author: JUSTICE WOODWARD JUSTICE DOYLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDREW LINDSAY, Defendant-Appellant.
    Second District
    No. 2—91—0691
    Opinion filed May 28, 1993.
    Rehearing denied August 4, 1993.

      DOYLE, J., dissenting.
    G. Joseph Weller and Paul Alexander Rogers, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

A jury convicted defendant Andrew Lindsay of the second-degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9—2(a)(2)) of Judy North (the victim). The jury found by a preponderance of the evidence that, at the time defendant killed the victim by strangulation, he acted under the unreasonable belief that his conduct was necessary as self-defense (see Ill. Rev. Stat. 1989, ch. 38, pars. 9—2(a)(2), 7—1). The trial court sentenced defendant to an extended term of 30 years’ imprisonment, the maximum for second-degree murder, based upon its finding that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. Ill. Rev. Stat. 1989, ch. 38, pars. 1005—5—3.2(b)(2), 1005—8—2(3).

Defendant appeals his sentence, arguing that (1) the trial court abused its discretion in imposing the extended-term sentence, as the murder was not accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty; and (2) the trial court gave inadequate consideration to defendant’s rehabilitative potential.

Since the only issues raised in this case concern the sentence defendant received, only those facts relevant to the sentencing issues will be discussed in any great detail.

By way of background, it is undisputed that, on December 9, 1990, following an act of prostitution which the victim had solicited from the defendant, the defendant strangled the victim by pressing an electrical cord from his stereo against her neck. Defendant wrapped tape across the victim’s nose and mouth, placed her body in his landlord’s garbage cart and deposited the body in a manhole. We will now discuss the relevant trial testimony.

Dr. Eupil Choi, a certified forensic pathologist, testified about the autopsy and his findings therefrom. The victim was 5 feet 4 inches tall and weighed approximately 135 pounds. Upon viewing the victim, he noted that her nose and mouth were covered with brown surgical tape; her whole face was swollen with a purplish discoloration; and there were bands of discoloration on both sides of the front of her neck. The back of her neck was not discolored.

There was a small cut just below her right eyebrow and bruising on the right side of her forehead. The victim had “hemorrhagic changes” in both eyes. There were several bruises on both arms and scrapings on both sides of her knees.

Dr. Choi summarized the results of the internal examination he performed on the victim. There were two areas of hemorrhage in the temple area, as well as soft tissue hemorrhage in the neck area, including the esophagus, the tongue and the front neck area. The neck bone known as the soft thyroid cartilage was fractured.

Dr. Choi opined to a reasonable degree of medical certainty that the victim’s death was caused by strangulation. This opinion was based primarily on the purplish discoloration of her neck and face and the swelling of her face. The injury to the victim’s right eyebrow was the only open wound that Dr. Choi discovered. The bruising on the victim’s forehead indicated that she was in some way bumped at about the time she died.

Dr. Choi further testified that when he removed the tape from the victim’s mouth, he found nothing else (such as a gag) in her mouth. Fluid was continuing to drain from the victim’s mouth and nose. Dr. Choi could not be certain whether the tape was put on before or after the victim died. In general, strangulation of the type here causes death well within five minutes. However, a person could be alive after strangulation for some time. In such a case, blood draining from ruptured vessels could flow to the mouth and, if present in a sufficient amount, could suffocate the person. Under these circumstances, the tape over the victim’s mouth could have contributed to her death. According to Dr. Choi’s examination, the continuation of the fluid from the victim’s mouth and nose was perimortem, i.e., it occurred around the time that the death occurred.

Defendant gave three differing versions of the events surrounding the victim’s death. Prior to his trial, defendant first told police officers that after having sex with the victim, she asked him to go out and look for her girlfriend on Sheridan Road, which he did without success. As he was returning to his apartment, he noticed a black man putting a body in a hole in the alley in back of his apartment building. As the defendant watched, the man ran west. Defendant went to the hole in the alley, and by the light of his cigarette lighter, he saw the victim’s body in the hole; a cord and tape were wrapped around her neck. Near the hole was the defendant’s landlord’s garbage cart, containing a blue blanket. Defendant checked the body for a pulse and found none. He heard a noise of some sort and, fearing discovery, ran to his apartment, where he noticed that the lights and the television were on. Defendant asked his landlord to call the police; eventually, defendant got through to the police. Defendant then went to his apartment; afraid that the police might see his footprints at the scene, he removed his tennis shoes and threw them into the trash.

After further questioning by the police, defendant gave the following account. After defendant and the victim had sex, she asked him for $150 for her services. When he told her he did not have any money, she hit him. Defendant stood up on the couch; the victim kicked him in the testicles, knocking him to the floor, where she kicked him again.

The victim went to the bedroom and returned with a hammer. As defendant, still in a state of undress, tried to leave, she swung at him with the hammer twice. Both times she missed, but the second time she swung, she hit herself in the eye and fell. Defendant got on top of her to calm her down. The victim got up, struck him in the arm with the hammer and kept hitting him. She hit him in the testicles for the third time; he fell onto the floor and lay still.

As defendant lay on the floor, the victim tried to pull some rings off his fingers, but he pushed her aside. She grabbed a knife, swung at him but missed. Defendant threw her to the floor. Noticing an electrical cord lying on the floor, he wrapped it around the victim’s neck. She tried to hit him, but soon her arms fell to her sides. Defendant then reached for the telephone to call for help; as he did so, the victim started to hit him again. The defendant put pressure on the cord that was still wrapped around the victim’s neck. As she tried to get the cord off, defendant saw blood coming from her nose, and her arms went limp.

Defendant became afraid; he had not meant to kill the victim, only to make her unconscious. The victim was making noises; unable to stand the sound, defendant wrapped tape around her mouth. He checked for a pulse and found none. Scared, defendant dressed the victim and covered her with a blanket.

Defendant then went outside to find a place to put the victim. He saw the manhole and removed the cover. He went back to the apartment and dragged the victim, who was too heavy to carry, down the back steps. Spotting the garbage cart, defendant put the victim in the cart with a piece of wood in the back to keep the body from falling out. When defendant saw a vehicle in the area, he ducked down, returned to the apartment and came back with a blue blanket and two clear plastic bags. Defendant put the bags around the victim’s head, so as not to get blood on the blanket, covered the body with the blanket and pulled the cart down the alley to the open manhole. He put the victim in the manhole and put the piece of wood over the hole. Thinking he heard a noise, defendant ran back to his apartment with the blanket, plastic bags and the cart. He retrieved his tennis shoes, the spool of tape and a bandage from his apartment. He threw the tennis shoes in a trash can and the other items into a field. Later, he showed the police where he had put the items.

At trial defendant testified that prior to his arrest on the instant charge he had resided in North Chicago for about three months after completing his basic training in San Diego. Before enlisting in the Navy, he had lived in Beaver, Utah, with his wife and child. One week prior to the murder, his wife moved out because she was seeking a divorce. Defendant stated that he was 5 feet 9 inches tall and weighed about 130 pounds and that he had put on about 20 pounds since his arrest. Defendant then testified to the following version of the events surrounding the victim’s death.

According to the defendant, when the victim first propositioned him, he told her he had no money and could offer her only food and a place to stay. They returned to defendant’s apartment, where defendant fixed the victim a sandwich. Prior to the first act of sexual intercourse, defendant reminded the victim that he had no money, and the victim told him that it did not matter. However, after the second act of intercourse, the victim demanded a sum in excess of $100. When defendant reminded her that no money was to be involved, the victim became “really pissed off” and started hitting defendant’s face with her hand. As defendant, who was naked, tried to grab her arms, the victim kneed him in the testicles. After he fell to the floor in intense pain, the victim kicked him in the ribs and groin.

While defendant lay on the floor, the victim left the room and returned with a hammer. Defendant went to the back door and stood by it. The victim swung the hammer at him but missed, knocking a hole in the bottom corner of the window portion of the door. The victim swung the hammer again; the defendant grabbed her hands, and, although he did not see it, he believed that the hammer somehow hit the victim in her right eye, which began to bleed slightly. The struggle continued with the victim striking the defendant in the right shoulder with the hammer and again kicking him in the groin. Defendant lay on his side with his knees up unable to move his legs for 15 to 20 seconds.

The next thing defendant remembered was the victim trying to remove one of three gold rings he wore. Defendant pushed the victim into the kitchen. The victim picked up a steak knife with a blade 8 to 12 inches in length and told defendant she was going to kill him. As they struggled, the victim fell to the floor, dropping the knife, but she kept hitting the defendant. Defendant got on top of her, straddling her legs and struggling unsuccessfully to hold down her hands. It was then that he noticed that the cord to his stereo had become unplugged and was lying under the victim’s head or neck. He placed it around the victim’s neck and tightened it in an effort to stop her from hitting him, not to kill her.

The next thing he remembered was reaching for the telephone, although he did not know whom he would call. He loosened his grip on the cord; he did not think it was enough to choke the victim, although, as he recalled, the victim was gasping for air. As the victim began to hit him again, he tightened his grip on the cord. As before, he did not believe that tightening the cord would harm the victim. As the victim struggled to remove the cord, her face was red. She pushed him off her, and he loosened his grip on the cord. The victim did not move; defendant could not recall at trial whether her eyes were open.

Defendant looked at the victim for several minutes; he was frightened and did not know what to do. He could not tell if the victim was conscious. The victim was making noises “like a gasp for air”; however, he also stated that he “did not know what it sounded like.” Defendant saw blood running from the victim’s nose and, wanting to stop the flow, wrapped athletic tape around the victim’s head, covering her nose. At the time he did it, defendant did not think that the tape would eliminate any chance the victim had of surviving. He had not checked for a pulse before applying the tape. Defendant did not tape the victim’s mouth until after he took her from the apartment.

The defendant then got dressed. He checked the victim for a pulse and became scared when he found none. He did not know for sure at this point whether the victim was dead. He did not know what to do. Although he had a telephone in his apartment, it did not occur to him to call the police or for an ambulance. He walked downstairs to the alley and removed the cover from the manhole although, according to defendant, he was not yet looking for a place to dispose of the victim’s body. While standing in the manhole, he first thought of looking for a place outside of this apartment to put the victim. He still did not know if she was dead or alive. He still did not km / if he should call the police.

Back in his apartment, defendant placed a plastic bag over the victim’s face and a blanket over her. He placed the victim on the garbage cart and started pulling the cart. At some point he tried to take the tape off the victim’s face, but he could not explain why he did so. When he placed the victim in the manhole, defendant still did not know whether she was alive or dead.

Upon returning to his apartment, defendant could not bring himself to call the police because he feared they would not believe the account of his fight with the victim. He threw his tennis shoes away because he was afraid the police would see the shoe prints around his apartment; he did not know why he threw the tape away.

Defendant could not explain why he used his landlord’s telephone instead of his own to call the police. He thought up the burglary story which he told his landlord and repeated to the police. Because he wanted the police to find the victim, defendant urged them to inspect the manhole.

When cross-examined about the fight with the victim, defendant admitted that he did not suffer any bruises. Although at the beginning of the fight the victim was too strong for him to hold onto, he was able to get her down on the floor after she came at him with the knife. He admitted that he never shouted for help and never called the police or an ambulance until after the victim was in the manhole.

Ron Moss, a counselor at defendant’s high school, testified that defendant had a reputation as a peaceable person. Brenda Geater, a longtime acquaintance of the victim’s, testified to an incident in which she was physically attacked by the victim.

The parties stipulated to testimony that at the time of her death, the victim’s blood-alcohol level was 0.193%, well above the 0.1 level at which intoxication is presumed under the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 11—501) and that a blood sample from the victim revealed that she had ingested cocaine shortly before her death.

In rebuttal, there was testimony that the electrical cord recovered from defendant’s apartment was tied at both ends.

The jury convicted defendant of second-degree murder. The cause proceeded to a sentencing hearing. The State urged the court to impose an extended-term sentence on the ground that the murder was accompanied by exceptionally brutal and heinous conduct indicative of wanton cruelty (see Ill. Rev. Stat. 1991, ch. 38, pars. 1005—5—3.2(b)(2), 1005—8—2(3)). The prosecution noted that defendant, by his own admission, put the victim into a sewer hole without seeking help, even though, at that point, he did not know whether she was still alive. Before removing her body, he failed to seek help even after she was gasping for air and was no longer a threat to defendant. The State maintained that this demonstrated defendant’s lack of mercy or compassion.

In response, defense counsel maintained that, because the jury found by a preponderance of the evidence that defendant killed the victim out of a genuine although unreasonable belief in the need for self-defense, the trial court was barred from finding that the offense was accompanied by exceptionally brutal or heinous behavior. Defense counsel argued that defendant’s reaction to what he had done showed no brutality or a lack of compassion, but the predictable panic of a young man, without a violent past, who killed the victim out of fear. Defense counsel also argued that, after defendant called the police, defendant led the police to the hole where he had buried the victim’s body; this demonstrated that defendant felt at least some remorse over his conduct.

The trial court sentenced defendant to 30 years’ imprisonment, the maximum under the extended-term provision. In explaining his decision, the judge noted that defendant had been dishonorably discharged from the Navy because of his antisocial personality and poor impulse control. Also, defendant had been subject to discipline several times while in jail pending trial and judgment. Moving to a discussion of the specific factors in aggravation (see Ill. Rev. Stat. 1991, ch. 38, par. 1005—5—3.2) the judge stated, in part:

“As to the question of extended term *** I find that this offense was brutal and heinous and indicative of wanton cruelty. *** [T]he jury has found there to be a mitigating factor of self-defense reducing this from first degree murder to second degree murder.
However, the following facts stand out loud and clear: First of all, that he strangled Judy North not once but twice. As she went unconscious after she was strangled the first time and when she revived and regained consciousness, [defendant] strangled her again until he noticed that her arms dropped and she became limp. Then, after he had done this, *** he heard from her mouth a gasp of air, and notwithstanding that he heard a gasp of air, he gagged her. He taped her mouth and nose, which would have made completely impossible any chance that she would have survived.
Then *** not knowing if Judy were dead or alive, he proceeded to take her in her gagged state to a storm sewer *** and stuffed her in the storm sewer not knowing if she was dead or alive. He then covered up what he had done by making a false report to the North Chicago Police Department.
I do find the whole scenario involved here of strangling Judy North twice until her arms dropped limp to her side, and then, as she gasped for air, according to the defendant’s own testimony, taping her mouth and nose, and then not knowing if she were alive or dead, taking her to a storm sewer, stuffing her into that sewer and leaving her unattended and unaided in that storm sewer, I do find all of that indicative of brutal and heinous conduct indicative of wanton cruelty.”

Defendant appealed without moving at the trial level for reconsideration of the sentence. By failing to file a post-sentencing motion, defendant has waived his sentencing arguments on appeal. (People v. Pasch (1992), 152 Ill. 2d 133, 216; People v. Fort (1992), 229 Ill. App. 3d 336, 339-40; People v. Macke (1992), 224 Ill. App. 3d 815, 816.) However, we may, in our discretion, consider plain error or defects affecting substantial rights. 134 Ill. 2d R. 615(a).

We have held that the imposition of an extended-term sentence is reviewable as plain error. (People v. Lighthall (1988), 175 Ill. App. 3d 700, 705.) Here, the finding that defendant was eligible for an extended term affected substantial rights, as it enabled the court to impose a sentence twice the normal maximum. (See Ill. Rev. Stat. 1989, ch. 38, pars. 1005-8-l(a)(4), 1005-8-2(a)(4).) Defendant’s challenges to his sentence have merit. In the interests of justice, we disregard the waiver rule.

We first consider whether the trial court abused its discretion in imposing an extended term on the ground that the offense was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty. Defendant’s attack on this finding is two-pronged. He argues that (1) People v. Evans (1981), 87 Ill. 2d 73, forecloses any finding that a murder committed under an unreasonable belief in the need for self-defense was accompanied by exceptionally brutal and heinous conduct; and (2) even if Evans establishes no such per se rule, the evidence was insufficient to show that defendant’s crime was accompanied by exceptionally brutal and heinous conduct.

We do not agree that Evans forecloses a finding of exceptionally brutal or heinous- behavior in any case where the defendant has been convicted of second-degree murder based on an unreasonable belief in the need for self-defense. However, we agree with defendant that, under the facts of this case, the trial court abused its discretion in concluding that the defendant’s actions were accompanied by exceptionally brutal and heinous conduct indicative of wanton cruelty. Therefore, we reverse the imposition of the extended-term sentence.

We first explain why we do not believe that a conviction of second-degree murder (formerly voluntary manslaughter) based on an unreasonable belief in self-defense is necessarily inconsistent with a finding of exceptionally brutal and heinous behavior. We begin with the relevant statutory language.

A defendant commits second-degree murder when he commits first-degree murder with a mitigating circumstance present, e.g., “[a\t the time of the killing, he believes the circumstances to be such that, if they existed, would justify or exonerate the killing [as the use of force in defense of person], but his belief is unreasonable.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 9—2(a)(2); see Ill. Rev. Stat. 1989, ch. 38, par. 7—1.) A trial court may impose an extended-term sentence if it finds properly that “the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—3.2(b)(2); see Ill. Rev. Stat. 1989, ch. 38, par. 1005—8-2.

The definition of second-degree murder focuses on the defendant’s state of mind at the time of the killing. However, the statutory provision for aggravation instructs the sentencing court to consider whether the offense was accompanied by exceptionally brutal and heinous behavior. The former provision relates to the defendant’s motivation or subjective belief at the time of the killing, but the latter enables the court to consider more than the act on which criminal liability is based. The sentencing judge is to consider the defendant’s state of mind at all relevant times, including after the commission of the act making the offense complete. As one opinion states aptly, “in evaluating the brutality and heinousness of an offense, the entire spectrum of facts surrounding the given incident must be analyzed and evaluated.” People v. Devine (1981), 98 Ill. App. 3d 914, 925, cert, denied (1982), 458 U.S. 1109, 73 L. Ed. 2d 1371, 102 S. Ct. 3490; see also People v. Smallwood (1984), 102 Ill. 2d 190, 197; People v. Jones (1992), 236 Ill. App. 3d 244, 251; People v. Grady (1982), 107 Ill. App. 3d 970, 977; People v. Schlemm (1980), 82 Ill. App. 3d 639, 650-51.

Several cases illustrate that an offense may be accompanied by exceptionally brutal and heinous behavior , even though a narrow focus on the commission of the offense itself would not necessarily disclose such behavior (or the wanton cruelty of which such behavior is indicative). In Smallwood, the defendant was convicted of two counts of armed robbery and one count of aggravated battery, receiving an extended sentence on the first armed robbery conviction. The trial court found that the armed robbery was accompanied by exceptionally brutal and heinous behavior, i.e., the shooting of a victim whom the defendant had already robbed at gunpoint. The supreme court held that the trial court did not err in finding that the gratuitous shooting accompanied the armed robbery. The court observed that in many cases “the exceptionally brutal and heinous behavior necessary to authorize the imposition of an extended-term sentence will itself constitute another separate offense, as in this case.” (Smallwood, 102 Ill. 2d at 195.) The court upheld the trial judge’s finding of fact that the shooting accompanied the armed robbery, even though the armed robbery was complete before the shootings. Smallwood, 102 Ill. 2d at 196.

In People v. La Pointe (1981), 88 Ill. 2d 482, the supreme court upheld a finding that the shooting of an unarmed taxicab driver was accompanied by exceptionally brutal and heinous behavior. The court emphasized not only that the offense was premeditated but also the defendant’s callous attitude and lack of remorse after the crime. See also People v. Nelson (1991), 206 Ill. App. 3d 956, 965-66 (in finding that the murder of which defendant was convicted was accompanied by exceptionally brutal or heinous behavior, trial court properly considered that, after the defendant shot his 16-year-old stepson, the defendant kicked the victim, walked out of the apartment where the victim lay dying, and later told the police that he had done society a favor by killing the victim); People v. Hickman (1986), 143 Ill. App. 3d 195, 206 (noting that both defendant’s premeditation and his subsequent lack of any penitent spirit supported the trial court’s finding of exceptionally brutal and heinous behavior); People v. Schlemm (1980), 82 Ill. App. 3d 639 (concealment or dismemberment of murder victims’ corpses may constitute exceptionally brutal and heinous behavior).

Defendant argues, however, that People v. Evans (1981), 87 Ill. 2d 77, established a per se rule that a conviction of second-degree murder (then voluntary manslaughter) based on an unreasonable belief in the need for self-defense is legally inconsistent with a finding that the offense was accompanied by exceptionally brutal and heinous behavior. We do not read Evans so broadly. Evans does not negate the above-noted distinction between the defendant’s mental state at the time of the killing and the totality of the circumstances surrounding the offense. Thus, Evans does not automatically shelter one who murders under an unreasonable belief in the need for self-defense from a finding that the murder he committed was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. Rather, as we read Evans, that decision shelters only those of defendant’s relevant actions that were in fact committed under a belief in the need for self-defense.

In Evans, the defendant was convicted of voluntary manslaughter based on an unreasonable belief in the need for self-defense. The defendant did not intend to shoot the victim (Wilson); rather, he killed Wilson with a stray bullet intended for a third person (Davenport) whom the defendant believed was a threat to his own bodily safety. In convicting the defendant of voluntary manslaughter, the jury found that this belief was genuine but objectively unreasonable. The trial court imposed an extended sentence, based on its finding of exceptionally brutal and heinous behavior indicative of wanton cruelty.

In disapproving the extended sentence, the supreme court held that the defendant’s actions toward the victim were not indicative of wanton cruelty. Noting the defendant’s subjective belief in the need to defend himself, the court stated that, “[ijnasmuch as Wilson was an unintended victim and none of Evans’ actions were directed toward Wilson, *** the voluntary manslaughter offense was not accompanied by exceptionally brutal or heinous behavior indictive [sic] of wanton cruelty.” (Evans, 87 Ill. 2d at 87.) Furthermore, the defendant could not be sentenced to an extended term for the aggravated battery against Davenport. The court explained:

“In our opinion, actions committed under a subjective belief, albeit unreasonable, that the actions were in self-defense do not constitute wanton cruelty. As the appellate court noted, section 5 — 8 — 2 of the Unified Code of Corrections was not intended to convert every offense into an extraordinary offense subject to an extended-term sentence. [Citation.] Because the evidence indicated that all Evans’ actions toward Davenport were committed under the belief, although unreasonable, that he was acting in self-defense, we cannot say the aggravated battery offense was accompanied by wanton cruelty.” (Emphasis in original.) Evans, 87 Ill. 2d at 88-89.

This language does not impose a blanket rule that offenses motivated by a perceived need for self-defense may never be accompanied by conduct indicative of wanton cruelty. The Evans outcome was fact-specific, as can be seen by the court’s emphasis on the fact that all of the defendant’s actions were done under the belief in the need for self-defense. Where all of a defendant’s relevant actions must be so characterized, it follows logically that the trial court may not rely on any of the defendant’s relevant actions to support a finding of exceptionally brutal and heinous behavior and, thus, that an extended-term sentence is not permissible on this ground. However, in a given case, it is not necessarily true that all of the defendant’s relevant actions, whether before, during, or anytime after the murderous act, were committed under the belief in the need for self-defense.

We conclude that Evans does not establish a per se rule that a murder committed under the unreasonable belief in the need for self-defense cannot be accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty. (See People v. Chavez (1992), 228 Ill. App. 3d 54.) We discuss now whether the trial court erred in finding that the murder in this case was accompanied by such behavior. Based on recent case law giving this aggravating factor a very narrow construction, we conclude that the extended sentence was an abuse of discretion.

Whether to impose an extended-term sentence based on a finding of exceptionally brutal and heinous behavior is committed to the discretion of the sentencing court. (People v. Andrews (1989), 132 Ill. 2d 451, 464; People v. Perruquet (1977), 68 Ill. 2d 149, 153-54.) However, section 5—5—3.2(b)(2) of the Unified Code of Corrections was not intended to convert every offense into an extraordinary offense deserving of an extended sentence. (See Evans, 87 Ill. 2d at 88-89; People v. Price (1987), 158 Ill. App. 3d 921, 929.) As our supreme court has stated, all murders are brutal and heinous, as well as unnecessary, to some degree; section 5—5—3.2(b)(2) requires that the offense at issue be accompanied by exceptionally brutal and heinous behavior. (Andrews, 132 Ill. 2d at 465-66.) The stringency of this standard accounts for the extraordinary readiness with which courts of review have in recent years found that trial courts abused their discretion in imposing extended-term sentences on this ground. See, e.g., People v. Andrews (1989), 132 Ill. 2d 451, 464; People v. Curtis (1990), 207 Ill. App. 3d 628; People v. Fields (1990), 198 Ill. App. 3d 438, 442-45; People v. Bedony (1988), 173 Ill. App. 3d 613, 620-22; People v. Price (1987), 158 Ill. App. 3d 921, 929-30; People v. Gil (1987), 155 Ill. App. 3d 436, 439.

As one scholarly commentator has demonstrated, drawing the line between conduct that is “exceptionally brutal or heinous” (emphasis added) and that which is “merely” brutal and heinous is one of the most difficult and unclear tasks in criminal law. (See Johnston, Problems in Imposing Extended-Term Sentences under Section 55—3.2(b)(2) of the Unified Code of Corrections, 25 J. Marshall L. Rev. 491 (1992) (hereinafter Johnston).) The Illinois Supreme Court has defined “brutal” as “ ‘grossly ruthless,’ ‘devoid of mercy or compassion: cruel and cold-blooded,’ ” and “[h]einous” as “ ‘hatefully or shockingly evil: grossly bad: enormously and flagrantly criminal.’ ” (La Pointe, 88 Ill. 2d at 501, quoting Webster’s Third New International Dictionary 286, 1050 (1986) (unabridged); see also Andrews, 132 Ill. 2d at 454-55.) There is no requirement that a murder involve torture or the infliction of unnecessary pain to qualify as “exceptionally brutal or heinous.” (La Pointe, 88 Ill. 2d at 501; Price, 158 Ill. App. 3d at 929.) However, in construing section 9—1(b)(7) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 9—1(b)(7)), which allows for capital punishment where the death of a victim under 12 years of age “resulted from exceptionally brutal or heinous conduct indicative of wanton cruelty,” the supreme court has held that this aggravating factor does not apply unless the murder is accompanied by either prolonged pain or torture or premeditation. People v. Tye (1990), 141 Ill. 2d 1, 32; People v. Lucas (1989), 132 Ill. 2d 399, 445-46.

Similarly, the presence or absence of premeditation is among the most crucial considerations courts have brought to the application of section 5 — 5 — 3.2(b)(2) of the Unified Code of Corrections. These factors include (1) deliberation, premeditation or the lack thereof (compare, e.g., La Pointe, 88 Ill. 2d at 501; People v. Mays (1992), 230 Ill. App. 3d 748, 760-61; and Hickman, 143 Ill. App. 3d at 205-06, with Andrews, 132 Ill. 2d at 466; and Fields, 198 Ill. App. 3d 438); (2) whether the defendant exhibited any remorse for his crime (compare La Pointe, 88 Ill. 2d at 501; People v. Waldron (1991) , 219 Ill. App. 3d 1017, 1046; and Nelson, 206 Ill. App. 3d at 966, with Andrews, 132 Ill. 2d at 466; People v. Price (1987), 158 Ill. App. 3d 921, 930; and People v. Kane (1986), 140 Ill. App. 3d 928, 931); (3) the amount of force used, including the infliction of torture, sadism, threats, emotional trauma and wholly gratuitous violence (see Andrews, 132 Ill. 2a at 465-66; Moore, 159 Ill. App. 3d at 1072-74; People v. Jackson (1984), 122 Ill. App. 3d 166, 170); and (4) the defendant’s age and the extent and seriousness of his criminal record (see Andrews, 132 Ill. 2d at 465-66; Waldron, 219 Ill. App. 3d at 1046; Price, 158 Ill. App. 3d at 930). See also Johnston, 25 J. Marshall L. Rev. at 506-19.

After careful consideration, we conclude that this case is far more akin to those in which reviewing courts have reversed findings of exceptionally brutal and heinous conduct than those in which such findings have been upheld. In concluding that defendant’s actions were within section 5 — 5 — 3.2(b)(2), the trial court focused primarily on (1) defendant’s having strangled the victim twice with the electrical cord; (2) the taping of the victim’s mouth and nose; and (3) defendant’s indifference, even after he had rendered the victim helpless, to whether the victim lived or died. As brutal and revolting as defendant’s actions were, we believe that the trial court erred in holding that defendant’s offense was accompanied by exceptionally brutal and heinous behavior.

Given the jury’s verdict and the trial testimony, we must assume that defendant undertook both acts of strangulation under the unreasonable belief in the need for self-defense. Thus, however grisly, these acts cannot support a finding of exceptionally brutal and heinous conduct; one who kills under a genuine although unreasonable belief in the need for self-defense cannot be said, on this basis alone, to have acted with wanton cruelty. (Evans, 87 Ill. 2d at 88.) The sentencing court did not have to accept defendant’s account of why later he put tape over the victim’s mouth and nose; however, the State’s medical testimony was that this action and its consequences probably occurred at or very near to the time of the victim’s death. Thus, this action does not provide a basis for finding prolonged torture or extraordinary gratuitous pain. See People v. Lucas (1989), 132 Ill. 2d 399, 446.

The final and most difficult consideration is that, even after the victim was subdued and helpless, defendant displayed a conscious indifference to her fate. By his own account, defendant applied the tape to the victim’s face after she was no longer an apparent threat to his safety. He then dumped the victim into the manhole without knowing for sure whether she was alive or dead. At no time after the victim was unconscious did defendant call for help. The trial court was entitled to conclude that, even though the jury found that defendant was acting under a belief in the need for self-defense when he inflicted the murderous strangulation wounds, defendant was no longer acting under this belief when he took further actions against a helpless victim after the crime of second-degree murder was complete.

Nonetheless, we cannot say that the “ ‘left for dead’ factor” (Johnston, 25 J. Marshall L. Rev. at 509) supports a finding of exceptionally brutal and heinous conduct. Indifference or hostility to the survival of the victim is inherent in the crime of murder. (Andrews, 132 Ill. 2d at 465-66; People v. Gil (1987), 155 Ill. App. 3d 436, 439.) In Andrews, the defendant, without provocation of any sort, shot an unarmed and defenseless victim to death, even though the victim’s death was not necessary to the robbery that the defendant was helping to commit. Nonetheless, the supreme court reversed a finding that this first-degree murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.

We simply see no rational basis to reconcile a holding that such conscious disregard for the life of a defenseless victim in a case of first-degree murder should not be a sufficient basis for an extended term (as Andrews, which is of course binding on this court, held) ■with a holding that conscious disregard for the life of the victim should be a sufficient basis for an extended term here. As has been noted, the “ ‘left for dead’ factor is perplexing because, in most instances, such as murder, attempted murder or manslaughter, it would seem very unlikely for the defendant to attempt to render aid to the victim.” Johnston, 25 J. Marshall L. Rev. at 509.

The remaining factors commonly considered under section 5— 5 — 3.2(b)(2) also militate against the extended-term sentence. Although the trial court noted defendant’s prior convictions of burglary to a vehicle and theft, the court did not consider these convictions in imposing the extended sentence. Even had the court done so, the limited and nonviolent character of these offenses would scarcely bolster a finding of wanton cruelty on the part of defendant, who was 19 years old at the time of the crime. Although defendant initially lied to the police about the incident, he soon thereafter led the police to the body, revealed other hidden evidence to the police, and verbally expressed at least a measure of regret about the killing at the interview with Sergeant Holderbaum and at his allocution. As noted, the jury’s verdict of second-degree murder negates any reliance on the factor of premeditation.

We have examined the cases cited by the State in its three-page argument, and we conclude that these cases are either irrelevant or clearly distinguishable.

We hold that the trial court abused its discretion in imposing an extended sentence based on a finding of exceptionally brutal and heinous behavior. Pursuant to Supreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4); see Fields, 198 Ill. App. 3d at 444-45), we reverse the imposition of the extended sentence and reduce defendant’s sentence to 15 years’ incarceration, the maximum for second-degree murder.

Defendant’s second argument on appeal is that the sentencing court failed to give adequate consideration to such mitigating factors as defendant’s youth, his difficult family background, his relatively limited criminal record, his attempts to educate himself and to support his family, and his prospects for rehabilitation and reintegration into society.

Inasmuch as defendant’s extended-term sentence has been reversed, we conclude that the trial court did not otherwise abuse its discretion in weighing the factors in aggravation and mitigation. A trial court is not required to place greater weight on the defendant’s potential for rehabilitation than on the seriousness of the offense. (People v. Fort (1992), 229 Ill. App. 3d 336, 342; People v. Mack (1985), 133 Ill. App. 3d 788, 793.) Even where a defendant’s actions do not merit a finding of exceptionally brutal and heinous behavior, the circumstances that the trial court erroneously relied upon to impose an extended sentence may suffice to uphold the imposition of the maximum sentence. People v. Bedony (1988), 173 Ill. App. 3d 613, 621-22.

The offense sub judice was indeed serious and brutal, even accepting the defendant’s entire version of the incident. We note that this version, although credited at least partially by the jury, was in many respects impeached or inherently implausible. For example, defendant’s account of the strangulation was inconsistent with the testimony of the police that, when they searched defendant’s apartment, they found that the cord used to strangle the victim had been knotted at both ends; defendant’s account of the attacks the victim made upon him is undercut by the officers’ testimony that defendant appeared “normal” when the police arrived; and defendant’s assertion that the victim somehow injured herself with the hammer she was swinging is unworthy of credence. For one supposedly in a state of terror, defendant also showed considerable planning in disposing of the body. However, even were the sentencing court or this court required to accept defendant’s testimony in toto, the seriousness of the offense would merit the imposition of the maximum sentence.

Defendant also emphasizes his youth and his prospects for rehabilitation. However, as the appellate court recognized over 15 years ago, “[t]he day is past when this court, or any court, should quiver like a pole-axed blancmange at the mention of youth and rehabilitation.” (People v. West (1977), 54 Ill. App. 3d 903, 909; see also People v. Generally (1988), 170 Ill. App. 3d 668, 677.) In any event, the trial court had ample reason to take a dim view of defendant’s potential for rehabilitation. As defendant admits, he had prior convictions, albeit of nonviolent offenses, in Utah; he had been penalized for violent conduct while in jail; and he had been dishonorably discharged from the Navy because of his antisocial personality. Defendant’s own character witness, Ron Moss, called him a “natural liar.” The sentencing court legitimately took these facts into account. The court imposed an extended sentence of 30 years; had it not imposed the extended sentence, the court would have imposed the maximum 15 years’ nonextended sentence. We cannot say that such a sentence is excessive.

As the defendant does not appeal his conviction of second-degree murder, that conviction is affirmed. Defendant’s sentence is reduced from 30 years’ imprisonment to 15 years’ imprisonment.

Affirmed as modified.

GEIGER, J., concurs.

JUSTICE DOYLE,

dissenting:

I agree with the majority conclusion that a murder committed under the unreasonable belief in the need for self-defense may nonetheless be accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. I respectfully disagree, however, with the holding that the trial judge abused his discretion in finding that the murder in this case was accompanied by such behavior.

The majority may have confused, in part, the determination of whether the behavior may be characterized as exceptionally brutal or heinous with the separate question of whether the sentence was excessive in light of the totality of aggravating and mitigating factors. A trial court’s finding that the crime has been accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty permits but does not require it to consider imposing an extended-term sentence. (See People v. Frey (1984), 126 Ill. App. 3d 484, 487; Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—3.2(b); Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—2(2).) Section 5 — 5 — 3.2(b)(2) specifically refers to “the offense” of which the defendant was convicted. It seems to follow, therefore, that any determination of whether the offense has been accompanied by exceptionally brutal or heinous behavior must be limited to an examination of a defendant’s actions surrounding the commission of the offense as opposed to the various other factors of aggravation and mitigation. Yet, in an effort to explain the apparent conclusion that the sentence was excessive, the majority refers to the defendant’s age and nonviolent criminal record as if those factors are relevant to the issue of how defendant acted while committing the crime. The product of this hybrid analysis of separate issues is unfortunately a distorted concept of what constitutes exceptionally brutal or heinous behavior.

Even regarding, for these purposes, defendant’s conduct in twice strangling the victim with an electrical cord because he believed, albeit unreasonably, that such conduct was justifiable under principles of self-defense, defendant’s continued methodical infliction of lethal force against this helpless victim is, in my view, a fair illustration of what is meant by “exceptionally brutal or heinous behavior indicative of wanton cruelty.” The trial court found that after the victim became limp from the second strangulation defendant heard her gasp for air and responded by applying athletic tape to her mouth and nose, making “completely impossible” any chance for survival. Then, according to defendant’s testimony, he placed a plastic bag over the victim’s face and hauled her on a garbage cart to a manhole where he placed the victim in a sewer, not knowing whether she was alive or dead. It is evident that these acts were performed with at least some degree of deliberation.

I consider such conduct to exceed what the majority refers to as mere “indifference to the survival of the victim.” “In evaluating the brutality and heinousness of an offense, the entire spectrum of facts surrounding the given incident must be analyzed and evaluated.” (People v. Grady (1982), 107 Ill. App. 3d 970, 977.) Heinous or brutal behavior toward the victim can occur even after the victim is dead. People v. Devine (1981), 98 Ill. App. 3d 914, 925.

I further disagree with the majority’s assessment that the facts of the present case are more akin to those cases in which reviewing courts have reversed findings of exceptionally brutal and heinous conduct than those in which such findings have been upheld. I am concerned that today’s decision may leave trial judges lost at sea in performing the sometimes difficult task of identifying exceptionally brutal or heinous behavior indicative of wanton cruelty. It is my opinion that there was no abuse of discretion in the trial court’s sentencing determination.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    ALLIED AMERICAN INSURANCE COMPANY, Plaintiff-Appellee, v. VINCENTE ACOSTA AYALA, Defendant (Maria Dela Cruz, Indiv. and on Behalf of Her Minor Daughter, Brenda Dela Cruz, Defendant-Appellant; Milton Acosta et al., Defendants).
    Second District
    No. 2—92—1232
    Opinion filed July 9, 1993.
    Rehearing denied August 20, 1993.

      Erwin Cohn, of Cohn & Associates, of Chicago (Charles A. Cohn, of counsel), for appellant.
    Keely Truax, of Parrillo, Weiss & O’Halloran, of Chicago (Michael J. O’Halloran, of counsel), and Ferris & Zweig, Ltd., of Gurnee, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Maria Déla Cruz (Cruz), one of seven defendants, appeals from a declaratory judgment of the circuit court of Lake County. Plaintiff, Allied American Insurance Company, brought the declaratory judgment action to determine its liability in an underlying personal injury suit arising from an automobile accident. Cruz brought the personal injury suit individually and on behalf of her minor daughter who was injured in the accident. The judgment Cruz appeals from declared that plaintiff, which had issued an insurance policy to the owner of the vehicle involved in the accident, had no duty to defend or indemnify two of the declaratory judgment defendants, had no duties under the policy in question with respect to the accident, and that the policy was void.

On appeal, Cruz contends that: (1) the declaratory judgment was void because the trial court did not have jurisdiction over all the necessary parties; (2) conflicts of interest estopped plaintiff from denying coverage; (3) plaintiff’s failure to notify certain defendants that they were being defended under a reservation of rights estopped plaintiff from denying coverage; (4) plaintiff’s acceptance of an application signed by its agent but not the applicant estopped plaintiff from denying its liability under the policy on the grounds of misrepresentation; and (5) the trial court’s finding of misrepresentation was against the manifest weight of the evidence.

The facts are as follows. Plaintiff issued an automobile insurance policy (the policy) to defendant, Vincente Acosta Ayala (Ayala), to cover Ayala’s car for the period from January 1, 1991, through January 1, 1992. Plaintiff issued the policy pursuant to an “Application for personal auto policy” (the application), dated December 31, 1990, which was incorporated into the policy. Ayala did not sign the application. The only signature on the application was that of one of plaintiff’s producers, Arne Redman. Ayala’s son, defendant Milton Acosta, a/k/a Melliton Acosta (Acosta), testified that he telephoned someone (presumably Redman) for his father as his father’s interpreter in order to get insurance for his father’s car. During the telephone call, Acosta supplied the information requested in order to complete the application.

Acosta testified that he answered the questions asked of him by the person he called to get insurance. He testified that he told the man there were seven children, including himself, living in the household with Ayala. He testified that he told the man he drove the car once or twice a week to his job.

Plaintiff accepted the application with Redman’s signature but without Ayala’s signature. Plaintiff subsequently sent an automobile insurance policy to Ayala. The policy Alaya received included a copy of the application. The application shows the named insured as Vincente A. Ayala. The section of the application calling for the “Names of all drivers” contains information about only Ayala. The application shows the answer to a question asking whether there are “any children in the household who are not listed on the application” as a circle which encompasses both the yes and no answers, and no children are listed in the remarks section or anywhere else on the application.

On March 25, 1991, Acosta had his father’s permission to use the car to drive to work. On that date, Acosta gave permission to defendant Elmer Gonzalez (Gonzalez) to drive the car. While Gonzalez was driving, the car was involved in an accident purportedly resulting in injuries to defendant Brenda Déla Cruz (Brenda), a passenger in the car at the time of the accident. Brenda, as a minor represented by her mother, Cruz, was a named plaintiff in the underlying personal injury suit brought against Ayala, Acosta and Gonzalez. The seven defendants in the declaratory judgment case were: Cruz, Brenda, Ayala, Acosta, Gonzalez, Elias Cocom and Leila Lamothe (Cocom and Lamothe are not involved in this appeal).

On July 28, 1992, after a bench trial, the trial court entered a judgment which stated, inter alia, “Judgment is entered in favor of plaintiff and against defendants Elias Cocom, Leila Lamothe, Elmer Gonzalez, Vincente Acosta Ayala, Milton Acosta, Melliton Acosta and Maria Cruz.” Cruz filed an appeal from this judgment order.

Plaintiff filed a post-trial motion to modify the July 28, 1992, judgment order. Plaintiff’s motion stated that the judgment order did not declare the rights and duties of the parties and that plaintiff was unsuccessful in its attempts to serve summons on Gonzalez despite diligent efforts, including the services of a private investigator.

On September 15, 1992, pursuant to plaintiff’s post-trial motion, the trial court vacated the final paragraph of the earlier judgment order (quoted above) and modified the paragraph as follows:

“1. The final paragraph of this Court’s judgment order of July 28, 1992 is hereby vacated; and this Court hereby enters declaratory judgment in favor of Allied American Insurance Company and against defendants, Vincente A. Ayala, Milton Acosta, Maria Déla Cruz, individually and on behalf of her minor daughter, Brenda Déla Cruz, Elias Cocom and Leila Lamothe as follows:
a. Under the policy issued to Vincente A. Ayala, Allied had no duty to defend or indemnify Milton A. Acosta and Elmer Gonzalez in the case of Brenda Déla Cruz, a minor, by her mother, Maria Déla Cruz v. Milton Acosta and Elmer P. Gonzalez, 91 L 868; and
b. Allied has no duties under said policy with respect to the accident of March 25, 1991 referred to herein; and,
c. Policy number 02366560 is void.
There is no just cause to delay enforcement or appeal of this order.”

After the trial court granted her motion to dismiss her first appeal, Cruz appealed from both the July 28, 1992, judgment order and the September 15, 1992, judgment order.

The first issue on appeal is whether the trial court had jurisdiction over all the necessary parties in the declaratory judgment action. The record shows that Gonzalez, the driver of the car at the time of the accident, was not served. Plaintiff made several attempts to serve Gonzalez and hired a private investigator to find him to no avail. A note on the comments section of the second alias summons issued for Gonzalez states “left the country.” No summons was issued for, nor any attempt made to individually serve, Brenda Déla Cruz, a minor passenger in the car who suffered injuries in the accident and was one of the named plaintiffs in the personal injury suit.

On appeal, Cruz contends that the declaratory judgment order, as modified, is void or manifestly erroneous because the trial court did not have jurisdiction over either Gonzalez or Brenda, both of whom, Cruz alleges, were necessary parties to the action. Cruz argues that the requirement to join a necessary party is absolute and any judgment entered without jurisdiction over a necessary party is void in its entirety. Cruz also contends that the trial court erred in not appointing a guardian ad litem for Brenda.

Plaintiff asserts that Cruz waived her rights to raise this issue with respect to both Gonzalez and Brenda. Alternatively, with respect to Gonzalez, plaintiff contends that a court may enter a declaratory judgment, service notwithstanding, if an insurer has made diligent efforts to serve the absent party. Alternatively, with respect to Brenda, plaintiff argues that service was sufficient and that a guardian ad litem was not necessary in this case.

An order entered without jurisdiction over an indispensable party is null and void if the indispensable party was not joined to the action. (Schnuck Markets, Inc. v. Soffer (1991), 213 Ill. App. 3d 957, 982.) Although Illinois has never adopted the term “indispensable party” in its Code of Civil Procedure statutes relating to joinder (Ill. Rev. Stat. 1991, ch. 110, par. 1—101 et seq.), Illinois courts frequently use the terms “indispensable party” and “necessary party” interchangeably. Safeco Insurance Co. v. Treinis (1992), 238 Ill. App. 3d 541, 545.

In a declaratory judgment action brought by an insurance company to determine its liability under one of its policies in an underlying vehicle accident claim, the driver of the vehicle is generally considered an indispensable party because a finding of no coverage would be injurious to the driver. (Northland Insurance Co. v. Hawk (1978), 59 Ill. App. 3d 155, 158.) Similarly, injured claimants are necessary parties to such a suit because they have a substantial interest in the viability of the policy. M.F.A. Mutual Insurance Co. v. Cheek (1977), 66 Ill. 2d 492, 495.

Because Gonzalez and Brenda were necessary parties to the declaratory judgment action but were not served, the question before us is whether the trial court judgment entered without jurisdiction over these absent necessary parties was void. We will first consider plaintiff’s arguments which apply to both absent parties, and we will then address arguments pertaining to each party individually.

Plaintiff contends that both Gonzalez and Brenda waived the right to object on the jurisdictional issue. Although plaintiff raises numerous arguments in support of its contention, plaintiff cites no authority for all but one of its arguments, and for that reason alone we could deem them waived. (Amp-Rite Electric Co. v. Wheaton Sanitary District (1991), 220 Ill. App. 3d 130, 166.) The one argument for which plaintiff cites some authority, plaintiff’s primary argument, is that defendants waived the right to object on the jurisdictional issue because defendants, by not raising the issue until closing arguments, did not make a timely objection.

It is well established that any party, or the court, sua sponte, may raise the issue of the absence of a necessary party at any time in the trial court, or for the first time in a reviewing court. (Oglesby v. Springfield Marine Bank (1944), 385 Ill. 414, 423; Zurich Insurance Co. v. Raymark Industries, Inc. (1986), 144 Ill. App. 3d 943, 946.) However, objections to nonjoinder not made until the final stage of a proceeding will receive little favor. (Burt v. Board of Education of Coal City Community Unit School District No. 1 (1985), 132 Ill. App. 3d 393, 397.) Courts should reject late objections, such as those made after judgments, unless the absent party was deprived of material rights without being heard or the absent party’s interests in the litigation are so interconnected with the appearing parties’ interests that the presence of the absent party is absolutely necessary. State Farm Mutual Automobile Insurance Co. v. Haskins (1991), 215 Ill. App. 3d 242, 245.

Here, Cruz raised her jurisdictional objections late in the proceedings. Cruz’ attorney first mentioned the jurisdictional arguments in his closing argument. Accordingly, we will reject these arguments unless the absent party was actually deprived of material rights or the absent party’s interests in the litigation are so interconnected with the interests of the parties who appeared before the court that the absent party’s presence is absolutely necessary. We will make separate determinations of this question for Gonzalez and Brenda.

We conclude that the trial court’s lack of jurisdiction over Gonzalez did not render the trial court judgment void. We base our conclusion on the following: (1) the trial court modified its judgment to delete Gonzalez’ name from the list of defendants that the judgment applied to, thereby limiting any deprivation of his material rights; and (2) Gonzalez’ interests in the litigation were not so interconnected with the interests of the parties who appeared that his presence was absolutely necessary. The primary interests of Gonzalez, the questions of permissive use and negligence, were not at issue in the declaratory judgment action. The primary interest of Ayala and Acosta in the declaratory judgment action, the question of misrepresentation, does not directly involve Gonzalez and could be fairly determined without his presence. Accordingly, we find that the trial court did not err when it entered its judgment without having jurisdiction over Gonzalez.

Before determining whether Brenda’s presence was absolutely necessary, we must determine whether, as plaintiff asserts, the trial court had jurisdiction over Brenda. We find that the trial court lacked jurisdiction over Brenda. As a necessary party to the action, the trial court could only obtain jurisdiction by service upon the minor herself or by publication of notice. (Bonnell v. Holt (1878), 89 Ill. 71, 77.) Plaintiff’s argument that substitution service was made on Brenda is without merit as the record clearly shows no summons was issued for Brenda individually. Plaintiff’s argument that Brenda was represented by her mother and therefore it was not necessary to join Brenda is also unavailing because the representation doctrine does not apply to minors. (In re Marriage of Vucic (1991), 216 Ill. App. 3d 692, 701.) Even if the court had obtained jurisdiction of Brenda, the judgment would be voidable because the trial court did not appoint a guardian ad litem for Brenda. In re Marriage of Strauss (1989), 183 Ill. App. 3d 424, 427.

This lack of jurisdiction over Brenda renders the trial court’s judgment void even though Cruz did not raise her objections until late in the proceedings. As Brenda was the injured party in the underlying tort action, the trial court judgment clearly deprived her of material rights -without being heard. In addition, Brenda’s presence was absolutely necessary because her interests are so interconnected with the interests of her mother, a party who was present. Without the underlying injury claim, there would be no need for the declaratory judgment action. Accordingly, we hold that the trial court erred when it entered its judgment without having jurisdiction over Brenda.

The next issue on appeal is whether the representation provided by plaintiff for Ayala, Acosta, and Gonzalez was improper due to conflicts of interest between plaintiff and these defendants (the negligence defendants) and among the negligence defendants so that plaintiff was estopped from denying coverage. Cruz contends that a conflict existed between plaintiff and the negligence defendants because plaintiff referred the defense of the negligence defendants to attorneys who knew plaintiff was providing a defense under a reservation of rights related to alleged material misrepresentations in the application which could render the policy void. Cruz reasons that under these circumstances there was a conflict between plaintiff and the negligence defendants because plaintiff’s real defense no longer turned on Gonzalez’ alleged negligence in operating the vehicle during the accident, but instead now turned on whether the policy was or was not void.

Cruz also contends that there was a conflict between Gonzalez and the other negligence defendants. Cruz asserts that the conflict arose because all Ayala and Acosta had to do to avoid liability for themselves was show that Gonzalez was not a permissive user or was not their agent.

Cruz argues that because of these two conflicts of interest plaintiff was required to advise the negligence defendants that they could obtain their own attorneys at plaintiff’s expense. Cruz maintains that because plaintiff did not so advise the negligence defendants, plaintiff was estopped from denying coverage under the policy.

Plaintiff contends that neither of these alleged conflicts existed. Plaintiff argues that the real question is not whether there was a conflict between it and the negligence defendants over whether the policy was void, but whether the issues in the declaratory judgment action it brought to determine coverage were the same as the issues in the underlying personal injury case. Plaintiff also argues that there was no conflict between Gonzalez and the other negligence defendants because it stipulated that Gonzalez was a permissive user and stated in open court that if the policy was not void it would cover all of the negligence defendants.

Our supreme court succinctly set out the general rule of estoppel with respect to liability insurance policy coverage disputes and an exception to the general rule when it said:

“An insurer taking the position that a complaint potentially alleging coverage is not covered by a policy which provides that the insurer has the right and duty to defend any claims brought against the insured cannot simply refuse to defend the insured. It must defend the suit under a reservation of rights or seek a declaratory judgment that there is no coverage. If the insurer fails to do this, it is estopped from later raising policy defenses to coverage and is liable for the award against the insured and the costs of the suit, because the duty to defend is broader than the duty to pay. [Citation.] But, [there is] an exception to the general rule. An insurer must decline to defend where there is a conflict of interest between it and the insured. [Citations.] Instead of participating in the defense itself, the insurer must pay the costs of independent counsel for the insured.” (Murphy v. Urso (1981), 88 Ill. 2d 444, 451-52.)

Another exception to the general rule applies when conflicts arise because an insurer is obligated to provide defenses for two or more insureds who have adverse interests, and, here again, outside counsel paid for by the insurer is required. Illinois Municipal League Risk Management Association v. Seibert (1992), 223 Ill. App. 3d 864, 872.

Where there is doubt as to whether an insurer must defend because there is doubt as to whether there is a conflict, the circumstances of the case determine whether a defense under a reservation of rights is or is not proper. (See Thornton v. Paul (1978), 74 Ill. 2d 132, 156.) The exceptions to the general rule requiring that an insurer defend an insured only apply where an actual conflict of interest appears; if the conflict is merely potential, the general rule applies. Murphy, 88 Ill. 2d at 458.

Whether a declaratory judgment action to determine an insurer’s coverage obligations is appropriate is also factually determined. (See Thornton, 74 Ill. 2d at 158-59.) A declaratory judgment action is not appropriate when the issues in the underlying tort case are substantially the same as the declaratory judgment action issues, because collateral estoppel may act to prevent adjudication of the same issues in the underlying case; but where the issues in the underlying case and the declaratory judgment are separable, deciding the issue of coverage in a collateral proceeding is appropriate because neither party is prejudiced. Murphy, 88 Ill. 2d at 455.

Here, because plaintiff provided a defense for the negligence defendants under a reservation of rights, we must determine whether there was an actual conflict of interest between or among the parties which would render such a defense improper. Part of this determination will depend on whether the declaratory judgment action was appropriate under the above rules.

We will first address the question of whether there was a conflict between plaintiff and the negligence defendants. This issue typically arises where an insurer and the insured have mutually exclusive claims in the underlying tort case. (See, e.g., Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 196-97 (if tort defendant’s conduct was intentional, he was liable but insurer was not; if defendant was negligent, insurer was liable).) In this case, however, Cruz contends there was a conflict between plaintiff and the negligence defendants merely because plaintiff sought to adjudicate its coverage rights in the declaratory judgment action, advised the attorneys it assigned to represent the negligence defendants of this fact, and advised them to defend under a reservation of rights.

We find that under these circumstances there was no conflict between plaintiff and the negligence defendants. Contrary to Cruz’ implication, a declaratory judgment action to determine coverage rights is proper and does not engender any conflict of interest itself unless the parties have mutually exclusive claims in the underlying action. (See Royal Insurance Co. v. Process Design Associates, Inc. (1991), 221 Ill. App. 3d 966, 976.) Here, there are no such mutually exclusive claims and the issues in the underlying action and the declaratory judgment action are separate. The only issue in the declaratory judgment action is misrepresentation and the issue in the tort action is negligence. Accordingly, we cannot agree with Cruz that there was a conflict of interest between plaintiff and the negligence defendants which made plaintiff’s defense under a reservation of rights improper.

We also find there was no actual conflict between Gonzalez and the other negligence defendants. Although we agree with Cruz that there was a theoretical conflict because of the permissive use and agency issues, Cruz failed to show an actual conflict which is necessary to question the defense under a reservation of rights. The declaratory judgment action established that plaintiff stipulated that Gonzalez was a permissive user and that, if the policy was not declared void, plaintiff would defend all of the negligence defendants. Strictly speaking, this case does not involve a question of a policy defense, per se. Rather, the question is whether the policy was void due to misrepresentation in the application. Plaintiff does not contend that the policy does not cover the negligence defendants if it is not void. Also reducing the likelihood of an actual conflict among the negligence defendants over their permissive use issue is the signed statement Ayala gave to plaintiff’s claims supervisor on June 11, 1991. In that document, Ayala stated that he gave Acosta permission to drive the car to work on the day of the accident and that Acosta “gave permission for the driver of the vehicle to drive the car.” We therefore conclude that Cruz has failed to show an actual conflict between the negligence defendants.

For the above reasons, we find that plaintiff’s control of the defense under a reservation of rights was not improper on the ground of a conflict of interest because there was no conflict of interest. Accordingly, plaintiff was not estopped from denying coverage or, more correctly, seeking to determine whether the policy was void on those grounds.

Cruz next contends that because plaintiff did not properly notify Gonzalez, and perhaps all three of the negligence defendants, that it was conducting the defense under a reservation of rights, plaintiff was estopped from denying coverage of the injury claim. Plaintiff’s claims manager testified that he sent reservation of rights letters to each of the negligence defendants. A copy of a reservation of rights letter addressed to Ayala is in plaintiff’s claims file which was introduced into evidence. The letter indicates that carbon copies were sent to Acosta and Gonzalez. However, on cross-examination, the claims manager testified that the claims file did not contain evidence that the letters were sent by certified mail or that there were return receipts for any of the letters. The claims file did not contain copies of the alleged carbon copies or any other evidence indicating what address they were purportedly sent to.

Cruz contends that the evidence shows that plaintiff did not send a reservation of rights letter to Gonzalez and that there are questions whether plaintiff even sent such a letter to Ayala. Cruz argues that if plaintiff has no evidence that Gonzalez actually received a reservation of rights letter, then Gonzalez is presumed to have been prejudiced and plaintiff is estopped from denying coverage to him under the Ayala policy.

Plaintiff contends that it notified the negligence defendants at the outset of the personal injury action that it was providing a defense for them under a reservation of rights. Plaintiff also contends that it did more than it was required to do to preserve its rights to contest coverage when it brought the declaratory judgment action. Finally, plaintiff asserts that the cases cited by Cruz are inapposite because they all deal with policy defenses, i.e., defenses under the terms of the policy, while plaintiff has not made any policy defenses but simply claims the policy was void ab initio due to material misrepresentations in the application. Plaintiff argues that Cruz’ cases do not support her estoppel claim.

A reservation of rights is a means by which an insurer seeks to suspend the operation of estoppel doctrines which can prevent an insurer from raising denial of coverage issues where an insurer believes the policy does not provide coverage. (Royal Insurance Co. v. Process Design Associates, Inc. (1991), 221 Ill. App. 3d 966, 973.) To suspend estoppel, a reservation of rights is required when an insurer defends an action against the insured in which the existence of a policy defense may turn upon the facts to be determined in that litigation. (Cowan v. Insurance Co. of North America (1974), 22 Ill. App. 3d 883, 896.) When a reservation of rights is required, an insurer must adequately inform the insured of the rights it intends to reserve. Cowan, 22 Ill. App. 3d at 896.

Here, Cruz’ arguments notwithstanding, we find that there was evidence that plaintiff notified the negligence defendants of the reservation of rights. Although Cruz implies that evidence of a certified mailing was required, Cruz cites no authority for that proposition, and for that reason alone we could deem it waived. (Amp-Rite Electric Co., 220 Ill. App. 3d at 166.) In addition, plaintiff’s claims manager testified that he mailed both Acosta and Gonzalez copies of the reservation of rights letter sent to Ayala. Although Cruz disputes this testimony, the trial court, which had the benefit of observing the demeanor and assessing the credibility of the witnesses, decided in favor of plaintiff. We will not reverse a trial court, in a bench trial, on a factual issue where the testimony is conflicting unless the trial court actions are against the manifest weight of the evidence. (Flynn v. Cohn (1992), 154 Ill. 2d 160, 160-67.) Based on the evidence in the record, we cannot say that the trial court actions here were against the manifest weight of the evidence.

We also agree with plaintiff that the cases Cruz cited in support of her estoppel argument are inapposite. Those cases all involve policy defenses, while this case only involves a question of whether a policy, which admittedly otherwise covers the negligence defendants, was void.

For these reasons, we find that plaintiff was not estopped from denying coverage of the personal injury claim on the ground that plaintiff failed to properly notify the negligence defendants it was defending them under a reservation of rights.

The next issue on appeal is whether plaintiff was estopped from denying its liability under the policy on the ground of misrepresentation. The alleged misrepresentation was the nondisclosure on the application of Acosta, Ayala’s son. At the time of the application, Acosta was a 17-year-old member of Ayala’s household and a regular driver of Ayala’s car, the insured vehicle.

It is undisputed that the application showed that the only driver of the insured’s vehicle was Ayala, the insured. In the space on the application for the listing of drivers, the only information shown pertained to Ayala. There is no mention of Acosta or any other driver anywhere on the application, including the remarks section. The parties disagree about the answer to a question on the application as to whether there are any children in the applicant’s household. Cruz asserts that both the yes and no answers were circled. Plaintiff asserts that, despite the testimony of its underwriting manager that both yes and no appear to be circled, only the no answer was circled.

On appeal, Cruz does not dispute plaintiff’s position that the failure to disclose a teenage regular driver of a vehicle by an applicant for insurance on the vehicle is a material misrepresentation. Cruz contends, however, that misrepresentation should not apply in this case because it would be unfair to hold Ayala to the language of an application he did not sign. Cruz also contends that because Redman, in signing the application, was plaintiff’s agent, plaintiff cannot complain about any alleged misrepresentation in an application signed by its own agent rather than the insured. To support her agency contention, Cruz essentially argues that plaintiff acquiesced in Redman’s practice of submitting applications for insurance signed by him but not the applicant and that this shows that Redman was plaintiff’s agent.

Plaintiff counters that Cruz failed to present any evidence that Redman was plaintiff’s agent. Plaintiff argues that Redman was an insurance broker under no employment from a single insurer. Plaintiff asserts that as a general rule an insurance broker is the agent of the insured and asserts that Cruz did not present evidence to bring this case under an exception to that general rule.

Plaintiff also contends that it is not unfair to hold Ayala to the language of the application even though he did not sign it because the application was included in the policy and condition 17 of the policy provides:

“17. Declarations. By the acceptance of this policy, the insured named in Item 1 of the declarations agrees that the statements contained in the application, a copy of which is attached to and forms a part of this policy, have been made by him or on his behalf and that said statements and the statements in the declarations and in any subsequent application accepted by the company are offered as an inducement to the company to issue or continue this policy and that the same are his agreements and representations, and that this policy is issued and continued in reliance upon the truth of such statements and representations and that this policy embodies all agreements existing between himself and the company or any of its agents relating to this insurance.”

Plaintiff argues that this clause and other clauses in the policy created a duty for Ayala to report any untrue statements in the application once he received the policy whether he had signed the application or not.

Thus, the questions before us are whether Redman acted as plaintiff’s agent when he accepted an unsigned application, and, if so, whether that precludes plaintiff from raising the issue of misrepresentation. We will first address whether Redman was plaintiff’s agent as Cruz contends.

“An insurance broker is one who procures insurance and acts as middleman between the insured and the insurer, and solicits insurance business from the public under no employment from any special company, but, having secured an order, places the insurance with the company selected by the insured, or, in the absence of any selection by him, with the company selected by the broker.” (Galiher v. Spates (1970), 129 Ill. App. 2d 204, 206-07.) An insurance agent is one who has a fixed and permanent relation to the companies he represents and who has certain duties and allegiances to such companies. (Krause v. Pekin Life Insurance Co. (1990), 194 Ill. App. 3d 798, 805.) As a general rule, an insurance broker acts as an agent of the insured rather than an agent of the insurer; however, a broker can act as the agent for either the insured or the insurer or both. State Security Insurance Co. v. Burgos (1991), 145 Ill. 2d 423, 431.

The determination of whether a person is an agent for the insured, the insurer, or both, is generally a question of fact; however, where the evidence clearly shows the person is the agent of the insured the issue becomes a question of law. (Davidson v. Comet Casualty Co. (1980), 89 Ill. App. 3d 720, 723.) The party asserting the agency relationship has the burden of proving the agency’s existence by a preponderance of the evidence. (F D L Foods, Inc. v. Kokesch Trucking, Inc. (1992), 233 Ill. App. 3d 245, 256.) A person’s conduct in a given transaction, rather than his title, determines whether he is an agent or a broker. Zannini v. Reliance Insurance Co. of Illinois, Inc. (1992), 147 Ill. 2d 437, 452-53.

Here, the facts appear to support a finding that Redman was not plaintiff’s agent. According to the terms of the producer’s agreement between Redman and plaintiff, Redman was an independent contractor. Plaintiff’s underwriting manager at the time Ayala applied for insurance through Redman testified that plaintiff considered its producers to be independent insurance brokers. The four factors traditionally used to determine whether a person was acting as an agent of the insured or the insurer tend to show that Redman was Ayala's agent and not plaintiff’s.

Nonetheless, Cruz contends that under the principles espoused in a recent supreme court decision (State Security Insurance Co. v. Burgos (1991), 145 Ill. 2d 423) Redman was plaintiff’s agent when he submitted the application without Ayala’s signature because he did so with apparent authority. We agree.

Apparent authority is authority that a reasonably prudent person, in view of the conduct of the principal, would naturally suppose the agent to possess. (Burgos, 145 Ill. 2d at 432.) Having created the appearance of authority, the principal is estopped from denying it to the detriment of a third party. 145 Ill. 2d at 432.

The course of dealings between an insurance broker and an insurer may establish apparent authority between the broker and the insurer. (145 Ill. 2d at 432.) Apparent authority in an insurance broker thus arises when an insurer knowingly causes or permits the broker to act so as to justify the insured in believing that the broker possesses the authority exercised. (145 Ill. 2d at 432.) Acquiesence by the insurer in an insurance broker’s conduct is sufficient to establish the broker’s apparent authority. 145 Ill. 2d at 432.

Applying these principles to the evidence in the record shows that Redman had apparent authority to submit applications not signed by the applicant to plaintiff and that Redman was therefore plaintiff’s agent when he engaged in that conduct. Acosta testified that he called someone (presumably Redman, who signed the application) to obtain insurance for his father’s (Ayala’s) car. Acosta further testified that he gave the man he called the information that the man requested, including the facts that he lived in the household and drove the car regularly. Subsequently, plaintiff sent Ayala an insurance policy covering Ayala’s car. The policy contained a copy of the application which Redman had signed and submitted to plaintiff without Ayala’s signature. Based on plaintiff’s conduct, a reasonably prudent person in Ayala’s position could conclude that plaintiff authorized Redman to submit applications for insurance without the applicant’s signature.

Moreover, the evidence shows that plaintiff actually acquiesced in Redman’s conduct further establishing Redman’s apparent authority. The testimony of both plaintiff’s underwriting manager and its claims manager shows that plaintiff knowingly accepted applications without the applicant’s signature from Redman. The underwriting manager testified that in plaintiff’s view the producer was acting as the applicant’s agent and that justified plaintiff’s acceptance of an application with only the producer’s signature on it. The claims manager testified that it was plaintiff’s standard business practice to issue policies based only on an application even if the application was not personally signed by the applicant.

For all these reasons, we find that Redman had apparent authority to submit applications to plaintiff without the applicant’s signature and that he therefore was plaintiff’s agent when he engaged in that conduct. Thus, when Redman submitted Ayala’s application to plaintiff without Ayala’s signature he did so as plaintiff’s agent. Accordingly, the trial court erred when it determined that Redman was not plaintiff’s agent in this conduct.

The next question before us is whether Redman’s agency estopped plaintiff from asserting misrepresentation as a basis for cancelling Ayala’s policy. An insurer may generally refuse to honor an insurance contract if an applicant made misrepresentations either with actual intent to deceive or which materially affected the acceptance of the risk by the insurer. (Good v. National Life & Accident Insurance Co. (1976), 37 Ill. App. 3d 831, 834.) However, when an insurance applicant gives correct answers to the insurer’s agent and the agent fills in the application with incorrect answers, the insurer is estopped from denying its liability even if the application is signed by the applicant. Guterv. Security Benefit Association (1929), 335 Ill. 174,180.

The insurer cannot rely on incorrectly recorded answers to assert misrepresentation, even if the insured knows the agent has entered information different from that he provided, where the information is entered pursuant to the agent’s advice, suggestion or interpretation. (Logan v. Allstate Life Insurance Co. (1974), 19 Ill. App. 3d 656, 660.) However, knowledge of the agent will not be imputed to the insurer if the applicant acted in bad faith or colluded with the insurer’s agent. Marionjoy Rehabilitation Hospital v. Lo (1989), 180 Ill. App. 3d 49, 53.

Here, the record shows that the insurer’s agent received correct answers from the insured but incorrectly filled out the application. While there is no direct evidence to show that the person Acosta called to get insurance was Redman, the application was signed by Redman and plaintiff has not shown that Acosta did not call Redman. Based on this evidence, we conclude that the person Acosta talked to when he called to get insurance was Redman.

Acosta testified that he told the person he called that there were seven children, including himself, in Ayala’s household. Acosta also testified that he told the person he called that he drove the car to work once or twice a week. There is nothing in the record to dispute this testimony.

The record also shows that Redman, plaintiff’s agent, submitted the application with incorrect or ambiguous answers to the questions relevant to the alleged misrepresentation. The question on the application regarding drivers contained only information regarding Ayala. The question regarding children in Ayala’s household was answered with a circle which encompasses both the yes and no answers.

There is nothing in the record to show Ayala or Acosta acted in bad faith or in collusion with Redman. Plaintiff simply has not produced any evidence regarding Redman’s construction of the facts.

Plaintiff’s reliance on the policy clauses requiring the insured to report inaccurate representations on the application is misplaced. Clauses in the policy indicating that the insured has verified the information as true do not prevent the imputation of the knowledge of the agent to the insurer. Johnson v. Royal Neighbors of America (1912), 253 Ill. 570, 574.

Based on the foregoing, we conclude that plaintiff’s agent, Red-man, received correct answers to the application questions but filled in the application with incorrect answers. Accordingly, plaintiff is estopped from denying its liability under the policy on the ground of misrepresentation.

Because of our conclusion that plaintiff is estopped from denying its liability under the policy on the ground of misrepresentation, it is not necessary to address the issue of whether the trial court’s finding of misrepresentation was against the manifest weight of the evidence.

In summary, we find that the trial court did not err when it issued its declaratory judgment order without jurisdiction over Gonzalez. We also find that plaintiff was not estopped from denying coverage on the grounds of alleged conflicts of interest or an alleged failure to send notice that it was defending under a reservation of rights. However, we find that the trial court erred when it issued its declaratory judgment order without jurisdiction over Brenda Déla Cruz and the declaratory judgment order was therefore void. We also find that plaintiff was estopped from denying its liability under the policy on the grounds of misrepresentation.

Based on the foregoing, the judgment of the trial court is affirmed in part and reversed in part, and the cause is remanded to the trial court for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

WOODWARD and COLWELL, JJ., concur.