source: Caselaw Access Project

author: JUSTICE EGAN

license: Public Domain

text:
    DOLORES SCHMITT, Plaintiff-Appellant, v. CRAIG MERTEL, Defendant (James K. Mueller, Defendant-Appellee).
    First District (6th Division)
    No. 1—89—3101
    Opinion filed January 11, 1991.
    Erwin Cohn & Associates, of Chicago (Charles A. Cohn, of counsel), for appellant.

      Querrey & Harrow, Ltd., of Chicago (Timothy J. Fagan, Susan F. Zwick, and Michael Resis, of counsel), for appellee.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Dolores Schmitt (Schmitt), appeals the entry of summary judgment in favor of the defendant, James K. Mueller (Mueller), arising out of a motor vehicle collision on February 4, 1983. The collision involved three vehicles: a Dodge Dart driven by Lawrence Garrett; a Toyota pickup truck owned by Craig Mertel; and a Buick Regal owned by Mueller. Neither Craig Mertel nor Lawrence Garrett is a party to this appeal.

Schmitt was riding as a passenger in the car driven by Lawrence Garrett when it collided with the rear of Mertel’s pickup truck which was parked in the curb lane of East River Road in Chicago. The impact of the collision pushed Mertel’s pickup truck into the rear of Mueller’s car, which was also parked in the curb lane, ahead of Mertel’s pickup truck. Schmitt alleged that, while traveling south on East River Road in Chicago, Garrett was caused to collide with each of the defendants’ vehicles which they carelessly, negligently and illegally parked on the west side of the road at approximately 5231 North East River Road.

Mueller and Mertel separately answered Schmitt’s complaint, denying any negligence. Additionally, they each filed third-party complaints for property damage and contribution against Garrett.

On January 29, 1987, the court ordered that both the plaintiff and the defendants were barred from having any expert witnesses testify; the court closed discovery on March 12, 1987.

After discovery was closed, both Mueller and Mertel filed motions for summary judgment which they supported with excerpts from the depositions of the parties. Those depositions, in substance, are as follows.

Mertel testified that he parked his truck on the west side of East River Road while it was still daylight. Two vehicles were parked in front of his truck at the time he parked; no one was parked behind him. He returned after the accident to discover that Garrett’s vehicle had pushed his truck up over the curb and into Mueller’s car which had, in turn, been pushed into another car in front of Mueller’s car. Garrett’s vehicle was not completely behind him; the left side of the car extended further into the street than the truck; approximately 60% of the truck was up over the curb.

Mueller testified that he parked his Buick Regal on the west side of East River Road across from his house at approximately 11:15 p.m. Seven or eight other cars were parked in the vicinity. He did not leave on any lights in his car. The road was being widened to provide for four lanes of traffic, two in each direction. There were two lanes of traffic, one in each direction, and an extra lane. The shoulder off the road was under construction. The road was straight and dry where he parked. He did not believe there was any fog. After he had been in his house about 10 minutes, he heard the sound of a crash. He did not hear the screech of brakes before the impact. He found the front end of Garrett’s car touching the rear of Mertel’s truck. Garrett told Mueller that he had just not seen the truck; he said that he drove down the street everyday and never saw any parked cars.

Schmitt testified that she was a passenger in Garrett’s car traveling southbound in the curb lane of East River Road. Garrett was not wearing glasses at the time, and Schmitt had never seen Garrett wear glasses. She did not see any cars parked along the west side of River Road. She knew that signs prohibited parking on either side of the street. The speed limit was around 40 miles per hour, and Garrett was driving between 30 or 40 miles per hour. She was looking in her purse at the time of the impact. She never saw the truck before impact. She never heard any squealing tires or brakes. She did not know whether they slowed up at all before the accident; she was not paying attention. Her head hit the dash as she went down. She also hit her arms, elbows, legs, knees and back. Although she was not knocked unconscious, she later blacked out a couple of times. She thought that the front passenger side of Garrett’s car hit the rear of the truck more than the direct front of the car. Garrett’s car stopped as it smashed into the rear of the truck (rather than continue moving on “away from it”).

Garrett testified that he and Schmitt ate dinner at a restaurant with a few friends, and Garrett recalled consuming six ounces of white wine. He was neither intoxicated nor tipsy. He was not wearing glasses at the time of the accident, but after the accident he obtained glasses to see distant objects. Before the accident he had been prescribed two medications: one was for his back; one was for his heart. He was familiar with the area where the accident occurred. A white truck and a car ahead of the truck were parked on the west side of the street that night. He did not recall when he first noticed those two parked vehicles. It was very dark; there were forest preserves and no streetlights. He hit one of the two cars that were in front of him; he hit the one parked car that was behind the other. It was the first car in front of him. Three cars were involved in the accident: Garrett’s car; the truck which he hit; and, he guessed, that the truck hit the car in front of it. There was only one impact between his car and the truck; his car did not bounce back and forth to strike the truck more than once. At the time of the impact, his car was traveling the speed limit; he felt he was going about 35 miles per hour. He did not know the distance between the front of the truck and the rear of the third vehicle. He did not know the position of the third vehicle and the truck after the accident.

On March 29, 1989, the judge denied Mertel’s motion for summary judgment but granted Mueller’s motion. The judge emphasized the testimony of the driver that he hit the truck and stopped. The judge was persuaded that the truck alone then moved forward to hit Mueller’s car.

On April 24, 1989, the plaintiff filed a motion to reconsider the summary judgment in favor of Mueller. The plaintiff presented an unsigned and incomplete copy of the police report which purportedly indicated the position of the vehicles after the accident.

Mueller also presented additional deposition excerpts which revealed that Mertel’s truck was not drivable after the accident; it was towed from the scene; it was “totaled.”

Mueller also testified that after the accident he saw Mertel’s truck up against the rear end of his car. The vehicles which were parked in front of him before the accident were still there. The front hood of Garrett’s car was touching the truck. The rear end of Mueller’s car was damaged in the accident, but it was drivable.

At the motion to reconsider the plaintiff’s attorney argued that, given the split seconds involved in the collision, two impacts could have been perceived as one; the question of whether there were two separate collisions which, as a sensory perception, the plaintiff perceived as a single collision was a jury question. Mueller’s attorney again argued that, based on the testimony of the driver, Mueller’s car could not have acted as an obstruction increasing the impact to the plaintiff because there was only one impact after which Garrett’s car stopped. The judge continued the hearing of the plaintiff’s motion to October 18,1989.

On that date the plaintiff sought leave to file an affidavit and report from a newly disclosed engineering expert, Ronald L. Ruhl, in support of his motion to reconsider. Ruhl stated that, within a reasonable degree of reconstruction certainty, the presence of Mueller’s vehicle was a proximate cause of the plaintiff’s injuries because its presence increased the intensity and/or extensivity of the plaintiff’s impact within Garrett’s vehicle and, thereby, contributed to her injuries. His opinion was based on the assumption that Mueller’s car was parked from two to six feet in front of Mertel’s truck. It was also based on the assumption that Garrett’s car was “in direct contact with [Mertel’s truck] as the [truck] impacted] the [Mueller car].”

The judge allowed the plaintiff leave to file Ruhl’s affidavit and report over Mueller’s objections, which included the argument that both sides had been barred from introducing expert testimony. The judge, nevertheless, denied the plaintiff’s motion to reconsider.

The rules governing summary judgment have been repeated so often citation is unnecessary: the party seeking summary judgment must affirmatively show that there is no triable issue of fact; and the evidence must be construed strictly against the moving party and liberally in favor of the opponent. The plaintiff argues that, based on the evidence, the judge could not determine, as a matter of law, that the presence of Mueller’s vehicle was not a contributing proximate cause of the plaintiff’s injuries. He maintains that the evidence indicated that Mueller’s vehicle increased the force of the impact against the vehicle carrying the plaintiff and, thereby, aggravated her injuries.

The plaintiff’s theory of liability rests on her contention that Garrett’s car remained in contact with Mertel’s truck as the truck struck Mueller’s car. Because Mertel’s truck struck Mueller’s car, Mueller’s car acted as an obstruction which, in turn, increased the intensity of the impact to the plaintiff. There were, she says, two collisions: the first with Mertel’s truck, and the second with Mueller’s car; the two collisions, however, were felt as one.

The plaintiff invokes “Newtonian” laws of physics, without specifying which laws, to establish a “fact” upon which her claim depends. We take judicial notice that there are three Newton’s Laws of Motion. She points to the testimony of Mueller that the front hood of Garrett’s car was touching Mertel’s truck and Mertel’s truck was “up against” the rear end of Mueller’s car. From this evidence the plaintiff argues that a fact finder could reasonably conclude that the forward motion of Garrett’s car continued until it was impeded by the collision of Mertel’s truck with Mueller’s car.

The record upon which the plaintiff depends consists of a copy of a police report; excerpts of certain deposition testimony; and Ruhl’s affidavit and report.

The police report was not only unsigned and incomplete but clearly represented inadmissible hearsay. Even if it were to be considered, it is of no benefit to anyone; it does not add anything that was not already established; and it shows only the positions of the vehicles.

The deposition testimony revealed that Garrett never investigated the position of the vehicles after the accident and he knew nothing of their position before the accident. The plaintiff testified that Garrett’s car stopped as it smashed into the rear of Mertel’s truck. Garrett testified that there was only one impact.

We do not find Ruhl’s report helpful to the plaintiff’s case. In our judgment the affidavit and report of Ruhl should not have been permitted to be filed. As Mueller points out, the report came “too late” since it was filed after an order had been entered barring the use of expert testimony. In addition, it contains argumentative conclusions in violation of Supreme Court Rule 191. (107 Ill. 2d R. 191.) Even assuming it was timely filed, it is entitled to no weight. Ruhl’s opinion was based entirely upon the hypothetical assumption that Mertel’s truck was parked between two and six feet behind Mueller’s car. Yet, as previously noted, the record is completely devoid of any facts that support that assumption. In this regard, we disagree with the plaintiff’s statements in her briefs that the distance between Mueller’s car and Mertel’s truck was a “few feet.” The report also begs the question of whether Garrett’s car was in contact with Mertel’s truck when the truck struck Mueller’s car. The opinion of an expert is of value only when it is based upon and in harmony with facts which are capable of verification by the court; and where a factual basis is lacking, • the opinion is entitled to little weight. St. Paul Fire & Marine Insurance Co. v. Michelin Tire Corp. (1973), 12 Ill. App. 3d 165, 179, 298 N.E.2d 289.

Mueller emphasized the testimony of the plaintiff and Garrett that there was only one impact and that Garrett’s car stopped at the time of impact. The plaintiff asks us to ignore that testimony and stresses the testimony that Mueller’s car was touching Mertel’s truck and Mertel’s truck was up against Garrett’s car. There is nothing in Ruhl’s report or anywhere else in the record explaining the application of Newton’s Laws of Motion to the facts in this case. Nor has the plaintiff made any such explanation of their application in her briefs. We acknowledge that it is possible that the accident occurred in the manner argued by the plaintiff; but, it is just as possible that it did not occur in that manner. The plaintiff’s attorney conceded in oral argument that it was possible that the Mertel vehicle could have bounced back into the Garrett vehicle. Similarly, it is possible that Mueller’s car bounced back into Mertel’s truck. In short, a possibility that the accident occurred in the manner argued by the plaintiff is not enough.

Since no one could testify to the distances between the cars and the sequence of the impacts, the plaintiff’s theory of liability is based on circumstantial evidence. Although the plaintiff was not required to prove her case in responding to the summary judgment motion, she was required to present facts that support the elements of her action. A fact is not established from circumstantial evidence unless the circumstances or events are so related to each other as to make the conclusion the only probable, not possible, one that can be drawn from them. (York v. Lunkes (1989), 189 Ill. App. 3d 689, 545 N.E.2d 478.) It is our judgment that the circumstantial evidence, as a matter of law, does not establish a probability of the conclusion argued by the plaintiff. If the evidence before us were before a jury, the judge would be required to direct a verdict in favor of Mueller. Any verdict for the plaintiff would necessarily be based on speculation. Therefore, the grant of summary judgment was proper. See Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 272 N.E.2d 497.

The defendant has also argued that summary judgment was proper because, he maintains, the plaintiff could not establish whether her injuries were aggravated by the collision with Mueller’s vehicle and because Mueller could not reasonably foresee that his car would be involved in the accident and contribute to the plaintiff’s injuries. In view of our holding, it is unnecessary to discuss these alternative grounds advanced by the defendant.

The order granting summary judgment in favor of Mueller is affirmed.

Judgment affirmed.

RAKOWSKI, P.J., and McNAMARA, J., concur.

       Newton’s Laws of Motion are as follows:
      (1) A body in motion remains in uniform motion in a straight line unless acted upon by an external force; (2) the acceleration of a body is directly proportional to the applied force and is in the direction of the straight line in which the force acts; and (3) for every force there is an equal and opposite force or reaction. See Webster’s Third New International Dictionary 1280 (1981).


text:
    THOMAS PROKES, Plaintiff-Appellee, v. THE CITY OF CHICAGO, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—3370
    Opinion filed January 11, 1991.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch, Assistant Corporation Counsel, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE EGAN

delivered the opinion of the court:

The defendant, the City of Chicago, brought this interlocutory appeal under Supreme Court Rule 308 (107 Ill. 2d R. 308). The trial court certified the following questions for review by this court:

“1. Does the City owe a duty to maintain its property under Ill. Rev. Stat. 1987, ch. 85, par. 3 — 102(a), where the use of the property is an intended and permitted use, but where the user is an unintended and unpermitted user.
2. Specifically, does the City owe a duty to an adult riding a bicycle on a sidewalk where under City ordinance, bicycle riding on sidewalks is permitted and intended by persons under 12 years of age, but is prohibited to persons 12 years of age and older.”

On January 8, 1990, this court allowed the defendant’s application for leave to appeal. (The plaintiff did not file a response to the application.) Although the plaintiff has not filed a brief in this court, we will consider the merits of the case in accordance with the mandate of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The plaintiff’s complaint alleged that on July 24, 1987, he was riding a bicycle on the sidewalk on the 4600 block of West 55th Street in Chicago. As he was dismounting, his foot struck a broken pipe sticking out of the sidewalk, and his foot was injured.

The defendant filed a motion to dismiss based on the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 102(a)) and on section 27 — 296 of the Municipal Code of Chicago (Chicago Municipal Code §27 — 296 (1984)). The motion was denied on August 10, 1989. At that time the trial judge offered to certify the question of the city’s duty to the plaintiff for interlocutory appeal. On November 29, 1989, the judge made the required findings under Rule 308.

Section 3 — 102(a) of the Tort Immunity Act provides:

“(a) Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition.” Ill. Rev. Stat. 1987, ch. 85, par. 3— 102(a).

The question before us, therefore, is whether the City of Chicago “intended and permitted” the use of the sidewalk by the plaintiff.

Section 27 — 296 of the Municipal Code of Chicago provides:

“a. No person shall ride a bicycle upon a sidewalk within a business district.
b. No person twelve or more years of age shall ride a bicycle upon any sidewalk in any district, unless such sidewalk has been officially designated and signed as a bicycle route by the Department of Public Works.” Chicago Municipal Code §27— 296 (1984).

At the outset, it should be made clear that the reasonableness of the ordinance was not properly raised in the trial court and is not before us.

It is not claimed that the plaintiff was under 12 years of age; and it was shown by affidavit that the area of the sidewalk where the plaintiff was injured was not an officially designated and signed bicycle route. It necessarily follows that the plaintiff was violating the ordinance when he was injured. It is inconceivable to us, therefore, that it may be held that the plaintiff was one “whom the [city] intended and permitted to use” the sidewalk by riding a bicycle.

In the trial court, the plaintiff relied on the case of Larson v. City of Chicago (1986), 142 Ill. App. 3d 81, 491 N.E.2d 165. In that case, the plaintiff was injured while roller-skating on a public sidewalk. In reversing the trial court’s dismissal of the plaintiff’s complaint, the appellate court first determined that the city owed a duty to maintain its sidewalks in a condition reasonably safe for all foreseeable users. (Larson, 142 Ill. App. 3d at 85.) The court then recognized that roller-skating is by ordinance, without limitation to any persons, a contemplated use of public sidewalks in Chicago. (Larson, 142 Ill. App. 3d at 85-86.) In this case bicycle riding by adults on sidewalks is expressly prohibited and is, therefore, not a contemplated or permitted use by the plaintiff. Larson is thus distinguishable. We, therefore, answer both certified questions in the negative and find that on the record before us the complaint should have been dismissed.

The order of the circuit court denying the defendant’s motion to dismiss is vacated, and the cause is remanded for further proceedings.

Vacated and remanded.

RAKOWSKI, P.J., and McNAMARA, J., concur.


author: JUSTICE GORMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NANCY D. RISH, Defendant-Appellant.
    Third District
    No. 3—88—0849
    Opinion filed January 31, 1991.

      Catherine Fitzsimmons and Robert Agostinelli, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Arleen C. Anderson and Thomas L. Ciecko, Assistant Attorneys General, of Chicago, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

Following a jury trial, defendant Nancy D. Rish was convicted of first degree murder and aggravated kidnapping. Rish was subsequently sentenced to a term of natural life imprisonment for murder and a concurrent 30-year sentence for aggravated kidnapping. The defendant appeals her convictions and sentences. We affirm.

On September 2, 1987, Stephen B. Small, a wealthy resident of Kankakee, Illinois, was the victim of a kidnapping-for-ransom scheme. A ransom demand was made to the Small residence. Small’s wife contacted Small’s sister, who then contacted the police. Shortly thereafter, State and Federal law enforcement authorities began investigating the crime. Suspicion soon focused on two individuals, Danny Edwards and Nancy Rish. Edwards and Rish lived together in a townhouse in Bourbonnais. On September 3, 1987, the police obtained a search warrant to search the townhouse. At approximately 10:30 a.m. on September 4, 1987, the police executed the search warrant, during the course of which the defendant and Edwards were taken into custody. During the evening of September 4, 1987, Edwards took the police to a rural area where police officers recovered Small’s body.

Small had been bound, placed in a wooden box and buried alive. In addition to Small’s body, the box contained a light connected to one of two automobile batteries, a one-gallon jug of water, candy bars, gum, a flashlight and PVC piping which came up out of one end of the box. Attached to each of Small’s wrists was a single handcuff. There were also superficial abrasions on his legs. The cause of death was determined to be “asphyxia due to suffocation.”

On October 1, 1987, the defendant was charged with three counts of first degree murder and several counts of aggravated kidnapping alleging in various forms the kidnapping and murder of Small. The defendant successfully moved to separate her trial from Edwards’ trial and for a change of venue. Various other pretrial motions, including a motion to quash the arrest, a motion to quash the search warrant, a motion to suppress the defendant’s custodial statements and several motions in limine were also made by the defendant. Following various hearings on the motions, they were all denied.

A jury was selected in Rockford on October 19 and 20, 1988. The trial began on October 24, 1988, in Kankakee County. During opening statements, the prosecutor indicated that the State’s case was one of accountability; that the defendant promoted, aided and facilitated Edwards in the kidnapping and eventual murder of Small. Defense counsel argued that the defendant was not aware of what Edwards was doing and that the physical evidence did not tie the defendant to the victim or the crime scene.

Evidence at trial established that at approximately 12:30 a.m. on September 2, 1987, Ramsey Small, the 15-year-old son of the victim, answered the phone at his parent’s residence. A deep voice that he did not recognize identified the caller as being with the Kankakee police department. The caller indicated that there had been a break-in at the Bradley House, a Frank Lloyd Wright-designed house Stephen Small owned and was restoring. The caller asked to speak to Stephen Small and, after awakening his father, Ramsey returned to his room. Shortly thereafter, Ramsey saw his father walk past his room and then heard the garage door open and close.

The phone rang again at approximately 3:30 a.m. Ramsey picked up the phone which had moments before been answered by his mother, Nancy Small. Ramsey testified that the voice he heard was different from the 12:30 caller’s voice. Ramsey heard the caller say that Stephen Small was being held for ransom of $1 million and that the family was not to contact the FBI or the police. Mrs. Small then heard her husband’s voice. Stephen Small indicated that this was not a joke, that he was in what appeared to be a box that was covered with a lot of sand and that there would be enough air for 24 or 48 hours. Mrs. Small contacted Stephen Small’s sister, Sue Bergeron, and told her what had occurred. Mrs. Bergeron then contacted the FBI and police, who began to investigate the crime.

FBI Special Agent Oren L. Lucas testified that he had a trap and trace placed on the Small telephone on September 2, 1987. A trap and trace allows the police to determine the location of the caller. At approximately 5:05 p.m. on September 2, 1987, a call was made to the Small residence. The caller inquired how much money Mrs. Small had obtained. Mrs. Small was not allowed to speak to her husband and was told that she would receive a call later in the evening. This call was traced to the Tri-Points Phillips 66 gas station in Aroma Park. Surveillance of the Aroma Park area was established.

Terry Dutour, a resident of Aroma Park who has known Danny Edwards for a number of years, testified that while driving home around 5 p.m. on September 2, 1987, he observed Edwards at a pay phone near the Phillips 66 station. There was a vehicle parked near the telephone with a white female with blond hair sitting in it. The vehicle was parked six to eight feet away from the phone booth, and Edwards had his back to the vehicle as he spoke.

At approximately 11:30 p.m. that same evening, another call was made to the Small residence. This time the caller played a tape recording of Stephen Small’s voice, giving instructions on where to drop off the ransom money. The caller then asked Mrs. Small if she had understood the directions and became impatient with her when she asked for clarification. The call was terminated. At approximately 11:38 p.m., there was another call made to the Small residence. The same person who had called a few minutes earlier had advised Mrs. Small that she had “fucked up” and accused her of having called the police.

During the evening hours of September 2, 1987, FBI Special Agent Michael Evans and his partner were maintaining surveillance of two of the three public pay phones in the Aroma Park area. At approximately 11:30 p.m. they received a radio message from the police dispatch that advised that a call currently being made to the Small residence was coming from a pay phone in the Aroma Park area. The call was not being made from either of the phones under surveillance, so Evans and his partner went to the third phone, arriving there approximately 30 seconds after receiving the radio dispatch. Evans observed a white male wearing a red and white jacket using the phone. Evans also observed a dark-colored car, with Illinois license plate number SZG 507, parked approximately 15 feet from the telephone. A white female with light blond hair was sitting in the driver’s seat. The agents watched as the male entered the car, then they followed the car as it proceeded out of town. A search of the motor vehicle records revealed that the car was registered to the defendant.

Agent Lucas testified that on September 2, 1987, at approximately 11:50 p.m., he and Special Agent Dave Buhrmester of the Illinois State Police/Division of Criminal Investigation observed a dark blue automobile, Illinois license plate number SZG 507, heading south toward the Village of Aroma Park. The trunk of the automobile was ajar.

FBI Special Agent Elizabeth Lamanna testified that at approximately 12:30 a.m. on September 3, 1987, she and her partner were exiting the parking lot of the Convenient Food Mart in Aroma Park when she observed a blue Buick drive past. The passenger was a white female, in her early twenties, with blond hair. The woman, who turned and looked at Agent Lamanna, had a look of “fright or panic” on her face. When the car had passed by, the blond woman turned completely around and looked out the back window. Agent Lamanna later identified this woman as being the defendant.

Special Agent John Russell of the Illinois State Police/Division of Criminal Investigation testified that during the early morning hours of September 3, 1987, he was requested to drive by the residence located at 756 East Stratford Drive in Bourbonnais, Illinois, and look for a vehicle with Illinois license plate SZG 507. Agent Russell and his partner did not observe that vehicle, but did see a white van parked across the street from the residence. Agent Russell identified Edwards’ van as being the van that was located across from the residence that evening.

Surveillance was established in the parking lot of an apartment complex located approximately 50 to 75 yards away from the residence. At approximately 1:19 a.m., Agent Russell observed a vehicle with Illinois license plate SZG 507 parked in the driveway of the residence. Agent Russell identified the defendant’s car as being the same car he saw in the driveway.

According to Agent Russell, there were two occupants in the car, a white male later identified as Danny Edwards and a white female later identified as the defendant. Agent Russell positively identified the defendant as the woman he had seen in the car that morning.

Agent Russell further testified that Edwards removed a bicycle from the trunk of the car. At approximately 1:40 a.m. that same morning, Edwards exited the residence and drove off in the white van. An FBI agent followed Edwards, who went to a grocery store and a gas station. Edwards made a phone call at a public pay phone at the gas station before returning to the residence.

Edwards and the defendant were kept under surveillance from that point forward. During the morning of September 3, 1987, garbage was being picked up in the defendant’s neighborhood. The police made contact with the garbage truck driver and asked him to empty his hopper prior to going into the defendant’s neighborhood and then meet them at a prearranged location. The garbage truck driver complied. While stopped at the defendant’s house, Edwards came out and gave the garbageman a trashbag. The garbageman threw this bag, as well as three bags already on the curb, into the hopper. Several items were discovered after the police examined the hopper, including a paper bag containing gloves, a receipt to Danny Edwards from Radio Shack for one audio tape cassette and some electrical straps, which are of the type also used by police as handcuffs. Also observed but not recovered was a caulking gun and a saw.

A search warrant for the townhouse was obtained later in the day. The search warrant was executed at approximately 10:30 a.m. on September 4, 1987. Both Edwards and the defendant were taken into custody. Recovered from the residence were a pair of man’s boots found in the utility room behind the washer and dryer, a 1986 Kankakee phone directory with the Small’s name circled at the top of page 20, a putty knife with traces of a clear glue-like substance, a notebook and automobile keys.

The defendant was transported to the Bourbonnais police station. During the days of September 4 to September 8, 1987, the defendant' gave the following eight statements to police:

(1.) September 4, 1987, 11 a.m. The defendant denied knowing anything about a ransom call made from Aroma Park during the night of September 2, 1987. The defendant indicated that at about 11 p.m. on September 2, 1987, she and Edwards went to Edwards’ friend Jack’s house in her car to get her bicycle repaired. En route to Jack’s house, they stopped at a phone booth located near a gas station in Aroma Park where Edwards got out and called Jack to see if he was home. At this point, the defendant was advised of her Miranda rights. The defendant waived her rights and continued with her statement.

The defendant indicated that after Edwards called Jack, they drove past Jack’s house. Because there were no lights on, they continued on. The defendant stated that Edwards told her that Jack was not home because he was working a second shift.

As to the events of September, 1, 1987, the day preceding the kidnapping, the defendant indicated that she was home until 5 p.m. At that time she took her son to football practice, picked him up at 7 p.m., and helped him with his homework until 10:30 p.m. She did not know if Edwards had gone anywhere that evening because she slept upstairs and he slept downstairs on the couch. The defendant indicated that she wanted to terminate the interview and consult with an attorney.

(2.) September 4, 1987, 2:30 p.m. Questioning resumed when the defendant’s counsel appeared. During this statement, the defendant indicated that on Sunday evening (August 30, 1987) at approximately 6:30 p.m. she had a call from someone who asked for Danny. When she asked the caller’s identity, he stated “What’s it to you?” and hung up. That same type of call occurred again on September 1,1987.

At 10:30 p.m. on September 1, 1987, the defendant indicated that Edwards left the duplex in his van. She went out to look for him at 11:30 p.m. because she thought he was cheating on her. She returned without finding him at approximately 12 midnight on September 2, 1987. She indicated that she again left the residence at between 1:30 and 2 a.m. to again look for him. Edwards was at the residence when she returned.

During the afternoon of September 2, 1987, she took her dog to get clipped. The defendant substantially repeated her account of taking the bike to Jack’s house, adding that after they passed Jack’s house, they drove to the Marathon gas station in Kankakee where Edwards made a phone call. According to the defendant, it took approximately one-half hour for them to travel from the gas station in Aroma Park to the gas station in Kankakee. She further indicated that on the morning of September 3, 1987, Edwards left the residence for breakfast.

The police asked the defendant to take them on the same route that she and Edwards took had travelled on September 2, 1987. The route the defendant took to the phone booth in Aroma Park was the same route she had described in her statement. The route that she took from that pay phone to the one at the Marathon gas station in Kankakee was a different route from the one described in her statement.

A ground search of a rural area just north of Aroma Park, along the route the defendant showed police after her second statement, yielded several items. These items consisted of several feet of cassette tape, several small pieces of cassette tape, one side of a Radio Shack brand cassette tape housing, the other side of a cassette tape housing and a bag containing pieces of tape and one cassette tape.

(3.) September 4, 1987, 7 p.m. After returning to the police station, the police asked her to give another statement. The defendant added that when she went to look for Edwards the second time, during the early hours of September 2, 1987, she looked in the Aroma Park area.

(4.) September 6, 1987, 12 p.m. After the defendant was advised that Small’s body had been recovered, police asked her if she knew anything about a box. The defendant indicated that Edwards had built a large wooden box in the garage of their residence. The defendant indicated that Edwards had given her two reasons for building the box. The first was that he was going to give it to his brother. The second was that it was to be used to store firewood. The defendant also told the police that in May or June 1987 Edwards sold the box to a heavyset black man who had purchased their dryer.

The defendant further indicated that after she and Edwards picked up the dog from the dog groomer’s, Edwards directed her to the Tri-Points Phillips 66 gas station in Aroma Park where he made a phone call at approximately 5 p.m.

(5.) September 7, 1987, 11 a.m. The defendant stated that after she and Edwards dropped the dog off at the dog groomer’s at 2 p.m. on September 2, 1987, Edwards asked her if she wanted to see some horses. They then drove to a place where some black people own a rodeo.

The defendant denied knowing anything about a tape recorder being used in any of the calls made by Edwards. The defendant started to cry and dropped her head into her hands when she was told that her fingerprints were on a tape recorder they had found. The defendant indicated that she had lied to the police about the tape recorder; that Edwards’ son had left it in their duplex and that she had moved it either upstairs or downstairs.

The defendant further testified that there was an old car battery in the duplex and that Edwards had purchased another one from a junkyard on Route 113 on August 31,1990.

The police concluded the interrogation by telling the defendant that her son had indicated that he had seen the box in the garage of their duplex on August 30, 1987, and questioned the defendant as to whether she was calling her son a liar.

(6.) September 7, 1987, 8:30 p.m. The defendant admitted that the box had not been sold to a black man and that the last time she saw it was on August 31, 1987.

The defendant indicated that during the afternoon of September 1, 1987, Edwards took her to a location where he wanted her to pick him up at 3 a.m. the next morning.

Late on September 1, 1987, or early September 2, 1987, Edwards had her follow him to Greenwood Avenue. He then got into her car and had her drive him to Cobb Park. Cobb Park is located one block away from the Small residence. She went home and picked him up from the above-mentioned location at 3 a.m. She drove him back to his van, parked on Greenwood Avenue, and returned home. Edwards was already there when she arrived.

The defendant indicated that she never got out of the car on September 2, 1987, to look at horses, rather she just dropped off Edwards and picked him up about one hour later. Police were aware that this was the rural area where Small’s body was eventually recovered.

The defendant reported that she saw the tape recorder in the car on the night of September 2, 1987 and that Edwards took it with him when he went to make his 11:30 p.m. phone call. The defendant told the police where this tape recorder was discarded, but when the area was searched, it was not recovered.

Between the 11:30 p.m. phone call and the 11:50 p.m. phone call, they stopped along Pottinger Road where Edwards hid a duffle bag in some evergreens. She admitted that instead of going to breakfast on September 3, 1987, Edwards went out and picked up the duffle bag.

The defendant further indicated that on August 30, 1987, she and Edwards got into an argument when he returned late to their residence. Edwards ran upstairs, got a gun, pointed it at his head and indicated that he was going to kill the defendant, the defendant’s son, and himself.

(7.) September 8, 1987, 9:30 a.m. The defendant added that during the early hours of September 2, 1987, after she followed Edwards to Greenwood Avenue and picked him up, she drove him to the Phillips 66 gas station in Kankakee where he made a phone call about 12:30 a.m.

The defendant also admitted that there was a pair of bolt cutters at her duplex.

(8.) September 8, 1987, evening. The defendant indicated that there wasn’t a pair of bolt cutters at her duplex.

The defendant stated that Edwards pointed the gun at her head, not his head, during the argument on August 30, 1987.

The State produced substantial forensic evidence which linked Edwards to the crime. Edwards’ fingerprints were found on both PVC piping and duct tape recovered from the burial box. Sand scraped from a pair of boots found behind a washer and dryer at the defendant’s and Edwards’ residence, as well as sand recovered from the interior of Edwards’ van, matched a sand sample taken from the burial site. White caulking material found on gloves recovered from Edwards’ and Rish’s trash had the same chemical composition as the sample of white caulking material taken from the burial box. Cross-examination of various State witnesses revealed that there was no physical evidence which linked the defendant to either the victim or the crime scene.

The State presented witnesses that tended to demonstrate that the defendant was aware that the victim was quite wealthy and that the defendant knew where the victim lived, as she had previously resided only blocks away from the Small residence. Additionally, there was testimony that the defendant had lived off the money generated by Edwards’ drug dealing and that his arrest in January 1987 for that offense resulted in things being “tight” financially.

The State also presented evidence that the defendant was seen in the vicinity of the Small residence both prior to the crime and on September 2, 1987.

Karen Thacker, a former neighbor of Stephen Small, testified that approximately 8 to 10 times during the summer of 1987, she saw a light-colored van with a tire on back, which looked like Edwards’ van, drive through the alley which separates her home from the Small residence. One morning in August 1987, Mrs. Thacker saw the van stopped in the middle of the alley. Facing the front of the van from a distance of approximately five feet, Mrs. Thacker saw a white, blond-haired woman sitting in the passenger seat and a white male in the driver’s seat. Mrs. Thacker’s attention was focused on the woman, who first looked at her, then at the driver and finally back to her. Mrs. Thacker testified that the woman looked “startled.” When Mrs. Thacker saw the van on earlier occasions that summer, she noticed then as well that it was occupied by a man and a blond woman. Mrs. Thacker further testified that the day after she discovered that Stephen Small had been kidnapped and murdered, she informed a law enforcement official of what she had seen. Later, after viewing newspaper photographs and television accounts depicting the defendant, Mrs. Thacker recognized the defendant as being the woman in the van on that August day. Mrs. Thacker positively identified Rish in court as being the woman she had seen in the van.

Caroline Mortell, a friend of the Small family and a resident on the same block as the Smalls, testified that from her den window she is able to see the Small residence. At approximately 11 a.m. on September 2, 1987, Mrs. Mortell was looking out her den window when she saw a white van with large vertical windows on the driver’s side proceeding toward her home. The van stopped at the intersection in front of her home, and Mrs. Mortell saw that it was occupied by just one person — a woman in her late twenties or early thirties, with blond hair and a dark complexion or make-up. The woman seemed to be “looking around the area.” As Mrs. Mortell continued to watch, the van turned left and proceeded toward the Small home. Later that same afternoon, between 1:30 and 3:30 p.m., Mrs. Mortell thought she saw the same van once or twice again in the same area, proceeding toward the Small house. Mrs. Mortell made an in-court identification of a picture of Edwards’ van as being the van she saw driving on the street that day.

Mrs. Mortell further testified that some time later, she was asked to view a series of photographs of women who had their faces covered by tape. The purpose of this was to determine whether she could select the hair style of the woman driving the van on September 2, 1987. When shown the same six photographs in court, Mrs. Mortell identified photograph number 4 as the one she had previously selected as depicting the same hair style of the woman driving the van. The photograph was of the defendant.

The State also presented the testimony of several witnesses who had seen the defendant or a woman similar to the physical description of the defendant with Edwards or a man similar to the physical description of Edwards procuring various items in preparation for the crime. These witnesses included Linda Forestier, a clerk at a hardware store in Aroma Park. Ms. Forestier testified that a man and a woman entered the store together on or about August 31, 1987. The man was about 5 feet 7 inches or 5 feet 8 inches, 160 pounds with dark hair. The woman was about 5 feet 5 inches, 130 or 140 pounds, had blond hair and was in her middle to late twenties. The woman asked Ms. Forestier if the store sold distilled water. Ms. Forestier replied that it did not and directed the couple to a grocery store. Then, upon inspecting several types of piping on the wall, the man asked if that was all the pipe the store had. Ms. Forestier applied affirmatively and the couple exited the store. On cross-examination, Ms. Forestier was unable to positively identify anyone as the woman in the store that day when she was shown a series of photographs by the police, and she was unable to identify the defendant in court on the day of the trial.

Donna Jordan, who used to be employed at the Convenience Food Mart in Bourbonnais, worked the period from August 29 through September 1, 1987. She testified that on one of those nights the defendant, a regular customer, had come into the store with a man who asked for bottled water. On cross-examination, however, Ms. Jordan stated that she was not sure that the defendant was in the store the same night the man came in to buy the water.

Lonnie Martens, a salesman at an electric supply store, testified that Edwards came into the store at around 3 p.m. on September 1, 1987. Edwards was driving a white van and pulled up to the store in front of the windows. Mr. Martens, who had known Edwards for approximately 20 years, noticed that a woman with “fluffed-up” blond hair was waiting in the van. Mr. Martens asked Edwards who the woman was and Edwards replied “Nancy.”

Mr. Martens further testified that Edwards purchased a certain brand of tie-wraps which can only be cut off once they are assembled and bundled around wires. Mr. Martens identified the tie-wraps recovered from the defendant’s and Edwards’ garbage as being the same type purchased by Edwards.

The defendant presented the following evidence at trial.

A bartender testified that at 7 p.m. on August 30, 1987, Edwards came into her bar with a tall man with long, shoulder-length blond hair. The two men left at 10 p.m., returned at 10:30 p.m. and departed again at midnight.

A Bourbonnais police officer testified that at 12:02 p.m. on September 5, 1987, he was advised by a dispatcher that a black pickup truck, with Illinois license plate number 5462AF, was parked in front of the defendant’s residence. No intruders were found inside the residence and the garage was unlocked. The license plate was registered to Tracy Storm. Storm later rode up on a bike and attempted to unlock the truck. He told the police officer that he had been inside the residence earlier that day and that he had removed a motorcycle from the garage.

Michael Roberts, a resident of 754 E. Stratford Drive, testified that in late August or early September of 1987, he observed a “multipainted, kind of primered” pickup truck near the defendant’s residence. The man in the truck, who was 6 feet 1 inch or 6 feet 2 inches tall, had shaggy, curly, blond, shoulder-length hair. Mr. Roberts saw him enter the defendant’s residence. On cross-examination, Mr. Roberts conceded that he made this observance in mid-August 1987.

The business manager for Paschen Construction, the employer of Tracy Storm and Jefferey Autman, presented time records demonstrating that Tracy Storm had not worked at all on August 31, 1987, but had worked eight hours on September 2 and 3, 1987. Jeffrey Autman worked hours from August 31 through September 3,1987.

A number of the defendant’s friends and relatives testified on her behalf. This evidence tended to establish that during the summer of 1987, the defendant had expressed confusion and unhappiness in regard to her relationship with Edwards. Those witnesses who saw and/ or spoke with the defendant in late August and early September 1987 testified that the defendant seemed normal.

Bourbonnais police officer John Griffith testified that on May 1, 1987, he was dispatched to the defendant’s residence. The defendant and Edwards were engaged in a verbal altercation.

Anita Hamilton, the defendant’s cousin and hairdresser, testified that in August and September 1987, the defendant’s hair was a very light blond, as well as soft and full. She described it as a common style and color. Ms. Hamilton also stated that the defendant had a trim and color on September 1, 1987, at 5 p.m. and that she was calm and friendly.

Thad Wells, a tractor driver for J & B Fruit and Vegetable Farm, testified that during the last week of August or the first week of September 1987, he encountered a white van near Cable Line Road, the area in which Small’s body was recovered. Inside the van were two white males and a black male. The driver had shoulder-length, dark brown or black hair. Mr. Wells could not get a good look at the white passenger, but he seemed to be heavyset and possibly have blond hair. Mr. Wells indicated that the men looked frightened. Mr. Wells saw the van again, along with a dark blue or black car, at about 4 p,m. that same day. The van, containing two white males, was heading in the direction of where Small’s body was recovered.

An employee of the Phillips 66 gas station in Aroma Park who was working at approximately 5 p.m. on September 2, 1987, testified that he saw two black males drive up to the phone booth in a gray Ford Granada. He also saw a shadow in the backseat.

The attorney who represented the defendant during all police questioning sessions testified that when the defendant was brought in to the police station on September 4, 1987, she was upset, crying and confused as to dates and times. This was her demeanor during all of her sessions except for the last one. The attorney had no information that the defendant had been deprived of food, sleep or water.

The defendant testified in her own behalf. She stated that on August 30, 1987, she and Edwards travelled to the State park on his motorcycle. They ran into Tracy Storm, and Storm and Edwards had a conversation. Storm came over to the defendant’s residence later that same afternoon, and the two men spoke again. Edwards and Storm left in Storm’s car. About 10 minutes after the two men left, she received a strange call from a male caller asking about Edwards. The defendant testified that she did not leave the house until after 6 p.m. and spoke on the telephone to several people. Edwards returned to the residence at approximately 1 a.m. on August 31,1987.

On August 31, 1987, the defendant testified that she awoke at approximately 7:30 a.m and got her son off to school. Edwards left the house in his van at approximately 9:30 a.m. She did not know where Edwards went. Edwards returned at 12 noon and the defendant left at 1:30 p.m. to go to her friend Julie Enright’s house for the afternoon. She returned home at approximately 4:30 p.m. It was at that time that she noticed that the wooden box was missing from her residence. Edwards arrived home at approximately 5 p.m. and was in and out throughout the evening. The defendant testified that she was not aware of what he was doing.

On September 1, 1987, Edwards left the residence in his van at approximately 10 to 10:30 a.m. Edwards returned home around noon, and, following a conversation with Edwards, the defendant rescheduled a hair appointment until later in the day. She then left the residence with Edwards, and, with Edwards driving, they drove out of town to some railroad tracks that he wanted the defendant to note. When they arrived home, the defendant’s son had not yet arrived home from school. During the course of the afternoon, the defendant accompanied Edwards to the electric supply store. The defendant testified that this was not uncommon. The defendant testified that she waited in the van while Edwards went inside. She testified that she did not know what he purchased.

At approximately 5 p.m., the defendant dropped off her son at football practice and went to get her hair done. This took about an hour and a half. From there she went home, had a light supper and helped her son with his homework.

The defendant testified that she spoke with several friends during the evening. At about 8 p.m., Edwards left in his van and was not gone long. Rish did not know where he went. When he returned home he was tense and nervous. Edwards was in and out quite a bit. After talking with Edwards, they both left in their own vehicles at about 11:45 p.m. The defendant followed Edwards to Mike Spaulding’s house. The defendant was aware that at one time Spaulding had set Edwards up on a drug bust. Edwards placed a bag in the trunk of the defendant’s vehicle and, following a conversation, the defendant drove with Edwards to a Phillips 66 station. She parked about six feet from the phone booth, waited in the car and did not shut off the engine while Edwards placed a call. The defendant testified that she did not know who he was calling nor did she hear any part of the conversation. Edwards returned to the vehicle, told the defendant to drive to Cobb Park and to hurry up. Once at Cobb Park, Edwards exited the vehicle, went to the trunk, and then told Nancy to go straight home and get out of the area. The defendant returned home and watched a rented video until 2:30 a.m. At that time she left in her car, pursuant to Edwards’ request, and picked him up at the earlier noted railroad tracks. Edwards got in the car and told the defendant to return to where his vehicle was parked in front of Spaulding’s. They then returned home. Once home the defendant noticed Edwards appeared nervous, jumpy and, at times, panicky. Shortly thereafter, about 3:30 a.m., Edwards again left in his van and was gone about 20 minutes. The defendant went to bed and when Edwards returned, he stayed downstairs the rest of the night.

At 7:30 that morning, the defendant got her son off to school and called the dog groomer’s to get an appointment to get her dog groomed. After dropping the dog off, the defendant and Edwards, with Edwards driving the defendant’s vehicle, drove to 300 Southeast and took a road that stopped in front of a ranch. This was near where Small’s body would eventually be recovered. Edwards told the defendant to pick him up in an hour. The defendant drove to her sister’s house and stayed there for 45 to 50 minutes. The defendant then left to pick up Edwards, and at approximately 4:30 p.m. they picked up the dog at the groomer’s. On the way home, Edwards stopped the car at a drive-up phone near a Phillips 66 station in Aroma Park. Although this was a drive-up phone, Edwards parked away from the phone and walked up to it. Edwards’ back was turned toward the defendant, and she did not hear anything that was said nor did she see any tape recorder while he was making the call. He was not on the phone long, and when the call was completed, they returned home. Edwards was in and out of the house and appeared preoccupied, tense and very nervous.

Between 10:30 and 11 p.m., Edwards put the defendant’s bicycle in the trunk of her car and, with the defendant driving, they drove out to Aroma Park. At Edwards’ direction, the defendant pulled up to the curb across from a grocery store and Edwards got out of the car to make yet another call. Once again his back was to the defendant, the car was running and she did not hear the conversation. This call occurred at approximately 11:30 p.m. and did not last very long. Edwards then directed the defendant to drive to Sandbar Road, where he took a duffle bag from the rear seat and placed it in some evergreens. They then drove to another pay phone near a Marathon station, and the defendant parked about 10 to 15 feet away, left the car running and again did not hear any portion of the conversation. After this call, Danny’s demeanor was panicky and mad at the same time. Edwards said, “Something is wrong. Something is not right.” At some point during this phone call, the defendant saw the tape recorder and recognized it as belonging to Edwards’ son. The defendant became bewildered, confused and scared. Edwards then drove back into Aroma Park and past the phone booth across from the super market. Edwards told the defendant that he saw a car there and that he did not like the looks of it and drove away. The defendant testified that Edwards was very nervous.

At about 1 or 2 a.m. on September 3, 1987, they arrived back home. Edwards removed the bicycle from the car and placed it in the garage. He then left again alone in the van and told the defendant he was going out for cigarettes. He was gone 20 to 30 minutes. When he returned he seemed somewhat relieved. After some conversation, the defendant went upstairs to bed and Edwards stayed downstairs.

At about 7:30 a.m. that morning, the defendant left to drop her son off at school and Edwards left in his van. When the defendant returned at 8:30 a.m., Edwards was not there but returned a short time later with the duffle bag he had the previous evening. Edwards told her what was in the bag and what he wanted the defendant to do with it. None of it made any sense to the defendant, and she at no time had any idea of the significance of the bag or its contents. The defendant spent most of the morning lying on the couch. Edwards was outside most of the day washing the car and taking the garbage out. At about 4:30 to 4:45 p.m., the defendant dropped her son off at his football practice, and she and Edwards proceeded to an Econo Drug for some lozenges for her sister. They proceeded to her sister’s house for 10 minutes. They then returned home, and the defendant prepared dinner. Edwards was not eating or sleeping this week and after a bite he went upstairs to lie down. Later in the evening, the defendant drove to the store to get some ice cream for her and her son. When she returned she and her son had ice cream and watched T.V. After several phone calls, she went to bed.

On September 4, 1987, she woke up between 7 and 7:30 a.m. and sent her son off to school. She then returned to bed and re-awoke at 10:30 a.m. with a man in army fatigues pointing a pistol at her face. It was at this time that the search warrant was executed and the defendant was taken into custody.

The defendant also described various domestic disputes that she and Edwards had recently had. When asked by her attorney why she had lied to the police in several of her statements, she responded that it was because she realized that Edwards had used her and was putting her in the middle of this whole thing without her knowledge. She stated that she was “scared to tell the truth.”

During the State’s case in rebuttal, the State put on two forensic scientists who testified that there was no physical evidence linking Tracy Storm to the victim or the crime scene. In an attempt to discredit the testimony of Thad Wells, the State introduced a Kankakee police officer who testified that there is no seat for a third person in Edwards’ van.

After deliberation, the jury found the defendant guilty of first degree murder and aggravated kidnapping. She was sentenced to a prison term of natural life for the murder and 30 years for aggravated kidnapping. The defendant appeals her convictions and sentences, raising several issues on review.

The defendant’s first contention is that she was not proven guilty of the offenses beyond a reasonable doubt.

A person is accountable for the conduct of another if “[ejither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. Ill. Rev. Stat. 1985, ch. 38, par. 5 — 2(c).

The defendant asserts that the evidence did nothing more than show that she was sometimes present while Edwards planned and carried out the kidnapping of Small. Accordingly, the defendant maintains that the State failed to prove the requisite intent in order for her to be held legally accountable for Edwards’ crimes.

When a reviewing court is confronted with a challenge to the sufficiency of the evidence, “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis omitted.) People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 461, 472, quoting Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573-74, 99 S. Ct. 2781, 2788-89.

We have set out the evidence presented by both sides in great detail. Our review of this evidence reveals that there was testimony given that the defendant was seen in the victim’s neighborhood at various times before the crime and that the defendant was seen in the victim’s neighborhood on the day of the crime. We note that the defendant failed to deny or explain these occurrences. The box used in the crime was built in the defendant’s garage. The defendant admitted accompanying Edwards to procure materials in preparation for the crime. There also exists testimony that the defendant actively assisted in procuring some items for the crime. The defendant admitted taking Edwards to the victim’s neighborhood during the night of the crime and picking him up at 3 a.m. later that morning at a prearranged, rural location. She admitted driving him to various phone booths and knew that he used a tape recorder during one of those phone conversations. Along the route described by the defendant as being taken late September 2 — early September 3, 1987, physical evidence linking Edwards to the crime was recovered. It appears, then, that as the defendant drove, Edwards was destroying evidence of the crime.

Perhaps the most telling evidence of all was the inconsistent statements given to the police after the defendant’s arrest. The defendant’s various versions about what she knew/didn’t know and what she and Edwards did during the early days of September 1987 damage her credibility, and the jury properly could have concluded that her after-the-fact behavior amounted to an attempt to conceal the truth.

It is our opinion, pursuant to the supreme court’s directive in Young, that a rational trier of fact could have concluded beyond a reasonable doubt that the defendant aided Edwards in the commission of this crime.

The defendant next contends that the the trial court erred in refusing to grant the defendant’s motion to quash her arrest. The defendant argues that the search warrant was nothing but a “sham” — that the real purpose in entering the townhouse occupied by the defendant and Edwards was to arrest whoever was present. In support of this allegation, the defendant points to the testimony of two police officers and the fact that the search revealed only a few items described in the search warrant.

The State responds that there is testimony that demonstrates the purpose in going to the townhouse was to search it and interview any persons located at the townhouse. The State argues that some items linking someone living at the townhome to the crime were recovered during the search.

We reject the defendant’s argument that the search warrant was a “sham” and we note that evidence tending to link at least someone residing at the townhouse was recovered during the search, including a pair of man’s boots found in the utility room behind the washer and dryer, a putty knife with traces of a clear, glue-like substance, automobile keys, a notebook, and a Kankakee phone directory with the Small’s name circled.

As to the defendant’s arrest, the officers were in possession of a valid search warrant. Once lawfully inside the defendant’s residence, the police had probable cause to believe that the defendant had kidnapped or aided in kidnapping Stephen Small and acted lawfully in placing her under arrest. (People v. Kite (1981), 97 Ill. App. 3d 817, 423 N.E.2d 524.) We are unpersuaded by the defendant’s attempt to distinguish this case from Kite and, accordingly, we affirm the trial court’s denial of the defendant’s motion to quash.

The defendant next contends that the cause should be reversed and remanded for a new trial based on two instances of prosecutorial misconduct.

Initially, the State asserts that the defendant has waived this issue. The State argues that the defense counsel’s failure to make a timely objection to one aspect of the prosecutor’s closing rebuttal argument waived the defendant’s right to appeal that aspect of the alleged misconduct. The State next argues that defense counsel’s failure to allege as error another remark made by the prosecutor during closing rebuttal waived the defendant’s right to appeal that aspect of the alleged misconduct.

It is well established that it is necessary to both object, as well as raise the issue in a post-trial motion, in order to preserve it for review. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) Our examination of the record reveals that the State is correct in its assertion that the defendant failed to preserve this issue for review. However, we have reviewed the arguments propounded by the defendant in regard to both of these alleged acts of misconduct and find them to be without merit.

The defendant next contends that the the trial court improperly refused to hold an evidentiary hearing to challenge the validity of a search warrant affidavit. The defendant, citing Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, claims that she was entitled to a hearing to challenge the veracity of a sworn statement made by Officer Willis in order to search her residence.

The trial judge was correct in denying an evidentiary hearing, as Franks requires that an offer of proof be made. The defendant here did not file affidavits or other offers of proof. The defendant simply asked the court to take judicial notice of the evidence heard at the motion to quash arrest. Accordingly, the preliminary stage had not been reached and the court properly refused such an evidentiary hearing.

The defendant also contends that the trial court abused its discretion in sentencing the defendant to a sentence of natural life imprisonment for the murder of Stephen Small.

A trial court’s decision in regard to sentencing a defendant is entitled to great deference and weight. (People v. La Pointe (1981), 88 Ill. 2d 482, 492-93, 431 N.E.2d 344, 348.) Only if the trial court abused its discretion may its sentencing decision be reversed. La Pointe, 88 Ill. 2d at 492, 431 N.E.2d at 348.

In the instant case, the record reveals that the trial court considered the possibility of the defendant’s rehabilitation and weighed it against the factors of deterrence and retribution and decided that emphasis on the former would deprecate the seriousness of the crime. This was clearly within its discretion. The sentence is affirmed.

Lastly, the defendant contends that her conviction for aggravated kidnapping must be vacated where it was the predicate offense for the felony murder charge. The defendant concedes that People v. Tanner (1986), 142 Ill. App. 3d 165, 491 N.E.2d 776, stands for the proposition that in a case where a general verdict is returned, the rule against multiple convictions for a single act may not apply, since such a verdict is presumed to be based on any good charge to which proof is offered.

The defendant attempts to distinguish the instant case from Tanner, contending that here the evidence that the defendant committed either intentional murder (count I) or knowingly created a strong probability of death or great bodily harm (count II) was very weak. The defendant points to the water, food, light and ventilation provided to Small in the box as indicators that the plan was for him to survive the ordeal. The defendant also contends that it is unreasonable to assume that since Small died, the kidnappers knew that there was a great probability of death or great bodily harm.

We reject the defendant’s attempt to distinguish this case from Tanner. It does not necessarily follow that the aggravated kidnapping conviction formed the predicate offense for the first degree murder conviction. Accordingly, the defendant’s conviction for aggravated kidnapping is affirmed.

For the reasons listed above, the judgment and sentences of the circuit court of Kankakee County are affirmed.

Affirmed.

BARRY and McCUSKEY, JJ., concur.


author: JUSTICE BARRY

text:
    GERALD KRASINSKI, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, INC., et al., Defendants-Appellees.
    Third District
    No. 3—90—0223
    Opinion filed February 8, 1991.

      Anthony C. Raccuglia & Associates, of Peru (Cynthia M. Raccuglia, of counsel), for appellant.
    Keck, Mahin & Cate, of Peoria, and John A. McDonald, of Keck, Mahin & Cate, of Chicago (Keith J. Braskich, of counsel), for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiff Gerald Krasinski filed suit in the circuit court of La Salle County against United Parcel Service (UPS) and two of its employees, Frank Wise and Bill Fields, alleging wrongful discharge and malicious defamation arising out of the termination of plaintiff’s employment as a driver for UPS on October 7, 1981. The unlawful discharge count was dismissed in 1982, and the defendants filed a motion for summary judgment as to the defamation counts on the ground that the statements involved were privileged communications. The trial court denied defendants’ motion, ruling that, although a qualified privilege attached to the defamatory statements alleged in the complaint, an issue of material fact existed as to whether the statements were made "with actual malice.

Next defendants moved to dismiss the complaint on the ground that the claim was preempted by Federal law in that the alleged defaming statements took place "within the context of an investigation of possible theft and discipline pursuant to a collective bargaining agreement. Defendants relied in part upon the discharge grievance proceeding which was concluded in favor of plaintiff and resulted in an order of reinstatement. The trial court found that plaintiff’s claims were preempted by Federal law and granted the motion. However, that ruling was reversed by this court (Krasinski v. United Parcel Service, Inc. (1987), 155 Ill. App. 3d 831), and the supreme court affirmed our appellate decision, holding that the complaint for defamation was independent of the collective bargaining agreement. (Krasinski v. United Parcel Service, Inc. (1988), 124 Ill. 2d 483.) Following remand to the trial court, defendants again moved for summary judgment. The trial court again ruled that a material issue of fact exists as to the existence of actual malice, thus denying summary judgment on that issue. The court also found that there had been no publication beyond UPS management and plaintiff’s union representative and granted summary judgment for defendants on that issue. Neither of these rulings is before us on appeal.

Rather, this appeal involves the trial court’s third ruling: that punitive damages are not a remedy available to plaintiff in this case. The court entered judgment for defendants on that issue.

On appeal, plaintiff contends that the trial court erred in holding that, where actual malice is a necessary element of the action, plaintiff cannot recover both compensatory and punitive damages because the same conduct would be the basis for both types of damages and would constitute a double recovery. The trial court relied upon Costello v. Capital Cities Communications, Inc. (1987), 153 Ill. App. 3d 956, rev’d on other grounds (1988), 125 Ill. 2d 402, where the appellate court affirmed the trial court’s award of actual damages and reversed an award of punitive damages in a libel action. The court stated:

“[I]f the factors that ordinarily justify an award of punitive damages are themselves the basic elements necessary to be established in order to recover compensatory damages, an award of punitive damages in addition to the compensatory damages constitutes an impermissible double recovery.” 153 Ill. App. 3d at 974.

Plaintiff argues that the controlling decision here is that of Winters v. Greeley (1989), 189 Ill. App. 3d 590, where the court held that an allowance of punitive damages in addition to compensatory damages in a defamation action where “actual malice” had to be proved does not as a matter of law constitute an impermissible double recovery. In Winters, the court noted that Costello had been reversed by the Illinois Supreme Court on other grounds without addressing the issue of punitive damages and then declined to follow the appellate court decision on that issue.

The Winters decision discussed the factors that are considered in determining the award of compensatory damages for loss of reputation, good will, and esteem and for personal humiliation and anguish. The court observed that the purpose of punitive damages is not compensation but rather to punish the tortfeasor and to deter him and others from similar future conduct. Punitive damages are in the nature of a private fine levied by civil juries to punish reprehensible conduct and are never awarded as a matter of right. Thus, the concept of “double recovery” does not enter into this kind of defamation case.

Illinois courts have previously approved an award of both compensatory and punitive damages in defamation cases involving a qualified privilege where the proof of actual malice is required. (E.g., Newell v. Field Enterprises, Inc. (1980), 91 Ill. App. 3d 735, 415 N.E.2d 434; Fopay v. Noveroske (1975), 31 Ill. App. 3d 182, 334 N.E.2d 79.) Furthermore, our courts have made clear that “the right to be free from malicious defamation is firmly rooted in our State’s public policy” (Krasinski v. United Parcel Service, Inc. (1988), 124 Ill. 2d 483, 494), and that “[t]here is little doubt that the protection of an individual’s interest in his reputation is a deep and traditional concern of the State of Illinois” (Fisher v. Illinois Office Supply Co. (1985), 130 Ill. App. 3d 996, 1001). The United States Supreme Court has also held that an award of punitive damages as well as compensatory damages is proper under the qualified privilege rule. Curtis Publishing Co. v. Butts (1967), 388 U.S. 130, 18 L. Ed. 2d 1094, 87 S. Ct. 1975.

Defendants have cited a number of cases where it has been held that punitive damages are not available where the outrageous quality of the defendant’s conduct or proof of wilful and wanton misconduct were essential elements of the cause of action, but none of those cases involved malicious defamation. See Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157 (intentional infliction of severe emotional distress); Holt v. Cross (1983), 121 Ill. App. 3d 695 (student suing teacher for excessive corporal punishment involving wilful and wanton misconduct); Dethloff v. Zeigler Coal Co. (1979), 69 Ill. App. 3d 133, 386 N.E.2d 1373 (action for trespassory taking of coal).

We consider the availability of punitive damages in the case at bar to be essential to carrying out the public policy of our State just as was the denial of Federal preemption of this cause of action. (Krasinski v. United Parcel Service, Inc. (1988), 124 Ill. 2d 483.) The protection of plaintiff’s reputation and standing in the community is of such a vital concern to the State that plaintiff should not be precluded from recovering punitive damages if he can meet his burden of establishing actual malice. The purposes of punishment and deterrence will best be accomplished if punitive damages are available.

Accordingly, we reverse the judgment entered by the trial court on the issue of punitive damages and remand this cause for further proceedings.

Reversed and remanded.

McCUSKEY and SLATER, JJ., concur.


author: JUSTICE SLATER

text:
      In re MARRIAGE OF WILLIAM A. GOOD, Petitioner-Appellant, and CYNTHIA K. GOOD, Respondent-Appellee.
    Third District
    No. 3—90—0179
    Opinion filed February 8, 1991.

      Michael T. Mahoney, Ltd., of Chillicothe (Michael T, Mahoney, of counsel), for appellant.
    Edmonds & Laukitis, Ltd., of Chillicothe (John R Edmonds, of counsel), for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

The marriage of the petitioner, William Good (father), and the respondent, Cynthia Good (mother), was dissolved on October 2, 1987. At that time, the parents were granted joint custody of their minor children, Michelle and Leigh, who were then five and three years old, respectively. Actual physical custody was awarded to the father pursuant to a joint parenting agreement which provided for liberal visitation rights by the mother.

On August 2, 1989, the father filed a petition seeking removal of the children from Illinois to Michigan in accord with a job transfer. Cross-petitions to terminate joint custody were thereafter filed by each party seeking sole custody. Leave was granted father to remove the children by temporary order dated September 13, 1989. The case proceeded to hearing on the petitions, and both parties presented evidence supporting their assertions. After hearing the evidence, the trial court denied the father’s petition to remove the children and proceeded to award custody to the mother. The father appeals.

The father asserts that the trial court ignored the change of circumstances standard required by section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (the Dissolution Act) (Ill. Rev. Stat. 1989, ch. 40, par. 610(b)). This section provides:

“The court shall not modify a prior custody judgement unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgement or that were unknown to the court at the time of entry of the prior judgement, that a change has occurred in the circumstances of the child or his custodian, or in the case of a joint custody arrangement that a change has occurred in the circumstances of the child or either or both parties having custody, and that the modification is necessary to serve the best interest of the child. In the case of joint custody, if the parties agree to a termination of a joint custody arrangement, the court shall so terminate the joint custody and make any modification which is in the child’s best interest. The court shall state in its decision specific findings of fact in support of its modification or termination of joint custody if either parent opposes the modification or termination.” (Ill. Rev. Stat. 1989, ch. 40, par. 610(b).)

The mother argues that In re Marriage of Lovejoy (1987), 158 Ill. App. 3d 1, 510 N.E.2d 636, held that when both parents file petitions seeking termination of joint custody, proof of a change in circumstances is not required. In Lovejoy, however, the court found that a change in circumstances had in fact occurred. In re Marriage of Burke (1989), 185 Ill. App. 3d 253, 541 N.E.2d 245, declined to follow Lovejoy on the theory that when the legislature enacted section 602.1 of the Dissolution Act (allowing the court to impose joint custody over the parents’ objections), there was an implied repeal of the second sentence in section 610(b) dealing with termination of joint custody by agreement of the parties. Since the court may now order joint custody in appropriate cases over the objections of the parties, it is illogical to apply a different burden of proof in joint custody modification proceedings than where custody has been rested solely in one parent.

We hold that when joint custody is sought to be terminated, the evidence must show by a clear and convincing standard that a change in circumstances has occurred and that the modification is necessary to serve the best interests of the child or children.

In this case the father had moved to Michigan, resulting in an eight-hour car trip to accommodate visitation. The mother had remarried and, at the time of the hearing, had another child. The father had also remarried. His new wife and two stepchildren had become integrated into the father’s family unit. One of the children had manifested a speech impediment. The children had adjusted well to their new home and schools in Michigan. All these facts in their totality did result in a change of circumstances which the trial court could have found to have been clearly and convincingly proven from the evidence.

The evidence must also show that a modification of the present joint custody arrangement is in the best interests of the minor children. Since October 2, 1987, the children, by agreement of the parties, have permanently resided with the father. Except for a few minor disputes, the joint custody arrangement has worked well. The father presents a positive moral example. The stepmother is extensively involved in the lives and activities of the children. While the evidence showed two loving parents, each having a good relationship with the children, we believe that the father, as physical custodian, is entitled to the benefit of the presumption favoring the existing custodial arrangement which should not be lightly overturned. (See Burke, 185 Ill. App. 3d 253, 541 N.E.2d 245; In re Marriage of Wechselberger (1983), 115 Ill. App. 3d 779, 450 N.E.2d 1385; In re Custody of Harne (1979), 77 Ill. 2d 414, 396 N.E.2d 499.) We find that insufficient evidence has been presented in this case to indicate that a modification is necessary to serve the children’s best interests. We reverse the trial court’s decision terminating joint custody as against the manifest weight of the evidence and order that the joint custody remain in effect with the father as physical custodian.

Finally, regarding petitioner’s move to Michigan, sufficient evidence has been presented indicating that the move was made out of necessity, and, in that regard, is in the children’s best interests. Moreover, the evidence presented showed that the children’s home and school environment in Michigan was at least as good as it was in Illinois. Custodial parents should not be expected to give up careers for the sake of remaining in the same geographical location. We reverse the trial court’s denial of the petition to remove the minor children and order that the petition be granted.

The trial court’s decision on the petition for rule to show cause is affirmed. The cause is remanded to the trial court for the purpose of fixing child support and modifying visitation.

Reversed in part and remanded in part; affirmed in part.

STOUDER, P.J., and GORMAN, J., concur.