text:
    (No. 49819.
    PIONEER TRUST AND SAVINGS BANK, Appellant, v. COUNTY OF COOK et al.-(Village of Arlington Heights, Appellee.)

      Opinion filed May 26, 1978.

      KLUCZYNSKI, J., took no part.
    Theodore J. Novak, Stanley N. Gore and Don E. Glickman, of Rudnick & Wolfe, of Chicago, for appellant.
    Jack M. Siegel, of Chicago, for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The question is whether or not the circuit court of Cook County should have ordered a writ of mandamus directing the defendants, Cook County and its Department of Building, Zoning and Environmental Control (hereafter building department), to issue a zoning certificate and building permit to Alexander Magnus (hereafter plaintiff), the beneficial owner of 42 acres, located in Elk Grove Township, which is an unincorporated area in Cook County, contiguous to Arlington Heights and Mount Prospect, and held in trust by Pioneer Trust and Savings Bank. Beginning in 1974 plaintiff proposed the construction of 728 units and applied for a permit to build the first 132 units of a retirement-housing project. The building department denied the permit. The property was already improved with a nursing home. The circuit court had ordered a writ of mandamus to issue; vacated that order and allowed the village of Arlington Heights, and later the village of Mount Prospect, to intervene as defendants; and again ordered the writ to issue after further hearings. Arlington Heights, the sole appellee before us, alone appealed to the appellate court, which reversed (49 Ill. App. 3d 630). We granted plaintiff leave to appeal. 58 Ill. 2d R. 302.

The facts must be set out in some detail. Prior to 1966, plaintiff’s property was zoned R — 4 (single-family residence). Because his nursing home constituted a legal nonconforming use, plaintiff applied for rezoning to R — 5 (general residence) which would have made the nursing home a conforming use and allowed for enlargement and more improvement. On November 15, 1965, the zoning board of appeals of Cook County (hereafter zoning board) held a hearing on the application during which Arlington Heights and Mount Prospect expressed their objections to the change in zoning unless plaintiff executed a restrictive covenant running with the land for 25 years. (A letter of November 16, 1965, from Jack Siegel, counsel for Arlington Heights then and in the case before us, to the zoning board confirms this.) Plaintiff executed the covenant under which the property would be used only for the purpose of “nursing, convalescent and retirement home until the expiration of a period of 25 years.” The zoning board recommended that the zoning change to R — 5, with the restrictive covenant, be made, found the public interest supported the change, and believed plaintiff “should not be placed in the position of having to reapply for permission to expand the operation every time an additional building or enlargement” is planned. The zoning board, in its findings of December 27, 1965, said it was “impressed with the operation and is of the view that it is a definite asset to the community and to the particular area which is involved,” found the operation had no detrimental effects nor anticipated any “in the expansion and enlargement” of the complex, and felt “the park-like atmosphere” was beneficial to the area. The Cook County board of commissioners (hereafter county board) adopted the recommendation.

In July 1971, Cook County and its building department approved plaintiff’s plans and issued a building permit for the construction of a four-unit prototype retirement building on the property. The prototype was constructed to determine whether there was a market for retirement housing. Plaintiff and his wife and mother visited other retirement developments after the prototype was built. In the fall of 1973, plaintiff met architect Rick Strusiner, who was retained in February 1974 to develop plans for a nursing and retirement-housing complex. In the spring of 1974, Strusiner contacted the zoning administrator for Cook County’s building department regarding the plans. In September 1974, having received no response, Strusiner told the zoning administrator that plaintiff was ready to apply for a permit. The administrator replied that plaintiff first would have to file a mandamus action or receive an opinion from the State’s Attorney to determine whether the projected development was proper under the present zoning. Strusiner, while waiting for the requested opinion, attempted to file in December 1974 the application for the permit but the building department refused it.

In January 1975, the State’s Attorney gave his opinion:

“*** if the proposed construction is for a nursing, convalescent or retirement home, it will not violate the terms of the restrictive covenant.
The determination of whether this particular construction as retirement home is a factual one that should be made by your department [building department]. It would appear to us that if the building were constructed and actually used as proposed, it would be defined as a retirement home.”

The zoning administrator notified Strusiner of the opinion and suggested that plaintiff’s application for a zoning certificate and building permit be made. When the application was made in July 1975, it was again refused because no application for a permit from the Metropolitan Sanitary District was on file. In December 1975, the permit was refused because of an anticipated change in the comprehensive zoning plan.

The comprehensive amendment to the Cook County zoning ordinance was under consideration apparently since 1973. At the end of August 1975, an interim ordinance for special review of all applications for building permits, a “moratorium,” went into effect for three months. After public hearings, the county board, sitting as a committee, on January 14, 1976, voted to approve the zoning amendment under which plaintiff’s property would be zoned R — 6 (allowing only eight units per acre in contrast to the 17.4 units per acre allowed under R — 5). On January 19, the county board adopted the amendment.

Plaintiff filed his action for mandamus on January 14. Two days later, the defendants filed their answer, a trial was held, and the circuit court ordered the writ to issue. At the beginning of February, the circuit court vacated the January 16 order and allowed Arlington Heights to intervene. After the second trial, the order granting the writ of mandamus was entered on April 1, 1976. Other facts and evidence will be set out as is necessary.

The standard for review of zoning cases, as in other cases, is that the findings of the trial court will not be disturbed unless against the manifest weight of the evidence. La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 48; Standard State Bank v. Village of Oak Lawn (1963), 29 Ill. 2d 465, 471.

The appellee, Arlington Heights, contends before this court what it contended before the appellate court: Plaintiff was not entitled to a writ of mandamus for the issuance of a zoning certificate and a building permit. Arlington Heights further contends that plaintiff was not entitled to prove change of position or vested right under the R — 5 classification when no such allegations appear in the pleadings; plaintiff did not substantially change his position in reliance upon the probability of a building permit being issued; and the 1966 reclassification of plaintiff’s property to R — 5, subject to certain conditions and a restrictive covenant, was invalid.

At the time of trial, plaintiff’s property was zoned R — 6. Arlington Heights maintains that for a writ of mandamus to issue, the one seeking it must show a clear right to it (People ex rel. Interchemical Corp. v. City of Chicago (1963), 29 Ill. 2d 446, 450; cf. Daniels v. Cavner (1949), 404 Ill. 372, 375-76); and under the R-6 classification, plaintiff’s request for a building permit — and hence the mandamus — must fail because a retirement complex was not a permitted use. Plaintiff argues that the R—5 classification of his property, in effect from 1966 until January 19, 1976, is the correct classification because he substantially changed his position during that decade in reliance upon the R — 5 classification. Plaintiff agrees that a property owner has no right in the continuation of a zoning classification; that each case must be decided on the basis of the ordinance in effect at the time of decision by a court. However, there is an exception to this rule where one has substantially changed his position in reliance upon the probability of issuance of a building permit under a previous zoning. E.g., Cos Corp. v. City of Evanston (1963), 27 Ill. 2d 570, 576-77, Fifteen Fifty North State Building Corp. v. City of Chicago (1958), 15 Ill. 2d 408, 416.

Initially, we must dispose of Arlington Heights’ argument that plaintiff is not entitled to prove change of position or vested right under the R—5 zoning because no such allegation appears in the pleadings. It is true that plaintiff in his pleadings failed specifically to allege reliance on the actions of Cook County and the building department, and a vested right in the R—5 classification. However, there exists an exception, not passed on by this court, to the rule that issues are formed by the pleadings and that allegations and proof must correspond in order to recover: where both parties form the issues in the trial court notwithstanding the failure to set the issues out in the pleadings. (E.g., Tonchen v. All-Steel Equipment, Inc. (1973), 13 Ill. App. 3d 454, 467, Hedrich v. Village of Niles (1969), 112 Ill. App. 2d 68, 75.) An objection that an issue was not raised in the pleadings may be waived by the conduct at the trial of the objecting party or by introduction of evidence on the issue. During the examination of Nicholas Phillips, zoning land planner for the zoning board, counsel for plaintiff stated that his theory of the case was that plaintiff had “a vested right because of his reliance and because of substantial expenditures.” There was no objection that this theory was not pleaded. This occurred early in the trial. On at least two other early occasions in the course of the trial, plaintiff’s theory of the case was made evident without objection that plaintiff had failed to raise that in the pleadings. Therefore Arlington Heights’ objection now must fail.

We turn then to the question of whether or not the plaintiff did have a vested right in the R—5 zoning due to a substantial change in position in reliance upon the probability of issuance of a building permit. Although the appellate court found the R—5 classification, with restrictive covenant, to. be valid, it concluded that the circuit court’s ruling was in error on the grounds that plaintiff’s retirement-housing project was not a permitted use under R — 5 and hence there was no probability of a building permit being issued.

The record shows that plaintiff’s proposed retirement project would be for individuals 60 years of age or over who were not necessarily retired but had a doctor’s certificate indicating they were capable of independent living. Both the plaintiff and his architect testified the proposed complex was entirely different from an apartment complex. The retirement complex would have a central dining hall where some meals would have to be taken, a recreation center, oversized halls and elevators for use of stretchers, extensive laundry facilities, maid service, a nurse’s station to which each unit would have an emergency communications system tie-in, and a security system with bedside and bathroom alarms. All the units would be connected so that it would be unnecessary to go out of doors. Each unit would consist of a small “Pullman” kitchen, living area without dining room, and a bedroom with a bathroom off that. This retirement complex, “as with all other retirement facilities,” according to the plaintiff, would not be licensed by the State.

Under the R — 5 zoning of the Cook County zoning ordinance (section 8.3 — 5), in effect prior to 1976, the following uses were permitted:

“Any use permitted in the R 1 District — unless otherwise set forth or superseded hereinafter — and in addition, the following uses:
(1) Two-family Dwellings
(2) Multiple-family Dwellings, but excluding commercial uses
(3) Health and Medical Institutions, Nursery Schools
(a) Convalescent, nursing, and rest homes
(b) Hospitals and sanitariums, but not including institutions for the care or treatment of insane, feeble-minded, alcoholic, or drug addict patients
(c) Institutions for the care of the aged and for children
(d) Nursery and children’s day schools, (for profit).”

The appellate court’s analysis of the requirements for construction of zoning ordinances is correct. Effect should be given to the intention of the drafters by concentrating on the terminology, its goals and purposes, “the natural import of the words used in common and accepted usage, the setting in which they are employed, and the general structure of the ordinance.” (La Salle National Bank v. Thresholds (1975), 27 Ill. App. 3d 635, 641.) The appellate court turned to the State statutes (Ill. Rev. Stat. 1973, ch. 111½, par. 35.16) for a definition of “Institutions for the care of the aged” and determined that plaintiff’s project did not fit the description. It then concluded that the zoning ordinance manifested an intejit to incorporate the State statutory definition because all the “enumerated institutional R—5 uses are defined in Illinois law, and all are institutions requiring licensing, control, and supervision by the State authorities” (49 Ill. App. 3d 630, 641), and because the statutes require one to obtain a license from the State for a home for the aged before operating or advertising it (Ill. Rev. Stat. 1973, ch. 111½ par. 35.17).

We agree with the appellate court that plaintiff’s project does not fit the State statutory definition of “home for the aged” (Ill. Rev. Stat. 1971, ch. 111 ½, par. 35.16). However, we do not find that pivotal because we are not convinced the zoning ordinance manifestly intended incorporation of the statutory definition. First, the appellate court is incorrect in stating that all the enumerated R—5 institutional uses are defined in and required to have State licenses by the statutes. Nursing homes, hospitals, sanitariums and institutions for the care of the aged are defined and require licensing (Ill. Rev. Stat. 1973, ch. 111½, pars. 35.16, 35.17, 144, 145), as is the case with institutions for the care of children, and nursery and children’s day schools (Ill. Rev. Stat. 1973, ch. 23, par. 2211 et seq.). However, neither convalescent homes nor rest homes, listed as R—5 institutional uses, are defined in the State statutes. Second, the drafters of the zoning ordinance failed to include any language referring to or incorporating statutory definitions and State licensing.

Third, where “words are capable of having various meanings depending on the circumstances in which they are used, the definition in one legislative act has little or no value in determining its meaning in another.” (County of Lake v. Gateway Houses Foundation, Inc. (1974), 19 Ill. App. 3d 318, 325.) Although acts are in pari materia if they relate to the same subject or object and must be construed together even though enacted at different times (Spring Hill Cemetery v. Ryan (1960), 20 Ill. 2d 608, 615), that is not the situation before us. Here the zoning ordinance is unrelated to the Nursing homes, sheltered care homes, and homes for the aged Act (Ill. Rev. Stat. 1973, ch. 111½, par. 35.16 et seq.) or the Child Care Act of 1969 (Ill. Rev. Stat. 1973, ch. 23, par. 2211 et seq.). In Gateway, Lake County sued to enjoin the alleged operation of a treatment center for drug addiction in a residential area. The county ordinance permitted the operation of drug treatment centers in business and highway commercial zones, but not in residential areas. The defendant Gateway maintained it was a structured residence for drug abusers. The trial court ruled that since the Lake County ordinance failed to define “treatment center,” that term should be given its common meaning and that the definitions of “treatment” and “drug addiction” in the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1973, ch. 91½, pars. 120.3—4, 120.3—7) were not controlling. The appellate court held:

“Here, as the defendant points out, the Drug Addiction Act and the Lake County zoning ordinance are unrelated; they were passed on different dates and by different legislative bodies. If the meanings in the State law were intended to apply the County should have made reference to the Drug Addiction Act or included a similar definition in the amendment to the ordinance. Without the ordinance indicating otherwise, a property owner should be able to rely on the terms used in the zoning ordinance meaning what they are commonly understood to mean.” (County of Lake v. Gateway Houses Foundation, Inc. (1974), 19 Ill. App. 3d 318, 325.)

Accordingly, the narrow construction the appellate court placed on section 8.3—5 of the Cook County zoning ordinance, on the basis of State statutes, is inappropriate. The trial court reasonably concluded that plaintiff’s retirement complex was permissible under the R—5 classification.

Having disposed of whether or not plaintiff’s retirement project was a permitted use under R—5, we may finally turn to the question of his substantial reliance on the probability of the issuance of a building permit under the R—5 zoning. The rule is:

“*** where there has been a substantial change of position, expenditures or incurrence of obligations made in good faith by an innocent party under a building permit or in reliance upon the probability of its issuance, such party has a vested property right and he may complete the construction and use the premises for the purposes originally authorized, irrespective of subsequent zoning or a change in zoning classifications.” (People ex rel. Skokie Town House Builders, Inc. v. Village of Morton Grove (1959), 16 Ill. 2d 183, 191.)

Accord, People ex rel. Interchemical Corp. v. City of Chicago (1963), 29 Ill. 2d 446, 448, Cos Corp. v. City of Evanston (1963), 27 Ill. 2d 570, 576-77, Illinois Mason Contractors, Inc. v. City of Wheaton (1960), 19 Ill. 2d 462, 465, Nott v. Wolff (1960), 18 Ill. 2d 362, 370-71, Fifteen Fifty North State Building Corp. v. City of Chicago (1958), 15 Ill. 2d 408, 416.

Beginning in 1965, with the positive and commendatory findings and recommendations of the zoning board and in 1966 with the county board’s approval of rezoning his property to R — 5 with the restrictive covenant permitting the development of “nursing, convalescent and retirement home,” plaintiff was encouraged in his consideration of further development of “Magnus Farm.” Although hardly definitive or conclusive, the issuance of a building permit by the county for his prototype retirement units in 1971 could hardly have been anything but further encouragement for further development of a nursing-retirement complex. In 1973, plaintiff met Strusiner, who developed initial plans for a complex and who was hired in early 1974. Thereafter plans for the complex were developed in detail and finalized. The expenditures were many; for example, $65,000 for the retirement prototypes, $7,000 for trips to view other retirement developments, at least $29,000 for the architect (toward a $45,000 bill), $10,250 for the structural engineer, $10,000 for mechanical and electrical engineers (toward a $15,000 bill), $2,300 for soil and water tests, $2,000 deposit for the building permit, and other expenditures.

In early 1975, the zoning administrator informed plaintiff that in the State’s Attorney’s opinion the project was a permitted use under the R — 5 zoning with restrictive covenant, and suggested that plaintiff again attempt to file his application for a building permit, which was done in July 1975.

We also find supportive of plaintiff’s position the testimony of Nicholas Phillips, the zoning land planner for the zoning board at the time of trial and with Cook County since 1957. He testified that retirement houses would come under the R — 5 classification. In sum, the actions of the defendants, Cook County and the building department, who have not been involved in the appeal of this case, encouraged plaintiff, who relied on the probability of the building permit issuing and substantially changed his position.

The final argument of Arlington Heights is that the R—5 classification of plaintiff’s property was void ab initio and invalid because it was subject to conditions and a restrictive covenant. Although we agree with the appellate court’s reasoning that a conditional rezoning is not invalid per se (Goffinet v. County of Christian (1976), 65 Ill. 2d 40, 48-51), we conclude that Arlington Heights is estopped from raising this argument as would have been the defendants Cook County and the building department had they appealed. Arlington Heights, whether it induced plaintiff to agree to the restrictive covenant or acquiesced in the rezoning if accompanied by the restrictive covenant in 1965-66, clearly and unequivocally, without hint of coercion, agreed to the rezoning to R — 5 with the restrictive covenant. It ought not be able to profit by its earlier inducement or acquiescense. See Cities Service Oil Co. v. City of Des Plaines (1961), 21 Ill. 2d 157, 160-61.

For the reasons stated, we find the trial court correctly ordered a writ of mandamus. We affirm its judgment and reverse the decision of the appellate court.

Appellate court reversed; circuit court affirmed.

MR. JUSTICE KLUCZYNSKI took no part in the consideration or the decision of this case.


source: Caselaw Access Project

author: MR. JUSTICE RYAN

license: Public Domain

text:
    (No. 48830.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ARDICE HEFLIN, Appellant.

      Opinion filed May 26, 1978.

      KLUCZYNSKIJ., took no part.
    Ralph Ruebner and Mary Robinson, Deputy Defenders, and Joshua Sachs and Michael Mulder, Assistant Defenders, of Elgin, for appellant.
    William J. Scott, Attorney General, of Springfield (Donald B. Mackay and Joan Bainbridge Safford, Assistant Attorneys General, of Chicago), for the People.
   MR. JUSTICE RYAN

delivered the opinion of the court:

Following a jury trial in the circuit court of Lake County, defendant, Ardice Heflin, was found guilty of murder and conspiracy to commit murder. The court entered judgment on the murder conviction and sentenced the defendant to a term of 30 to 60 years’ imprisonment. The appellate court affirmed (40 Ill. App. 3d 635), and we granted defendant’s petition for leave to appeal (58 Ill. 2d R. 315).

The charges against the defendant resulted from the death of Clifford Atkinson, who was shot and killed in his home on January 3, 1974. Atkinson’s widow, Karolyn, who was indicted on the same charges as the defendant, was found not guilty in a jury trial held subsequent to that of defendant’s.

The defendant and Karolyn Atkinson were involved in a love affair which began on September 21, 1973. From that date until the end of October, the two saw each other frequently, many of the meetings taking place at the Atkinson home while Clifford Atkinson was at work. At times, however, the defendant would be in the home while Atkinson was there. When necessary, he would hide in the basement or attic storage area, from which point he often observed Atkinson at work in his yard.

Much of the incriminating evidence preferred by the State against the defendant consists of letters which were written between Karolyn Atkinson and the defendant. Thirty-six such letters were introduced into evidence — 24 from Karolyn and 12 from the defendant. Generally, the letters written by both Karolyn and the defendant indicated that the couple planned to be married and live in the house that was being built by Clifford Atkinson. Several of the letters indicated the existence of a sinister design, and are discussed in detail below.

The events surrounding the shooting of Clifford Atkinson were reconstructed at the trial by the defendant, who testified on his own behalf, and Officer Philip Stevenson of the Waukegan police department, who was called on by the defense to testify to what Karolyn had told him following the shooting. Karolyn refused to testify on the grounds that her testimony might tend to incriminate her. The stories are generally consistent, although they differ with respect to some of the details, as noted below.

On January 3, 1974, defendant was met at the airport by Karolyn and her two-year-old daughter. Karolyn drove the defendant back to her house, where the two made love and spent the afternoon together. The defendant removed a hunting knife from a cabinet and told Karolyn that he was going to take it back to Michigan with him. On another occasion he had taken four knives and a gun from the cabinet with Karolyn’s permission.

At 4:15 p.m. Karolyn left the house to pick up her husband at work, leaving the defendant in the house. According to Officer. Stevenson’s testimony, Karolyn thought that the defendant had left the house when she and her husband returned at 9:15, after spending several hours at the site of their new home. Defendant, however, testified that he hid in the basement in order to see Karolyn later that night while her husband would be out of the house at a doctor’s appointment.

Defendant fell asleep in the basement. When he awoke, it was dark outside. He became alarmed and decided to leave. The cellar exit leading from the basement was blocked, so he decided to go directly through the house. He ran into something as he moved to the stairs. This aroused Atkinson’s attention, who came to the head of the stairs and confronted the defendant as he stood on the first landing. Atkinson jumped on top of the defendant and pushed him down the stairs. As he fell, the defendant grabbed Atkinson and the two men fell together onto the basement floor.

The defendant testified that Atkinson yelled to Karolyn to bring a gun. Officer Stevenson testified that Karolyn had told him that she grabbed her husband’s .22-caliber rifle and ran downstairs because she had heard noises in the basement. In any event, Karolyn rushed down into the basement and saw the two men wrestling on the floor. Her husband yelled at her to shoot the defendant. Karolyn, instead, fired a shot that hit her husband in the hip. Atkinson screamed to Karolyn, “You shot me, damn it, shoot him.” However, as the two continued to struggle, Karolyn shot her husband a second time. The fighting continued for five or ten seconds, then Atkinson became still. Defendant pushed Atkinson away, ran to the top of the stairs, and collapsed.

The defendant testified that shortly thereafter he returned to the basement, found that Atkinson was dead, picked up the rifle and went back up the stairs. According to the defendant, he dismantled the rifle and attempted to wipe any fingerprints from it. Officer Stevenson testified that Karolyn had taken the gun upstairs immediately after the shooting, dismantled it, and placed it in a closet after attempting to wipe off her fingerprints. At the trial, a fingerprint expert testified that the only identifiable print impressions on the gun were those of the defendant.

The defendant went down to the basement a second time to get his briefcase, wearing a pair of kitchen gloves to avoid leaving any more prints downstairs. He put the knife and rifle clip in his briefcase. The next day he put his briefcase in a locker at a train station in Waukegan.

Shortly after midnight on the same evening, the police responded to a report of a burglary in progress at the Atkinson home. When they arrived, Atkinson was dead in the basement. There were large, deep cuts on his hands, and scratches on his skin. Karolyn told the police that a tall Negro wearing dark clothes and yellowish-orange gloves had burglarized the home, and that her husband trapped him in the basement. She further told the police that her husband had brought a gun into the basement when he went after the burglar. The police became suspicious about the story when they could find no footprints in the snow leading to or from the cellar entrance. Despite the lack of footprints, there were handprints in the snow that had accumulated on the outside of the cellar door, apparently made to give the impression that someone had used that entrance during the evening. Eventually Karolyn admitted to the police that the story about the black burglar was untrue, and that the defendant was involved in her husband’s death. During his testimony, the defendant claimed that he and Karolyn were forced to concoct the story of the black burglar, because no one would believe what actually happened. He admitted that he had made the handprints on the outside of the cellar door, but that he had forgotten to make any footprints in the snow leading to or from the entrance.

The first question is whether the State presented sufficient evidence to permit the jury to find the defendant guilty of murder beyond a reasonable doubt. For reasons discussed below, we agree with the appellate court that enough credible evidence was presented to support the finding of the jury of guilty of murder.

Defendant relies heavily on the cases from this State that hold that where the only evidence in a prosecution for homicide is circumstantial, the guilt of the accused must be so thoroughly established as to exclude every other reasonable hypothesis. (See People v. Willson (1948), 401 Ill. 68; People v. Campagna (1909), 240 Ill. 378.) The defendant argues that the facts as presented do not exclude the reasonable hypothesis that Mrs. Atkinson shot her husband without his aid or connivance when she saw him involved in a struggle with her lover, and therefore he contends he cannot be held accountable for Atkinson’s death.

To support his arguments that he did not aid or abet Karolyn Atkinson in the shooting of her husband, defendant presented evidence consistent with his claim that he had intended to break up with Karolyn on the 3rd of January and eventually move back to Michigan. In this regard, one of the girls whom the defendant had said he was dating testified that defendant called her from Michigan and told her he was leaving on J anuary 3 to fly to Chicago and made dates with her for January 4 and 5. Also, Tim Nichols, defendant’s cousin, testified that defendant told him in December that he had plans of establishing a permanent residence in Michigan and of breaking up with Karolyn. Nichols also corroborated the defendant’s testimony that the defendant had made arrangements to buy a trailer in Michigan in December and had made a down payment. According to the defendant, he was going to move into the trailer some time after the first of the year. Defendant contends that this evidence satisfactorily refutes the theory presented by the State that he and Karolyn plotted to kill Clifford Atkinson, get married, and live in the house that Atkinson was building at the time of his death.

The State presented evidence at trial to support alternative theories of guilt. First, the State contended that defendant was the person who killed Clifford Atkinson. Alternatively, the State argued that Karolyn Atkinson shot her husband, but that defendant aided and abetted her and is therefore accountable for Atkinson’s murder (Ill. Rev. Stat. 1973, ch. 38, par. 5—2). Regarding the State’s first theory of the case, we point out that the jury was not compelled to accept the defendant’s account of what happened at the time of the crime, but was permitted to consider the surrounding circumstances and the probability or improbability of the defendant’s story. (People v. Wiggins (1957), 12 Ill. 2d 418.) However, even accepting for the moment the account of Atkinson’s death as supported by the testimony adduced at trial, that is, that Karolyn Atkinson fired the fatal shots, we are convinced that there was sufficient credible evidence from which the jury could find the defendant guilty of murder by accountability.

The Criminal Code of 1961 provides that:

“A person is legally accountable for the conduct of another when:
* * *
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. ***” (Ill. Rev. Stat. 1973, ch. 38, par. 5-2(c).)

Pursuant to the underlying intent of this statute, if the circumstances show that there is a common design to do an unlawful act to which all assent, the act of one is the act of all. (See People v. McClindon (1973), 54 Ill. 2d 546; People v. Washington (1962), 26 Ill. 2d 207.) Here, the evidence supports a finding of guilt beyond a reasonable doubt that the defendant took part in a common felonious plan to cause the death of Clifford Atkinson. Further, we think this evidence, even though circumstantial, was convincing enough to allow the jury to reasonably exclude the hypothesis of innocence presented by the defendant, i.e., that Karolyn Atkinson shot her husband without his aid or connivance.

The letters that were introduced into evidence show that the couple was involved in a heated love affair. Both the defendant and Karolyn Atkinson made cpnstant reference to their spending their lives together. Karolyn often expressed excitement over the future marriage, and often wrote about their living in the house that Atkinson was building. However, no letter written by Karolyn after October ever mentioned divorce, nor was any evidence presented that a divorce proceeding had been filed as of January 3, 1974. And, while during the trial the defendant repeatedly disclaimed any intention of marrying Karolyn, and testified that he had planned to break up with her on January 3, 1974, his letters clearly show a contrary intent. He admitted he had never told Karolyn that he intended to break up with her or that he intended to leave the State.

This illicit scenario takes on a sinister design when examined against the backdrop of several of the incriminating letters admitted into evidence. Thus, defendant wrote to Karolyn:

“Baby I want you for myself. Myself do you hear? No one else is to share your love *** I love you so much. Life is so great without your husband I think I will retiree [we] him permanently.”

It was not unreasonable for the jury to infer that the defendant was referring to Atkinson’s physical demise in this letter, and not to Atkinson’s sexual retirement, as the defendant claimed during his testimony. Not only was this inference a reasonable deduction in light of the ensuing events, but defendant had told several members of his family, as early as October, that Atkinson had been killed in an industrial accident.

The letters written by Karolyn further support inferences as to the sinister nature of their common plan. In a letter written from Karolyn to defendant on November 19, several weeks after defendant had moved to Michigan to find work, Karolyn wrote that she hoped some day to be able to celebrate years instead of months, that she was looking at the 1974 calendar to see when the 21st (the day of the month on which defendant and she had met) falls on a Saturday, and that the first time was September 21. She stated in the letter that September 21 was “a long way from January but it is a very good date. I don’t know how long I’m expected to stay in morning [szc]. I’d hate to wait all the way to September.” It is not unreasonable to conclude that “stay [ing] in morning” referred to her husband, and not to the defendant’s mother, as the defendant argued. Indeed, we think it rather unreasonable to believe that Karolyn would write to the defendant and express reluctance over having to stay in mourning for his own mother. Moreover, while defendant testified that his mother was suffering from terminal cancer, and introduced several letters, written to Karolyn, in which he discussed his mother’s terminal illness, she was still alive at the time of the trial.

Also, on November 26, 1973, Karolyn wrote to the defendant and expressed a desire to “hurry [their] plans.” In another letter, which is undated, she wrote that “There’s only 8 more days left. I can hardly wait. Then we have a wait of 49 days until we can be secretely [sz'c] married in Mich. ***.” In another letter she wrote, “Only 5 days to go and then only 49 from then but 57 from today.”

There is strong evidence that the letter in which Karolyn wrote that “There’s only 8 more days left” was written 8 days before January 3, 1974. Forty-nine days from the 3rd of January would have fallen on the 21st of the month, the day of the month to which Karolyn constantly referred as the day on which she wanted to be married. Defendant claims that Karolyn’s excitement over the 3rd of January, both in this letter and the letter apparently written 5 days before the 3rd, was in anticipation of the couple’s celebration of New Year’s and Christmas, which they had planned to take place on that date. However, the importance of the 3rd, as signified by these letters, was clearly that it had some relation to the date in the future when the couple would be free to be married. In this regard the jury could reasonably consider the fact that Karolyn had not discussed divorce in any letter written during this period, nor was there any evidence that she had made plans to file for a divorce in the near future.

The defendant argues that he had made plans to break up with Karolyn on the 3rd, and to move back to Michigan shortly thereafter. However, his arguments in support of this hypothesis are not very convincing. He was with Karolyn the entire day of the 3rd and by his own testimony never mentioned the breakup to her. And, he admitted that he would have had to ask her to drive him back to the airport and would have had to borrow money from her before he left. Furthermore, after the defendant’s capture, he professed his great love for Karolyn and lied to the police to protect her. This array of facts is not consistent with his story that he had planned to break up with Karolyn Atkinson on January 3 and never see her again.

In addition, the jury could consider that the defendant was aware of a $30,000 decreasing-term policy insuring Atkinson’s life in connection with the mortgage on the new house he was building and also that in the month period preceding the 3rd of January 1974 the couple communicated on practically a daily basis by long-distance telephone.

On the basis of all the above evidence, we conclude that the verdict finding the defendant guilty beyond a reasonable doubt should not be disturbed. The jury heard the evidence offered in rebuttal by the defendant and observed the demeanor of the witnesses and judged their credibility. In our view, the evidence itself, and the inferences and deductions which the jury regarded as reasonably flowing therefrom, sufficiently nullify the hypothesis preferred by the defendant that Karolyn Atkinson shot her husband without defendant’s aid or connivance. This perhaps is a potential explanation, but in light of the evidence, the jury was not required to believe that it is a reasonable one. See People v. Russell (1959), 17 Ill. 2d 328.

The defendant argues that the trial court erred in denying his motion to suppress the letters written between himself and Karolyn Atkinson. We have at least implicitly addressed this argument by considering the letters as evidence in support of the jury verdict of guilty beyond a reasonable doubt. However, since our finding that the trial court properly denied the defendant’s motion to suppress raises several important constitutional issues, we will devote some discussion to this aspect of the case.

Jon Heflin, the defendant’s brother, drove to the Waukegan police department on the night of January 7, 1974, from his home in West Bloomfield, Michigan. At the police station, the police informed him of his brother’s arrest. One of the police officers inquired about correspondence between defendant and Karolyn Atkinson and asked if Jon would get the letters for the police. Shortly thereafter, Jon spoke to the defendant, who asked him to pick up his car at the airport in Detroit and to collect his personal belongings and take them to Jon’s house for storage. Jon did not mention the letters or the police request for them to the defendant.

Jon spoke to defendant’s counsel on the same evening. Jon informed him of the police request for letters. According to the defense counsel’s testimony, he told Jon that he did not have to turn over the letters to the police, but he admitted that he did not instruct Jon not to do so. The attorney also expressed his desire to see the letters.

Upon returning to Michigan, Jon collected the defendant’s belongings from the defendant’s car, which Jon had picked up from the airport, and from his home, where the defendant had stayed from October 1973 to some time in November 1973. He also gathered the defendant’s belongings from the home of his cousin Tim Nichols, where the defendant had lived from November 1973 until the time of his arrest.

On January 11, 1974, Jon received a call from one of the police officers in Waukegan who asked Jon to send the letters as soon as possible. Jon gathered all the letters, which he had collected from his home, from the defendant’s car and from the defendant’s room at the Nichols residence, and mailed them to the police. He sent one group of letters to the police on January 14, 1974, and a second group on'January 18, 1974.

No search warrant was issued authorizing the seizure of the letters. The defendant argues that the seizure of the letters was unreasonable, since it was accomplished without a warrant by persons acting at the request of the police.

The constitutional proscription against unreasonable searches and seizures does not apply to searches or seizures conducted by private individuals. (Burdeau v. McDowell (1921), 256 U.S. 465, 65 L. Ed. 1048, 41 S. Ct. 574.) The validity of the defendant’s argument that there has been an unreasonable search and seizure in this case, consequently, rests on the presumption that Jon Heflin acted as an agent or instrumentality of the State in turning over the correspondence of his brother to the Waukegan police.

The relevant factors involved in determining whether or not a particular search should be attributed to the government have been frequently discussed by the Supreme Court of the United States. (See, e.g., Lustig v. United States (1949), 338 U.S. 74, 93 L. Ed. 1819, 69 S. Ct. 1372.) Where a search is conducted by a private individual, the search will be subject to constitutional guarantees when the individual conducting the search can be regarded as acting as an agent or instrument of the State “in light of all the circumstances of the case.” (Coolidge v. New Hampshire (1971), 403 U.S. 443, 487, 29 L. Ed. 2d 564, 595, 91 S. Ct. 2022, 2049.) Participation by the police in and of itself, then, does not automatically invoke the application of the guarantees against unreasonable government intrusions safeguarded by the fourth and fourteenth amendments. In Coolidge v. New Hampshire, in response to a query by the police whether her husband had any guns at home, Mrs. Coolidge, defendant’s wife, took four guns out of a bedroom closet and handed them to the officers. She also produced for the police the clothing that the defendant had worn on a particular night. The Supreme Court upheld the warrantless search and seizure on the grounds that it was not a government search, but rather was conducted by a private individual not acting as a State agent or instrument.

In upholding the seizure of defendant’s possessions, the Supreme Court noted there was no unreasonable police conduct that had coerced Mrs. Coolidge into becoming an unwilling assistant in the search for evidence. In fact, the Supreme Court specifically referred to the absence of “the more subtle techniques of suggestion that are available to officials in circumstances like these” (403 U.S. 443, 489, 29 L. Ed. 2d 584, 596, 91 S. Ct. 2022, 2050). Consequently, the fact that the search may have been prompted by the police inquiry was not critical; rather, the court placed emphasis on the nature of the police involvement and the independent decision of Mrs. Coolidge to turn over her husband’s possessions to the police.

The defendant argues that the present situation is different from that in Coolidge, because here there were specific requests for his possessions. We do not think this factor is dispositive. Here, as in Coolidge, we can find no evidence of unreasonable police conduct or coercive influence over the private individual who turned the defendant’s possessions over to the police. Considering the entirety of the evidence, we think it sound to conclude that Jon Heflin decided to voluntarily turn the letters over to the police without their persuasion. The letters were obtained by Jon Heflin at the insistence of the defendant, not the police, and Jon Heflin discussed the letters with the defendant’s attorney, who gave him no specific orders not to turn them over. Moreover, the nature of the initial request and the follow-up requests by the police indicate that no pressure, subtle or otherwise, was exerted on Jon Heflin at any time. Consequently, we conclude that Jon Heflin acted independently and that the search and seizure of defendant’s possessions was without the requisite degree of police involvement necessary to invoke constitutional guarantees.

Assuming arguendo that a government search and seizure was involved in this case, we think the record sufficiently supports a finding that it was conducted with the voluntary consent of one having joint access and control over the articles seized. This is significant, because “when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” (United States v. Matlock (1974), 415 U.S. 164, 171, 39 L. Ed. 2d 242, 249-50, 94 S. Ct. 988, 993; People v. Stacey (1974), 58 Ill. 2d 83, 87-88.) Moreover, when one with common authority consents to the search and seizure, the search will not be invalidated because the defendant claims an “expectation of privacy” in the premises or effects subjected to the search. People v. Stacey (1974), 58 Ill. 2d 83, 89.

In the instant case, it is clear that Jon Heflin had common authority over the letters gathered from his own home. According to the record, the defendant’s letters were found in closets shared with family members, on bookshelves, in drawers, on the top of the refrigerator, and in the family recreation room.

Jon also turned over the letters which he obtained from the defendant’s room at his cousin’s house and from the defendant’s car. As we have indicated, Jon obtained possession of his brother’s car and the belongings at the Nichols home at the request of the defendant and with the knowledge and consent of the defendant’s attorney. There were no instructions either from the defendant or from the attorney forbidding others to have access to the letters. Accordingly, we think it proper to conclude that there was “common authority” over the letters as the term is defined in United States v. Matlock. As to these letters, as with the letters taken from the Jon Heflin home, there was “mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-habitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” (United States v. Matlock (1974), 415 U.S. 164, 171 n.7, 39 L. Ed. 2d 242, 250 n.7, 94 S. Ct. 988, 993 n.7.) Accordingly, the trial court correctly denied the defendant’s motion to suppress the letters from admission, into evidence.

The defendant argues that he was denied a fair trial because the jury was subjected to improper closing arguments concerning the law of accountability. Further, the defendant argues that error was compounded by the court’s refusal to answer the jury’s question whether “the intent to promote or facilitate was a necessary condition” to holding a person accountable for murder. The defendant contends that the combination of these errors served to deprive him of his constitutional right to have every element of the crime with which he was charged, including the critical element of intent to promote or facilitate the substantive offense, proved beyond a reasonable doubt.

During his closing argument, the attorney for the People argued that even if the jury found Mrs. Atkinson pulled the trigger, the defendant was guilty of murder because he applied psychological pressure on her, causing her to shoot her husband. This argument was clearly improper and misleading because it did not adequately state the law — the psychological pressure of defendant upon Karolyn Atkinson would not support a guilty verdict by accountability unless the defendant, with the intent to commit murder, aided and abetted Karolyn Atkinson. (Ill. Rev. Stat. 1973, ch. 38, par. 5—2.) The defense counsel, consequently, objected to the argument as improperly stating the law concerning accountability. The trial judge correctly sustained the objection, and specifically directed the jury to “disregard the fact [of psychological pressure] unless [the defendant] was aiding and abetting her to kill.”

In light of the judge’s admonition to the jury to disregard the improper argument, we deem the error inconsequential. As we explain below, we do not agree with the defendant that the error was prejudicial when compounded with the judge’s later refusal to clarify the jury’s apparent confusion concerning the elements necessary to hold an accused guilty by reason of accountability.

During the jury’s deliberations, the trial court received the following written request from the jury: “Will you please rephrase the definition of legal responsibility. We are in disagreement concerning intent to promote or facilitate is [szc] a necessary condition.”

The term “legal responsibility” appeared in two important instructions from the trial court. First, the trial court had instructed the jury that:

“A person is legally responsible for the conduct of another person when, either before or during the commission of a crime, and with the intent to promote or facilitate the commission of a crime, he knowingly solicits, aids, abets, agrees or attempts to aid the other person in the planning or commission of the crime.” Modified Illinois Pattern Jury Instruction, Criminal, No. 5.03.

Also, in a modified Illinois Pattern Jury Instruction on murder, the trial court had instructed the jury as follows:

“First: That the defendant, or a person for whose conduct the defendant is legally responsible, performed the acts which caused the death of Clifford Atkinson;
Second: That when the defendant, or a person for whose conduct the defendant is legally responsible, did so, he or a person for whose conduct he is legally responsible, intended to kill or do great bodily harm to Clifford Atkinson, or he or a person for whose conduct he is legally responsible, knew that his acts would cause death or great bodily harm to Clifford Atkinson, or he or a person for whose conduct he is legally responsible, knew that his acts created a strong probability of death or great bodily harm to Clifford Atkinson.” Modified IPI Criminal No. 7.02.

Initially, defendant’s counsel had objected to the word “responsible” in the instruction concerning legal accountability. He pointed out to the court that the word “responsible” was a common term and could be interpreted by the jury in a number of ways. The court considered this argument and asked the prosecutor whether he would object to replacing the term “responsible” with “legally accountable.” The prosecutor stated that he would object, because this would serve to make the accountability instruction ostensibly inconsistent with the murder instruction, which used the word “responsible.” The court compromised and used the words “legally responsible” in both instructions. As a result, the jury would be prevented from interpreting “responsible” in the manner feared by defendant’s counsel, and, in turn, the prosecutor’s request that the instructions remain as consistent as possible was satisfied.

Clearly, the trial judge was quite concerned with providing the jurors with fair and accurate instructions, as indicated by the judicious manner in which he tried to minimize any potential confusion which might arise among the jurors with respect to accountability. We think he satisfactorily achieved his purpose of properly instructing the jury and that he was squarely within the bounds of his discretion to refuse to answer the question put to him by the jurors. The instructions were compiled only after considerable discussion and debate between the trial judge and counsel over pertinent points. They clearly provide that the “intent to promote or facilitate” is a prerequisite to a finding of “legal responsibility.” Because they are unambiguous on this point, we agree with the trial judge that the question by the jury called for little more than for him to “help [the jury’s] understanding of the English language.” We point out that the judge did not arbitrarily or perfunctorily refuse to answer the question. His decision was made only after a lengthy discussion with defendant’s counsel and the prosecutor, and that he ultimately decided against answering the question because he felt that it would unnecessarily emphasize one segment of the instructions. Based on this evidence, we cannot say that the trial court abused its discretion by not answering the jury’s question.

The defendant argues that his sentence of 30 to 60 years for the murder of Clifford Atkinson is excessive and should be reduced. We do not agree.

This court will not disturb a sentence imposed by the trial court unless it clearly appears that the penalty constitutes a great departure from the fundamental law and its spirit and purpose. (People v. Taylor (1965), 33 Ill. 2d 417.) In this State, the spirit and purpose of the law are upheld when a sentence reflects the seriousness of the offense and gives adequate consideration to the rehabilitative potential of the defendant. See Ill. Const. 1970, art. I, sec. 11.

In our opinion, the trial court’s sentence should not be disturbed. The record shows that the trial judge carefully weighed all of the factors in the presentence report in favor of a minimum sentence against the heinous nature of the crime and the circumstances under which it was committed. He also considered the rehabilitative potential of the defendant. In light of all these factors, and the trial court’s consideration thereof, we cannot say that the 30- to 60-year sentence is excessive or unauthorized by law.

Judgment affirmed.

MR. JUSTICE KLUCZYNSKI took no part in the consideration or decision of this case.


author: MR. CHIEF JUSTICE WARD

text:
    (No. 50209.
    WILLIAM M. OSBORNE, Appellant, v. THE INDUSTRIAL COMMISSION et al.-(Pickens-Kane Moving & Storage, Appellee.)

      Opinion filed May 26, 1978.

      MORAN and KLUCZYNSKI, JJ., took no part.
    William M. Osborne, of Galesburg, pro se.

    Terrance J. Van Driska, of Chicago, for appellee.
   MR. CHIEF JUSTICE WARD

delivered the opinion of the court:

An arbitrator for the Industrial Commission found that William Osborne, the claimant, suffered a permanent loss of 15% of the use of his right thumb as a result of an accidental injury sustained while employed as a mover by the respondent, Pickens-Kane Moving and Storage. On review, the Commission enlarged the award to include compensation for a permanent loss of 10% use of the claimant’s left leg. The circuit court of Cook County confirmed the award for loss of use of the thumb, but set aside that portion of the award relating to loss of use of the leg. The claimant has appealed from that portion of the judgment under our Rule 302(a). 58 Ill. 2d R. 302(a).

The only question for us is whether the circuit court erred in holding that the Commission’s additional finding for loss of use of the leg was contrary to the manifest weight of the evidence. The respondent does not dispute the award for the injury to the claimant’s thumb.

On July 3, 1975, the claimant was moving a filing cabinet and as he tilted the cabinet in order to slip a dolly beneath it, the claimant testified, his left leg collapsed and the cabinet fell on his right thumb. The award for the injury to the thumb, as we have noted, is not in issue. The claimant contends that the accident also aggravated a preexisting condition of his left knee and that the circuit court erred in setting aside the Commission’s award for that injury.

The evidence shows that the claimant, while employed by the respondent, had on May 16, 1973, and July 30, 1973, suffered compensable injuries to the left knee. Corrective surgery for those injuries was performed September 18, 1973. The claimant returned to his job early in 1974, and worked more or less continuously until the accident of July 3, 1975. His left knee had continued to bother him, however, and in June 1975 the workmen’s compensation carrier for the respondent as of the time of the two earlier injuries scheduled an appointment for the claimant with an orthopedic surgeon for July 11, 1975. The accident of July 3, 1975, intervened. The claimant kept the scheduled appointment, and further surgery was recommended. A second operation was performed upon the claimant’s knee on July 30, 1975. His condition has since improved, but he remains unable to perform the heavy bending, lifting, and carrying required of a mover. Compensation representing a permanent loss of 60% of the use of the claimant’s left leg has already been awarded and paid under separate proceedings before the Industrial Commission based on his injuries of May 16, 1973, and July 30, 1973.

The claimant testified that prior to the accident of July 3 he had been able to work more or less steadily in spite of the previous injuries to his knee. He stated that he observed the knee was more swollen immediately after that accident, and that he was unable to work after it.

The respondent argues that the claimant had been in need of further surgery on the left knee prior to July 3, 1975, and that the last accident did not further disable the claimant. The claimant’s supervisor testified before the arbitrator that the claimant did not mention an injury to the knee when he reported the accident. The claimant did not seek treatment for the injury to his knee at the hospital to which he was first taken for emergency care on July 3 or at the medical clinic where he received out-patient treatment for the injured thumb.

The claimant did offer an explanation for these circumstances. He testified that he did in fact report the leg injury to his supervisor, that he did not seek treatment for the leg at either the hospital or the clinic because an appointment had already been scheduled for July 11 with an orthopedic surgeon, and that because of this he did not wish the hospital or clinic to treat his knee. In response to a hypothetical question, the orthopedic surgeon who examined the claimant’s knee on July 11, 1975, testified at the hearing before the Commission that the accident of July 3, 1975, “could or might have aggravated a preexisting condition.”

There was conflicting evidence in this case, and reasonable inferences could have been drawn in support of either the claimant’s or the respondent’s position. It is the responsibility of the Industrial Commission to resolve disputed questions of fact, including the nature and extent of the claimant’s disability, and to draw reasonable inferences from the facts. (City of Chicago v. Industrial Com. (1975), 60 Ill. 2d 283, 285-86.) A reviewing court cannot disturb the Commission’s determination simply because it might have drawn opposite inferences. (Seay v. Industrial Com. (1976), 62 Ill. 2d 241, 244.) The findings of the Industrial Commission as to the facts will be set aside only if they are contrary to the manifest weight of the evidence. (Chicago Transit Authority v. Industrial Com. (1975), 61 Ill. 2d 78, 84-85.) A review of the record does not persuade us that the finding of the Industrial Commission that the claimant sustained an additional 10% loss of the use of the leg from the accident of July 3, 1975, was contrary to the manifest weight of the evidence. The Workmen’s Compensation Act provides that compensation for injuries shall be apportioned according to the proportion of disability caused by the respective injuries a worker may have suffered. (Ill. Rev. Stat. 1975, ch. 48, par. 138.10(h).) The judgment of the circuit court of Cook County is therefore reversed as to that portion of the judgment which set aside in part the Commission’s award. The balance of the circuit court judgment, not having been contested, is affirmed, and the award of the Industrial Commission is reinstated.

Affirmed in part and reversed in part; award reinstated.

MORAN and KLUCZYNSKI, JJ., took no part in the consideration or decision of this case.


author: MR. JUSTICE MORAN

text:
    (No. 49486.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. SETH GRANT, Appellee.

      Opinion filed May 26, 1978.

      KLUCZYNSKI, J., took no part.

      William J. Scott, Attorney General, of Springfield, and Roger W. Thompson, State’s Attorney, of Lincoln (Donald B. Mackay, and Melbourne Noel, Assistant Attorneys General, of Chicago, and Robert C. Perry, of the Illinois State’s Attorneys Association Prosecutor’s Appellate Service, of Springfield, of counsel), for the People.
    Richard J. Wilson, Deputy Defender, of Springfield (Barbara A. Chasnoff, Assistant Defender, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

After a jury trial in the circuit court of Logan County, the defendant, Seth Grant, was convicted of aggravated battery and obstructing a police officer. The court entered judgment on both verdicts, but sentenced the defendant to 3 to 9 years of imprisonment only for the offense of aggravated battery. A divided appellate court reversed the convictions and remanded the cause for a new trial so that the jury could be instructed on both an insanity defense and on the defense of involuntary conduct. (46 Ill. App. 3d 125, 131.) We granted the State leave to appeal.

The evidence adduced at trial indicated that the defendant is an epileptic who is susceptible to both grand mal and psychomotor seizures. It was also established that during the 2,Vz hours prior to the incident which precipitated defendant’s arrest, defendant had four mixed drinks at a tavern. A fight erupted at the tavern, and the police officer who arrived to quell the fight was struck by the defendant.

The defendant was arrested and transported to the city jail. There, within the hour, he was discovered lying on a cell cot, gasping for breath and convulsing in a manner symptomatic of a grand mal seizure. He was immediately rushed to a Lincoln hospital, and, later that night, was taken to a Springfield hospital. The following morning, defendant was examined and interviewed by a physician specializing in psychiatry. The physician’s diagnosis at that time was that the defendant suffers from acute alcoholism and epilepsy. The physician, called by defendant, testified that, in his opinion, the defendant was experiencing a psychomotor seizure at the time he struck the police officer, and that defendant lacked the substantial capacity to' appreciate the criminality of his conduct or to conform his conduct to the requirements of law.

The physician provided the only expert testimony on epilepsy. He characterized a grand mal seizure as the form most commonly associated with epilepsy, one in which the epileptic becomes unconscious and may chew his tongue and lose control of his excretory functions. The psycho-motor seizure, he testified, is less obvious to the lay observer. An epileptic lapsing into a psychomotor seizure may be completely mobile and may converse, although with reduced coherence. He noted, however, that a psychomotor seizure is similar to a grand mal seizure in that it is a trance-like state during which the epileptic is unaware of what he is doing or what he has done and is incapable of controlling his actions. Although alcohol, as well as excitement and hyperventilation, may precipitate a psychomotor seizure, the furor of a seizure, once commenced, is independent of the intoxication. A psycho-motor seizure can last for seconds or minutes and often precedes a grand mal seizure.

The State, in an effort to convince the jury that the defendant was not in the throes of an epileptic seizure at the time he struck the officer, elicited testimony to show that the defendant’s actions, both during and after the tavern incident, belied the symptoms typical of psycho-motor seizures, that the defendant’s actions were more likely precipitated by his alcohol consumption and his propensity toward antisocial behavior, and that the defendant may have simulated symptoms in order to deceive the doctor and escape criminal responsibility for his actions. The record reflects that the defendant has a complicated medical and legal history. At the time of the tavern incident, the defendant was taking medication to control both his epileptic condition and his nervousness. The physician, on direct examination, testified that defendant’s case history included a number of violent attacks on other persons: on one occasion, the defendant had assaulted a nurse with a knife; on another, while in a drunken state, he shot a man. He stated that defendant had been jailed numerous times for drunkenness and fighting.

At the conference on instructions, both the State and the defendant tendered jury instructions regarding the defense of insanity. The trial court chose to tender the State’s instruction, taken from Illinois Pattern Jury Instruction, Criminal, No. 24.01 (1968), which reads:

“A person is insane and not criminally responsible for his conduct if at the time of the conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
Abnormality manifested only by repeated criminal, or otherwise anti-social conduct, is not mental disease or mental defect.” (IPI, Criminal No. 24.01 (1968).)

The defendant objected only to the second paragraph. The defendant also objected to the verdict forms which instructed the jury that if it concluded that defendant was not guilty by reason of insanity, it must find further either that he was still insane or that he had recovered from his condition of insanity. (See Ill. Rev. Stat. 1973, ch. 38, par. 115—4(j).) The defendant tendered no instruction on any theory other than insanity.

In the appellate court, the defendant urged, generally, that the insanity instruction and verdict forms, considered together, confused the jury and misstated the law. More specifically, the defendant argued that it was unclear whether the condition of epilepsy or the epileptic seizure was the “mental disease or mental defect” referred to in the insanity instruction. The defendant asserted that the verdict forms aggravated the confusion in that the defendant might be considered recovered from the seizure, but still insane with respect to his epileptic condition. The divided appellate court, in reversing the conviction, did not conclude that the insanity instruction and verdict forms confused the jury. Instead, it held that the failure of the trial court to sua sponte instruct the jury on the defense of involuntary conduct was a substantial defect requiring the reversal of defendant’s conviction. We note that the defendant did not try the case on an involuntary conduct defense, did not cite in his post-trial motion the failure to instruct the jury on such a defense, and did not argue in the appellate court that such instruction should have been given.

We emphasize that, under Illinois law, the burden of preparing jury instructions, in criminal as well as in civil cases, is primarily on the parties, not on the trial court. (58 Ill. 2d R. 451; Ill. Rev. Stat. 1973, ch. 110, par. 67.) We have repeatedly pronounced that, with certain exceptions, the trial court is under no obligation to give jury instructions not requested by counsel. (People v. Springs (1972), 51 Ill. 2d 418, 425; People v. Damen (1963), 28 Ill. 2d 464, 469.) This is particularly true when the evidence adduced at trial is amenable to alternative theories. It is not enough merely to introduce relevant evidence. If a defendant does not articulate his theory in argument, and fails to tender jury instructions identifying it, he cannot reasonably expect the trial court, unaided, to divine his intent. The record in this case reveals, quite unmistakably, that the defendant proceeded at trial and on appeal solely on the theory of insanity. His objections, limited to the second paragraph of the insanity instruction and to the verdict forms, in no way preserved his right to object that an instruction on the defense of involuntary conduct was not given. Therefore, unless the omission of an instruction on involuntary conduct constituted such a substantial defect that the failure of the trial court to sua sponte give it resulted in an unfair trial, such omission shall be disregarded on appeal. 58 Ill. 2d R. 615(a).

To appreciate precisely the defect to which the defendant refers, we must examine the kindred relationship between the defense of involuntary conduct and the insanity defense, as they apply to an epileptic seizure.

Both defenses adhere to the fundamental principle that a person is not criminally responsible for an involuntary act. Certain involuntary acts, i.e., those committed during a state of automatism, occur as bodily movements which are not controlled by the conscious mind. A person in a state of automatism lacks the volition to control or prevent the involuntary acts. Such involuntary acts may include those committed during convulsions, sleep, ■unconsciousness, hypnosis or seizures. (See Ill. Ann. Stat., ch. 38, par. 4-1, Committee Comments, at 250 (Smith-Hurd 1972), citing Model Penal Code, sec. 2.01 and Comment 3, at 121 (Tent. Draft No. 4 (1955).) A cornerstone of the defense of involuntary conduct is that a person, in a state of automatism, who lacks the volition to control or prevent his conduct, cannot be criminally responsible for such involuntary acts. Similarly, the insanity defense exculpates a person whose volition is so impaired during a state of automatism that he is substantially incapable of conforming his conduct to the law. To that extent, the defense of involuntary conduct and the insanity defense are alternative theories at the disposal of a defendant whose volition to control or prevent his conduct is at issue. See Weinberg, Epilepsy and the Alternatives for a Criminal Defense, 27 Case W. Res. L. Rev. 771, 787-803 (1977); Model Penal Code sec. 2.01(2), Comment 3, at 121 (Tent. Draft No. 4 (1955); W. LaFave & A. Scott, Criminal Law sec. 44, at 337-41 (1972).

The defendant here, for the first time, contends that the jury could not have properly determined that the defendant possessed the requisite volition for criminal responsibility without having been informed of the defense of involuntary conduct through the IPI instruction that “A material element of every crime is a voluntary act ***.” (IPI Criminal No. 4.14 (1968).) The insanity instruction, as tendered, informed the jury that a person is not criminally responsible for his conduct if, at the time of the conduct, as a result of a mental disease or defect, he lacked either the requisite volition or the requisite cognition. Whether the defendant’s epileptic seizure could be characterized as a mental disease or defect for the purposes of the insanity defense was never at issue. The only issue was whether the defendant was in fact in the throes of an epileptic seizure which substantially impaired his volitional capacity at the time of the conduct. The record clearly reflects that the insanity instruction and the summations drew the jury’s attention fully to the evidence regarding the defendant’s volition to control or prevent his conduct. Instructing the jury that “a material element of every crime is a voluntary act” would not have framed the evidence more plainly. By finding that the defendant, at the time of the conduct, was sane beyond a reasonable doubt, the jury rejected the evidence which would have supported the need for an instruction on the defense of involuntary conduct. We find that the failure to sua sponte instruct the jury on the defense of involuntary conduct did not deprive the defendant of full and fair consideration on the issue of his volitional capacity to control or prevent his conduct. Accordingly, we hold that the omission of such instruction was not so substantial under the circumstances as to require a reversal of the conviction.

The defendant reasserts in this court that the insanity instruction and verdict forms, considered together, confused the jury. His contention — that it was unclear whether the condition of epilepsy or the epileptic seizure was the mental disease or defect referred to in the insanity instruction — is manifestly belied by the record. The expert witness opined that, at the time of the offense, the defendant suffered from epilepsy and acute alcoholism, and he characterized both as mental diseases or defects. Defense counsel, during his summation, repeatedly represented that a person suffering from a mental defect such as epilepsy may become incompetent at the time he experiences a seizure. The verdict forms which, the defendant asserts, aggravated the confusion were to be considered by the jury only in the event of a verdict of not guilty by reason of insanity. In light of the fact that the jury returned a verdict of guilty, thereby rejecting the insanity defense, we do not believe that such verdict forms confused the jury or in any way prejudiced the defendant.

For the reasons stated, we reverse the judgment of the appellate court wherein the case was to be remanded for a new trial.

Defendant raises a final point which pertains to his sentence. Subsequent to the rendering of the appellate court’s opinion, the legislature approved a new comprehensive sentencing act. The amendatory act provides that the sentence of imprisonment for aggravated battery, a Class 3 felony (Ill. Rev. Stat. 1977, ch. 38, par. 12—4(d)), shall be a determinate sentence of not less than 2 nor more than 5 years (Ill. Rev. Stat., 1977 Supp., ch. 38, par. 1005—8—1(a)(6)). The defendant was sentenced to an indeterminate term on April 29, 1975, of 3 to 9 years’ imprisonment. The amendatory act expressly provides:

“Prosecution for any violation of law occurring before the effective date of this amendatory Act of 1977 is not affected or abated by this amendatory Act of 1977. If the defendant has not been sentenced before the effective date of this amendatory Act of 1977, he shall have the right to elect to be sentenced under the law as it existed at the time of his offense or under the law in effect on and after the effective date of this amendatory Act of 1977. If a sentence has been imposed before the effective date of this amendatory Act of 1977, the defendant shall not have the right of election even though his case has not been finally adjudicated on appeal; however, where eligible, he shall have the rights provided by Section 3—3—2.1 of this Code.” (Emphasis added.) (Ill. Rev. Stat., 1977 Supp., ch. 38, par. 1008—2—4(b).)

The effective date of the new sentencing act was February 1, 1978.

The defendant seeks to be allowed to elect sentencing under the new act and asserts that section 8—2—4(b) of that act violates the equal protection clauses of the State and Federal constitutions. He argues that there is no rational basis for distinguishing between persons sentenced after the effective date of the act and those, sentenced prior to that date, whose appeals are still pending.

We do not agree. Without a doubt, the power of the legislature to determine punishment is subject to constitutional limitations. Nevertheless, the ability to elect to be sentenced under a law enacted after the date of the commission of a crime is not a constitutional right but a benefit conferred solely by statute. It is not unconstitutional for the legislature to confer such benefit only prospectively, neither is it unconstitutional for the legislature to specify “a classification between groups differently situated, so long as a reasonable basis for the distinction exists.” (People v. Spears (1971), 50 Ill. 2d 14, 16.) In this instance, the legislature distinguished between those defendants, on the one hand, who had not yet been accorded any sentencing hearings prior to the cut-off date, and those, on the other hand, whose sentences, already imposed, would require remandments for additional sentencing hearings. We find this to be a reasonable basis for distinction and, therefore, no constitutional denial of equal protection.

The two cases cited by the defendant do not undermine this conclusion. In People ex rel. Carroll v. Frye (1966), 35 Ill. 2d 604, this court considered whether a statutory amendment which provided credit for the time served in jail while awaiting trial must be applied retroactively to the effective date of the amendment. The State asserted that the rational basis for limiting the retroactive application of the amendment was to prevent double credit, in that the judge may have accounted for said time when fixing sentence. The court rejected the State’s position only as it applied to offenses which carried mandatory minimum sentences and reasoned that in such instances, it was unlikely that the judge actually compensated for time served. Therefore, the court concluded, no basis remained for distinguishing among defendants whose offenses carried mandatory minimum sentences.

In People v. Nicks (1976), 62 Ill. 2d 350, this court reviewed an ameliorative law regarding consecutive sentences. The new law provided that it was to apply only to persons sentenced to consecutive terms after the effective date of the law. At that time, the Unified Code of Corrections provided that those sentenced prior to the effective date of a new sentencing law were entitled to benefit from any ameliorative changes in that law if their case had not yet reached “final adjudication. ” The court held that no rational basis existed for denying to those sentenced to consecutive terms a benefit which would have been accorded to those sentenced to nonconsecutive terms.

Accordingly, we hold that defendant is not entitled to elect to be sentenced under the provisions of the new sentencing act.

The judgment of the appellate court is reversed. The trial court’s judgment of conviction for aggravated battery and the sentence thereon is affirmed.

Appellate court reversed; circuit court affirmed.

MR. JUSTICE KLUCZYNSKI took no part in the consideration or decision of this case.