternative basis, which he presented below, for affirming the trial court’s grant of summary judgment in his favor. Specifically, he argues, relying on People v. Husler (1975), 34 Ill. App. 3d 977, 342 N.E.2d 401, that the zoning ordinance in issue has never been applied to any other township road commissioners in Lake County seeking to perform road construction on any township roads and, therefore, plaintiff’s application of the ordinance to him constitutes selective enforcement. He bases this contention on various affidavits and other documents which were attached to his brief in support of his motion for summary judgment. Plaintiff filed a responding brief attaching an affidavit and excerpt from a deposition in which it is stated that site-development permits have been applied for and issued to contractors doing work on township roads and that at least two other township road commissioners were previously “red tagged” for work done on township roads without a permit.

It is evident that there is a genuine issue of material fact created by the conflicting affidavits and depositions which precludes summary judgment to either party in light of the alternative defense offered by defendant. Therefore, while we reverse summary judgment in favor of defendant for the reasons stated above, we remand for further proceedings on the complaint and the affirmative defense of selective enforcement. We do note, however, that selective enforcement is generally not a defense to zoning violations. People v. Husler (1975), 34 Ill. App. 3d 977, 980, 342 N.E.2d 401; see also 82 Am. Jur. 2d Zoning & Planning §253, at 788 (1976).

The judgment of the circuit court granting summary judgment for defendant is reversed, the denial of summary judgment in favor of plaintiff is affirmed, and the cause is remanded for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded with directions.

WOODWARD, J., concurs.

JUSTICE McLAREN,

dissenting:

I respectfully dissent.

The question in this case is not exemption or nonexemption of township highway commissioners in the Counties Act, as opined by the majority. The question is exclusive authority or nonexclusive authority which results in preemption. See Village of Oak Brook v. County of Du Page (1988), 173 Ill. App. 3d 490, 494, 527 N.E.2d 1066.

I agree with the majority that there is no specific exemption for township highway commissioners set forth in “An Act in relation to county zoning” (Ill. Rev. Stat. 1987, ch. 34, par. 3151) and that there is no exemption in that statute preventing such regulation as it pertains to township roads. However, neither is an exemption set forth for county, State, or Federal authorities. Applying the rationale of the Wilmette case as interpreted by the majority, the county may “red tag” any roadway authority in unincorporated McHenry County. However, I do not believe such an exemption need exist in order for the trial court to be affirmed. The majority cites Wilmette Park District v. Village of Wilmette (1986), 112 Ill. 2d 6, 490 N.E.2d 1282, to support enforcement of the zoning ordinance. I believe the Wilmette case is distinguishable and actually, if carefully examined, supports affirmance.

I believe that the Wilmette case is factually distinguishable for several reasons. First, the park district in Wilmette was seeking to exercise a nonexclusive authority. (Wilmette, 112 Ill. 2d at 14.) Unlike the park district in Wilmette, the township highway commissioner here has exclusive authority over township highways. Thus, the rationale of the majority in citing Wilmette is misplaced. Second, the installation of the lights in compliance with the zoning ordinance in Wilmette was, in essence, a “one-time shot,” which did not necessarily hamstring the park district in' carrying out its statutory authority (Wilmette, 112 Ill. 2d at 14), unlike the continuous application, inspection, etc., on virtually each highway project which would be required under the county’s zoning ordinance. Third, the placement of lights in the ball diamond and other matters in Wilmette are much different than the configuration, construction, and repair of township roads which are covered by the Illinois Highway Code.

I consider the case of Village of Oak Brook v. County of Du Page (1988), 173 Ill. App. 3d 490, controlling. In Oak Brook, a municipality sought to enjoin the construction of a county highway. This court affirmed the trial court’s finding that the county was not required to submit to the municipal ordinance, based upon “preemption.” Oak Brook, 173 Ill. App. 3d at 494.

Section 1—102 of the Illinois Highway Code (the Code), entitled “[legislative intent,” states in part, “It is further declared that highway transportation system development requires the cooperation of State, county, township, and municipal highway agencies and coordination of their activities on a continuous and partnership basis and the legislature intends such cooperative relationships to accomplish this purpose.” (Ill. Rev. Stat. 1987, ch. 121, par. 1—102.) The stated legislative intent does not include cooperation amongst departments of those various units of government other than those relating specifically to highways.

Division 1 of article 5 of the Code, entitled “General Powers of County — Designation of County Highways,” sets forth the powers and duties of the county board. (Ill. Rev. Stat. 1987, ch. 121, pars. 5—101 through 5—101.11, inclusive.) Nowhere in those powers and duties of the county board is there any indication that the county may regulate through zoning ordinances township roads and bridges or State and Federal streets, roads and highways.

Article VI of the Code, entitled “Administration of Township and District Roads,” contains the Code provisions relating to township highways. (Ill. Rev. Stat. 1987, ch. 121, par. 6—101 et seq.) Section 6 — 101, entitled “Road district roads,” states in part: “Roads which are part of the township and district road system are under the jurisdiction of the several road districts in which they are located, subject to such supervision by the county and the [Illinois Department of Transportation] as is provided in this Code.” (Ill. Rev. Stat. 1987, ch. 121, par. 6—101.) Section 6 — 325, entitled “Dedicated public roads or streets — When inclusion in township or district road system — Procedure,” relates to the inclusion of roads or streets and platted subdivisions into the township or district road system. It is the only instance in the Illinois Highway Code that provides when and if roads or streets must conform to the rules, specifications and regulations regarding location, width, grades, surface and drainage structures established by the county board. “In counties having more than 500,000 inhabitants, *** if such roads or streets conform to the rules, specifications and regulations regarding location, width, grades, surface and drainage structures established by the highway commissioner, the county superintendent of highways and the county highway plan commission, if any,” the roads may be incorporated into the township or district road system. Ill. Rev. Stat. 1987, ch. 121, par. 6—325.

Furthermore, in counties less than 500,000 it is the highway commissioner, not the building and zoning administrator, that determines whether the roads conform. (Ill. Rev. Stat. 1987, ch. 121, par. 6—325.) In counties greater than 500,000, the Code does not include any duties, responsibilities or authority on the part of the building and zoning commissioner to regulate township roads.

The ability of the county to impose its rules and regulations regarding surface and drainage, width and grades, etc., is only set forth in the one instance in section 6 — 325, which only applies when roads already in existence are brought into the township road system. The legislature has evidenced preemption by excluding such regulation in all the other sections. Nowhere in the Code does the county have the authority to regulate township roads except pursuant to section 6— 325, and said regulation is not enforced by the county zoning officer.

I believe the Code provides the appropriate statutory structure setting forth the parameters of the duties and responsibilities of the State, county, township, and municipal highway authorities. Therefore, the trial court was correct in determining that because the township highway commissioner had sole authority over township roads, he was not obliged to seek approval from some other individual outside the authority of the Highway Code.

The rationale of the Oak Brook case, not requiring the county to comply with municipal ordinances, has equal application to township highways. If the county highway system, for which the county has exclusive authority to configure, construct and repair, shall not be affected by municipal ordinances, then neither shall township highway commissioners, who have the exclusive authority over township roads, be affected by county ordinances except under section 6 — 325.

Moreover, the majority’s interpretation here effectively overrules the Oak Brook case. It does so by addressing and disposing of the cause based upon nonexemption rather than nonexclusive authority, i.e., preemption.

Although I believe that the legislature has preempted the activity of the county zoning officer, if the legislature deems it appropriate to address the majority’s opinion, I would suggest a preemptive clause in the Code rather than numerous exemption clauses in sundry statutes. I find it intriguing that the Code was enacted 30 years ago and this is apparently the first instance of “red tagging” by a county zoning officer of a township highway, according to the record below.

If the majority is correct, it is not only a declaration but a revelation.

For the reasons stated herein, I would affirm the judgment of the trial court and would not remand the matter for further proceedings.


author: PRESIDING JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PRENTISS JACKSON, Defendant-Appellant.
    First District (1st Division)
    No. 1—86—2343
    Opinion filed February 26, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Timothy J. Deeming and James H. Reedy, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Gayle D. Terry, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Following a jury trial, Prentiss Jackson (defendant) was convicted of two counts of attempted murder (Ill. Rev. Stat. 1983, ch. 38, pars. 8—4, 9—1), two counts of armed violence (Ill. Rev. Stat. 1983, ch. 38, par. 33A—2) and three counts of aggravated battery (Ill. Rev. Stat. 1983, ch. 38, par. 12—4(a)). The lesser included offenses of armed violence and aggravated battery merged into the attempted murder convictions, and defendant was sentenced to 30-year concurrent terms of imprisonment.

Defendant appeals his convictions, contending that (1) he was denied a fair trial where the trial court admitted into evidence a weapon recovered at the time of his arrest; (2) he was denied a fair trial based upon the State’s presentation of nonverbal testimony at trial; (3) he was denied a fair trial as a result of improper prosecutorial comments during trial; (4) he was denied a fair trial because of judicial misconduct at trial; (5) he was denied a fair trial as a result of ineffective assistance of counsel; (6) he was denied a fair trial because of the admission of improper hearsay testimony; and (7) he was not proved guilty beyond a reasonable doubt. We affirm.

The record discloses that on August 17, 1985, at approximately 6 a.m., Gladys Powell sustained a near-fatal injury as a result of a gunshot wound to the left side of her head. Her husband, Leroy Powell, also present at the shooting, did not suffer any injury. After Leroy provided police with a description of the offender, whom he only knew as “Rabbit,” defendant was arrested and a .9 millimeter, semi-automatic gun with a black rubber handle was recovered.

Prior to trial, defendant presented a motion in limine requesting the trial court, inter alia, to prohibit the State’s introduction of the .9 millimeter gun because Leroy’s description of the weapon used for the commission of the offense specifically excluded the gun. The trial court denied the motion, finding that the gun would be admissible upon the State’s showing that it was suitable for the commission of the crime. Despite Leroy’s testimony during trial that the .9 millimeter gun was not the weapon used in the crime, the trial court admitted the gun into evidence.

Leroy, the State’s sole eyewitness, testified to the following at trial: In July 1985, Leroy and his wife were both heroin addicts. At that time, he was approached by Nicky Yaugh, a “street dealer,” concerning the possibility of him selling narcotics. Yaugh introduced Leroy to a man named “T-Fly,” who was interested in utilizing Leroy’s apartment for drug distribution. Leroy agreed to the arrangement, and, for protection, burglar gates and bars were affixed to the front and rear doors of his apartment.

After his apartment was prepared for drug sales, T-Fly introduced him to a man named “Squeaky,” who was to be in charge of the overall drug operation emanating from Leroy’s apartment. Leroy’s function in the operation was that of a “door man.” As' such, he was responsible for answering the door, taking the drug order and relaying the order to Squeaky, who would fill the order. After Squeaky filled the order, Leroy would tender the drugs to the customer in exchange for money. The transactions always took place through the locked burglar gates. Leroy estimated that the drug business grossed approximately $500 per day and he received $100 per day for his services as “door man.”

In addition to Squeaky being responsible for replenishing the apartment with drugs, Squeaky was also responsible for collecting the cash proceeds from the drug sales. It was through these deliveries and collections that Leroy first met defendant, who was initially an “armed escort” for the drug operation. Defendant carried either a .357 magnum or a .45 or .38 automatic and “would check to make sure no one was out to stick the guy up that was delivering” “the drugs and picking the money up.”

Defendant eventually became Squeaky’s “relief man” and ultimately was in charge of the drug distribution operation, performing all of Squeaky’s duties. Defendant resided at Leroy’s apartment on an average of six days each week and was rarely seen without a gun in his possession.

On August 16, 1985, at approximately 12:30 p.m., defendant entered Leroy’s apartment with his girl friend, Robin Crump. Defendant and Robin spent the rest of the day and night in a bedroom of the apartment freebasing cocaine. Defendant had two guns on that day, “one was blue with a large wooden grip *** and [the other was] an automatic, like *** a military 45.”

Gladys arrived at the apartment at approximately 2 p.m., and she and Leroy used heroin until 8 p.m., at which time Gladys left. At 4 a.m., Gladys returned to the apartment with hamburgers, coffee, cigarettes and a newspaper. Defendant remained in the bedroom with Robin until 5 a.m., at which time he left the apartment to take Robin home.

Shortly thereafter, defendant returned to the apartment and stated that he had forgotten something and retreated into the bedroom where he and Robin had been earlier that day. Gladys was sitting on the couch and Leroy was sitting on a chair at a table reading the newspaper. Defendant appeared agitated and nervous when he emerged from the bedroom, but nevertheless conversed with Gladys and Leroy. While reading the paper and conversing with defendant, Leroy next “saw a movement out of the corner of [his] eye.” He looked up and saw defendant point and fire a pistol at Gladys. Defendant then pointed and fired the pistol at Leroy. Leroy attempted to rise from his chair, but fell backwards and landed on the floor. Leroy “froze” and “played dead” on the floor until defendant exited the apartment. Upon defendant’s exit, Leroy comforted Gladys, who was slumped over, moaning and bleeding from the side of her head. Because he did not have a telephone, Leroy ran to Ricky Wade’s apartment, which was located on the second floor below his apartment, and telephoned the police.

On cross-examination, Leroy described the gun used in the shooting as a “[b]luesteel, large wooden handlefd], revolver.” He further testified that when defendant returned to the apartment after taking Robin home, defendant was holding a gun, which was wrapped in a towel. Leroy also stated that the .9 millimeter gun recovered by the police at the time of defendant’s arrest was not the gun used to shoot Gladys.

Laurie Hamrick, a 16-year-old prostitute who lived with Ricky and other individuals in the apartment below Leroy and Gladys’ apartment, testified for the State as follows: She first met defendant in Ricky’s apartment during a “dope deal,” but defendant frequently came to Ricky’s apartment to smoke cocaine, talk, and to use the telephone. Laurie was aware of the drug-distribution operation in Leroy and Gladys’ apartment and that defendant possessed guns, which he-kept under his shirt in his pants.

On August 17, 1985, between 2 a.m. and 4 a.m., Gladys came to Laurie’s apartment carrying cigarettes, coffee and a newspaper. She stayed a short while before returning to her third-floor apartment.

At approximately 5 a.m., as Laurie was sitting in the kitchen of her apartment near an opened back door, Ricky and defendant approached and stopped immediately outside the screen door. Laurie overheard defendant tell Ricky “[t]hat he was going to go up to Leroy and Gladys and kill them because — *** he had done their drugs.” Defendant proceeded up the back stairway to Leroy and Gladys’ third-floor apartment. Laurie subsequently “heard a shot, *** and then a couple of seconds later, [she] heard two shots, and then [she] heard like a body fall, *** and *** [she] heard [defendant] running down the back stairs.” Laurie peeked out of the window and observed defendant, who was wearing a gray, cut-off sleeve shirt, blue pants and a black hat, running from the back stairway towards the train tracks approximately one-half block away.

Detective Fred Stone of the Chicago police department testified that when he arrived at Leroy’s apartment on August 17, 1985, Leroy described the perpetrator as a black male wearing a black baseball cap, a black- or gray-type jogging shirt or sweater, a pair of blue jogging pants and a pair of white Nike gym shoes. Upon defendant’s arrest approximately 48 hours later, defendant was wearing a pair of blue denim jeans with the cuffs “rolled real wide,” a gray and dark-trimmed sweater and a pair of white Nike gym shoes. Also recovered at the time of defendant’s arrest was a black baseball cap and a .9 millimeter handgun.

Defendant’s nephew, Gregory Smith, and wife, Patrice Jackson, testified as alibi witnesses. They stated that defendant came home at approximately 4 a.m. on August 17, 1985, and remained there until approximately 11 a.m., at which time Patrice ordered defendant to leave “[b]ecause he couldn’t give [her] any explanation of where he had been.” Their testimony further disclosed that defendant and Patrice were together from 4 a.m. until 11 a.m.

Defendant did not testify at trial.

On appeal, defendant first contends that the trial court committed reversible error in admitting the .9 millimeter, semi-automatic gun into evidence where testimony established that it was not the weapon used in the crime. We find that it was error to admit the gun into evidence, but hold that the error was harmless.

The determination of whether evidence is admissible with regard to relevancy is within the trial court’s discretion, and its decision will not be reversed if the record indicates a sufficient basis for the decision. (People v. Ward (1984), 101 Ill. 2d 443, 455-56, 463 N.E.2d 696, 702; People v. McQueen (1983), 115 Ill. App. 3d 833, 837, 450 N.E.2d 921, 925; People v. Gibson (1982), 109 Ill. App. 3d 316, 325, 440 N.E.2d 339, 344; People v. Jones (1982), 108 Ill. App. 3d 880, 884, 439 N.E.2d 1011, 1015; People v. Miller (1981), 98 Ill. App. 3d 453, 458, 424 N.E.2d 624, 628.) It is well established, however, that a weapon found in a defendant’s possession when arrested may be admitted only where the weapon bears a connection with the charged offense. (People v. Ostrand (1966), 35 Ill. 2d 520, 525-26, 221 N.E.2d 499, 503, rev’d on other grounds People v. Bracey (1972), 51 Ill. 2d 514, 283 N.E.2d 685; McQueen, 115 Ill. App. 3d at 838, 450 N.E.2d at 925-26; People v. Brown (1981), 100 Ill. App. 3d 57, 69, 426 N.E.2d 575, 582.) Case law dictates that such a connection exists where the weapon is “suitable” for the commission of the crime charged. (People v. Magby (1967), 37 Ill. 2d 197, 226 N.E.2d 33; McQueen, 115 Ill. App. 3d 833, 450 N.E.2d 921; People v. Goodman (1982), 109 Ill. App. 3d 203, 440 N.E.2d 345; People v. Pointer (1981), 93 Ill. App. 3d 1064, 418 N.E.2d 1; People v. Braxton (1980), 81 Ill. App. 3d 808, 401 N.E.2d 1062; People v. Wade (1977), 51 Ill. App. 3d 721, 366 N.E.2d 528; People v. Smith (1974), 18 Ill. App. 3d 859, 310 N.E.2d 734.) Thus, where the defendant on arrest possesses a weapon similar to the weapon described by a witness, the recovered weapon may be admissible even though the witness cannot identify it as the perpetrator’s weapon, thereby permitting a jury to infer from the defendant’s possession of a suitable weapon that the weapon recovered was the one used to commit the offense. See People v. Kincy (1982), 106 Ill. App. 3d 250, 435 N.E.2d 831.

The question before us is whether a gun may be admitted under the above case law where eyewitness testimony specifically excludes the gun as being used in the offense. While direct evidence in the form of ballistics reports was not available in the instant case to exclude the admission of the gun in issue (see McQueen, 115 Ill. App. 3d 833, 450 N.E.2d 921; Wade, 51 Ill. App. 3d 721, 366 N.E.2d 528), Leroy’s testimony on cross-examination specifically excluded the .9 millimeter gun as the gun utilized in commission of the attempted murder offense. Leroy described the gun used to shoot his wife as being a bluesteel, large, wooden-handled revolver. During cross-examination, defense counsel showed Leroy the .9 millimeter gun, and the following colloquy ensued:

“Q. [Defense attorney]: I show you People’s Exhibit 10 for identification. This is not the gun, is it?
A. [Leroy Powell]: That’s not the gun that he did the shooting with.
Q. This is not a bluesteel gun?
A. No, it is not.
Q. It does not have wooden handles?
A. No, it does not.
Q. It is not a revolver?
A. No, it’s not.
Q. This is not the gun that your wife was shot with?
A. No.”

At the pretrial hearing on defendant’s motion in limine to exclude the gun, the State assured the trial court that during trial the suitability of the weapon would be established. The following dialogue contained in the record evidences the State’s assurance on this issue:

“THE COURT: What will you expect [Leroy] to say?
MR. BEUKE [Assistant State’s Attorney]: I will expect him to say that the gun that was produced by the defendant when the shooting occurred was a large gun, and that’s it.
I don’t expect that he will say a .357 Magnum bluesteel revolver.
I think [Leroy] will say that the incident, and the way it occurred when [defendant] produced the gun, happened so fast that he couldn’t tell what kind of gun [defendant] had in his hand, a .38, .32, .357.”

Based upon the testimony elicited from Leroy at trial, wherein Leroy described the weapon and specifically excluded the gun as being the weapon used in the commission of the crime, we find that it was error for the trial court to admit the gun into evidence.

The State’s reliance on People v. Ostrand (1966), 35 Ill. 2d 520, 221 N.E.2d 499, to support its position that the gun was properly admitted into evidence is misplaced. Unlike the instant case, the victim in Ostrand described the gun in issue as a “snub-nosed pistol.” Thereafter, the arresting officer testified that he would not classify the weapon which he recovered at the time of defendant’s arrest as a “snub-nosed” gun. Because the gun recovered was similar to the gun that the victim described, the court determined that it was properly admitted into evidence. (Ostrand, 35 Ill. 2d 520, 221 N.E.2d 499.) The facts before us dictate a different result. Leroy did not merely testify that defendant used a weapon or give a general description of the weapon, i.e., “a revolver.” Instead, he unequivocally testified that the .9 millimeter gun was not the weapon used to commit the crime and gave a detailed description of the gun — a bluesteel, large, wooden-handled revolver.

Notwithstanding the above, we believe that any error here was harmless. A trial error will be deemed harmless where the evidence supporting defendant’s conviction is so overwhelming that the defendant’s conviction would result even if the error were eliminated. (People v. Grant (1979), 69 Ill. App. 3d 940, 944, 387 N.E.2d 1087, 1091; People v. Blackman (1976), 44 Ill. App. 3d 137, 141, 358 N.E.2d 50, 52-53.) Admitting the gun into evidence here could not have reasonably affected the verdict in light of the overwhelming testimony at trial of defendant’s guilt. We additionally mention that any inference that the jury was permitted to draw from the improperly admitted gun was significantly reduced by the fact that the gun was not submitted to the jury during deliberations.

Defendant next contends that he was denied a fair trial because he was not allowed to confront alleged nonverbal testimony, which was improperly presented to and considered by the jury. Specifically, defendant argues that Gladys, while sitting in her wheelchair in the spectator section of the courtroom, “demonstrated, by means of highly communicative facial expressions and gestures, her accusatory and hostile feeling towards the defendant,” which were described by the jury foreman as “looks which could kill.” At sentencing, during post-trial motions, defendant petitioned the court for an evidentiary hearing as to the extent that the jury considered Gladys’ expressions. The trial court denied defendant’s petition.

In addressing this argument, we note our supreme court’s decision in People v. Holmes (1978), 69 Ill. 2d 507, 511-12, 372 N.E.2d 656, 658, where the court enunciated the circumstances in which the testimony or affidavit of a juror can be offered in an attempt to impeach a jury verdict. These situations fall into two categories:

“In the first category are those instances in which it is attempted to prove by a juror’s testimony or affidavit the motive, method or process by which the jury reached its verdict. These, almost without exception, have been held inadmissible. [Citations.] The second category involves those situations in which the testimony or affidavit of a juror is offered as proof of conditions or events brought to the attention of the jury without any attempt to show its effect on the jurors’ deliberations or mental processes.” (69 Ill. 2d at 511-12, 372 N.E.2d at 658.)

In Holmes, the court held that the trial court erroneously refused to consider the allegations contained in the defendant’s motion for a new trial that several jurors improperly initiated their own investigation concerning certain critical identification evidence where a juror informed defense counsel and an assistant State’s Attorney during informal discussion after the verdict that several of the jurors went to a Florsheim shoe store to inspect various heels of shoes. Holmes, 69 Ill. 2d at 509, 372 N.E.2d at 660.

While our inquiry here is limited to determining whether the alleged facial expressions constituted extraneous prejudicial information brought to the jury’s attention or whether they were an outside influence brought to bear upon any juror, the record is absent any evidence that gestures were made during trial. The trial judge stated that “[he] did not see any facial expressions of hostility.” We believe that he was in the best position to view Gladys, who was seated in the spectator section of the courtroom. Moreover, it is unlikely that the jury could determine Gladys’ intent from her facial expressions. Thus, we find no prejudice resulted to defendant by the court’s refusal to subpoena jurors and to conduct an evidentiary hearing.

Defendant additionally argues that he was denied a fair trial as a result of improper prosecutorial comments during closing argument. First, defendant contends that the State committed reversible error by commenting on defendant’s failure to call his girl friend, Robin Crump, as a witness. Defendant also claims that the State committed reversible error when it referred to Ricky Wade’s and Sherri Williams’ grand jury testimony.

To properly determine whether error occurred, the remarks must be viewed under the totality of the circumstances at trial. As to the first challenged remarks, during closing argument, defense counsel stated the following:

“MR. LEVIN [Defense Attorney]: The State had an awful lot of people around that they could have called as witnesses in this case. Leroy’s testimony was that he had been selling drugs out of that apartment for some time. He would say that he has gone out on the street and encouraged people to buy drugs from them.
He’s [sic] solicited the sale of drugs out of that apartment. There was business in that apartment probably day and night because we know that over five hundred dollars a day was being sold out of that apartment.
He must have known tens of people that have been to that apartment to buy drugs. Did he give the name of one of those persons?
MR. WEIGAND [Assistant State’s Attorney]: Objection, Judge. There’s no evidence.
THE COURT: Sustained. There is no evidence, and there’s no evidence he was ever asked now, Mr. Levin. I’m going to sustain that objection.
MR. LEVIN: Did any witnesses come forward to testify that they had ever seen [defendant] in that apartment? Not one.
We know that there were people in the apartment with Laurie Hamrick. Have you heard them testify?” (Emphasis added.)

In response to defense counsel’s argument, the State commented on the fact that defendant had not called his girl friend, Crump, as a witness. Specifically, the remarks were as follows: “Where's [Robin], ladies and gentlemen? Where’s old Robin?”

The record discloses that defendant did not object to these statements during trial or in his post-trial motion. Despite his failure to properly preserve this issue for appeal, he urges this court to find that he has been prejudiced by the remarks. We find that defendant’s failure to raise any objection on this issue effectively waives his right to appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) We further find that the plain error doctrine is inapplicable here, as the evidence is not closely balanced, nor is the comment of such magnitude that defendant was denied a fair trial. Moreover, the State’s remarks were in reply and invited by defense counsel’s argument, as evidenced above. See People v. Dixon (1982), 91 Ill. 2d 346, 350-51, 438 N.E.2d 180, 182-83; People v. Simpson (1984), 129 Ill. App. 3d 822, 838, 473 N.E.2d 350, 361; see also People v. Plantinga (1985), 132 Ill. App. 3d 512, 520-21, 477 N.E.2d 1299, 1304-05; People v. Gaines (1982), 104 Ill. App. 3d 974, 977, 433 N.E.2d 970, 972 (when alibi witness is injected into case by defendant, he is deemed unavailable to the prosecution and comment on the failure of such witness to testify is proper).

As to the State’s comment that “Ricky Wade and Sherri Williams went in front of a grand jury in September of 1985,” we again find that this comment was invited by defense counsel’s argument alluding to the fact that the State had failed to call witnesses who lived with Laurie Hamrick. (See Dixon, 91 Ill. 2d at 350-51, 438 N.E.2d at 182-83; Simpson, 129 Ill. App. 3d at 838, 473 N.E.2d at 361.) The State’s comment was not dwelled upon, and the trial court’s interjection and instruction that the jury disregard any argument not based upon the evidence served to alleviate any potential prejudice to defendant. (See People v. Faysom (1985), 131 Ill. App. 3d 517, 523, 475 N.E.2d 945, 952.) Based upon the totality of the circumstances here, it cannot not be said that defendant was denied a fair trial as a result of this comment. See People v. Rowe (1983), 115 Ill. App. 3d 322, 450 N.E.2d 804; People v. Smith (1982), 111 Ill. App. 3d 895, 444 N.E.2d 801.

Defendant’s final objection to prosecutorial comment is the State’s directing the jury’s attention to Gladys and Leroy Powell in order to show that they had an affectionate relationship with one another, thereby destroying defendant’s theory of the case that Leroy shot Gladys. We find that it was not improper for the State to encourage the jury to draw inferences from the demonstrated affection since such argument was in rebuttal to defense counsel’s argument that Leroy had in fact committed the attempted murder against Gladys.

In any event, any error as a result of the State’s directing the jury’s attention to Leroy and Gladys during trial was harmless beyond a reasonable doubt in light of the overwhelming evidence of defendant’s guilt. (See Rowe, 115 Ill. App. 3d at 327, 450 N.E.2d at 809.) Furthermore, the trial court instructed the jury not to consider closing argument as evidence and to disregard any argument not based upon the evidence, thereby further alleviating any alleged harm.

After reviewing all of the above comments, we find that there has been no showing that any of the remarks questioned by defendant influenced the jury and resulted in substantial prejudice (People v. Nilsson (1970), 44 Ill. 2d 244, 255 N.E.2d 432, cert. denied (1970), 398 U.S. 954, 26 L. Ed. 2d 296, 90 S. Ct. 1881), that the remarks were a material factor in defendant’s conviction, that they were so inflammatory as to deprive defendant of a fair trial or that the verdict would have been different had the comments not been made. We therefore conclude that no prejudicial error resulted from the State’s comments.

Defendant also contends that he was denied a fair and impartial trial as a result of improper remarks made by the trial judge during voir dire. We similarly find this argument to be without merit. The ■ trial judge’s remarks are as follows:

“You will note Mr. Jackson is in a wheelchair today. His being in a wheel chair does not relate to the alleged incident that I just talked to you about, it instead relates to some exercise function at the Cook County Department of Correction which he was engaged in the other day. So, it has nothing do [sic] with the case. But if you are wondering why the wheel chair, that’s it.”

Defendant further asserts that the trial judge referred to him as an “inmate.”

“Prejudice to the defendant must appear to be the probable result of the trial court’s remarks or they must have been a material factor in the defendant’s conviction to constitute reversible error.” (People v. Cobbins (1987), 162 Ill. App. 3d 1010, 1028, 516 N.E.2d 382, 395, citing People v. Heidorn (1983), 114 Ill. App. 3d 933, 936-37, 449 N.E.2d 568, 573.) The remarks must convey to the jury that a witness is not credible or that the court assumes the defendant’s guilt. People v. Sprinkle (1963), 27 Ill. 2d 398, 399-403, 189 N.E.2d 295, 298.

The record here is devoid of any evidence that the trial court judge referred to defendant as an “inmate.” The remarks quoted above were not improper, as they did not exceed the bounds of propriety during voir dire. The comments merely provided the jury with an explanation as to defendant’s confinement to a wheelchair and were intended to prevent the jury from speculating that defendant’s injury stemmed from the instant case.

Defendant further argues that he was denied a fair trial because the jurors were permitted to view him in the lockup area when using a telephone in the sheriff’s conference room, where there were various television monitors displaying the lockup area. This argument provides no basis to reverse defendant’s conviction. Defendant’s assertion lacks any factual support and is speculative, at best. Defendant is entitled to a “fair trial” not a “perfect trial.” We hold that even had the jurors been able to view defendant in the lockup area, no substantial prejudice resulted so as to deprive defendant of a fair trial.

Next, we consider defendant’s contention that the incompetence of his trial counsel denied him a fair trial as mandated under the sixth amendment of the United States Constitution (U.S. Const., amend. VI), requiring this cause be remanded for a new trial. To show counsel’s incompetence, defendant directs us to the fact that defense counsel failed to request or submit a jury instruction on the credibility of a drug addict’s testimony. Specifically, defendant contends that there was sufficient evidence to warrant an instruction as to a drug addict’s credibility. We reject defendant’s contention.

The record discloses that the State offered an instruction to assist the jury in its deliberations on this issue, which states the following, in pertinent part:

“[Testimony of a narcotics addict should be scrutinized with caution[;] however, his testimony may be sufficient to sustain a conviction if credible under the surrounding circumstances * * * >>

Subsequently, the trial court asked defense counsel, “[D]o you want it [to be] given?” Defense counsel responded, “No, I’m not requesting it be given.”

In order to succeed on an ineffective assistance of counsel claim, a defendant must satisfy a two-pronged test, announced by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and adopted by Illinois in People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246. First, counsel’s performance must fall well below an objective standard of reasonableness. (Strickland, 466 U.S. at 687-88, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064; Albanese, 104 Ill. 2d at 525, 473 N.E.2d at 1255.) Second, even if the defendant meets the first requirement, Strickland requires reasonable probability that but for counsel’s errors, the result of the proceeding would have been different. (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; Albanese, 104 Ill. 2d at 525-27, 473 N.E.2d at 1255.) When applying the Strickland standard, a court is to view the totality of counsel’s conduct in light of all the circumstances and under a strong presumption of adequacy and reasonableness. (People v. Davis (1986), 151 Ill. App. 3d 435, 443, 502 N.E.2d 780, 785.) The inquiry into the competency of counsel will not generally extend to the exercise of judgment, discretion, trial tactics or strategy even where appellate counsel or the reviewing court might have handled the matter differently. People v. Greer (1980), 79 Ill. 2d 103, 122, 402 N.E.2d 203, 212; People v. Schmidt (1988), 168 Ill. App. 3d 873, 882, 522 N.E.2d 1317, 1323.

Based upon the circumstances here, counsel’s decision not to have the jury instruction submitted was a mere tactical judgment. (See Greer, 79 Ill. 2d at 122, 402 N.E.2d at 212; Schmidt, 168 Ill. App. 3d at 882, 522 N.E.2d at 1323.) Defendant has failed to satisfy his burden under Strickland to establish his ineffective assistance of counsel claim.

Defendant next argues as error the trial court’s admission of certain hearsay evidence. The objected-to evidence concerns testimony given by police officers as to descriptions of the assailant, which were provided to them by Leroy. Defendant argues that this testimony was offered to impermissibly bolster Leroy’s credibility, the prejudice of which was compounded during closing argument. The State maintains that defendant has waived this issue on review by failing to object at trial or in his during post-trial motion. We agree.

To properly preserve an issue for appeal, “[b]oth a trial objection and a written post-trial motion *** are required.” (Emphasis in original.) (Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130.) Defendant’s failure to properly object to the alleged errors has precluded our review of this issue.

Even assuming arguendo that the plain error exception to the waiver rule applies here, defendant’s contention must still fail. It is well established that an out-of-court statement not offered for the truth of the matter asserted is not hearsay. (People v. Loggins (1985), 134 Ill. App. 3d 684, 480 N.E.2d 1293.) “A statement used in a criminal prosecution to detail the course of a police investigation, not to prove the truth of the matter asserted, is not hearsay.” (Loggins, 134 Ill. App. 3d at 692, 480 N.E.2d at 1299, citing People v. Price (1979), 79 Ill. App. 3d 1112, 398 N.E.2d 1158; see also People v. Dunning (1980), 88 Ill. App. 3d 706, 410 N.E.2d 1052; People v. Daliege (1976), 40 Ill. App. 3d 706, 352 N.E.2d 247.) A police officer may testify to the circumstances of an investigation to show the manner in which the witness came to identify the defendant. People v. Bryant (1984), 123 Ill. App. 3d 266, 275, 462 N.E.2d 780, 786.

The officers’ testimony here was proper on the basis that it detailed the course of the officers’ investigation and the means by which Leroy identified defendant/'‘Rabbit. ’ ’ (See Price, 79 Ill. App. 3d 1112, 398 N.E.2d 1158.) Consequently, the State’s comments on this evidence during closing argument were also proper. See People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 379 N.E.2d 847.

Finally, defendant contends that the State’s witnesses’ testimony was incredible and not corroborated by any physical evidence; therefore, he was not proved guilty beyond a reasonable doubt.

It is axiomatic that a reviewing court will not substitute it judgment for that of the trier of fact, whose duty is to weigh the evidence and credibility of the witnesses and to resolve any inconsistencies drawn from the evidence. (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 461.) When a defendant claims he was convicted with insufficient evidence, the evidence must be reviewed in a light most favorable to the prosecution and the court must determine whether any rational trier of fact could have found defendant guilty of the crime beyond a reasonable doubt. Young, 128 Ill. 2d 1, 538 N.E.2d 461; see also People v. Welacha (1989), 186 Ill. App. 3d 860, 542 N.E.2d 927.

After reviewing the record, we find that defendant was convicted of attempted murder beyond a reasonable doubt and that this verdict is unassailable to the extent that it reflects a credibility determination. (People v. Puente (1984), 125 Ill. App. 3d 152, 157, 465 N.E.2d 682, 687.) The jury heard the witnesses’ accounts of the shooting and made its determination as to credibility. It is unnecessary to repeat verbatim the testimony of all the witnesses at trial. Our review of the record discloses the following ample evidence to support defendant’s conviction here: Leroy, an eyewitness to the crime, testified that defendant shot Gladys in the head and also shot at him, but missed. Laurie testified that she overheard defendant tell Ricky that he was going to kill Leroy and Gladys. Laurie’s testimony further disclosed that subsequent to defendant’s conversation with Ricky she “heard a shot, *** and then a couple of seconds later, [she] heard two shots, and then [she] heard like a body fall, *** and *** [she] heard [defendant] running down the back stairs.” She subsequently looked out the window of her apartment and observed defendant running from the back stairway. In light of the evidence presented here, we hold that no basis exists for disturbing defendant’s conviction.

For the foregoing reasons, we affirm defendant’s conviction of attempted murder.

As part of our judgment, pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, and People v. Agnew (1985), 105 Ill. 2d 275, 473 N.E.2d 1319, we grant the State’s request that defendant be assessed $75 for the costs of this appeal.

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.