author: PRESIDING JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RITA JO NITZ, Defendant-Appellant.
    Fifth District
    No. 5 — 89—0784
    Opinion filed March 9, 1993.
    Rehearing denied April 29, 1993.

      Thomas Peters, of Murphy, Peters & Davis, of Chicago, for appellant.
    Charles Garnati, State’s Attorney, of Marion (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE CHAPMAN

delivered the opinion of the court:

On September 21, 1989, a Massac County jury convicted Rita Nitz of the first-degree murder of Michael D. Miley. She was sentenced to natural life in prison.

On appeal, defendant argues (1) that she was not proven guilty beyond a reasonable doubt; (2) that she was denied a fair trial because the trial court refused to change venue, and because the trial court made prejudicial statements to the jurors; (3) that she was denied effective assistance of counsel by her court-appointed trial attorney; (4) that the provision for a natural life term, section 5 — 8— 1(a)(1)(b) of the Unified Code of Corrections (111. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(1)(b)) is unconstitutionally vague; (5) that section 5 — 8—1(a)(1)(b) was unconstitutionally applied to her; and (6) that her sentence was excessive and an abuse of discretion. We affirm.

In considering defendant’s challenge on the reasonable doubt issue, 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 proven beyond a reasonable doubt. All the evidence is considered in the light most favorable to the prosecution. People v. Tye (1990), 141 Ill. 2d 1, 565 N.E.2d 931.

Defendant was charged with first-degree murder for the shooting death of Michael D. Miley. Jurors heard the following testimony at defendant’s trial. On April 9, 1988, Richard Kaiber of Carbondale and a group of his friends camped at an area called Rocky Comfort, which is just south of Crab Orchard Lake. Kaiber and about 10 to 15 other campers went to look at an abandoned car “to see what it was all about.” While the campers were vandalizing the car, the trunk popped open and a headless body rolled out. The body was that of Michael D. Miley, who had been missing since April 6, 1988. The car belonged to the victim.

The victim, Michael Miley of Murphysboro, was 23 years old. He was a member of the Carbondale homosexual community, and he occasionally visited two places where homosexuals frequently gathered. Those places were Two Hearts, a Carbondale bar, and certain areas near Crab Orchard Lake. At Crab Orchard Lake, homosexuals congregated near a dam, known as the spillway, and its four adjacent parking lots.

Michael Miley’s father described him as someone who would react verbally to intimidation. “He would be quick to tell someone,” his father said, but he was not a fighter. To illustrate, a friend, Edwin Pierson, explained that once, in February 1988, he and Michael Miley were parked in one of the lots at Crab Orchard Lake when a four-wheel-drive truck shined a spotlight on them. Michael Miley followed the truck and returned about 10 minutes later, upset and angry.

The defendant, Rita, was married to Richard Nitz at the time of Michael Miley’s death. They were married at Crab Orchard Lake near the area where homosexuals congregated. They also lived less than two miles from one of the parking lots where homosexuals gathered and socialized. Much of the testimony at Rita’s trial related to Richard Nitz’s hatred for homosexuals and Rita’s largely silent adoption of his beliefs.

Mark Miley, the victim’s brother, testified that he had had two “experiences” with Richard Nitz. The first of these experiences occurred in 1986 while he and a group of friends socialized at the Crab Orchard Lake parking lots. Richard Nitz approached Mark Mi-ley and his friends and asked him if they were fags. A group of people, including a woman, accompanied Nitz. The group was armed with baseball bats, chains, ice picks and other equipment. Mark Miley and his friends left, but they returned a short time later and found another friend’s car vandalized. Richard Nitz and his friends were gone. Miley could not identify the woman, who was armed with an ice pick, as the defendant.

The second incident involved Richard Nitz and two other men at Crab Orchard Lake. After Richard Nitz broke a friend’s radio, Mark Miley said Richard started “coming after” him. As Mark Mi-ley drove away, Richard Nitz hit his windshield and rear side mirror with an aluminum baseball bat.

Another witness, Charlie Brookmyer, the defendant’s brother, explained that Richard Nitz hated homosexuals and referred to them as faggots and in other derogatory terms. Because he never heard Rita object to Richard Nitz’s characterizations, Charlie Brookmyer said he assumed Rita also did not like homosexuals.

Charlie Brookmyer testified that Rita had told him that she and Richard Nitz had run a gay man off of the road in the Crab Orchard Lake area. Another time Charlie Brookmyer accompanied Richard Nitz and Rita when they confronted a noisy group of suspected homosexuals at the Crab Orchard Lake parking lots. Rita, however, was not armed. On cross-examination, Charlie Brookmyer stated that he had never seen the defendant harass, intimidate or abuse gays or anyone else.

Both Richard Nitz and Rita were members of the Trog Club, which was organized by Richard Nitz, who was the head Trog. Rita was the Trogette. Trog is short for troglodyte, which Charlie said means prehistoric or cave man. Trog Territory was Richard and Rita’s special place. It was the place where they were married, and it was also the area where homosexuals gathered to socialize. Members of the Trog Club went to Trog Territory and ran off gays.

A third witness, Betty Boyer, said that Rita did not object to harassing homosexuals. On the night Betty Boyer and her ex-husband met Richard Nitz and Rita, Boyer said, she and her ex-husband were invited to go harassing homosexuals by Richard Nitz.

Finally, Williamson County Deputy Sheriff Dale Almaroad testified that Richard Nitz had, in fact, been arrested for intimidation and assault on homosexuals. As Rita paid Richard Nitz’ bail, she commented to Deputy Almaroad that she and her husband did not like living near where homosexuals congregate because “mosquitoes transmit other diseases and why couldn’t they transmit AIDS.”

Turning to the events of April 6, 1988, the evidence indicated that Michael Miley ate with his family, practiced with his church choir, and drove out to Crab Orchard Lake to socialize. He visited with two friends that night, Robby Buttry and Edwin Pierson.

At about 6 p.m. that night, Betty Boyer arrived at the Nitz trailer to babysit for Rita’s son. She testified that Richard Nitz and Rita left about 6:30 p.m. for John Barwick’s car lot in Carterville. When they returned about 30 minutes later, Rita walked into the house, took a gun off the top of the icebox, went back to the car and handed the gun to Richard Nitz, and they left again.

Shortly after 9 p.m., Richard Nitz and Rita returned to their trailer. Rita walked inside and Boyer stepped out on the trailer porch. About this time, another car pulled into the Nitz driveway, backed out, and parked on the road. Boyer said she then saw a third person, a man, standing on the driveway and Richard Nitz getting a baseball bat from the back seat of his Charger. Boyer turned to go inside the trailer just as Rita went outside.

Boyer moved to the window to watch. Boyer testified: “[Richard Nitz yelled] for him to get his fucking ass off of his property; that he wasn’t nothing but a faggot, and if he didn’t he was going to kill him.” The man turned away. Richard hit him in the back of the head several times with a baseball bat. The man fell to the ground. Rita just stood and watched. Betty watched from inside the trailer, but she was afraid to try to help the man. Richard Nitz and Rita picked the man up and put him in the trunk of his own car. Richard Nitz drove away in Rita’s Barracuda. Rita followed him in the victim’s car.

Boyer did not hear from or see the Nitzes again until about 1 a.m. that morning. Richard Nitz called, said he had car problems, and asked Boyer to come after him and Rita. Boyer made arrangements for a neighbor to pick them up. Later, when Richard Nitz and Rita returned home, Rita went to bed while Richard tried to clean up the blood on the driveway.

Boyer admitted that she had not told this story to police until May 6, 1988, after she knew Richard Nitz had been arrested. She also admitted that in July of 1988 she was arrested for battery and spent the night in jail before charges were dropped.

On cross-examination, Boyer confirmed that her problems with Department of Children and Family Services (DCFS) had ended, but she denied that it was because of her statement and testimony in the Richard Nitz case. Boyer also confirmed that Rita was abused by Richard Nitz. Once, she said, after Rita got an order of protection against him, Richard Nitz came to the trailer and, with baseball bat in hand, threatened to smash up everything.

Boyer admitted that she suffered from poor eyesight before she got glasses in May 1988. Defense counsel also impeached Boyer with prior inconsistent statements.

Rita’s former cellmate, Barbara Winkler, also testified for the prosecution. Winkler allegedly wrote two letters at Rita’s insistence. The letters were an attempt to incriminate Betty Boyer and to discredit another potential adverse witness.

In an effort to keep testimony about these letters from the jury, the defense argued that the letters and the circumstances surrounding them should not be admitted unless the defense opened the door to them, because the letters were the basis of separate charges against Rita. The trial court concluded that the testimony concerning the alleged attempt to influence a witness or create evidence would be allowed for the limited purpose of finding a consciousness of guilt for the charged offense. A limiting instruction was given both before and after the following testimony of Barbara Winkler.

Winkler admitted writing a letter but said she did so only at the insistence of Rita, who provided the information. A letter said that Betty Boyer planned the murder with Richard Nitz in an effort to frame Rita because Boyer and Richard Nitz wanted Rita out of the way so that they could be together.

Winkler said she wrote the letter because Rita’s gang “was going to get after [her]” if she did not. The gang was described as one that goes around hurting fags and lesbians for no reason. Winkler stated that after she wrote the letter, Rita told her that “her [she] and Richard beat this guy with a baseball bat and shot him in the head and hung him from a tree.”

On cross-examination Winkler said that Rita repeated this story to her 20 to 30 times a day every day until she left, but that she was too scared to ask for any more details. Rita never told Winkler that either she or Richard had decapitated the victim. Cross-examination also revealed that Rita had accused Winkler of theft and that, after a shakedown, the stolen item was found in Winkler’s possession.

The State offered a variety of physical and circumstantial evidence which tied Richard Nitz and Rita to the crime.

Rita bought a pistol, a model J22C .22-caliber Jennings, on March 24, 1988. In a search of the Nitz trailer, shortly after the murder, an empty gun box was discovered on top of the refrigerator. The gun has never been recovered.

An autopsy, performed by Dr. Beverly Tsai, determined that there were no injuries or wounds on the body. Dr. Tsai testified that even though the victim was decapitated, he died before decapitation. Dr. Tsai stated that the exact cause of death could not be determined. The lungs, however, were slightly pinkish red which Dr. Tsai said indicated carbon monoxide intoxication from being transported in the trunk of the car which had holes in the floorboard.

Sears and J.C. Penney charge cards, issued to Michael Miley, were used to charge a variety of items at Kentucky Oaks Mall, Pa-ducah, Kentucky, on April 7 and 8, 1988. Four clerks testified that a man and a woman used Michael Miley’s credit cards to purchase the items. The woman signed some of the sales receipts. The man was positively identified as Richard Nitz. The woman was not identified.

The items purchased with Michael Miley’s credit cards April 7 and 8, 1988, included: a pair of size-six Reebok tennis shoes, a pair of USA Olympic tennis shoes, a Skiva multicolored bikini, women’s bikini underwear, men’s bikini underwear, two pairs of men’s jeans and two Pioneer speakers.

Items which matched the sales slip records for Michael Miley’s credit cards were recovered at the Nitz home during the search. In addition to the items listed above, other items seized during the search included: a plastic Sears sack, a wooden baseball bat taken from the back seat of Richard Nitz’s Charger, 10 cassette tapes, a Sanyo FT526 AM/FM cassette deck, a knife, a gold-colored Timex watch taken from Rita’s Barracuda, a shovel, and underwear boxes and containers from cloth items of merchandise. The cassette tapes and the gold-colored Timex watch were positively identified as Michael Miley’s property. The Sanyo cassette player was not positively identified as Michael Miley’s. It was, however, a match to the Sanyo instructions and paperwork found in the glove box of Michael Miley’s car.

None of the fingerprints or palm prints recovered from the victim’s car or from the Sanyo stereo matched either of the Nitzes or Michael Miley. No hairs were found on the baseball bat. Tests for blood on the baseball bat, shovel, and knife were negative. Tests revealed Type 0 human blood on the Timex watch. Michael Miley had Type 0 blood. Both Rita and Richard Nitz have Type A blood.

Rita was interviewed while police officers searched her home and the grounds surrounding it. Jackson County Deputy Sheriff Robert Burns spoke to Rita during the search. He testified that she made the following statements:

Some of the seized items were gifts from Betty Boyer. Boyer explained that she hit the lottery. These gifts included tennis shoes, a bathing suit, jeans and stuff.
The gun was in the box; she had seen it only a few days before.
She was afraid for her safety.
She did not know the credit cards were stolen. She had seen a Sears credit card and a billfold with some papers on her coffee table in the living room. The credit card had the name Mike on it.
A guy named Glen or Murphy had killed someone and left the body on the forest service route. He had taken property from the victim.
The victim had struggled and was taken into the woods where he would not be found, and something was done to conceal his identity.
The credit card was given to Richard by Danny Walker for some work Danny wanted done on his transmission. Danny got the card from Glen Murphy.
She was in Paducah at the J.C. Penney store and had signed the receipt, but she was not there when the stereo speakers were purchased.
She thought the murder occurred at Panther’s Den or Cougar’s Den, something with a name similar to a big cat.

Then, Sergeant Phil Sylvester testified that, just weeks before trial, Rita suggested that Michael Miley’s head might be found near a field where she and Richard had stopped on the way to the mall. He testified that she again acknowledged accompanying Richard Nitz to Paducah. Michael Miley’s head was not found.

The defense presented evidence that Rita and Richard Nitz had marital problems and that Rita had an order of protection against Richard. Two friends, Larry Brookmyer and Dean Brown, stayed with her to protect her until mid-February of 1988.

Ron Roach, a defense investigator, had interviewed Betty Boyer. During that interview, Roach said, Boyer admitted that the police officers investigating the murder threatened to arrest her if she did not give a statement. Boyer was questioned about the murder seven or eight times for three to four hours each time. One of the interrogations lasted six hours.

The defense also called Williamson County Sheriff’s Sergeant Cindy Olson and Williamson County Jail Lieutenant Karen Clark to confirm that Rita had accused prosecution witness Barbara Winkler of stealing a personal item and that the item was found in Winkler’s possession.

On cross-examination, Olson and Clark described Rita as an extremely manipulative person. These witnesses also disclosed that Rita and Richard Nitz wrote to each other almost daily while they were in jail. On the outside of their letters, the Nitzes wrote “Love Forever, T and T, Trog Loves Trogette” and “Trogette Loves Trog.”

The defense also offered the testimony of private investigator John Moore and Rend Lake College Professor Ed Heischmidt to illustrate that, based on her own testimony, Betty Boyer could not have actually seen the events she testified she saw. Using a scale diagram and a variety of measurements taken at the trailer, the defense demonstrated that Betty Boyer did not have a clear view of Michael Miley’s vehicle. Even at the most advantageous position that she had described, the car was out of her line of view. Heis-chmidt also testified that, if Richard swung the baseball bat as Betty Boyer testified he did, blood should have spattered 360°, yet no bloodstains were found on the concrete. He admitted, however, that the bloodstains could have been completely obliterated by a combination of cleaning and the weather.

The prosecution rebutted this evidence with testimony from Sergeant Phil Sylvester. Sylvester took his own car to the Nitz trailer and looked out the window at it. He stated that he could see all but the rear 18 inches of the trunk. On cross-examination, however, he stated that Betty Boyer’s placement of Michael Miley’s car on the scale diagram was beyond her line of sight. He estimated the car’s position for his own tests.

Rita testified in her own defense. Defense counsel asked her two questions.

“Q. *** [W]ere you at the Kentucky Oaks Mall with Richard Nitz on April the 7th and 8th of 1988?
A. Yes, he made me go with him.
Q. *** [D]id you participate in any way in the death of Michael Miley?
A. No, I did not.”

These two questions opened Rita to extensive cross-examination. She gave the following account of the circumstances surrounding Michael Miley’s murder.

At 6 p.m. April 6, 1988, Rita was doing laundry at Chuck Hooker’s trailer. She finished about 8:30 p.m. On her way home she stopped at the Veach Station behind Carbondale Mall. She was accompanied by Richard Nitz and her son. Richard talked to Chuck Hooker and then drove her and her son home. She gave her son his medicine and he went to bed. Richard unloaded the laundry.

Richard was mad because Betty Boyer had borrowed his car and had not returned it. He went to get the car. He returned to borrow gas money and left again.

Richard returned about 2 or 3 a.m. He wanted help because his car was stuck and Rita went to help. In the area where the car was stuck, she noticed a wet spot on the ground. Richard said it was blood. As he kicked dirt over it, she noticed what appeared to be blue jeans sticking out of a pile of leaves. She also saw a vehicle. Richard asked if she had ever seen a dead body.

Not until April 28, 1988, did she believe that this incident might have something to do with the Michael Miley murder. She did not go to the police then because she was not sure what happened. Glen Murphy, an acquaintance of Rita and Richard, admitted to a murder, but he did not say it was Michael Miley. She thought it was a scare tactic. She did tell police she was suspicious of something.

On April 7, 1988, Richard drove her to Kentucky Oaks Mall in Paducah, Kentucky. She went only because Richard was threatening her. When they got to the mall, she went along because, she said, it was “either be there or be deserted somewhere, where I didn’t know where.” She participated in the purchases only because Richard threatened her. She knew the credit card had the name Michael on it, but she thought Richard had the card issued in her son’s name.

On April 8, 1988, Richard held a knife to her throat to convince her to join him on his trip to Paducah. On the way, they stopped at a little field where Richard looked around and picked up a knife.

Rita said that at the mall, basically, she was “just along with him.” Richard pulled her along, telling her that if she did not do what he said, he would make sure that he did not go down alone. She does not remember buying any shoes. Richard bought women’s shoes. However, she might have been wearing those shoes when the police searched her trailer. She was not present when the speakers were purchased, but she did remember signing Michael Miley’s name to the credit slip.

Rita admitted that the first time she told law enforcement officials about stopping near a field on the way to Paducah was August 9 or 11, 1989. She denied she wanted a deal for the head of Michael Miley.

Rita divorced Richard Nitz prior to her trial.

I

Defendant argues that the foregoing evidence is insufficient to prove her guilty beyond a reasonable doubt. First, she contends that the prosecution did not offer any physical evidence that the victim was shot. Second, she argues that the State failed to prove that she was legally responsible for Richard Nitz’s acts. Third, she contends that the testimony of Betty Boyer and Barbara Winkler was of little value and did not prove her guilty beyond a reasonable doubt.

Defendant correctly contends that no physical evidence supports the prosecution’s theory that the victim was shot in the head. In fact, the record reveals that very little evidence supports this theory. The prosecution attempted to introduce defendant’s admissions through her cellmate, Barbara Winkler. Winkler testified that the defendant told her that she and Richard “shot” someone. However, because this evidence was tied to charges that defendant attempted to influence or harass this witness, the trial judge admitted this testimony for the limited purpose of showing consciousness of guilt. Consequently, the State presented no evidence, that was generally admitted, to prove there was a shooting.

This does not, however, dispose of defendant’s murder conviction. Defendant does not argue directly that there was a fatal variance between the allegations in the indictment and the proof presented at trial. But, resolution of. this issue bears directly on defendant’s argument that she was not proven guilty beyond a reasonable doubt because the prosecution did not prove the victim was shot.

Essential allegations in an indictment or an information must be proven without variance and cannot be inferred. (People v. Clark (1979), 71 Ill. App. 3d 381, 389 N.E.2d 911.) An allegation as to the means used to accomplish death is not an essential part but rather a formal part of the indictment. (People v. Coleman (1971), 49 Ill. 2d 565, 571, 276 N.E.2d 721, 724.) The State is under no duty to prove the identity of the weapon used. People v. Carter (1978), 57 Ill. App. 3d 84, 372 N.E.2d 1093.

In People v. Coleman, the defendant argued that an allegation of the means used to murder his wife was not a formal defect and could not be changed by amendment. Over his objection, the State amended its original indictment to charge him with murder either by stabbing or by asphyxiation. (Coleman, 49 Ill. 2d at 569, 276 N.E.2d at 723.) In upholding the trial court, the supreme court said that the defendant was adequately informed of the gist of the offense with which he was charged, i.e., murder of his wife. It also noted that the amended indictment did not raise the possibility that defendant could be tried twice for the same crime and that the defendant was not prejudiced. Coleman, 49 Ill. 2d at 570, 276 N.E.2d at 724.

This analysis is equally applicable in the instant case. The indictments adequately informed defendant that she was charged with the murder of Michael Miley. The prosecutor’s evidence proved she participated in the murder of Michael Miley. The variance in the language of the charge and the proof raises no possibility that she could be tried twice for this crime. Similarly, she can show no prejudice as a result of being proven guilty of a murder for which she was charged, notwithstanding the fact that the State failed to prove the instrumentality of death. The defendant can show no prejudice in this case because she did not rely on the State’s theory of the method of the murder to prepare her defense. Her defense was that she was not present during the murder. Had the jury believed her story, she would have been acquitted regardless of the method used to murder Michael Miley.

Consequently, defendant’s argument that she was not proven guilty beyond a reasonable doubt because the prosecution did not present any physical evidence of a shooting fails. The prosecution presented sufficient evidence to prove defendant guilty of murder beyond a reasonable doubt. The prosecutor proved that defendant helped load the battered Michael Miley into the trunk of his own car and that she drove him away. Betty Boyer testified that defendant alone drove away in the victim’s car with the victim locked in the trunk. The victim’s car, containing his headless corpse, was discovered three days later. The testimony of pathologist Dr. Beverly Tsai supports the prosecution’s theory that Michael Miley was alive when he was first placed in the trunk.

The prosecution also presented sufficient evidence to prove defendant guilty beyond a reasonable doubt on an accountability theory. Defendant was accountable for Richard Nitz’s conduct if:

“Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, [s]he solicit[ed], aid[ed], abet[ted], agree[d] or attempt[ed] to aid, such other person in the planning or commission of the offense.” 111. Rev. Stat. 1987, ch. 38, par. 5 — 2(c).

The law on accountability incorporates the “common-design rule.” This rule provides that where two or more people engage in a common criminal design, any acts in furtherance of the criminal design committed by one party are considered to be the acts of all parties to the criminal design. (People v. Fyke (1989), 190 Ill. App. 3d 713, 720, 546 N.E.2d 1101, 1106.) The State’s evidence characterized defendant as Richard Nitz’s silent partner in an overall plan, scheme or design to harass and intimidate homosexuals. In addition, the defendant admits that on the two days following Michael Miley’s death, she joined Richard Nitz on a spending spree with the victim’s credit cards. Taking this evidence in the light most favorable to the prosecution, we conclude that the trier of fact could have found defendant guilty beyond a reasonable doubt on an accountability theory.

Finally, the inconsistencies between Betty Boyer’s testimony and her prior sworn statements may make her a less credible witness, but they do not create reasonable doubt. A reviewing court will not substitute its judgment as to the weight of the disputed evidence. (People v. Herrett (1990), 137 Ill. 2d 195, 206, 561 N.E.2d 1, 6.) Rather, the level of witnesses’ credibility, the weight to be given their testimony, and the reasonable inferences to be drawn from the evidence are responsibilities of the trier of fact. (People v. Tye (1990), 141 Ill. 2d 1, 13, 565 N.E.2d 931, 937.) A criminal conviction will not be set aside on grounds of insufficient evidence unless the proof is so improbable or unsatisfactory that there remains a reasonable doubt of the defendant’s guilt. (Tye, 141 Ill. 2d at 13, 565 N.E.2d at 937.) The inconsistencies in Boyer’s testimony did not make her statements so unbelievable that the State’s proof became improbable or unsatisfactory. A rational jury could have found Rita Nitz guilty of murder beyond a reasonable doubt. The evidence is sufficient to support the jury’s verdict.

II

Defendant next complains that the trial court erred when it denied her pretrial and post-trial motions for a second change of place of trial. She contends that, although her trial was transferred to Massac County from Williamson County, she was denied a fair trial or an impartial jury.

On March 8, 1989, at her motion-to-change-venue hearing, defendant presented evidence that area media published a substantial number of stories about the Michael Miley murder and Richard Nitz’s trial and sentencing. In the nearly 11 months after Michael Miley’s body was discovered, The Southern Illinoisan published about 44 stories covering those events. The Southern Illinoisan circulates in Johnson, Perry, Randolph, Franklin, Jefferson, Union, Williamson and Jackson Counties. The West Frankfort Daily American and the Marion Daily Republican each published between 20 and 30 prominently displayed stories, some with photographs of the defendants. These newspapers circulate in Franklin and Williamson Counties and part of Johnson County. Representatives of the three major television network affiliates testified that they also aired stories about the Miley murder, Richard Nitz’s trial, and his sentencing. The number of stories aired on area television totalled more than 120. These three television stations covered all of southern Illinois. All media representatives agreed that their concentrated coverage of these events ended about four months earlier when Richard Nitz was sentenced.

Transferring defendant’s trial to Massac County eliminated or mitigated the danger that potential jurors were or would be exposed to print media coverage of the Michael Miley murder, the Richard Nitz trial, and the Rita Nitz trial. Nevertheless, defendant argues that the volume of pretrial publicity deprived her of a fair trial with an impartial jury.

The issue, however, is not the amount of publicity surrounding a certain case, but whether the defendant received a fair and impartial trial. (People v. Lego (1987), 116 Ill. 2d 323, 334, 507 N.E.2d 800, 803.) The defendant is entitled to a change of place of trial if the court has reasonable grounds to believe that prejudice against the defendant actually exists and that, by reason of this prejudice, there is a reasonable apprehension that defendant cannot receive a fair trial. (People v. Boyle (1987), 161 Ill. App. 3d 1054, 1070, 514 N.E.2d 1169, 1170.) A change of place of trial should be granted when it is apparent that it will be impossible to find 12 jurors sufficiently unfamiliar with the details of the case to withstand a challenge for cause. (People v. Olinger (1986), 112 Ill. 2d 324, 343, 493 N.E.2d 579, 588-89.) The decision to grant a change in place of trial is discretionary and will not be reversed absent an abuse of discretion. Boyle, 161 Ill. App. 3d at 1070, 514 N.E.2d at 1170.

In the instant case, it is undisputed that a substantial amount of publicity followed the discovery of Michael Miley’s headless corpse and that it continued through Richard Nitz’s trial. Only 3 of the 12 jurors had not heard or read anything about these events. However, the bulk of this publicity preceded the commencement of defendant’s trial by almost five months. And, each juror selected indicated that he or she had no preconceived notions about the defendant’s guilt or innocence.

A juror need not be totally ignorant of the facts and the issues involved so long as he or she can lay aside any impressions and render a verdict based on the evidence presented. (People v. Black (1972), 52 Ill. 2d 544, 557, 288 N.E.2d 376, 384.) Each juror selected in this case indicated that he or she could do just that. In light of these facts, the trial court did not abuse its discretion when it denied defendant’s motion to transfer her trial from Massac County.

If the pretrial publicity alone is insufficient to prejudice her, the defendant argues that she was denied a fair trial by the publicity coupled with the fact that the trial court informed each juror that her husband, Richard Nitz, was convicted of the same crime. In fact, defendant’s attorney asked the trial court to ask prospective jurors whether Richard Nitz’s conviction would prejudice them against the defendant. An accused may not request the court to proceed in a certain manner and then assign as error the ruling on the action that she procured. People v. Hill (1987), 154 Ill. App. 3d 214, 219, 507 N.E.2d 174, 177.

Ill

Defendant argues that her attorney was ineffective and that she is entitled to a new trial because trial counsel failed to object to the trial court’s and the prosecution’s statements informing the jurors that Richard Nitz was convicted of the same crime. She also criticizes his failure to object to evidence that Richard Nitz hated homosexuals and his failure to object to the introduction of a bat, knife, and shovel when no evidence showed that these items were related to this crime.

Defendant was denied her constitutionally guaranteed right to counsel if she can prove both that her attorney’s performance was so deficient that it fell below an objective standard of reasonableness and that she suffered substantial prejudice as a result of these deficiencies. People v. Pecoraro (1991), 144 Ill. 2d 1, 13, 578 N.E.2d 942, 947, citing Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674,104 S. Ct. 2052.

Defendant cannot show that the outcome of the trial would have been different had trial counsel objected to references to Richard Nitz’s conviction, his hatred of homosexuals, and the bat, knife, and shovel as evidence. (Pecoraro, 144 Ill. 2d at 13, 578 N.E.2d at 947 (a court may dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice before reaching the deficiency analysis).) Trial counsel requested that prospective jurors be voir direct about any potential prejudice toward defendant because her husband was convicted of the same crime. Apparently, this was part of trial counsel’s overall plan to admit that Richard Nitz committed the crime but argue that defendant was not a participant in it. Such a strategy is not inconsistent with defendant’s own testimony. She testified that she was not present during the murder.

Defendant’s final two claims of ineffective assistance of counsel for failure to object are also matters of trial strategy. An unsuccessful strategy does not render trial counsel’s representation constitutionally defective.

Defendant further argues that she received ineffective assistance of counsel because trial counsel failed to adequately cross-examine Betty Boyer and because he did not argue in his closing argument that if Betty Boyer were believed then the victim was dead before defendant ever touched him. The second argument is meritless. Defendant testified she was not even present when Michael Miley was murdered. Her trial counsel cannot be called ineffective because he failed to argue to the jury that if it believed defendant lied, then it should find that the victim was dead before she helped load him into the trunk of his own car. Trial counsel’s closing argument was consistent with his client’s testimony. There is nothing objectively deficient or prejudicial about that.

There is also nothing deficient about trial counsel’s cross-examination of Betty Boyer. Defendant contends that trial counsel could have damaged Boyer’s credibility by demonstrating that she testified under oath to two different time frames regarding defendant and Richard Nitz’s return home. A review of trial counsel’s cross-examination of Boyer reveals that he adequately impeached her testimony. He succeeded in conveying to the jury that Boyer earlier testified to a different time frame regarding when defendant and Richard Nitz returned home.

In addition, trial counsel demonstrated inconsistencies in Boyer’s statements about whether defendant’s son was home from school the day of the murder; whether Richard or Rita got the keys to the victim’s car; where the defendant and Richard went when they first left their home; where the cars were parked; and how many times the victim was hit. He also brought out testimony that Boyer had poor eyesight and no glasses at the time and that she gave her statement only after threats by the interrogating officers. Overall, defendant’s trial counsel vigorously cross-examined Boyer. His representation was not deficient, and defendant was not prejudiced because he failed to drive home one point as forcefully as she would have liked.

IV

Defendant next challenges her sentence. She argues that her sentence must be vacated because the natural life sentencing provision (111. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(1)(b)) is unconstitutional on its face and was unconstitutionally applied to her. Section 5 — 8—1(a)(1)(b) gives the sentencing judge discretion to impose a natural life term if the court finds the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. Defendant asserts that this sentencing provision is unconstitutional because it fails to provide any meaningful guidance on how to impose a natural life sentence.

This court held section 5 — 8—1(a)(1)(b) constitutional in People v. Barnhill (1989), 188 Ill. App. 3d 299, 543 N.E.2d 1374. Defendant encourages us to reconsider that decision. We decline to do so. The definitions of brutal, heinous and cruel are commonly understood and provide sufficient warning and understanding as to the type of murder which qualifies for imposition of a natural life sentence. (People v. Barnhill (1989), 188 Ill. App. 3d 299, 543 N.E.2d 1374.) These common definitions together with this court’s decision in Barnhill and the supreme court’s decision in People v. LaPointe (1981), 88 111. 2d 482, 431 N.E.2d 344, provide sufficient guidance to a judge considering a sentence pursuant to section 5— 8 — 1(a)(1)(b).

In addition, section 5 — 8—1(a)(1)(b) was not unconstitutionally applied to defendant. A natural life term may be imposed if the court finds that the murder was “accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” The defendant contends that the trial court improperly weighed two factors when it sentenced her to a term of natural life. The two factors were that the murder did not take place quickly and that defendant went on a shopping spree following the murder.

The record demonstrates, however, that the trial judge considered far more than how quickly death came to the victim and the defendant’s subsequent shopping spree. For example, the trial court considered the fact that defendant was intelligent and had opportunities to withdraw from the crime but chose not to do so. He also noted that the defendant displayed a total lack of remorse and a total lack of respect for the system, and that the murder was cold and calculated.

The trial judge in this case properly considered all the facts surrounding the incident in evaluating the heinousness of the defendant’s conduct. (People v. Sullivan (1989), 183 Ill. App. 3d 175, 538 N.E.2d 1376.) A natural life sentence was not arbitrarily imposed upon the defendant.

V

Defendant also asserts that this sentencing scheme is unconstitutional when the natural life sentencing provision is considered in light of the extended-term sentencing provisions of section 5 — 5— 3.2(b)(2). (111. Rev. Stat. 1987, ch. 38, par. 1005-5-3.2(b)(2).) She contends that this sentencing scheme gives judges no guidance when choosing between a natural life term and an extended-term sentence. Consequently, she argues that she was denied due process and equal protection under the law.

Defendant correctly points out that the language which triggers imposition of an extended term is identical to that which makes a defendant eligible for a natural life term. (111. Rev. Stat. 1987, ch. 38, pars. 1005-5-3.2(b)(2), 1005-8-l(a)(l)(b).) A court may sentence a defendant guilty of murder to a natural life term or a prison term of not less than 60 years and not more than 100 years if it finds “the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” (111. Rev. Stat. 1987, ch. 38, pars. 1005-5-3.2(b)(2), 1005-8-l(a)(l)(b), 1005-8-2(a)(1).) The statutes do not dictate when a natural life sentence should be selected over an extended-term sentence. That omission alone, however, does not automatically render this sentencing scheme unconstitutional.

In fact, Illinois courts have upheld these statutes against similar constitutional attacks. (People v. Cartalino (1982), 111 Ill. App. 3d 578, 444 N.E.2d 662; People v. Whitlock (1988), 174 Ill. App. 3d 749, 528 N.E.2d 1371.) Cartalino held that because a court must consider both aggravating and mitigating factors before imposing any sentence, the circuit court does not have unbridled discretion to sentence a defendant to natural life or an extended term. The presence or absence of mitigating factors determines the nature of the sentence imposed on a defendant found guilty of a brutal and heinous murder. Cartalino, 111 Ill. App. 3d at 592, 444 N.E.2d at 673.

We adopt the Cartalino court’s analysis and conclude that this sentencing scheme is constitutional. Defendant was not denied due process or equal protection simply because the trial court could choose between sentencing her to a term of natural life and an extended term. The trial court adequately considered factors in mitigation and aggravation before imposing the natural life term.

VI

Finally, defendant argues that a term of natural life is excessive and an abuse of the trial court’s discretion. She contends that because of her limited involvement, her rehabilitative potential, and her lack of prior criminal convictions, her sentence should be reduced or vacated and remanded for resentencing.

The standard of review of a sentence claimed to be excessive is whether the trial court exercised its discretion and, if so, whether this discretion was abused. (People v. Cox (1980), 82 Ill. 2d 268, 275, 412 N.E.2d 541, 545.) The trial court is normally in a better position to determine the punishment to be imposed than the courts of review. Cox, 82 Ill. 2d at 280, 412 N.E.2d at 547.

At the sentencing hearing, the trial judge said that he had reviewed the presentence investigation report and that he had taken judicial notice of the entire trial proceedings. He also listened to oral arguments regarding sentencing.

In looking at the factors in aggravation and mitigation, the trial court concluded that the evidence did not support defendant’s contention that she acted under a strong provocation or that there were substantial grounds tending to excuse or justify her conduct though failing to establish a defense. He also concluded that her conduct was not the product of circumstances unlikely to recur, noting that the evidence showed that the circumstances had occurred before. He found that the fact that defendant had no prior criminal convictions was the only criterion in mitigation.

In aggravation, the trial court found that defendant had a history of criminal activity. He specifically noted that she tried to create evidence favorable to her. He also stated that the sentence was necessary to deter others from committing the same crime.

The trial court judge carefully considered each of the applicable factors in aggravation and mitigation in this case. He did not abuse his discretion by sentencing defendant to a term of natural life.

The defendant’s conviction for the murder of Michael Miley and her sentence to a term of natural life are affirmed.

Affirmed.

RARICK and LEWIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BOWMAN

license: Public Domain

text:
    THE BOARD OF EDUCATION OF COMMUNITY HIGH SCHOOL DISTRICT No. 94 et al., Plaintiffs-Appellees and Cross-Appellants, v. THE REGIONAL BOARD OF SCHOOL TRUSTEES OF DU PAGE COUNTY et al., Defendants-Appellants and Cross-Appellees.
    Second District
    No. 2 — 91—1361
    Opinion filed December 31, 1992.
    Rehearing denied March 12, 1993.
    Modified opinion filed March 17, 1993.

      James E. Ryan, State’s Attorney, of Wheaton (Keith E. Letsche, Assistant State’s Attorney, of counsel), for appellant Regional Board of School Trustees of Du Page County.

      Michael J. Duhig, of Oak Brook, for other appellants.
    William E. Jegen, P.C., of Glen Ellyn (William E. Jegen, of counsel), and Justino D. Petrarca, of Scariano, Kula, Ellch & Himes, Chartered, of Chicago, for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court:

Defendant Regional Board of School Trustees of Du Page County (Regional Board or Board) granted a petition to change school district boundaries. Plaintiffs, West Chicago Elementary School District 33 and Community High School District No. 94 (collectively, respondent school districts or school districts), sought administrative review of the Board’s order granting the petition. The circuit court of Du Page County ultimately entered an order reversing the decision of the Regional Board. The Board and defendant petitioners now appeal from that order.

Petitioners reside in the Fox Hollow subdivision, which lies in the City of Warrenville. Of the 190 single-family homes in the subdivision, 157 are locatéd in school districts No. 33 and No. 94, and 33 homes are located in Community Unit School District No. 200. The specific area where petitioners live is situated along a portion of the southern border of the respondent school districts, between the Elgin, Joliet and Eastern Railroad tracks and Route 59. District No. 200 lies immediately adjacent, to the south. The area is bordered on the west and northwest, beyond the railroad tracks, by Fermi National Accelerator Laboratory (Fermilab). To the north it is bordered by Blackwell Forest Preserve, and on the east by single-family homes and Route 59. The area is served by the West Chicago Fire Protection District and, at least in part, by the West Chicago Park District.

Petitioners filed a petition with the regional superintendent of schools seeking to detach their property (petitioning territory) from District No. 94 and District No. 33 and to annex the area to District No. 200, which is often referred to as the Wheaton-Warrenville District. Pursuant to section 7 — 6 of the School Code (111. Rev. Stat. 1989, ch. 122, par. 7 — 6), the petition designated a committee of 10 as attomey-in-faet for the 190 Fox Hollow residents who executed the petition.

On February 5, 1990, the Regional Board commenced an administrative hearing. Petitioners presented evidence in support of the petition while Districts No. 33 and No. 94 objected and offered evidence in opposition to it. In all, during the seven-month period of the hearing, 39 witnesses testified and more than 50 exhibits were presented. On October 1, 1990, the Board voted five to one to grant the petition. The respondent school districts then filed a complaint for administrative review.

On January 2, 1991, the Regional Board filed a motion in the trial court to strike and/or dismiss certain portions of the respondent school districts’ complaint in administrative review. The school districts parried with a motion to strike the Regional Board’s motion, alleging essentially that the Board lacked standing to appear and defend its decision in the administrative review proceedings. Following a hearing, the trial court held that the Regional Board was without authority to defend its position. Accordingly, the court entered an order striking the Board’s motion and barring the Board from participating in the administrative review proceedings except as required by the Administrative Review Law.

On November 1, 1991, the trial court reversed the order granting the detachment and annexation petition on the ground that the Board’s decision was against the manifest weight of the evidence. Petitioners brought this timely appeal. The Regional Board joined the petitioners’ appeal and also filed a separate appeal from the trial court’s order barring it from the administrative review proceedings. The respondent school districts filed a cross-appeal.

The school districts’ first contention on cross-appeal is that the Regional Board lost jurisdiction to hear the petition when a member of the committee of 10 moved out of the petitioning territory. Section 7 — 6 of the School Code provides:

“When a petition contains more than 10 signatures the petition shall designate a committee of 10 of the petitioners as attorney in fact for all petitioners ***.” (111. Rev. Stat. 1989, ch. 122, par. 7 — 6.)

Plaintiffs urge that the statute imposed jurisdictional limits which precluded the Board from deciding a case when the committee membership fell below the statutory number. This argument cannot be sustained.

The number of signatures of registered voters called for by the statute on a detachment petition is a jurisdictional requirement. (See Board of Education of Avoca School District No. 37 v. Regional Board of School Trustees (1980), 82 Ill. App. 3d 1067, 1070.) We have held that the initial statutory requirement that there actually be 10 members on a committee of 10 is jurisdictional also. In Betts v. Regional Board of School Trustees (1986), 151 Ill. App. 3d 465, 467-68, a case relied upon by the respondent school districts, we determined that the regional board never acquired jurisdiction because one member of the committee had not signed the petition. However, contrary to plaintiffs’ argument, nowhere in Betts did we find that the committee was required to remain totally intact throughout the pendency of the proceedings on the petition.

Plaintiffs argue, by analogy, that Avoca requires a finding that the Regional Board lost jurisdiction. The Avoca court observed that the requirement for signatures of two-thirds of the voters of the petition area applies both at the time a regional board first takes a petition under consideration and at the time of final action on the petition. However, the Avoca court’s determination is well supported by the implication in the statute that jurisdiction remains only so long as the petition is consented to by two-thirds of the voters in the petitioning territory. For example, section 7 — 6 allows for amendment of a petition provided the petition, after amendment, still complies with the signature requirement of the original petition. No comparable requirement is imposed on the committee of 10 upon amendment of the petition.

Section 11A — 3 of the School Code, which provides for the designation of a committee of 10 in a petition to form a unit school district (111. Rev. Stat. 1989, ch. 122, par. 11A — 3), is instructive in regard to this question. That section contains a definition of a vacancy on a committee of 10 and a mechanism for filling such a vacancy. The legislature did not include any such definition or mechanism in section 7— 6. However, the very provision of a method for dealing with the situation indicates legislative recognition that vacancies can and will occur on committees of 10 and that, at least in the context of section 11 A— 3, perfect maintenance of such a committee is not a jurisdictional requirement. Absent any language in section 7 — 6 to indicate otherwise, section 11A — 3 is persuasive that loss of a committee of 10 member in a section 7 — 6 proceeding is not tantamount to loss of jurisdiction.

Depending on the size and nature of the detachment area in a given case, there could be an unwieldy number of petitioners if all of them were expected to act as a committee of the whole on all issues. However, the statute indicates that the committee of 10 may make stipulations binding on all petitioners as to any questions regarding the petition or hearing. It appears the legislature recognized that, when more than 10 petitioners are involved, they need to be able to act through representatives. When the committee is viewed in this context we perceive no magic in the number 10 once the jurisdiction of the Regional Board has been established. While the committee must be constituted in conformity with the statute in order to initially confer jurisdiction, such a committee primarily provides a convenient and effective mechanism to accomplish the task of detachment. That a committee may at some point have fewer than 10 members is not enough to destroy the Board’s jurisdiction over the petition. To hold otherwise would be to fail to recognize the realities of a highly mobile society and to potentially defeat the intent of the statute to allow detachment upon petition by the requisite number of voters in the area sought to be detached.

The respondent school districts next claim that the decision to grant the detachment petition was void from the outset because the Regional Board failed to adopt rules of practice prior to the administrative proceedings, as required by section 4(a)(1) of the Administrative Procedure Act (111. Rev. Stat. 1989, ch. 127, par. 1004(aXl)). The trial court found that the school districts had not raised this issue during the administrative proceedings and, therefore, were prohibited from raising it on administrative review. The lower court’s determination on the issue is correct. The record is devoid of any attempt by the school districts to raise this issue before the Regional Board.

Generally, when a party fails to assert a particular argument during proceedings before an administrative agency, the point is waived and may not be considered on appeal. (Kaufman Grain Co. v. Director of the Department of Agriculture (1988), 179 Ill. App. 3d 1040, 1045.) Waiver does not apply, however, when the argument challenges the authority of the administrative forum to adjudicate causes. (Kaufman, 179 Ill. App. 3d at 1045.) The school districts take the position that the Regional Board’s failure to adopt rules of practice deprived it of jurisdiction, or power, to hear the detachment petition and the Board’s order, therefore, was void.

The fatal weakness in plaintiffs’ argument is that the Regional Board’s power to hear and determine detachment petitions arises, not from any rules the Board itself has or has not promulgated, but from the School Code (see 111. Rev. Stat. 1989, ch. 122, par. 7 — 1). The respondent school districts do not dispute the Regional Board’s authority under the School Code. The relevant rules of practice are just that and nothing more. They are meant to inform participants about “the nature and requirements of *** formal hearings” (111. Rev. Stat. 1989, ch. 127, par. 1004(aXl)) and would merely explain the structure, sequence, and procedures to be followed during regional board hearings. Such rules are not intended to, nor do they, empower the Regional Board to make any decision or enter any order relevant to a detachment petition. Conversely, the Board’s failure to adopt such rules cannot deprive it of power to act on such petitions. Since the Board’s authority to hear the petition is not in question, the exception to the waiver rule does not apply, and the plaintiffs are barred from further raising the issue on appeal.

We turn now to the merits of petitioners’ appeal. The trial court reversed the Regional Board’s decision after finding that it was contrary to the manifest weight of the evidence. It is the role of the regional board, not the court, to make findings of fact and to weigh the relevant factors, and the board’s determinations and decisions will not be rejected on administrative review unless they are contrary to the manifest weight of the evidence. (Board of Education of Golf School District No. 67 v. Regional Board of School Trustees (1982), 89 Ill. 2d 392, 396; Skolek v. Utica Grade School District No. 135 (1992), 232 Ill. App. 3d 278, 282.) The reviewing court is not to reweigh evidence or substitute its judgment for that of the regional board. (Golf 89 Ill. 2d at 397.) We review the Regional Board’s decision in light of these controlling principles.

Section 7 — 6 of the School Code sets forth the standards to be considered by a regional school board in determining whether to permit a transfer of territory from one school district to another. Section 7 — 6 provides that the regional board:

“[Sjhall hear evidence as to the school needs and conditions of the territory in the area within and adjacent thereto and as to the ability of the districts affected to meet the standards of recognition as prescribed by the State Board of Education, and shall take into consideration the division of funds and assets which will result from the change of boundaries and shall determine whether it is to the best interests of the schools of the area and the educational welfare of the pupils that such change in boundaries be granted ***.” (111. Rev. Stat. 1989, ch. 122, par. 7 — 6.)

It has been well established, and recently reiterated by our supreme court, that under the language of section 7 — 6 detachment and annexation petitions should be granted only when the overall benefit to the annexing district and the area seeking detachment, considered together, clearly outweighs any detriment to the district losing territory and the surrounding community as a whole. Carver v. Bond/Fayette/ Effingham Regional Board of School Trustees (1992), 146 Ill. 2d 347, 356; Golf 89 Ill. 2d at 400-01; Oakdale Community Consolidated School District No. 1 v. County Board of School Trustees (1957), 12 Ill. 2d 190, 193-94.

A reviewing court applying this benefit-detriment test to a regional board’s decision is to consider the following factors: differences between the facilities and curricula of the school districts, the effect of detachment on the ability of either district to meet State standards of recognition, the distances from petitioners’ homes to the schools in both districts, and the impact of shifting boundaries on both districts’ tax revenues. (Carver, 146 Ill. 2d at 356; Bowman v. County Board of School Trustees (1974), 16 Ill. App. 3d 1082, 1085.) The “whole child” and “community of interest” factors may also be taken into account. These include the petitioning area’s identification with the annexing district and the community in which that district is located and the attendant probability of beneficial participation in school affairs and extracurricular activities. (Carver, 146 Ill. 2d at 356; Golf 89 Ill. 2d at 397-98.) The personal preferences or convenience of the petitioning parents and their children may be considered, but more than personal preference on the part of the petitioners is required to support a change in school district boundaries. Carver, 146 Ill. 2d at 346; Golf, 89 Ill. 2d at 400; Oakdale, 12 Ill. 2d at 193.

In its order granting the detachment petition, the Regional Board indicated that it had considered each of the factors recited in Carver. With regard to the first factor, the Board found that the facilities, curricula, and other programs of the detaching and annexing districts were substantially similar. Both the petitioners and the respondent school districts protest this finding, and each of them vigorously insists that the evidence showed the facilities and curriculum of District No. 200 or Districts No. 33 and No. 94, respectively, to be superior. We have reviewed the evidence and find it to be an exhaustive depiction of the facilities, curricula, extracurricular activities, social services, special programs, and faculty and staff in both District No. 200 and Districts No. 94 and No. 33. We believe the Regional Board’s finding is not against the manifest weight of the evidence.

With one exception, the record does not disclose significant differences between the physical facilities of the respective districts. District No. 94 has a swimming pool, an amenity not available in District No. 200. Aside from that, the high schools in both Districts No. 200 and No. 94 have ample athletic facilities which accommodate both practice and spectator sports. All of the schools also have ample libraries or resource centers, although these facilities are not all identical or equal in terms of size, resources, and equipment. However, all of the districts also benefit from cooperative programs with the library districts in which they are located.

At the time of the hearing, District No. 94’s high school was well below maximum capacity, while District No. 200’s two high schools were almost filled and were expected to exceed capacity by 1994, without students from the petitioning area of Fox Hollow. On the other hand, Pioneer School, the District No. 33 elementary school attended by children in the petitioning territory, was expected to reach capacity in the 1992-93 school year, while District No. 200 was constructing a new elementary school, to be completed in the fall of 1990. The new school would have space for 650 students but projected enrollment of only 500.

Voters in District No. 33 had recently defeated by a two-to-one margin a referendum which would have allowed the construction of a needed new elementary school, while voters in District No. 200 had recently approved a'bond referendum and a tax rate increase in the education fund. The defeat of the referendum in District No. 33 had necessitated $250,000 in cuts from the district’s education fund and had left the district facing overcrowding and possible program cuts. District No. 200 indicated that it could absorb 44 to 45 children from the petitioning territory without any measurable impact on existing facilities, although more than 45 students could be generated by the petitioning territory.

All in all, as they relate to the quality of the education available to students, the facilities of the various districts, including space considerations, appear to be essentially comparable. While District No. 94’s swimming pool is a desirable amenity, it is not enough to say that the district’s facilities overall are substantially superior to those of District No. 200.

We reach a similar conclusion regarding the quality of the districts’ respective curricula, faculties, special programs, and services. The respondent high school district emphasizes that, unlike District No. 200, it offered abundant, detailed testimony about its mathematics, English, and foreign language departments. It is true that District No. 200 did not present a great amount of detail regarding its comparable departments. However, the Board’s task was to evaluate the broad, overall substantive education and educational milieu provided by the districts, not selected educational subject areas. Hence, the evidence regarding District No. 94’s specific instructional areas became part of the total tapestry examined by the Regional Board.

That tapestry revealed essentially the same core curriculum in District No. 200 as in Districts No. 33 and No. 94, as well as various special subjects, such as music and art. All the districts also offered advance placement in basic subjects, remedial and enrichment programs, programs for gifted students, participation in special education and vocational education programs, and special help for students with learning problems, particularly in the one area of reading. Further, the elementary schools offered programs for preschoolers.

All three school districts also provided extracurricular sports programs, particularly at the middle and high school level. The numbers and types of sports were not identical but certainly were comparable. Additional programs were also available to students in all three districts through the local park and library districts, as well as in conjunction with nearby Fermilab. Healthcare, guidance, and counseling were available in all districts, and, at the District No. 94 and District No. 200 high schools, specialized programs aimed at adolescent problems had been developed. With regard to faculty, the overall teacher-to-student ratio was very similar at both the elementary and high school levels, as were the educational and experience levels of the teachers; None of the statistics on these factors were identical, but the differences were so small as to be insignificant.

Finally, the petitioners placed into evidence certified copies of the 1988-89 Illinois school report cards for all three school districts. Plaintiffs contend that the report cards constitute inadmissible hearsay, were not admitted at the hearing for the truth of the matters they set forth, and should not have been considered by the Regional Board. It is not clear whether, in fact, the Regional Board took the school report cards into account. However, we are of the opinion that the Board could properly have done so.

It is well settled that a public or official record may come within an exception to the hearsay rule if it is required by statute or authorized by the nature of the public office. Such records constitute evidence of the matters properly required to be maintained and recorded therein. (People ex rel. Wenzel v. Chicago & North Western Ry. Co. (1963), 28 Ill. 2d 205, 211-12; People v. Rockman (1986), 144 Ill. App. 3d 801, 810; People v. Hester (1980), 88 Ill. App. 3d 391, 395; Lombard Park District v. Chicago Title & Trust Co. (1969), 105 Ill. App. 2d 371, 378.) Here, it is not disputed that the Illinois school report cards are prepared by each school district in the State, pursuant to section 10 — 17a of the School Code (111. Rev. Stat. 1989, ch. 122, par. 10 — 17a), for the purpose of “assessing the performance of its schools and students.” The statute not only mandates preparation of the reports but also prescribes in detail the numerous indicators of student performance to be included in them. (See 111. Rev. Stat. 1989, ch. 122, pars. 10 — 17a(3Xa), (3)(b).) The form for the report cards is prepared by the State Board of Education and provided to school districts. (See HI. Rev. Stat. 1989, ch. 122, par. 10 — 17a(3Xc).) In light of the clear statutory mandate regarding school report cards, the reports involved here were an exception to the hearsay rule and could have been considered by both the Regional Board and the trial court.

The Illinois school report cards reflect that District No. 200 enjoys a higher graduation rate; higher percentage of graduating seniors going to college; higher student attendance rates; higher ACT scores in English, mathematics, and natural and social sciences; a lower student mobility rate; and a lower percentage of chronic truants. While petitioners assert that these results reflect a superior educational system, there was evidence, including testimony from the superintendent of District No. 200, that test scores by themselves, including ACT scores, are not the best measure of the quality of a school’s educational program because schools have different student bodies and other variables must be taken into account. It was pointed out, too, that the graduation rates shown on the report cards were not accurate because they did not take into consideration students who moved in and out of the districts during the year.

With regard to the variables that must be considered, Districts No. 33 and No. 94 were shown to have a higher population of minority students than District No. 200. Many of these students had to deal with significant language barriers, and, due to lack of family income, they needed to work to support themselves. These factors were viewed as responsible, at least in part, for the respondent school districts’ lower academic performance as reflected in the school report cards. However, District No. 94 had developed a highly successful program to decrease the Hispanic student dropout rate, Hispanics being the district’s largest minority population. Similarly, District No. 33 had developed a special program to identify and assist preschoolers with behavioral, social, or learning problems. Also, the superintendent of District No. 33 testified that group scores for the district in the last few years reflected that the district’s students were progressing at a rate of more than one grade level per year.

In terms of the overall quality of the education offered, it is evident that each of the school districts involved here has its advantages and its disadvantages, its strengths and its weaknesses. Where one district may have the edge in one aspect of the educational process, the other district will have the edge in some other aspect. Consequently, while students might secure a particular benefit in one district, they are likely to lose a different benefit they would have enjoyed in the other district. In our opinion, the academic differences between the districts balance out. We perceive no element of facilities, faculty, or programs which definitively tips the scale in favor of either District No. 200 or Districts No. 33 and No. 94. The Regional Board’s conclusion that the districts’ facilities are substantially similar is well supported by the evidence.

As for the second factor prescribed by the Carver court, witnesses for all three districts testified that detachment and annexation would not affect the respective districts’ ability to meet the statutory standards of recognition. No issue is raised regarding this factor.

The next criterion addresses the effects of detachment and annexation on the various districts’ tax revenues. The Regional Board found that detachment would not financially affect the respondent school districts so as to seriously interfere with their operations. Detachment and annexation inevitably result in the loss of assessed valuation and tax revenues in the district losing part of its territory. However, whether a detaching district will remain financially healthy and capable of meeting the statutory standards for recognition .is more important than the size of the loss of assessed valuation and tax revenues the district must bear. (Board of Education of Golf School District No. 67 v. Regional Board of School Trustees (1982), 89 Ill. 2d 392, 401.) As we mentioned, detachment and annexation will not affect the ability of any of the districts to meet statutory standards for recognition. The record is persuasive that the financial stability and status of Districts No. 33 and No. 94 will not be significantly impaired, either.

The record reflects that detachment would result in a 2.3% loss of assessed valuation in District No. 33 and 1.7% in District No. 94. In dollars, District No. 33 would lose about $196,000 a year and District No. 94 would lose about $101,000 a year. Petitioners point out that a loss of 2.4% of assessed valuation did not warrant reversal of an order for detachment in Board of Education of Avoca School District No. 37 v. Regional Board of School Trustees (1980), 82 Ill. App. 3d 1067. Plaintiffs respond that the district losing territory in Avoca was not taxing at its maximum rates and could increase those rates to make up for the loss. In contrast, according to plaintiffs, District No. 33 is levying at the maximum rate in every fund that has a rate limit.

While District No. 33’s ability to increase tax rates without a successful referendum is limited, the district is growing. The evidence shows that, in addition to residential construction, there are industrial and commercial projects under development or planned in the two districts. At least some of this development is apparently producing revenue. Based on all sources of revenue, District No. 33 was anticipating a 10% increase in revenue in the next fiscal year, for a total of $1 million, and District No. 94 was expecting an increase of $350,000. Neither district was operating at a deficit, although District No. 33 had reduced the budget in its education fund as a result of the defeat of its referendum.

While they acknowledged increases in revenue, the superintendents for both Districts No. 33 and No. 94 suggested that there probably would be a net loss due to increased expenses, and the revenue loss would result in changes or cutbacks in programs and/or increases in class size. However, the witnesses did not delineate any specific cuts which would be made. District No. 94’s superintendent indicated that only ancillary or cocurricular programs or services were likely to be negatively impacted. The District No. 33 school board president indicated that the Board had not focused on either program cuts or increased class sizes but was reviewing the overall financial status of the district.

In summary, neither District No. 33 nor District No. 94 is facing a financial crisis. Neither district is burdened with a significant deficit. While detachment will result in loss of revenue, the loss will be made up or, at the least, offset by increased revenues. None of the evidence points to the inevitability of a momentous detrimental effect on either district’s finances, or the corresponding programs and services offered by the districts, if detachment is allowed. This is not a case like Richmond v. County Board of School Trustees of Whiteside County, Illinois, Lyndon Community High School District No. 307 (1968), 93 Ill. App. 2d 142, an authority cited by the plaintiffs, where the present and prospective operating expenses of the district losing territory exceeded its current revenue, and the district was thereby placed in jeopardy. The Regional Board’s finding on this issue is not contrary to the manifest weight of the evidence.

The next factor regarding educational welfare concerns the relative distances of the pertinent schools from the students’ homes. There is no dispute that younger students from the petitioning territory will be closer to the new elementary school under construction in District No. 200. Those students currently must ride a bus two or three miles to Pioneer School. While some of the students would still have to be bussed to the District No. 200 school, others would be able to walk. They would not, however, have to cross any thoroughfares comparable to Route 59. The respondent school districts’ middle school and high school are closer to the petitioning territory than any District No. 200 facility, although students would be bussed in all districts.

In its order, the Regional Board made a finding only as to the greater accessibility of the District No. 200 elementary school, thus giving the proximity factor greater weight relative to elementary students than to older students. In Board of Education of Avoca School District No. 37 v. Regional Board of School Trustees (1980), 82 Ill. App. 3d 1067, elementary school children in the petitioning territory had to travel by bus 2V2 miles to the Avoca school, crossing dangerous, heavily traveled highways. These same children could walk to schools in the annexing districts, the average distance being 2xk blocks. At the same time, detachment would result in an increased distance to the junior high. The regional board had granted the petition for detachment. We agree with the Avoca court’s comments on these facts:

“Though the increased distance [to the junior high] may be undesirable by some standard, it is difficult to view as a detriment to the community the Regional Board’s election to have younger children traveling a shorter distance to and from elementary school and older children traveling the farther distance to junior high school.” (Avoca, 82 Ill. App. 3d at 1074.)

In our view, the Regional Board properly gave greater weight to the fact that elementary age students would be closer to school in District No. 200.

The remaining factors recited in Carver reflect concern for the whole child and the related concept of community of interest. The first of these concepts recognizes that participation in social, religious, and commercial activities is a beneficial supplement to the child’s involvement at school. (Golf, 89 Ill. 2d at 397; Davis v. Regional Board of School Trustees of Madison County, Worden Unit School District No. 16 (1987), 155 Ill. App. 3d 185, 191.) The latter concept pertains to whether the petitioning territory identifies with the school district to which it wishes to annex, as well as with the community in which the school district lies. Carver, 146 Ill. 2d at 356; Davis, 155 Ill. App. 3d at 191.

We note, initially, that the petition was executed by 190 of the 199 registered voters residing in the petitioning territory. This figure leaves no doubt that the petitioning parents would prefer to have their children in District No. 200 rather than Districts No. 33 and No. 94. Beyond their obvious preference, however, the petitioners presented substantial evidence that they identify with District No. 200 and the Warrenville community rather than the City of West Chicago and the respondent school districts.

Petitioners testified that their children participate in Girl Scouts and Boy Scouts, sports activities, and various community-sponsored programs in Warrenville; that they frequently use the Warrenville library; and that they are served by the Warrenville post office. They presented resolutions from the City of Warrenville, Warrenville public library, and the Round Grove park district in support of detachment and annexation. Much of petitioners’ day-to-day personal business is taken care of in Warrenville. When the detaching and annexing school districts are located in separate communities, a determination must be made regarding the natural gravitation of the petitioners to one or the other community. (Phillips v. Special Hearing Board (1986), 154 Ill. App. 3d 799, 805.) In Rhinehart v. Board of Education of Bloomington School District No. 87 (1971), 132 Ill. App. 2d 1078, 1083, the court cited Wheeler v. County Board of School Trustees of Whiteside County, Illinois, Jordan Community Consolidated School District No. 143 (1965), 62 Ill. App. 2d 467, noting particularly the Wheeler court’s emphasis on the concept that physical proximity and natural identification with the community have a direct bearing on students’ educational welfare.

Fox Hollow, including the petitioning territory, is geographically separated from the populated areas of West Chicago to the north, particularly by Fermilab property and the forest preserve. Petitioners testified they would not allow their children to visit their West Chicago schoolmates by themselves because they would have to travel north on Route 59, a four-lane State highway with a posted speed limit of 50 miles per hour. While there was testimony that some District No. 200 students also live east of Route 59, it is not clear where those students attend school. In any event, if detachment is granted, the younger students would attend a nearby school which also serves the other children in their neighborhood. They would be closer to their fellow students and could interact with them without fear for their safety.

Physically, Fox Hollow enjoys considerably easier access to areas of Warrenville to the south than it does to West Chicago. Although one resident of the petitioning territory, testifying against detachment, indicated that her family did not feel isolated from West Chicago, she was planning to move out of Fox Hollow into West Chicago due to a pending divorce. Even this witness testified that she drove her children when they needed to cross or travel on Route 59. She also agreed that Fox Hollow was physically isolated from Districts No. 33 and No. 94.

The petitioners’ physical proximity to and strong identification with the Warrenville community and District No. 200 should reasonably result in greater participation by both parents and children in school activities. Most particularly, it will be easier for elementary school pupils to get involved at a school located closer to their homes. While the junior high and high school students would be bussed, and thus would face similar problems with school activities in either district, it seems more likely they would be motivated to participate at a school their parents favor and actively support. It is even more likely this would be true if the parents themselves became active in the school, and it is far more likely parents will participate at the schools which serve and are an integral part of the community with which the parents most closely identify. In this case, detachment and annexation are likely to trigger significant participation in school affairs by both children and parents.

The picture that emerges from the entire body of evidence presented to the Regional Board is that, as the Board found, the opposing school districts offer equally fine educational programs. This factor, therefore, was entitled to little weight in the Board’s detachment decision. While the respondent school districts would lose some revenue, it would not be enough to affect seriously the quality of the education they provide. Too, because of the location of the petitioning territory, we can perceive no detrimental effect on the West Chicago community which, in large part, generates the students who attend Districts No. 33 and No. 94. On the other hand, proximity to the new District No. 200 elementary school and the current involvement of the petitioning area children and parents in the Warrenville community indicate that the overall education of the children would benefit by annexation to District No. 200. Absent substantial detriment to either school district, some benefit to the educational welfare of the students in the petitioning territory is sufficient to justify the granting of a petition for detachment and annexation. Carver, 146 Ill. 2d at 358; Board of Education of Jonesboro Community Consolidated School District No. 43 v. Regional Board of School Trustees (1980), 86 Ill. App. 3d 230, 233.

The Regional Board’s conclusion that the overall benefit to District No. 200 and the petitioning territory outweighs any detriment to Districts No. 33 and No. 94, as well as the surrounding community as a whole, is not contrary to the manifest weight of the evidence. When the evidence supports the regional school board’s decision, it is the duty of this court to affirm that decision. Board of Education of Lovington Community Unit School District No. 303 v. Maycroft (1980), 86 Ill. App. 3d 1130, 1133.

The final matter we must consider is the separate appeal filed by the Regional Board. The Board appeals from the trial court’s order barring it from participation in the administrative review proceedings. The lower court essentially found that the Board lacked standing. The Board now seeks to have the lower court’s order vacated and prays that it be allowed to participate in trial court proceedings in the event of a remand. Plaintiffs respond by asking not only that the trial court be affirmed but also that the Board be barred from being an advocate in this appeal and that its appellate brief be stricken. We find that we need not resolve these issues.

With regard to the Board’s standing to participate in the administrative review proceedings, we have already determined that the trial court’s judgment must be reversed and the Board’s decision affirmed. It follows that the matter will not be remanded. Consequently, we consider the issue moot.

Similarly, resolution of the question whether the Board had standing to prosecute an appeal is not necessary to our disposition of this matter. The trial court reversed the order granting detachment and annexation on the ground that the Regional Board’s decision was contrary to the manifest weight of the evidence. The petitioners, who clearly did have standing, fully and completely addressed all facets of the manifest weight argument in their appeal. Likewise, petitioners responded in their reply brief to the issues raised by plaintiffs in their cross-appeal. Hence, the substantive issues would have been resolved with or without the Board’s participation. Under the circumstances of this case it is immaterial whether the Board had standing to prosecute an appeal. Determination of this particular question is not necessary in order to dispose of the case before us. Nor would its determination have any effect on the outcome of the case. Accordingly, we decline to resolve the matter of the Board’s standing.

In accord with the reasons set forth above, the order of the circuit court of Du Page County is reversed, and the order of the Regional Board of Trustees granting the petition for detachment is affirmed.

Trial court reversed; Regional Board affirmed.

McLAREN and GEIGER, JJ., concur.