text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEREK SCOTT BUCKNER, Defendant-Appellant.
    Fourth District
    No. 4 — 89—0570
    Opinion filed September 25, 1990.

      Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

The defendant murdered his wife, by inflicting multiple stab wounds, and then stole her car. A Macon County jury convicted the defendant of first-degree murder (111. Rev. Stat. 1987, ch. 38, par. 9— 1(a)(1)), armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2), and burglary (Ill. Rev. Stat. 1987, ch. 19 — 1(a)). On appeal the defendant raises issues involving the constitutionality of section 9 — 2 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2), reasonable doubt, and his 40-year sentence for first-degree murder. We affirm the convictions and sentence.

The defendant and his wife, Vivian, were married on June 6, 1985. The defendant was then 19 years old and Vivian was 26 years old. Six months later their daughter was born. The parties separated in 1987 but continued to see each other almost daily and continued sexual relations.

The defendant worked the 11 p.m. to 7 a.m. shift at Revere Copper and Brass Company in Clinton, Illinois, on December 18, 1988. Before he left for work that evening, the defendant received a telephone call from an anonymous caller who told him Vivian was at a Decatur tavern, Windy O’Leary’s (O’Leary’s), with another man. The defendant persuaded the man driving him to work that evening to stop at O’Leary’s on the way to Clinton. The two men went into the tavern in search of Vivian, but were told by her friends that she had left one hour before. Her car was in O’Leary’s parking lot. The defendant remained at O’Leary’s, but his friend went to work.

At trial, the defendant testified he then walked toward a Jewel store to make a telephone call. He changed his mind, turned around, and walked back toward O’Leary’s. He saw a car drive into O’Leary’s parking lot and pull into the parking space next to Vivian’s car. As he got closer to the car he saw two people in it, talking. The male in the car then leaned toward the female to kiss her. When the woman turned her head to kiss her companion, the defendant recognized her as Vivian.

The defendant testified he went to the passenger side of the car and tapped on the window and Vivian exited the car. The defendant did not know the man in the car, David Rogers. The defendant asked his wife what was going on. Rogers got out of the car, walked up to the defendant, and the two exchanged words. Vivian twice stepped between them to break up the altercation, and the defendant twice pushed her aside with his left hand. He held an open knife in his right hand. Vivian was screaming at Rogers that the defendant had a knife.

“[Defense counsel]: What was going through your mind at that time?
[Defendant]: I have — I have never seen Vivian with anybody — another male, let alone kissing another male. I didn’t know what was going on.
[Defense counsel]: Did you feel your marriage was ending?

[Defendant]: Yeah, I — you know, I thought it was over with, she didn’t want to be with me. I wasn’t sure. I wasn’t sure what was going on. I couldn’t think right.”

Rogers got into his car and drove away. The defendant then noticed Vivian had blood on her pant leg, and he offered to take her home. She refused and instead went inside O’Leary’s.

The defendant walked around the parking lot for a few minutes. He found Vivian’s purse lying next to her car on the parking lot and searched it for her car keys. He took the keys and drove away in her car. He testified he did not know she had been seriously injured.

On cross-examination the defendant admitted he remembered telling police, shortly after his arrest, that he stabbed his wife more than two times and the stabbing was not accidental. At trial, however, he testified he had no memory of stabbing Vivian. While “driving around,” the defendant wrecked the car. He was subsequently arrested.

Rogers’ trial testimony differs significantly. He testified he never exited his car. When Vivian got out of his car, the defendant punched her in the stomach and pushed her against her car. Vivian was screaming, “David, he has a gun!” Rogers repeatedly assured the defendant that Vivian “didn’t do anything,” but the defendant continued pushing her, now toward O’Leary’s. Rogers never saw a knife. He left the scene to avoid exacerbating the situation.

Dr. Frantz Charles, a surgeon, performed emergency surgery on Vivian. He testified she received five stab wounds. The only fatal wound was a two-centimeter hole in her left ventricle. Vivian died from a loss of blood resulting from this stab wound to her heart.

The jury found the defendant guilty of first-degree murder, armed violence, and burglary. The defendant filed a motion for a new trial, but the motion was denied. The trial court, on its own motion, vacated the armed violence conviction and sentenced the defendant to 40 years for first-degree murder and 3 years for burglary, the sentences to run concurrently.

The first issue the defendant raises on appeal is whether the requirement that the defendant show, by a preponderance of the evidence, that he acted under sudden and intense passion to be convicted of second-degree rather than first-degree murder violates the due process clause of the United States Constitution. At trial, the defendant objected to People’s instruction No. 6, which stated:

“The defendant is presumed to be innocent of the charges against him, including the charge of first degree murder. This presumption remains with him throughout every stage of the trial and during your deliberations on the verdict and is not overcome unless from all the evidence in this case you are convinced beyond a reasonable doubt that the defendant is guilty.
The State has the burden of proving that the defendant is guilty of first degree murder, armed violence and burglary, and this burden remains on the State throughout the case. The defendant is not required to prove his innocence.
If the State proves beyond a reasonable doubt that the defendant is guilty of first degree murder, the defendant then has the burden of proving by a preponderance of the evidence that a mitigating factor is present so that he is guilty of the lesser offense of second degree murder, and not guilty of first degree murder. In deciding whether a mitigating factor is present, you should consider all of the evidence bearing on this question.”

(See Illinois Pattern Jury Instructions, Criminal, No. 2.03A (2d ed. Supp. 1989).) The defendant contended the instruction improperly shifted the burden of proof to him, but his objection was overruled. He did not, however, object to the constitutionality of the second-degree murder statute (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2) until the post-trial motion. Because he failed to raise the issue prior to the jury’s verdict, the State argues this court may decline to review the issue.

The State cites a fifth district case in which that court refused to consider a constitutional challenge to a statute raised for the first time in a post-trial motion. (People v. Jones (1980), 86 Ill. App. 3d 253, 408 N.E.2d 79.)

“It is well settled that a constitutional challenge not raised in the trial court cannot be entertained for the 'first time on review. (People v. Amerman (1971), 50 Ill. 2d 196, 279 N.E.2d 353.) Defendant chose to wait until his case had been prosecuted before bringing the issue to the attention of the trial court in his post-trial motion. This was too late for the trial court to properly consider the issue. Therefore, the issue is untimely and will not be considered by this court.” Jones, 86 Ill. App. 3d at 258, 408 N.E.2d at 84.

This is no longer the law in Illinois. A constitutional challenge to a statute can now be raised at any time. (People v. Bryant (1989), 128 Ill. 2d 448, 453-54, 539 N.E.2d 1221, 1223-24.) The Bryant court stated that in People v. Frey (1973), 54 Ill. 2d 28, 29-33, 294 N.E.2d 257, 258-59, it specifically overruled People v. Amerman (1971), 50 Ill. 2d 196, 279 N.E.2d 353. (See generally People v. Felella (1989), 131 Ill. 2d 525, 536, 546 N.E.2d 492, 496.) In People v. Wade (1989), 131 Ill. 2d 370, 375-76, 546 N.E.2d 553, 555-56, the court stated:

“This court has previously stated that a constitutional challenge to the statute on which a criminal conviction is based may be raised at any time. (People v. Bryant (1989), 128 Ill. 2d 448, 453-54; People v. Zeisler (1988), 125 Ill. 2d 42, 46; People v. Sarelli (1973), 55 Ill. 2d 169, 170-71.) Other cases, however, have suggested that a defendant’s failure to raise a constitutional challenge to a statute may be deemed waived if the issue was not presented in the circuit court. [Citations.] Before invoking the plain error exception, it is appropriate to determine whether error occurred at all. (See People v. Young (1989), 128 Ill. 2d 1, 54; Precup, 73 Ill. 2d at 17.) Because we conclude that no error occurred in the present case, we need not determine whether such a challenge may ever be deemed waived.”

The Code was amended in 1987 and second-degree murder replaced voluntary manslaughter. Pub. Act 84 — 1450, §2, eff. July 1, 1987 (1986 Ill. Laws 4221, 4233-34).

“Under the old homicide statute, the State had the burden to prove, beyond a reasonable doubt, the elements of murder. (People v. Reddick (1988), 123 Ill. 2d 184, 197.) The defendant then had the opportunity to present evidence of a factor in mitigation, serious provocation or unreasonable belief, either of which must have been present to reduce an offense of murder to voluntary manslaughter. (123 Ill. 2d at 197.) The State then had the burden to prove, beyond a reasonable doubt, the absence of the factor in mitigation. (123 Ill. 2d at 198.) Under the new Act, the State still bears the burden to prove, beyond a reasonable doubt, the elements of first degree murder. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1.) However, the defendant now bears the burden to prove, by a preponderance of the evidence, one of the factors in mitigation which must be present to reduce an offense of first degree murder to second degree murder. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2.) Thus, the new Act not only requires the defendant to come forward with some evidence of a factor in mitigation; it requires the defendant to prove, by a preponderance of the evidence, a factor in mitigation.” (Emphasis in original.) People v. Shumpert (1989), 126 Ill. 2d 344, 351-52, 533 N.E.2d 1106, 1109.

In 1970, the United States Supreme Court held “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (In re Winship (1970), 397 U.S. 358, 364, 25 L. Ed. 2d 368, 375, 90 S. Ct. 1068,1073.) Five years later, the Court held the States cannot shift, to the defendant, the burden of proving an element of the crime charged. (Mullaney v. Wilbur (1975), 421 U.S. 684, 703, 44 L. Ed. 2d 508, 521, 95 S. Ct. 1881, 1892.) The Mullaney case involved Maine statutes recognizing two forms of homicide: murder and manslaughter. The crimes shared two common elements: each had to be unlawful and each had to be intentional. If each element was proved beyond a reasonable doubt by the State, then the jury could consider the differences between the crimes. Malice aforethought was an essential element of murder to be conclusively implied unless the defendant proved by a preponderance of the evidence that he acted in the heat of passion on sudden provocation. If the defendant made such a showing, the jury could convict him only of manslaughter. The statute thus affirmatively shifted the burden of proof to the defendant and required him to prove the critical fact in dispute. (Mullaney, 421 U.S. at 701, 44 L. Ed. 2d at 520, 95 S. Ct. at 1890.) The Court held “the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case.” Mullaney, 421 U.S. at 704, 44 L. Ed. 2d at 522, 95 S. Ct. at 1892.

In Patterson v. New York (1977), 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319, the Court approved a New York statute which required a defendant, charged with second-degree murder, to prove by a preponderance of the evidence an affirmative defense of emotional disturbance, in order to reduce the crime to manslaughter. The prosecution was required to prove all the elements of the crime charged. Then the burden shifted to the defendant to prove the elements of an affirmative defense.

Finally, in Martin v. Ohio (1987), 480 U.S. 228, 94 L. Ed. 2d 267, 107 S. Ct. 1098, the defendant, charged with aggravated murder, sought to reduce that using the affirmative defense of self-defense. As in Patterson, the State was first required to prove all elements of aggravated murder, the crime charged. The defendant was then given an opportunity to justify the killing by proving, by a preponderance of the evidence, that she acted in self-defense. The Court approved the statute, finding it did not deny the defendant due process.

Based on these United States Supreme Court cases we conclude the Illinois statute is constitutional. Section 9 — 2 of the Code does not require the defendant to prove any elements of first-degree murder. The jury does not even reach a consideration of second-degree murder until and unless it determines the State has proved first-degree murder beyond a reasonable doubt. This statute does not present the constitutional problems found in the Mullaney statutes. The statute is similar to statutes approved by the Court in Patterson and Martin.

The defendant argues section 9 — 2 of the Code unconstitutionally places the burden of proof on him, and is analogous to Mullaney rather than Patterson. The defendant contends the new second-degree murder statute retains all of the substantive law previously applicable to the offense of voluntary manslaughter. Obviously this can be so only insofar as the terms of the amended section remain unchanged. See generally 1A N. Singer, Sutherland on Statutes & Statutory Construction §22.33, at 288 (Sands 4th ed. 1985).

The defendant cites People v. Hoffer (1985), 106 Ill. 2d 186, 478 N.E.2d 335, as support for his position. The Hoffer defendant was charged with three counts of murder. The jury convicted him of murder, voluntary manslaughter, and involuntary manslaughter under the “old” statutes. The Illinois Supreme Court concluded the three verdiets were logically and legally inconsistent as the mental states for the offenses were mutually inconsistent. Hoffer, 106 Ill. 2d at 195, 478 N.E.2d at 340.

Thus the defendant here argues that if the new statute, section 9 — 2, defining second-degree murder, retains all the substantive law previously applicable to voluntary manslaughter, then the State should bear the burden of disproving second-degree murder. He contends the new statute is unconstitutional because it places this burden on the defendant.

We reject this argument as contrary to the plain meaning of the statute as amended. Public Act 84 — 1450 substantively rewrote section 9 — 2 of the Code, specifically incorporating as subsection (c) a burden-shifting explanation (1986 Ill. Laws 4221, 4233-34) which the predecessor section did not have (see 111. Rev. Stat. 1985, ch. 38, par. 9 — 2). Subsection (c) provides:

“When a defendant is on trial for first degree murder and evidence of either of the mitigating factors defined in subsection (a) of this Section has been presented, the burden of proof is on the defendant to prove either mitigating factor by a preponderance of the evidence before the defendant can be found guilty of second degree murder. However, the burden of proof remains on the State to prove beyond a reasonable doubt each of the elements of first degree murder and, when appropriately raised, the absence of circumstances at the time of the killing that would justify or exonerate the killing under the principles stated in Article 7 of this Code. In a jury trial for first degree murder in which evidence of either of the mitigating factors defined in subsection (a) of this Section has been presented and the defendant has requested that the jury be given the option of finding the defendant guilty of second degree murder, the jury must be instructed that it may not consider whether the defendant has met his burden of proof with regard to second degree murder until and unless it has first determined that the State has proven beyond a reasonable doubt each of the elements of first degree murder.” (111. Rev. Stat. 1989, ch. 38, par. 9 — 2(c).)

By its terms it is only when the defendant is charged with first-degree murder and seeks to present the trier of fact with the option of convicting him of the lesser offense of second-degree murder that he has any burden of proof. To this extent, the second-degree murder statute functions as a defense against the first-degree murder charge, which the State is still required to prove before the trier of fact considers whether the mitigating factors were shown by a preponderance and, if it so finds, the State must disprove such factor(s) by proof beyond a reasonable doubt.

If instead the defendant is charged with second-degree murder, the State will prove first-degree murder and concede (or prove) the mitigating factors, and the burden of proof on the mitigating factors never shifts to defendant, though he may choose to present a defense. Hoffer is distinguishable on its facts. There, the defendant was charged with three forms of homicide and the jury returned inconsistent verdicts. The defendant in this case was only charged with and convicted of first-degree murder.

For these reasons, we conclude section 9 — 2 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2), which requires the defendant charged with first-degree murder to prove, by a preponderance of the evidence, that he acted under sudden and intense passion in order to be convicted of second-degree rather than first-degree murder, does not violate the due process clause of the United States Constitution.

The second issue the defendant raises asserts the State failed to prove beyond a reasonable doubt that he committed burglary by entering his wife’s car with intent to commit a theft therein, because the evidence showed he had driven his wife’s car on prior occasions with her permission. In July 1988, after she and the defendant separated, Vivian purchased a 1984 Honda Prelude. Her father cosigned the loan for the car. The defendant’s name was not on the title or loan agreement. At the time of the murder, the defendant did not own a car. At trial, and on appeal, the parties’ arguments focus on whether the defendant had Vivian’s permission to use the car. Her father testified he never gave the defendant permission to drive the car. Vivian had sole authority to determine who could drive her car.

The defendant testified he occasionally drove Vivian’s car, sometimes to and from work in Clinton. The defendant’s neighbor testified he saw the defendant driving the car on occasion, as did the defendant’s mother and father. The week before the murder, the defendant’s friend Todd Baum and his wife accompanied the defendant and Vivian to a Decatur restaurant for dinner. The defendant drove Vivian’s car. The day before the murder the defendant drove Vivian's car to the store where she was working to purchase Christmas gifts for their daughter.

“[Defense counsel]: Did Vivian give you a set of keys to the car?
[Defendant]: No, she told me that she had got locked out.
* * *
[Defendant]: She had got locked out of the car on a couple of occasions. And I believe her dad had an extra set of keys. Then she had an extra set. I had an extra set made. So I kept a key set.
[Defense counsel]: Did you do that with her knowledge?
[Defendant]: Yes, sir. We went to True Value together and got the key made.”

After the defendant stabbed Vivian and she went into O’Leary’s, he searched her purse for her car keys and took her car. The defendant admitted on cross-examination that Vivian had not given him permission to use her car on the night of the murder. While incarcerated in the Macon County jail, the defendant telephoned a friend and told her he took Vivian’s car after the stabbing and tried to wreck it. “He was trying to kill himself, but he couldn’t. He tried three times to wreck the car and the third time was when he was arrested.”

The burglary statute states, in pertinent part: “A person commits burglary when without authority he knowingly enters or without authority remains within a *** motor vehicle *** with intent to commit therein a felony or theft.” (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 1.) The defendant admitted he entered the car after the stabbing without authority when he admitted on cross-examination that Vivian had not given him permission to drive her car that night. The State proved lack of authority.

The next element the State must prove beyond a reasonable doubt is intent. The defendant must have made an unauthorized entry into Vivian’s car after the stabbing with the intent to commit a felony or theft. The defendant interprets the statute to mean he must have intended to commit a theft within the car, but theft of the car itself does not render him guilty of burglary. This argument has been rejected by other courts.

“[I]t is manifest that the defendant committed a burglary when he entered the victim’s automobile with the intent to steal it. There is nothing in the statutory language itself that restricts the scope of section 19 — 1(a) of the Criminal Code of 1961 to situations in which the defendant steals or intends to steal something from the interior of the automobile, as opposed to attempting to steal or actually stealing the vehicle itself.” (People v. Mullinex (1984), 125 Ill. App. 3d 87, 90, 465 N.E.2d 135, 137-38.)

Otherwise, a person who entered a car to steal something from within would be punished for burglary but a person breaking in to steal the car itself would be guilty of theft only. Mullinex, 125 Ill. App. 3d at 90, 465 N.E.2d at 138; see also People v. Sansone (1981), 94 Ill. App. 3d 271, 418 N.E.2d 862.

The defendant argues there was no evidence he intended to permanently deprive Vivian of her car. The State counters that the defendant’s desire to commit suicide by wrecking the car is evidence the defendant did possess such intent. The jury could properly infer from the evidence that the defendant sought to commit suicide by wrecking the car, that he intended to permanently deprive Vivian of it.

The defendant also argues public policy considerations preclude a conviction for unauthorized entry into a spouse’s vehicle where there has been no legal separation. The defendant asserts a contrary holding could result in an increased usé of the Code by individuals who are suffering through marital discord. Although the car was marital property, we conclude the defendant was properly convicted of burglary.

In People v. Schneider (1985), 139 Ill. App. 3d 222, 487 N.E.2d 379, the defendant was convicted of criminally damaging his wife’s property. (Ill. Rev. Stat. 1983, ch. 38, par. 21 — 1(a).) At the time, he and his wife had been separated for two months and were involved in dissolution proceedings. On appeal he argued the State failed to prove the damaged property was the “property of another” as his wife purchased the car during the marriage.

The fifth district noted the Criminal Code of 1961 did not define “property of another,” though the definitional section of article 2 of the Code defined “ ‘another’ ” as “ ‘a person or persons *** other than the offender.’ ” (Schneider, 139 Ill. App. 3d at 224-25, 487 N.E.2d at 380, quoting Ill. Rev. Stat. 1983, ch. 38, par. 2 — 3.) The court stated:

“We are convinced, nevertheless, that the legislature intended ‘property of another,’ as used in section 21 — 1, to encompass a broad spectrum of possessory interests in property. The arson statute, also designated in Part C, defines ‘property of another’ as ‘property *** in which a person other than the offender has an interest which the offender has no authority to defeat or impair, even though the offender may also have an interest in the *** property.’ (Ill. Rev. Stat. 1983, ch. 38, par. 20 — 1.) Although this language was not included in section 21— 1, we believe that its broad scope is pertinent to the semantic issue presented here.
Assuming for the sake of argument that the instant defendant maintained a property interest in the Polara at the time of the offense, he cannot be said to have a right, by virtue of his part ownership, to harm the interest of another person in that same property. Section 21 — 1 must be read to impose criminal responsibility on a person who damages another’s interest in property, regardless of whether ownership of the property in question is shared. As the arson statute, the criminal damage provision was designed to protect the property of individuals from criminal harm. To relieve defendant from culpability for his acts disdains the plain legislative intent.” Schneider, 139 Ill. App. 3d at 224-25, 487 N.E.2d at 380-81.

In People v. Wyant (1988), 171 Ill. App. 3d 306, 525 N.E.2d 591, the defendant and the complainant were divorced with the complainant receiving sole and exclusive possession of the marital home. Pending the sale of the home, title remained in joint tenancy. After the divorce but before the sale, the defendant entered the property and was charged with criminal trespass to land. The third district affirmed the trial court order dismissing the charges. “[T]he defendant did no damage to the joint property interest of his ex-wife. He merely entered upon the property in which he had an equal interest.” Wyant, 171 Ill. App. 3d at 307, 525 N.E.2d at 592.

Analogy to these cases supports our conclusion that although the car may have been marital property, the defendant could nevertheless be convicted of burglarizing the car. Clearly the defendant drove the car only with Vivian’s permission. On the night of the murder he did not have her permission to enter or drive the car, as he admitted at trial. The jury’s verdict on this issue was not contrary to the manifest weight of the evidence and should be affirmed:

Finally, the defendant argues the 40-year sentence was excessive because the court failed to consider his potential for rehabilitation, his age, and work record. He also claims he exhibited substantial remorse for killing his wife. The record does not support the latter claim. Officers who arrested and subsequently interviewed the defendant testified he remained calm and never exhibited any emotion, even after learning Vivian was dead. The defendant did make an apology to family and friends at his sentencing hearing, but this hardly qualifies as “substantial remorse.”

The defendant was violent toward Vivian on several occasions before the murder and damaged another woman’s property. Shortly after the defendant and Vivian separated in October 1987, the defendant saw Vivian at O’Leary’s with another man. He waited in a car at her house for her to arrive home. When she arrived, he rammed his vehicle into her car and knocked it into a telephone pole. He then backed up, hit her car two more times and left the scene. He testified he did this to keep Vivian from entering her house so he could talk to her. Before this incident, on the same evening, the defendant entered Vivian’s house and destroyed a vanity and mirror and poured kerosene on clothing lying on a bed.

At the sentencing hearing, Michelle Switzer testified the defendant was a passenger in her car one evening during the summer of 1986. Vivian approached the car and slapped Michelle. The defendant got out of the car and struck Vivian’s face several times.

Decatur police officer Robert Davis testified that on February 8, 1987, the defendant told him, during a custodial interview, that he put sugar into the gas tank of Wendy Bryner’s car to keep her from leaving him. The defendant then stated he knew their affair was over and promised not to bother Bryner again.

“Illinois incorporates the rehabilitative potential of the accused as a factor in prescribing penalties. (See Ill. Const. 1970, art. I, §11; Ill. Rev. Stat. 1987, ch. 38, par. 1001 — 1—2.) This factor is not, however, entitled to any greater weight than the remaining factors. (People v. Gaines (1981), 88 Ill. 2d 342, 382, 430 N.E.2d 1046, 1066; People v. Reid (1987), 160 Ill. App. 3d 491, 493, 513 N.E.2d 517, 518.) The circuit court may, in its discretion, determine and impose the sentence on the defendant in excess of the minimum provided by statute.” People v. Moore (1989), 189 Ill. App. 3d 957, 965, 546 N.E.2d 232, 237.

The trial court has discretion in sentencing a defendant. The sentence will not be disturbed on appeal absent an abuse of discretion. (Felella, 131 Ill. 2d at 541, 546 N.E.2d at 499.) None of the cases cited by the defendant involve first-degree murder and are therefore distinguishable. The record supports the trial court’s reasons for imposing the 40-year sentence. The trial court did not abuse its discretion when it sentenced the defendant to 40 years’ imprisonment for first-degree murder.

The judgment of the circuit court of Macon County is affirmed.

Affirmed.

SPITZ and McCULLOUGH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    BOB HOWARD, d/b/a Bob Howard, Builder, Plaintiff-Appellant, v. JACK JAY, Defendant-Appellee.
    Fourth District
    No. 4 — 89—0758
    Opinion filed September 20, 1990.

      Bob Howard, of Oakley, appellant pro se.

    No brief filed for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff Bob Howard appeals pro se from a judgment for defendant Jack Jay in an action to recover the contract price due under a construction contract between plaintiff and defendant. The trial court found plaintiff had not substantially complied with the terms of the contract and plaintiff was not entitled to recover on a quantum meruit theory. Plaintiff argues the trial court’s findings are against the manifest weight of the evidence. Defendant has not filed a brief in this court. Because the record is simple and the claimed error is such that we can easily decide the case without the aid of appellee’s brief, we will address the merits of plaintiff’s appeal. (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.) For the reasons that follow, we reverse.

Only those facts necessary to a resolution of the issue before us will be recited.

In May 1988, plaintiff and defendant entered into a written agreement whereby plaintiff would build a foundation for defendant’s log cabin. The foundation was constructed on land owned by defendant and 300 yards away from defendant’s present residence. The parties agreed on a price of $7,820. During construction, plaintiff alleged defendant asked that additional materials be provided, including, inter alia, steel to reinforce the foundation walls and windows. Defendant also asked plaintiff to do some plumbing work. According to plaintiff, the amount due under the contract, including the extras defendant requested, was $10,428.62. After the work was completed in September 1988, defendant refused to pay plaintiff anything under the contract. As an affirmative defense to plaintiff’s action, defendant alleged plaintiff did not perform the work in a workmanlike manner and did not substantially perform the contract because the floor of the foundation was not level and the walls were cracked.

■ At trial, Roy Roush, a contractor in the concrete business for 32 years, testified for plaintiff that in his expert opinion, plaintiff did a fair job on the foundation. Roush explained that concrete floors are never completely level and any variances in the walls and floors in defendant’s foundation were within normal range. Roush opined defendant could put a house on the foundation, without any alteration. Roush noted that while the foundation was open to the elements from November 1988 to the time of trial in May 1989, the weather had not been bad enough to damage the foundation.

Plaintiff testified he had been in the concrete business since 1953. After plaintiff began to dig the footings for the foundation, defendant asked plaintiff to put steel in the walls and asked for four basement windows. When plaintiff finished the walls at the end of August 1988, he asked defendant for an installment payment under the contract of $6,036. Defendant told plaintiff he would have the money in a couple of days but defendant never paid plaintiff the installment. According to plaintiff, defendant never complained about the work up to that point. Plaintiff gave defendant the final bill on September 14, 1988, which included the extra charges for materials and work defendant requested. After getting the bill, defendant did not say anything to plaintiff. Plaintiff gave defendant a substitute bill two weeks later after removing a double charge. Plaintiff stated defendant again did not complain about his work. Plaintiff took some pictures of the foundation, which were admitted into evidence, after defendant first complained about the work and refused to pay the contract price at the end of September 1988.

Robert Neil, an employee of plaintiff who worked on defendant’s job, stated he thought the work on the foundation was pretty good. Neil stated defendant’s job was the first foundation he had worked on. At the time of trial, Neil had been working on laying foundations for one year. He stated the work on defendant’s foundation compared favorably to the subsequent jobs he had worked on, for which no complaints were received.

Defendant’s live-in girl friend testified defendant always wanted steel in the foundation walls and two windows and, therefore, these were included in the original price. The girl friend stated she and defendant were not happy with plaintiff’s work when they received the final bill. She stated defendant called plaintiff several times to complain about the quality of the work before the final bill was presented.

Mike Hodges, a former employee of plaintiff who worked on defendant’s foundation, testified for defendant that he disagreed with plaintiff on how to construct the footings for the foundation. Hodges stated the steel reinforcing rods for the walls were not tied together in a square as he had done on previous jobs for other contractors. Hodges, who had been a concrete finisher for 12 years, stated (1) the boards used for the wall forms were not strong enough to hold the walls straight for the concrete; (2) the bottom of the forms were not secured properly with lag bolts but were secured with concrete nails which are known to pop out when the forms are jarred; (3) the walls for the crawl-space area were not secured properly; (4) the footings for the porch area were built on top of the ground instead of three feet down into the ground; (5) the sand under the basement floor was not packed or termited; (6) the day the floor was poured, the truck sat for one hour waiting to pour the concrete, causing the mud to get hot, which then caused the floor to crack almost immediately after being poured; (7) the floor was uneven because there were not enough workers that day to trowel out the floor; and (8) the braces for the windows should have had crisscross braces inside the outer braces so they would not buckle under the weight of the concrete. Hodges stated that after they began defendant’s job, plaintiff went into the hospital for one week and, thus, did not come out to the site for one week. Hodges stated the work on defendant’s foundation was of poor quality and that he would remove the floor.

On cross-examination, Hodges stated he was fired by plaintiff after defendant’s job was completed and he had not worked for any contractor since because plaintiff told Hodges he was going to see that Hodges never worked for another contractor. Hodges also stated he did not know whether a house could be put on the foundation as it was.

Robert Sullivan, the building inspector and zoning enforcement officer, testified he inspected the footings of the foundation on August 10, 1988. He found the general workmanship was poor because the walls were not straight and the windows were buckled, not square. He noted the floors were not level and there was one-half inch of water in the corners of the floor. Sullivan stated the floor could be used but he would have it redone by having it taken out or repoured. On cross-examination, Sullivan stated the foundation was strong enough to hold any house put on it but aesthetically, it looked bad. Sullivan also stated the foundation would not crack or leak any more than any other concrete floor. Sullivan further stated the weather had no effect on the workmanship of the foundation. In response to a question from the court, Sullivan stated sloppy workmanship causes problems for a house put on a foundation where the house is a prefabricated house. In those cases, there is only one-half inch available around the foundation in case of errors in construction.

Defendant testified the items plaintiff added to the original contract price were included in the original agreed price and the only thing extra was the plumbing work. Defendant stated he saw plaintiff at the site a few times but most often he saw Hodges. Defendant complained to plaintiff over the phone at night about the footings not being square. Defendant stated he was not happy with plaintiff’s work and it was questionable whether he could use the foundation at all. Defendant stated the basement floor was “junk” and, at a minimum, he was going to have to take the floor out and have the walls redone. Defendant estimated it would cost him $4,000 more to correct the defects in the foundation. Defendant stated he told plaintiff the night he received the first bill that the walls were uneven. Defendant told plaintiff he would pay an installment under the contract before he saw how poorly the floor was poured and finished. Defendant stated another contractor told him he could put his log cabin on the foundation but the problem was that “it looked like shit.” Defendant stated the cost of a new floor was in addition to the $3,475 needed to repair the defects in the foundation. No evidence was presented as to the cost of correcting the floor. Defendant admitted the cabin could be made to fit the foundation.

In rebuttal, Neil testified plaintiff fired Hodges after receiving complaints from other customers about him drinking and using profanity on the job. Neil also stated defendant came by the jobsite every day and did not complain about the quality of the work. Neil stated he measured the foundation walls in the fall of 1988 and found they were only off by five-eighths of an inch.

Plaintiff testified in rebuttal that he was at the defendant’s job-site every evening. He recalled showing defendant the forms for the walls and defendant was satisfied. Plaintiff stated that when he gave defendant the final bill on September 14, 1988, defendant complained only about the double charge which was later corrected in the September 26, 1988, bill. Plaintiff stated that when he went to collect the balance due under the contract from defendant on September 27, he found defendant and Hodges at the jobsite together. Defendant was laughing and he told plaintiff, “You’ll have to go to court to get your money.” Plaintiff measured the walls and the floor and found they were off by only five-eighths of an inch and one-half inch in spots, respectively. Plaintiff also recalled defendant told him he wanted to change the design of the log cabin and it would cost him more to build the cabin with the changes. Plaintiff opined the increased costs defendant spoke of could be due to defendant’s change of design.

•Plaintiff argues he substantially complied with the contract and the trial court’s finding to the contrary is against the manifest weight of the evidence.

Under the doctrine of substantial performance, the general rule regarding building contracts is that a builder is not required to perform perfectly but, rather, is only held to a duty of substantial performance in a workmanlike manner. (Levan v. Richter (1987), 152 Ill. App. 3d 1082, 1092, 504 N.E.2d 1373, 1380, citing W.E. Erickson Construction, Inc. v. Congress-Kenilworth Corp. (1985), 132 Ill. App. 3d 260, 264, 477 N.E.2d 513, 517.) An important factor in determining whether a builder has rendered substantial performance is the actual receipt of benefits by the purchaser. (V & V Cement Contractors, Inc. v. La Salle National Bank (1983), 119 Ill. App. 3d 154, 158, 456 N.E.2d 655, 658.) Depending on the facts of the case, an acceptance by the purchaser may amount to use of such a character as will evidence that performance was substantial, in which case the builder will be entitled to contract price less a deduction for defects in performance. (Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, 673-74, 356 N.E.2d 565, 570, citing 3A A. Corbin, Contracts §711, at 346 (1960).) A contractor whose work amounts to less than substantial performance may not recover on the contract but may recover under a quasi-contractual theory for the reasonable value of the services rendered less the damage suffered by the.purchaser. Erickson, 132 Ill. App. 3d at 264, 477 N.E.2d at 517-18.

It is unnecessary for us to determine whether plaintiff substantially performed under the contract because we believe plaintiff is entitled to recover the reasonable value of his services. The evidence established that while the walls of the foundation are not even with one another at the top edge, and the basement floor is uneven in spots, the foundation, as it now stands, may be used to support the house defendant wants to build. Further, there is no evidence in the record other than defendant’s uncorroborated statements that the walls of the foundation are cracked. As defendant admitted, the problem with the foundation is how it looks. The evidence showed that defendant hired another contractor to determine if the log cabin may be placed on the foundation and that contractor told defendant that because the walls of the foundation plaintiff constructed are thicker than the standard walls used in house foundations, defendant’s house may be placed on the foundation. Even accepting defendant’s evidence, there was benefit to defendant. Further, a fair inference can be drawn from defendant’s testimony that he is going to use the foundation as planned. This inference is substantiated by defendant’s closing argument, “Larry Bird *** is going to go ahead and build the log cabin on top of the foundation.” Any defects do not affect the function of the foundation which is to support defendant’s house.

Plaintiff next points out the trial court made no findings as to the contract price. In its order, the trial court stated, “the cost of repair and the cost of a new basement *** is equal to the amount the plaintiff is requesting.” On remand, the trial court should determine the reasonable value of plaintiff’s services and deduct $3,475 as defendant’s damages for defects in plaintiff’s performance.

This cause is reversed and remanded to the trial court for proceedings consistent with this opinion.

Reversed and remanded.

KNECHT, P.J., and LUND, J., concur.


author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LONNIE L. SMITH, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0108
    Opinion filed September 20, 1990.

      Daniel D. Yuhas and Judith L. Libby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Eider man, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Defendant, Lonnie L. Smith, was convicted by a jury of first degree murder of Tamara Lyn Erwin (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1), attempt (first degree murder) of Robert Smith (Ill. Rev. Stat. 1989, ch. 38, par. 8 — 4), armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2), armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A — 2), and aggravated battery (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4). The State sought the death penalty, but the jury returned a verdict stating it could not unanimously find that defendant was eligible for the death penalty. Subsequently, the court sentenced defendant on three of his convictions as follows: 60 years for first degree murder, 30 years for attempt (first degree murder), and 30 years for armed robbery, with all sentences ordered to run consecutively. No other sentences were imposed.

On appeal, defendant raises two arguments: (1) the warrantless search of defendant’s rented house was unlawful because defendant had not abandoned that residence; and (2) defendant’s motion to suppress his admissions should have been granted because those admissions were produced through the exploitation of defendant’s “unnecessary detention” after his arrest on a traffic matter.

We affirm.

Because the defendant does not challenge the sufficiency of the evidence to sustain his convictions, we will review the facts of this case only to the extent necessary to put defendant’s arguments in context.

The victims in this case both worked at the Monical’s pizza restaurant on Bowman Street in Danville. On March 22, 1989, shortly before the restaurant’s regular closing time of 11 p.m., a man entered the restaurant and ordered a pizza from the assistant manager, Bob Smith. After Smith prepared the pizza and placed it in the oven, the man pulled a revolver and ordered Smith and Tami Erwin, the other employee present, to go to the area of the restaurant restrooms. The man then aimed the gun at Smith and after that, Smith remembered nothing about that night except not being able to move when he tried to do so.

The next morning, Smith was found lying on the floor in a pool of blood. The first Danville police officer on the scene found Smith still alive and called for an ambulance. Upon checking the rest of the restaurant, Erwin’s body was discovered slumped and leaning against the wall on the stool in the women’s restroom.

Erwin’s autopsy revealed that her death was due to a bullet wound to her brain. She had also suffered a graze wound to the right side of her head.

The neurosurgeon who treated Smith found bullet wounds above Smith’s right ear, to Smith’s right lower-ear area, and toward the rear of Smith’s head near its base.

Later, at a photo array, Smith identified defendant as the armed robber. In addition to this identification, the State presented other evidence linking defendant to these crimes. Some of this other evidence consisted of admissions defendant made to police investigators and items obtained from a single-family dwelling on Madison Street in Danville in which defendant had been living. Defendant contends that the trial court erred in denying his motions to suppress this evidence.

I. The Search Of The Madison Street Residence

In February 1989, defendant rented a single-family dwelling at 520 East Madison Street in Danville from Henry Robinson. Defendant paid his rent to Robinson in cash on or near the first of February and March. His lease with Robinson was oral and on a month-to-month basis. Robinson had, on one occasion, entered the Madison Street residence while defendant was living there because defendant complained about a leak.

Because Robinson received no rent from defendant for April, Robinson went to the residence, looked in the windows, saw that some of defendant’s “stuff” was gone, and guessed that defendant had moved out. Also during April, the police spoke to Robinson and explained to him that they were attempting to contact defendant. They asked Robinson if he had seen defendant recently or knew of some way to contact him. Robinson told the police that he had not seen defendant and that his rent was overdue.

On May 4, 1989, the police again contacted Robinson to inquire if he knew anything about defendant’s whereabouts. Robinson told the police that he had not heard from defendant at all and that another month’s rent was then due. Danville police officer Jack Smith, Jr., then asked Robinson if he had any plans to move defendant out or to go into the Madison Street residence to see if defendant had in fact moved out. Robinson told Smith that he intended to go to the Madison Street residence that day and would allow the officers to enter it. At Smith’s request, Robinson signed a form consenting to the police entry.

Robinson testified that after defendant had failed to pay his rent for over 30 days, he “figured I could go in and get ready to rent to someone else.” Robinson also testified that he did not think defendant intended to return to that residence based upon what Robinson observed in April when he looked through the windows. On cross-examination, Robinson conceded that he had never served an eviction notice on defendant or tacked such a notice on the door of the house. Robinson never took any legal steps to get defendant out of the house.

When Robinson inspected the residence in April, he noticed that a new padlock and hasp had been installed on the front door of the residence and that the back door was nailed shut. Robinson had no key to the new padlock. On May 4, Robinson broke the padlock, entered the residence, and also permitted the police to enter and search. Upon first entering the residence, Smith testified that there was a foul odor due to what the police later found to be rotting food. They also discovered that the power was turned off. The residence was in complete disarray, and most of the furniture was gone.

On May 10, 1989, in an unrelated traffic case, the defendant executed a recognizance bond and listed his address as 309 North Washington Street in Danville. In a statement he gave to the police on June 19, 1989, regarding the present case, defendant explained that he moved out of the Madison Street residence shortly after the Monical’s shooting because his power was cut off.

At the hearing on the motion to suppress, the State argued that defendant had abandoned the Madison Street residence and, accordingly, there was nothing improper in the entry by the police.

Defendant argued that the police entry and search of the Madison Street residence was unlawful because defendant was still the lawful tenant of the premises and Robinson, as defendant’s landlord, was without authority to consent to a warrantless search of those premises. Defendant argued against any claim of abandonment, pointing out that a new lock had been installed on the front door. Defendant’s counsel characterized the general disarray of the premises as due to defendant being an “untidy bachelor.”

The trial court agreed with the State and denied the motion to suppress the items seized from the residence. The trial court observed that the police had contacted Robinson on perhaps as many as five occasions between early April and May 4 to inquire if Robinson had spoken to defendant. The court noted the spoiled food and garbage found in the premises, and stated that even if defendant was expecting to keep the premises for storage purposes rather than for living purposes, he would certainly have contacted the landlord if he was short of money so that the landlord would not be entering the premises and hauling away any property left behind. In fact, Robinson did clear the place out after the police made their search and disposed of the rest of defendant’s property. The trial court concluded its findings as follows:

“That’s what I think any reasonable person would expect [the landlord’s disposal of property left behind] if the power is off and you’ve left food in there and you’ve got a stinking mess. It’s going to attract rats, rodents, and all kinds of bugs. I think there’s an abandonment here. I don’t think you can say that even though he was living elsewhere, he was keeping this as his warehouse or what have you, with an expectation of privacy, without taking some step to try to extend his tenancy and keep people from going in there, so I feel the evidence does show abandonment and the motion will be denied.”

We begin our analysis by discussing both the standard of review and the range of the evidence we may consider. The latter consideration becomes necessary in this case because Robinson, while testifying at trial, was somewhat more expansive in his description of the events surrounding the Madison Street residence than he was in his testimony at the hearing on the motion to suppress evidence. The Illinois Supreme Court had occasion recently to address both of these points of law in People v. Redd (1990), 135 Ill. 2d 252, 553 N.E.2d 316, and stated the following:

“It is the function of the circuit court in a hearing on a motion to suppress evidence to determine the credibility of the witnesses and to resolve any conflict in their testimonies. In reviewing a circuit court’s determination on a motion to suppress, the reviewing court may also consider evidence adduced at trial. [Citation.] A reviewing court will not disturb a circuit court’s determination on a motion to suppress evidence unless it is manifestly erroneous.” Redd, 135 Ill. 2d at 289, 553 N.E.2d at 332.

A. Abandonment of a Fourth Amendment Interest in Premises

While abandonment of premises is clearly recognized as a basis upon which to deny a motion to suppress evidence seized from those premises, the courts have disagreed as to the theoretical foundation underlying a finding of abandonment. (1 W. LaFave, Search and Seizure §2.3(a), at 378-79 (2d ed. 1987) (hereafter 1 LaFave, Search and Seizure).) Many courts have held that a defendant who has abandoned the premises in question has no standing to contest a subsequent entry and search of those premises by the police. (1 La-Fave, Search and Seizure at 379.) Others have held that abandonment rests upon the general proposition that the defendant has terminated any justified expectation of privacy. (1 LaFave, Search and Seizure at 379.) Because the analysis on whether abandonment occurred seems to be the same regardless of which of these two theoretical foundations is applicable, we need not attempt at this time to choose between them.

In United States v. Levasseur (2d Cir. 1987), 816 F.2d 37, the court confronted the issue of abandonment and stated the following:

“Abandonment is a question of fact, to be decided in objective terms on the basis of all the relevant facts and circumstances [citations], and not on the basis of leasehold interests or other property rights.” Levasseur, 816 F.2d at 44.

In Bloodworth v. State (1975), 233 Ga. 589, 212 S.E.2d 774, the supreme court of Georgia upheld a finding that the defendant had abandoned the premises in question, his former residence, even though he may have retained a lawful interest in them. (Bloodworth, 233 Ga. at 590, 212 S.E.2d at 776.) The court explained as follows:

“The question of abandonment for Fourth Amendment purposes does not turn on strict property concepts but on whether the accused has relinquished his interest in the property to the extent that he no longer has a reasonable expectation of privacy in the premises at the time of the search. [Citations.] This principle has been applied to find abandonment where a tenant has left residential premises even though he may retain the lawful right to possession.” Bloodworth, 233 Ga. at 590, 212 S.E.2d at 776.

In People v. Morrison (1978), 196 Colo. 319, 583 P.2d 924, the supreme court of Colorado had before it a case in which the trial court ruled that the defendant had standing to challenge the search, even though it appeared that he had abandoned the apartment in question, because he retained some rights in the apartment based upon his partial payment of the first month’s rent. (Morrison, 196 Colo, at 322, 583 P.2d at 925.) The supreme court reversed and stated the following:

“Here, even if [defendant] had not formally relinquished all technical indicia of tenancy in the apartment, his actions unequivocally demonstrated that he had abandoned the apartment and had no longer retained any reasonable expectation of privacy in either the apartment or its contents. [Citation.] When he abandoned the apartment, any standing he previously might have had to object to a subsequent search and seizure terminated. [Citation.]
The question of abandonment is ‘an ultimate fact or conclusion based generally upon a combination of act and intent.’ Friedman v. United States, 347 F.2d 697, 704 (8th Cir. 1967).” (Morrison, 196 Colo, at 322-23, 583 P.2d at 926.)

The Morrison court approvingly quoted United States v. Wilson (9th Cir. 1972), 472 F.2d 901, 902, for the following proposition: “ ‘The proper test for abandonment is not whether all formal property rights have been relinquished, but whether the complaining party retains a reasonable expectation of privacy in the articles alleged to have been abandoned.’ ” Morrison, 196 Colo, at 322 n.l, 583 P.2d at 926 n.l.

In Commonwealth v. Lanigan (1981), 12 Mass. App. Ct. 913, 423 N.E.2d 800, the court held that abandonment can be found to have taken place before the end of the rental period because the essence of abandonment is the act of leaving being coupled with the intention of not returning. Lanigan, 12 Mass. App. Ct. at 916, 423 N.E.2d at 802.

We cite the foregoing cases because we agree with each and find they help to inform our analysis in the present case as we decide whether the trial court’s determination was correct that defendant abandoned the Madison Street residence. These cases also demonstrate the irrelevance of Robinson’s failure to take formal legal action to evict defendant on the question of whether defendant abandoned the Madison Street residence. Another case we find instructive on this latter point is United States v. Wilson (9th Cir. 1972), 472 F.2d 901. The court in Wilson stated the following:

“The district court allowed the motion to suppress all the evidence, in the belief that Arizona landlord-tenant law determined the rights of Wilson and the government. The court reasoned that Wilson had not been lawfully evicted; he retained the right to possession of the apartment; he had standing to object to the search; and, without his consent, the landlord had no right to permit an FBI agent to enter the room. We reverse and remand, because we hold that local law of real property does not provide the exclusive basis upon which to decide
Fourth Amendment questions.
First, the question is not one of standing. The government argued standing, but Wilson had standing to move against the evidence. The crucial question is the legality of the search itself. If the landlord had a right to enter the room, then the initial discovery of the contraband was not illegal. Abel v. United States, 362 U.S. 217, 80 S. Ct. 683, 4 L. Ed. 2d 668 (1960). If the property was abandoned, it was seizable. The Abel case does not teach that the defendant has no standing to object to a search and seizure of abandoned property, but that ‘[t]here can be nothing unlawful in the Government’s appropriation of such abandoned property.’ 362 U.S. at 241, 80 S. Ct. at 698. Search or seizure of abandoned property, even without a warrant, is simply not unreasonable. [Citations.]
The proper test for abandonment is not whether all formal property rights have been relinquished, but whether the complaining party retains a reasonable expectation of privacy in the articles alleged to be abandoned. Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). As Mr. Justice Frankfurter stated in Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960):
'*** We are persuaded, however, that it is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical ***.’ 362 U.S. at 266, 80 S. Ct. at 733.
[Defendant] urges that the rejection of Fourth Amendment distinctions based on property rights is a one-way street: that is, ancient rules of tenure and transfer of property may be rejected to increase, but never to decrease, Fourth Amendment protections. It is more accurate to look to the purpose of the Fourth Amendment. Privacy, rather than hereditaments, has motivated the recent decisions. Cases like Jones and Katz encourage a functional approach to the Fourth Amendment. The objective is protection of a justifiable expectation of privacy and freedom from governmental intrusion.” (Wilson, 472 F.2d at 902-03.)

We agree with the foregoing quotation, and we will also apply these concepts to the facts of the present case.

Before both this court and the trial court, defendant makes much of the fact that a hasp and a new padlock, to which Robinson, the landlord, had no key had been put on the front door of the Madison Street residence. Defendant argues that the presence of this new lock defeats any claim by the State that defendant had abandoned the premises. However, as in other contexts, the issue of abandonment should be decided based upon the totality of the circumstances shown by the evidence. While the presence of the new padlock is a factor to be considered, that presence, without more, is not determinative. See State v. Hodge (1987), 225 Neb. 94, 102-03, 402 N.W.2d 867, 874 (although defendants left a padlock on the attic door of the premises in question, the evidence nonetheless showed that they had abandoned those premises).

Defendant also makes much of the fact that he had missed only two rental payments, and the second payment by just a few days. However, we note that the degree of delinquency in paying rent is again but one factor to be considered in the totality of circumstances before the trial court. In State v. Madera (1983), 206 Mont. 140, 670 P.2d 552, the supreme court of Montana decided a case with facts somewhat similar to the present case. In Madera, two men committed an armed robbery on October 3, 1981. As a result of their investigation, the police, on October 5, 1981, began watching defendant La-Mere’s residence. After observing no activity for three days at that residence, they contacted LaMere’s landlord for information about where LaMere might be. When the police told the landlord that La-Mere was a suspect in the investigation, the landlord invited the police to join him in entering LaMere’s apartment. On these facts, the court stated the following:

“The detective went into the rental premises on October 7, 1981, in company of the landlord. The curtains had been drawn, no car was parked in front of the residence, there was no response when the landlord knocked on the door, LaMere’s key was found inside, and there was garbage, including beer cans, paper sacks, empty cigarette packs, and a box spring and mattress with no bedding on it, lying on the floor. The landlord indicated that the apartment before that had always been neat and clean, and the landlord further stated that ‘it looks like their stuff is gone.’ The rent was unpaid for the month of October (due October 5) and there was no evidence that LaMere came to the apartment at any time after the robbery occurred or before his arrest on November 6, 1981.
* * *
Clearly, LaMere is not in a position to argue any infringement of his constitutional guarantees against unreasonable search and seizure in this case. He had departed the apartment at the time it was searched. His abandonment of the premises is undoubted. The defendant had disclaimed by his actions any right to object to the place being searched or the things seized.” Madera, 206 Mont, at 149, 670 P.2d at 557.

Based upon the analyses of the issue of abandonment in all of the foregoing cases, we find that the trial court in the present case did not abuse its discretion by denying the motion to suppress evidence seized from the Madison Street residence. The totality of the circumstances before the court clearly showed that defendant had abandoned this residence. These circumstances include defendant’s failure to pay rent for two months, his removal of the vast majority of his belongings from the residence, the garbage and rotting food found within, the general disarray, and the disconnection of the power. That defendant left the house padlocked (assuming that defendant was in fact the person who padlocked the house) is not sufficient to overcome the other factors mentioned.

B. Relevancy of Evidence Showing Abandonment After the Police Entry of the Premises in Question

Before concluding our analysis of the abandonment issue, two additional points must be addressed. The first is the question of whether the court, in deciding whether defendant has abandoned the premises in question, is limited to inquiring into only what the officers knew at the time they crossed the threshold of the premises in question. In almost all other contexts, this is clearly the case. In other words, it is “black-letter law” that an unlawful search cannot be rendered lawful by the discovery of incriminating evidence found as a result of the search, or by other events occurring after the search has taken place. The law surrounding the doctrine of abandonment, however, appears to be the exception to this rule. An example of this exception can be found in the Madera case, where the court, in focusing on an entry into the allegedly abandoned premises on October 7,1981, stated the following:

“The rent was unpaid for the month of October (due October 5) and there was no evidence that LaMere came to the apartment at any time after the robbery occurred or before his arrest on November 6, 1981.” (Emphasis added.) (Madera, 206 Mont, at 149, 670 P.2d at 557.)

Events occurring after October 7 but before November 6 normally would be irrelevant to the question of the legality of the police entry and search on October 7. In Madera, however, such events were deemed relevant.

Also along these same lines is the following language by the Second Circuit Court of Appeals in Levasseur:

“The facts and circumstances pertinent to the court’s abandonment inquiry are not limited to those which were known to the officers at the time of the search or seizure. Rather, subsequently discovered events may support an inference that appellants had already chosen, and manifested their decision, not to return to the property.” Levasseur, 816 F.2d at 44.

We agree with these decisions and hold that, as in the present case, the court may properly consider actions of the defendant which occurred subsequent to the police entry of the premises in question, such as the defendant’s filling out the recognizance bond form several days later, showing a different address.

C. The Application of Illinois v. Rodriguez to Abandonment Issues

The State has made the following argument to this court: “All of these circumstances would lead a reasonable person to believe that the defendant had vacated or abandoned this house prior to any entry [by the police].” While we have held that the trial court was correct to find abandonment on the facts in this record, the point raised by the State in its brief raises a question that was addressed in a slightly different context by the United States Supreme Court a few months ago in Illinois v. Rodriguez (1990), 497 U.S._, 111 L. Ed. 2d 148, 110 S. Ct. 2793. Simply framed, that question is the following: If a trial court were to determine that a defendant had not abandoned the premises in question, but that the police officers, based on the totality of the circumstances before them, reasonably but erroneously believed the defendant had abandoned those premises, should evidence seized by the police from those premises be suppressed? The Court’s analysis in Rodriguez suggests that the answer to this question is no.

In Rodriguez, the police were summoned by the mother of Gail Fischer, who in turn told the police that Fischer and Rodriguez lived together in a certain apartment in Chicago. (Rodriguez, 497 U.S. at _, 111 L. Ed. 2d at 155, 110 S. Ct. at 2796.) The assistance of the police was requested because Fischer claimed to have been severely beaten by Rodriguez earlier that day in their apartment. (Rodriguez, 497 U.S. at_, 111 L. Ed. 2d at 155-56, 110 S. Ct. at 2797.) Fischer told the police that Rodriguez was then asleep in the apartment, and she consented to travel there with the police in order to unlock the door with her key so that the officers could enter and arrest Rodriguez. (Rodriguez, 497 U.S. at_, 111 L. Ed. 2d at 155-56, 110 S. Ct. at 2797.) After Fischer unlocked the door and gave the officers permission to enter, they went into the living room, where they observed in plain view drug paraphernalia and containers filled with white powder, later determined to be cocaine. (Rodriguez, 497 U.S. at_, 111 L. Ed. 2d at 156, 110 S. Ct. at 2797.) They found Rodriguez asleep in the bedroom and discovered therein additional containers of cocaine. Rodriguez, 497 U.S. at_, 111 L. Ed. 2d at 156, 110 S. Ct. at 2797.

The motion to suppress the evidence seized from Rodriguez’s apartment was granted because the trial court held that at the time Fischer consented to the entry of the police, she had no authority to do so because she had vacated the apartment several weeks earlier. The trial court also rejected the State’s contention that even if Fischer did not possess common authority over the premises, there was no fourth amendment violation if the police reasonably believed at the time of their entry that Fischer possessed the authority to consent. (See Rodriguez, 497 U.S. at_, 111 L. Ed. 2d at 156, 110 S. Ct. at 2797.) The Illinois Appellate Court affirmed. See People v. Rodriguez (1989), 177 Ill. App. 3d 1154, 550 N.E.2d 65 (unpublished order under Supreme Court Rule 23), rev’d and remanded (1990), 497 U.S__, 111 L. Ed. 2d 148, 110 S. Ct. 2793.

The United States Supreme Court agreed with the trial court that the State had not met its burden of establishing that Fischer had common authority with Rodriguez over the apartment in question. (Rodriguez, 497 U.S. at_, 111 L. Ed. 2d at 156, 110 S. Ct. at 2797.) The Court reversed the order suppressing the evidence, however, and stated the following:

“In the present case, the Appellate Court found it unnecessary to determine whether the officers reasonably believed that Fischer had the authority to consent, because it ruled as a matter of law that a reasonable belief could not validate the entry. Since we find that ruling to be in error, we remand for consideration of that question.” (Rodriguez, 497 U.S. at_, 111 L. Ed. 2d at 161,110 S. Ct. at 2801.)

Quoting Brinegar v. United States (1949), 338 U.S. 160, 176, 93 L. Ed. 1879, 1891, 69 S. Ct. 1302, 1311, the Court in Rodriguez said the following:

“ ‘Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability.’ ” Rodriguez, 497 U.S. at_, 111 L. Ed. 2d at 159-60, 110 S. Ct. at 2800.

The gist of the holding of the Court in Rodriguez is that, “in order to satisfy the ‘reasonableness’ requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the government *** is not that they always be correct, but that they always be reasonable.” (Rodriguez, 497 U.S. at_, 111 L. Ed. 2d at 159, 110 S. Ct. at 2800.) We cite this language from Rodriguez because we believe it to be fully applicable to a determination of whether a defendant has abandoned premises from which evidence is taken that is the subject of a motion to suppress. We see no principled distinction between a reasonable but erroneous belief by the police that a third party had “common authority” with the defendant over the premises in question, and a reasonable but erroneous belief by the police that a defendant had abandoned the premises in question. Thus, in the present case, the entry of the police into the Madison Street residence, based upon the circumstances before them and their reasonable belief that defendant had abandoned that residence, would have been lawful even if the trial court were later to find that belief to have been erroneous.

II. Motion To Suppress Defendant’s Confessions

On Sunday, June 18, 1989, defendant was arrested pursuant to a warrant for his failure to appear on a traffic offense. Defendant was held in custody overnight and normally would have been brought into court the next afternoon before the 1:30 p.m. court call. That Monday morning, however, Investigator Larry Rollins of the Danville police department noticed the defendant’s name on the book-in sheet, indicating defendant had been arrested the day before. As a result, Rollins went to the Vermilion County jail sometime after 10 a.m. to question defendant about a battery complaint Rollins had received from defendant’s girlfriend in which she claimed defendant struck her. Rollins fully informed defendant of all his Miranda rights, and defendant agreed to speak to Rollins about the battery complaint. Defendant, using black ink, filled out a written waiver of rights form, indicating his willingness to speak voluntarily to the officer. That form contained a blank space for the insertion of the name of the offense about which the suspect was being interrogated. Rollins wrote the word “battery” in the blank space.

Rollins’ conversation with defendant about the battery complaint lasted about 10 minutes. Rollins then asked defendant if he would be willing to talk about the Monical’s case, and defendant stated that he would. Rollins also spoke with Danville Investigator Jack Smith, and, around 11:15 a.m., the two officers began questioning defendant about Monical’s. Rollins began this second interrogation by writing on the waiver form — in a different-colored (blue) ink — the words, “armed robbery and murder.” He then asked defendant if defendant remembered his rights that they had discussed earlier. Defendant stated he did. Nonetheless, Rollins went over them all again and defendant again executed the waiver form using blue ink, the same color Rollins used to write in “armed robbery and murder.” Thereafter, defendant was questioned off and on by Danville police officers about the Monical’s case, resulting in two taped statements being given at 8:10 p.m. and 9:22 p.m. that evening. The second statement was more detailed than the earlier statement and amounted to a confession.

Defendant argues he could and should have been brought before the court on the traffic charge at the 1:30 p.m. court call on Monday, June 19. Citing section 109 — 1(a) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 109 — 1(a)), defendant argues that he was entitled upon the traffic charge to be taken without unnecessary delay before the nearest and most accessible judge in Vermilion County. He argues that this should have occurred at 1:30 p.m. that Monday afternoon. Defendant claims that because he was denied his right to a prompt presentment to the court on the traffic matter due to the police investigation of the Monical’s murder case, he was, in effect, being illegally held in custody without probable cause on the murder case. Accordingly, while conceding that the record may show he waived his fifth amendment rights under Miranda, he nonetheless was being illegally held in violation of the fourth amendment. For that reason, he maintains that his statements and confession should be suppressed as the fruits of this illegality. We disagree.

The evidence at the hearing on the motion to suppress defendant’s confession shows that the police officers scrupulously observed all of defendant’s procedural rights and complied with all of his requests made while he was in custody and being questioned about the Monical’s shootings. Without contradiction, the evidence presented at the hearing on the motion to suppress his statements established that no promises of any kind were ever made to the defendant and he was told he could stop talking any time he wished. Furthermore, defendant was not questioned continuously, but was given several breaks, during which he was allowed to eat, drink, smoke cigarettes, and use the restroom. Some of these breaks were lengthy.

During the course of the afternoon’s questioning, defendant asked if any charges regarding Monical’s were going to be brought against him. The police responded that they did not know, that it would be up to the State’s Attorney. Defendant asked if that would be Mr. DeArmond, and the police said that was correct. Defendant then requested to speak to DeArmond, and about 3:30 that afternoon, DeArmond appeared in the interrogation room. Defendant asked the State’s Attorney if defendant was going to be charged, and the State’s Attorney told defendant that he (the State’s Attorney) did not know yet. He explained that he had not yet spoken with the investigators. Defendant asked if it would be possible for him to talk to his grandmother, and the State’s Attorney said yes, that he would have her contacted immediately. The last thing defendant asked was whether the State’s Attorney would consider releasing him or approving or agreeing to his release on bond in another case, and the State’s Attorney said no.

Later that afternoon, defendant’s grandmother also appeared at the Vermilion County public safety building, and defendant was given an opportunity to speak with her. His grandmother testified at the hearing on the motion to suppress that she was contacted by the police, who told her that her grandson wished to speak to her at the police station. She was given an opportunity to speak with him in private, and she received no instructions by the police before doing so. His grandmother said she started crying when defendant informed her that the police were questioning him about Monical’s, and she testified she told defendant she hoped he was not involved in it. The last thing she told defendant in this conversation was that he should tell the truth.

After visiting with his grandmother, defendant began to admit his complicity in the Monical’s shootings, but it was not until his second recorded statement at 9:22 p.m. that he fully confessed.

Investigator Smith recalled that defendant wanted to know if he was going to go to court that day in regard to the Monical’s case, but Smith did not recall defendant mentioning anything about going to court on the traffic charge. Smith testified that none of the officers discussed with defendant what would happen with regard to the traffic case.

In support of his argument that his statements should be suppressed, defendant relies upon People v. Quarles (1980), 88 Ill. App. 3d 340, 410 N.E.2d 497. In Quarles, defendant was arrested for attempt (burglary) and placed in custody. The next day, before Quarles was questioned, the interrogating officer became aware that there was no substance to the charge of attempt (burglary) for which defendant was in custody. (Quarles, 88 Ill. App. 3d at 341-42, 410 N.E.2d at 498-99.) However, the officer questioned the defendant nonetheless regarding an unrelated burglary. Eventually the defendant confessed to that crime. The appellate court reversed the trial court and deemed defendant’s retention in custody, after the police discovered there was no substance to the attempt (burglary) charge, to be the equivalent of an arrest without a warrant and without probable cause. Quarles, 88 Ill. App. 3d at 342, 410 N.E.2d at 499.

In our judgment, Quarles has no application to the present case. Here, defendant was arrested pursuant to a warrant issued by a judge when defendant failed to appear on a traffic charge. By combining section 109 — 1(a) of the Code with the Quarles case, ■ defendant invites us to find that his continued custody and interrogation by the police after the point at which defendant normally would have been brought into court on the traffic charge is the equivalent to a warrantless arrest regarding the Monical’s shooting; further, because the police had no probable cause for that arrest, defendant’s confession obtained during this unlawful detention must be suppressed.

We decline defendant’s invitation to extend Quarles beyond the particular facts of that case. We also decline to extend section 109— 1(a) of the Code beyond what the legislature intended and beyond how that section has been construed to date.

Section 109 — 1(a) of the Code in pertinent part reads as follows:

“Person Arrested, (a) A person arrested with or without a warrant shall be taken without unnecessary delay before the nearest and most accessible judge in that county ***.” (Ill. Rev. Stat. 1989, ch. 38, par. 109 — 1(a).)

In People v. Brooks (1972), 51 Ill. 2d 156, 281 N.E.2d 326, the Illinois Supreme Court construed this section and stated the following:

“A delay in presenting the defendants to a judge does not render a statement made by the defendants during this interval inadmissible, but it is a circumstance to be considered in determining the voluntariness of the statement.” Brooks, 51 Ill. 2d at 165, 281 N.E.2d at 332.

More recently, this court had occasion to construe section 109— 1(a):

“The Code requires that once a person is arrested he shall be taken without unnecessary delay before the court to be arraigned. (Ill. Rev. Stat. 1985, ch. 38, par. 109 — 1(a).) Delay alone, however, is insufficient to penalize the State by excluding incriminating statements obtained during the period between arrest and arraignment. The issue is whether the statements were made voluntarily. Only where the statements are involuntary must they be excluded. Defendant carries the burden to satisfy the trial court of a substantial prejudice as a result of the delay. Only then does the burden shift to the State to demonstrate the reasonableness or necessity of the delay. (People v. Dees (1981), 85 Ill. ,2d 233, 237-38, 422 N.E.2d 616, 618-19.) Unnecessary delay is only one factor to be considered in determining the voluntariness of an incriminating statement. Seventy-two hours, for example, between the arrest and the arraignment does not per se render such a statement involuntary. The question of voluntariness is for the trial court to determine on the totality of the circumstances, and its decision will be reversed only if it is against the manifest weight of the evidence. People v. Taylor (1968), 40 Ill. 2d 569, 573-74, 241 N.E.2d 409, 411-12.” People v. Dove (1986), 147 Ill. App. 3d 659, 667, 498 N.E.2d 279, 284.

Once a defendant in lawful custody has knowingly waived his Miranda rights and indicated his willingness to talk to the police, as here, the police are under no obligation under section 109 — 1(a) of the Code to interrupt their interrogation as long as its length is not unreasonable and the suspect’s statements continue to be voluntary. Specifically, we hold that the “delay” involved in taking a voluntary statement from a suspect under these circumstances is “necessary” within the meaning of section 109 — 1(a).

Defendant also cites United States v. Wilson (9th Cir. 1988), 838 E2d 1081, for the proposition that when the delay in bringing a defendant before a magistrate is not reasonable, the defendant’s confession is not voluntary. However, we note that the holding in Wilson was premised upon the so-called McNabb-Mallory rule (see McNabb v. United States (1943), 318 U.S. 332, 87 L. Ed. 819, 63 S. Ct. 608; Mallory v. United States (1957), 354 U.S. 449, 1 L. Ed. 2d 1479, 77 S. Ct. 1356), which requires a person in custody to be brought before a judge within six hours immediately following his arrest or other detention. However, this Federal exclusionary rule has never been adopted in this State, and the Illinois Supreme Court in Brooks specifically rejected it. (Brooks, 51 Ill. 2d at 165, 281 N.E.2d at 332.) As discussed earlier, Brooks stands for the proposition that the delay in presenting a defendant to a judge is merely a circumstance to be considered in determining the voluntariness of his statement.

In People v. Redd (1990), 135 Ill. 2d 252, 292-93, 553 N.E.2d 316, 335, the Illinois Supreme Court wrote the following:

“This court has long held ‘the question of the competency of a confession is for the trial court alone to decide, and that the court is not required to be convinced of its voluntary character beyond a reasonable doubt when making its decision.’ (People v. Carter (1968), 39 Ill. 2d 31, 38.) The State has the burden of establishing the voluntariness of a defendant’s confession by a preponderance of the evidence. (People v. King (1986), 109 Ill. 2d 514, 525; People v. Caballero (1984), 102 Ill. 2d 23, 33.) Findings by the circuit court on the question of the voluntariness of a confession will not be disturbed by a court of review unless they are against the manifest weight of the evidence. People v. Galvin (1989), 127 Ill. 2d 153, 174; King, 109 Ill. 2d at 525; People v. Davis (1983), 97 Ill. 2d 1, 20.”

Having carefully considered the circumstances surrounding the giving of the defendant’s statements in the present case in accordance with the foregoing standards, we agree with the finding of the trial court that those statements were voluntary, and we find no error in the trial court’s denial of defendant’s motion to suppress.

For the reasons stated, the trial court properly denied both of defendant’s motions to suppress evidence. Accordingly, defendant’s convictions and sentences are affirmed.

Affirmed.

LUND and GREEN, JJ., concur.