author:
MR. JUSTICE CLARK MR. JUSTICE RYAN,
      MR. JUSTICE UNDERWOOD,

text:
    (No. 51537.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JERRY ARTHUR GLECKLER, Appellant.

      Opinion filed October 17, 1980.

      RYAN, J., specially concurring.
    UNDERWOOD and WARD, JJ., concurring in part and dissenting in part.
    Daniel D. Yuhas, Deputy Defender, of Springfield (Charles M. Schiedel, of Springfield, and Verlin R. F. Meinz, of Ottawa, Assistant Appellate Defenders, of counsel), for appellant.
    William J. Scott, Attorney General, of Springfield (Donald B. MacKay, Melbourne A. Noel, Jr., Carolyn B. Notkoff, and Jonathan Strauss, Assistant Attorneys General, of Chicago, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Robert P. Isaacson, Aaron L. Meyers and John Thomas Moran, Assistant Public Defenders, of counsel), amicus curiae.

   MR. JUSTICE CLARK

delivered the opinion of the court:

A jury in Champaign County found defendant, Jerry Arthur Gleckler, guilty of the shotgun murders of two teenagers, Douglas Scott Simmons and Mark Harris. Two days later, on May 26, 1978, this same jury decided that no mitigating factors existed which were sufficient to preclude a sentence of death. Direct appeal was taken to this court. See 73 Ill. 2d R. 603.

Evidence introduced at trial showed that the bodies of Simmons and Harris were found at 7:30 a.m. on September 26, 1977, in a ditch beside a county road near Mahomet. Both had shotgun wounds in the back and had been killed by close-range shotgun blasts to the back of the head. Defendant Gleckler was arrested on September 28. Under questioning by police, he agreed to waive his Miranda rights and make a recorded statement.

Gleckler was indicted for murder, along with Theodore Parsons and Robert Kirkpatrick, on October 4, 1977. The indictments also charged that Simmons and Harris were killed by defendants during the course of an armed robbery. On December 12, 1977, the State’s motion to sever the cases against the three defendants was granted.

The recorded statement and Gleckler’s trial testimony formed the bulk of the evidence against him. In his testimony, Gleckler, 55, said he had been a heavy drinker since his teenage years. His background included stints in the National Guard (1964-68) and in the United States Army (1968-74). In 1977, Glecker joined the Harmony House in Danville for help with his drinking problem. There he met and befriended Robert Kirkpatrick. In August, Gleckler met Theodore Parsons, primarily a friend of Kirkpatrick. Gleckler and Kirkpatrick got drunk on August 30, and Gleckler did not again return to Harmony House. He moved into a trailer of a friend of Kirkpatrick.

On September 23, 1977, Gleckler, Kirkpatrick and Parsons, during a drive back from the home of Kirkpatrick’s parents, discussed farmers in the area who owned guns. Gleckler mentioned a residence containing several guns. On September 24, Parsons visited Gleckler and persuaded him to burglarize that residence. They stole two shotguns (one 12-gauge and one 20-gauge), ammunition, and several other guns thought by Gleckler to be worth $3,000. Gleckler testified that he wanted to sell these guns. (Apparently one of the guns was eventually sold after the crime at issue here took place.)

Gleckler and Parsons went back to the trailer. Parsons left and then returned with Kirkpatrick. Gleckler briefly assisted Parsons in sawing off the barrel of a shotgun and then went to sleep. Parsons and Kirkpatrick left the trailer at 6 or 7 p.m.

Other testimony showed that Kirkpatrick and Parsons that evening robbed and shot a gas station attendant, who was able to describe his assailant (Parsons) and his accomplice (Kirkpatrick) and their vehicle (Parsons’ car). The next day Gleckler was persuaded by Kirkpatrick and Parsons to take a ride with them, supposedly in order to sell the 12-gauge shotgun. Instead they drove around. Gleckler, having consumed 8 to 10 beers, slept in the car for most of the time. That evening they ate dinner in a Mahomet restaurant. Another patron overheard a portion of their conversation in which one of the three cautioned the group to avoid doing anything by which someone could recognize them.

After eating they drove to a liquor store. Glecker went inside and bought beer and whiskey. When Gleckler returned to the car, Parsons asked several questions about the store and revealed an intention to rob it. When Gleckler demurred, Parsons said he was “chicken s — ” like Kirkpatrick and then disclosed the robbery and shooting of the prior evening.

It is obvious that some sort of criminal enterprise was agreed upon and that obtaining another car, to avoid identification of Parsons’, was a crucial element of their plan.

To that end they cruised an apartment complex but, upon seeing a police car, they returned to the liquor store parking lot. Parsons’ stated intention was to follow an exiting store patron and take his or her car. Gleckler, in his testimony and in his arrest statement, said generally that he argued against robbing the liquor store and against following a store patron. At this time he went into the tavern to use the bathroom and have a drink. He told Kirkpatrick to “talk” to Parsons. After Gleckler returned to the car, another car, a green Plymouth with a white top, later identified as the victims’ car, pulled into the lot and one occupant got out and went into the store. This person came out and reentered the Plymouth. When it left, Parsons, with Kirkpatrick in the front seat and Gleckler in the back seat, drove after it. Parsons followed the car and twice flashed his lights at it to get it to stop.

In his arrest statement, Gleckler was asked specifically if Parsons said anything other than that he was going to stop and take their car. Gleckler answered, “No, he didn’t.” The Plymouth ultimately pulled over or was forced off the road. Parsons pulled over and parked in front of them, got out of the car, and told the occupants of the Plymouth to get out of their car without looking. No further words were spoken between the victims and Parsons.

Gleckler began to get out of the car. He heard two shotgun blasts. At this point, however, Gleckler’s arrest interview and trial testimony diverge. In the arrest interview Gleckler said that when he saw how badly the boys were shot, he went back to the car, loaded his gun, returned to the ditch where the boys lay bleeding, sounding as if they were choking, and shot each of them twice in the back of the head. Either Kirkpatrick or Parsons brought him shells to reload after his first shot.

Gleckler was asked when he decided to “finish” the boys off.

“A. After I had already looked down and they had so much blood running out of them, I knew there wasn’t no way they could be saved.
Q. So you knew, in your own mind, you had to do that when you left and went back to the car — car for shells?
A. They was just — they were just laying there and dying. There wasn’t no — couldn’t even have a doctor come in time.”

The questioner continued:

“Q. Did either one of these young men put up any kind of a struggle — struggle before being shot?
A. No sir. I didn’t hear them say nothing.
Q. Did they have any chance for a defense to defend themselves?
A. Not that I know of. There — there was no reason for it. I thought he [Parsons] was going to take them in the cornfield and tie them up, and that was—
Q. Had you discussed, the three of you, that that would be the thing to do, to tie them up, or you just—
A No, I told them to take them and just tie them up, and I think that’s good enough. I didn’t have the slightest idea that was going to go on a ride with it.
Q. But at this point, your basic thing was your wanting the car?
A. That’s all. Transportation.
Q. And then you were going to use that car of theirs to go back and pull the armed robbery of the liquor store? Is that correct?
A. Uh — yes.”

After the shootings, Gleckler said that he got into the Plymouth, whereas Parsons and Kirkpatrick rode in Parsons’ car. Both cars drove by the liquor store, Gleckler stopping for gas along the way, but any plans to rob it were abandoned when it was determined that it was closed. When Parsons revealed a desire to rob a gas station, Gleckler at that point spoke to the effect that he explicitly withdrew from the criminal enterprise.

In response to leading questions about the appearance of the victims, Gleckler said he could not describe them, although he knew they were young, and that he knew nothing until reading press reports the next day of money that was missing from the victims’ wallets. He also said that he brought the 12-gauge shotgun back to the trailer where he was staying, that he disposed of the Plymouth on the day after the murders by running it down a deep ravine in Indiana, and that he disposed of the clothes and gloves he was wearing that night by weighting them with a rock and throwing them in a creek. At the end of the questioning, Gleckler agreed that his answers had not been influenced in any way by law-enforcement officials and that they had discussed all significant aspects of the incident.

At the trial, however, Gleckler said that, after he heard the two shotgun blasts and got out of the car, Parsons ordered him to get a shotgun and shells and load it. Parsons then ordered him to shoot the victims. When Gleckler at first refused, Parsons said to shoot or he would blow his “f — ing head off.” Gleckler turned his head away and shot each victim. Gleckler testified at trial that Kirkpatrick did ride with him in the Plymouth after the shootings but that they did not stop for gas. Parsons allegedly came over to the Plymouth before driving away and told Gleckler that he would not be able to “tell” on him now because “you shot them too.”

On cross-examination, Gleckler conceded that when he was arrested he had not told police of Parsons’ threat. Nor had he so informed police after the initial arrest interview despite at least one such opportunity.

In a contradiction of his arrest statement, Gleckler testified that he had not weighted his clothes with a stone and disposed of them in water someplace. They were in fact found in the trailer where he lived. The only explanation attributable to Gleckler for the differences between his arrest interview and his trial testimony was that, upon his arrest, he was “mixed up,” his hands were “shaking,” and he was “just trying to remember” what happened. The interviewing officers denied that Gleckler’s hands were shaking or that his speech was slurred or otherwise indicative of a mental disturbance or condition which would have prevented him from truthfully answering questions.

The State introduced other evidence at the trial, including exhibits, like shotgun shells, found at the scene of the crime, photographs of the crime scene, and Gleckler’s bloodstained clothing. The pathologist testified that single shotgun shots were inflicted to the heads of the victims, causing instantaneous death. Other evidence not relevant here was also introduced. It is sufficient to say that there was more than enough evidence of defendant’s guilt.

In a lengthy brief, defendant challenges several rulings of the trial court during the guilt and sentencing stages of the trial and the propriety and constitutionality of sentencing him to death.

Defendant first argues that the trial court erred in refusing a tendered jury instruction on the statutory defense of compulsion and in refusing to instruct the jury on voluntary manslaughter because of the evidence of compulsion. He argues alternatively that the death penalty cannot be imposed for murder where there is evidence of compulsion because our criminal statutes inadequately provided notice that his conduct was punishable with death. The initial inquiry involves a determination of legislative intent. Because we find that the legislature intended to preclude the defense of compulsion for the crime of murder and prevent the crime of murder from being reduced to one of voluntary manslaughter based on evidence of compulsion, we must also decide whether Gleckler had fair notice that he could receive a sentence of death for killing, allegedly under Parsons’ orders, the two victims.

Criminal statutes are to be construed with reference to the general purposes of the Criminal Code of 1961. As set forth in section 1 — 2, these purposes are to:

“(a) Forbid and prevent the commission of offenses;
(b) Define adequately the act and mental state which constitute each offense, and limit the condemnation of conduct as criminal when it is without fault;
(c) Prescribe penalties which are proportionate to the seriousness of offenses and which permit recognition of differences in rehabilitation possibilities among individual offenders;
(d) Prevent arbitrary or oppressive treatment of persons accused or convicted of offenses.” (Ill. Rev. Stat. 1977, ch. 38, par. 1-2.)

To be avoided are constructions of criminal statutes contrary to legislative intendment (People v. Beam (1979), 74 Ill. 2d 240, 242-43; People v. Hudson (1970), 46 Ill. 2d 177, 181) or which bring the criminal law into disrepute. See generally Hall, Strict or Liberal Construction of Penal Statutes, 48 Harv. L. Rev. 748 (1935).

Section 7 — 11(a) of the Criminal Code of 1961 states that “[a] person is not guilty of an offense, other than an offense punishable with death, by reason of conduct which he performs under the compulsion of threat or menace of the imminent infliction of death or great bodily harm, if he reasonably believes death or great bodily harm will be inflicted upon him if he does not perform such conduct.” (Ill. Rev. Stat. 1977, ch. 38, par. 7 — 11(a); see generally Ill. Ann. Stat., ch. 38, par. 7 — 11(a), Committee Comments, at 432-33 (Smith-Hurd 1972).) A defendant’s claim of compulsion is an affirmative defense (Ill. Rev. Stat. 1977, ch. 38, par. 7 — 14) which, if he produces “some evidence thereon,” requires the State to disprove his claim beyond a reasonable doubt (Ill. Rev. Stat. 1977, ch. 38, par. 3 — 2).

The trial judge was undoubtedly correct in ascertaining legislative intent with respect to this defense. Defendant correctly points out that in 1827, when the defense of compulsion was first codified and made applicable only to offenses “not punishable with death,” the crime of murder was automatically punishable with death. (Criminal Code of 1827, secs. 11, 24, Ill. Rev. Code of Laws, 1827, at 125, 128.) Defendant does not argue, however, that because the death penalty for all murders became discretionary in 1867 (1867 Ill. Laws 90), the limitation of the compulsion defense to offenses “not punishable with death” became nugatory at that time.

Nor could we say that the phrase “other than an offense punishable with death,” which linguistically had the same effect as the phraseology used in 1827, of excluding the compulsion defense for all murders, when it was enacted in 1961 (Ill. Rev. Stat. 1961, ch. 38, par. 7 — 11(a)), was rendered meaningless by the fact that the death sentence was a discretionary punishment for all murders at the time. (See Ill. Rev. Stat. 1961, ch. 38, pars. 1 — 7, 9 — 1.) As evidenced by the committee comments (Ill. Ann. Stat., ch. 38, par. 7 — 11 (Smith-Hurd 1972)), this State, in enacting this provision, intended to apply the common law rule that one ought himself to die rather than escape through the murder of an innocent. (The compulsion defense was also rendered unavailable to crimes other than murder because death was an authorized penalty. (See, e.g., Ill. Rev. Stat. 1977, ch. 38, par. 30 — 1 (treason), par. 10 — 2 (aggravated kidnapping for ransom).) Use of the phrase “offense punishable with death” can only be explained with reference to this purpose.)

The death penalty, as enacted in 1961 and recodified by Public Act 77 — 2097 (approved July 26, 1972), was ruled unconstitutional by the United States Supreme Court in Moore v. Illinois (1972), 408 U.S. 786, 33 L. Ed. 2d 706, 92 S. Ct. 2562, with reference to Furman v. Georgia (1972), 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726. Public Act 78-921 (certified Nov. 8, 1973) reenacted the death penalty in attempted compliance with Moore and Furman.

In People ex rel. Rice v. Cunningham (1975), 61 Ill. 2d 353, this court ruled that act unconstitutional. The legislature, in response, passed Public Act 80 — 26 (approved June 21, 1977), upheld by this court in People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, and People v. Brownell (1980), 79 Ill. 2d 508, which is the current death penalty provision.

The legislative desire to permit the discretionary imposition of the death penalty in 1867 cannot be transformed into an intent to allow the defense of compulsion in any murder case, especially in view of the reaffirmation of the exclusion of the compulsion defense from such cases in 1961. Nor can we say that the revisions of the death penalty compelled by Moore and Cunningham were intended to disturb the meaning of section 7 — 11(a), which had been settled since 1827. Moreover, compulsion was mentioned specifically in Public Act 80 — 26 as a mitigating factor which might be “sufficient to preclude the imposition of the death sentence ***.” (Ill. Rev. Stat. 1979, ch. 38, pars. 9 — 1(c)(4), 9 — 1(g).) We already have held that the sentencing procedure of our death penalty statute contemplates “a weighing process” involving aggravating and mitigating factors. (People v. Brownell (1980), 79 Ill. 2d 508, 537-38.) It would be impossible to respect the legislature’s command that compulsion constitute one factor to be weighed were we to hold that it instead exonerated a defendant from a murder charge. The defense of compulsion, therefore, as a matter of legislative intent, is unavailable to one charged with murder.

For similar reasons, evidence of compulsion, as a matter of legislative intent, does not entitle a defendant to a voluntary manslaughter instruction. Although defendant did not formally tender such an instruction, we do not view this argument as waived. Defendant objected to People’s Instruction No. 4 (Illinois Pattern Jury Instructions, Criminal, No. 2.01 (1968)) on the grounds that a voluntary manslaughter instmction should be given. This objection was overruled. It would have been futile for defendant to tender such an instruction after this ruling. Defendant renewed the objection in his post-trial motion and was overruled again. In addition, the interface of section 7 — 11(a) with section 9 — 2(b) (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 2(b)), a case of first impression in this court, is a significant issue which this court should settle (see People v. Jones (1979), 81 Ill. 2d 1, 7) and has been fully briefed by both parties.

The portion of the voluntary manslaughter statute pertinent to this appeal provides that “[a] person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.” (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 2(b).) Voluntary manslaughter is therefore not established where the defenses of article 7, by their own terms, history and purpose, are inapplicable. Our legislature long ago decided, contrary to the present status of a majority of jurisdictions, as the State conceded, that one threatened with the imminent infliction of death or great bodily harm cannot take another’s life and escape a murder conviction.

Defendant argues that even if the compulsion defense is unavailable as a matter of legislative intent, the statute as presently written provides inadequate notice to those who murder, under threat of death or great bodily harm, that their acts are punishable with death. Under the due process clause of the fifth amendment, applicable to the States by the fourteenth amendment, one’s act must be determinable as a crime attendant with specified sanction possibilities before it is committed. United States v. Batchelder (1979), 442 U.S. 114, 123, 60 L. Ed. 2d 755, 764, 99 S. Ct. 2198, 2203-04; Colautti v. Franklin (1979), 439 U.S. 379, 390-91, 58 L. Ed. 2d 596, 606, 99 S. Ct. 675, 683.

Insofar as defendant’s vagueness challenge is based upon the weighing of aggravating and mitigating factors contemplated by the statute, it is unpersuasive for the reasons stated in People v. Brownell (1980), 79 Ill. 2d 508, 527-34. And insofar as it is based upon the prosecutor’s discretion, it is foreclosed by our decision in People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531.

Apart from these challenges, this defendant had adequate notice before the incident, had he cared to consult the statute, that he risked the death penalty for submitting to Parsons’ threats by killing Simmons and Harris. Capital punishment is authorized whenever one murders another under the conditions specified in section 9 — 1(b) (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(b)), although mitigating factors may be sufficient to preclude this punishment (Ill. Rev. Stat. 1977, ch. 38, pars. 9 — 1(c), (g), (h))-

“Punishable,” as in “an offense punishable with death” under section 7 — 11(a) (see Webster’s Third New International Dictionary 1843 (1971)), sends a clear warning to prospective murderers that compulsion is an unavailable defense when the crime is committed under the conditions of section 9 — 1(b), because that crime may be deemed deserving of death, i.e., death is a sanction which is capable of being imposed.

Defendant, moreover, was warned that evidence of compulsion could not reduce a charge of murder to manslaughter. A voluntary manslaughter jury instruction is required when there is evidence which would exonerate a defendant “under the principles stated in Article 7.” (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 2(b).) Because these principles do not come into play, defendant could not have been misled before either the crime or the trial. No voluntary manslaughter instruction, therefore, was required here under principles of due process.

Defendant, however, points toward an alleged contrary interpretation by the writers of a well-respected criminal law textbook (W. LaFave & A. Scott, Criminal Law sec. 77, at 585 & n.14 (1972)) as evidence that the statute is vague. On the cited page, the authors say that it is “arguable” to find one who kills under compulsion guilty of manslaughter rather than murder. In support of that argument, the authors cite two of “the latest state criminal codes ***.” (LaFave & Scott sec. 77, at 585.) The two criminal codes cited in the footnote are those of Minnesota and Wisconsin. The Illinois voluntary manslaughter statute is then compared with them and with the provisions of the model penal code. The authors, citing only section 9 — 2, state: “The crime is voluntary manslaughter and not murder only if the defendant believed, unreasonably, in the existence of circumstances which, if true, would have justified the taking of human life under the statutory defenses of compulsion or necessity.” (LaFave & Scott sec. 77, at 585.). If compulsion is a defense unavailable to one charged with murder, both our interpretation of the statute and the statement of LaFave and Scott are accurate, since the taking of a human life would not be justified “under” the defense of compulsion. Earlier in their work, these authors carefully explained that a compulsion defense was unavailable in a murder prosecution in Illinois. (LaFave & Scott sec. 49, at 375-76 & n.11.) Defendant’s argument, even on its own terms, is unpersuasive.

A distinguishable situation would be presented here on due process grounds if no aggravating factor under section 9 — 1(b) were alleged. But in view of our interpretation of the legislative intent, we hold that henceforth the defense of compulsion is unavailable in any murder prosecution either as a defense or to entitle a defendant to a voluntary manslaughter instruction. We cannot implement this decision retroactively (see Bouie v. Columbia (1964), 378 U.S. 347, 12 L. Ed. 2d 894, 84 S. Ct. 1697), but as a State court of last resort, we have a duty to remain faithful to the intent of the legislature regardless of the literal meaning of the statute (People v. Hudson (1970), 46 Ill. 2d 177, 181). And we have a duty to clarify ambiguities created in the first place by court decisions striking down prior State death penalty statutes. (Cf. Williams v. Crickman (1980), 81 Ill. 2d 105, 111-12 (judicial duty to resolve conflicting decisions regardless of legislative reenactment of statutory provision subsequent to a particular court decision); cf. Rylander v. Chicago Short Line Ry. Co. (1959), 17 Ill. 2d 618, 624-26 (legislative change pursuant to court ruling held not to disturb settled meaning of another statutory provision regardless of its new literal meaning).) The enlargement of the literal meaning of a criminal statute by a State court of last resort is permissible, at least where such an enlargement conforms with legislative intent (see also Ill. Rev. Stat. 1977, ch. 38, par. 1 — 2(a)), the common law, and all prior legislative provisions (Rose v. Locke (1975), 423 U.S. 48, 46 L. Ed. 2d 185, 96 S. Ct. 243 (per curiam); Wainwright v. Stone (1973), 414 U.S. 21, 38 L. Ed. 2d 179, 94 S. Ct. 190 (per curiam)), and has the advantage of providing fair warning for potential transgressors.

For the foregoing reasons, defendant’s murder convictions stand. Defendant makes numerous other arguments, among them: that the death penalty statute is unconstitutional, that the indictment gave inadequate notice that the death penalty was authorized, that the trial judge made erroneous rulings during voir dire, during the trial, and during the sentencing proceeding, that the prosecutor made improper arguments to the jury during sentencing, and that recent studies have demonstrated that the exclusion of potential jurors because of their inability to impose the sanction of death results in a conviction-prone jury. The latter argument and the alleged trial error are more appropriately considered in a case where there is some question about defendant’s guilt. The former issues will not be addressed here because the defendant cannot be executed under principles of the eighth amendment or Illinois case law.

There is a qualitative difference between death and imprisonment as penalties. (Furman v. Georgia (1972), 408 U.S. 238, 286-91, 33 L. Ed. 2d 346, 376-79, 92 S. Ct. 2726, 2750-53 (Brennan, J., concurring); 408 U.S. 238, 306, 33 L. Ed. 2d 346, 388, 92 S. Ct. 2726, 2760 (Stewart, J., concurring).) The State must avoid arbitrary executions by adequately defining capital offenses, by suitably directing sentencing discretion, and by ensuring adequate judicial review of cases in which the death sentence is imposed. (See Godfrey v. Georgia (1980), 446 U.S. 420, 428, 64 L. Ed. 2d 398, 406, 100 S. Ct. 1759, 1764; Gardner v. Florida (1977), 430 U.S. 349, 361-62, 51 L. Ed. 2d 393, 404, 97 S. Ct. 1197, 1206-07; Gregg v. Georgia (1976), 428 U.S. 153, 186-208, 49 L. Ed. 2d 859, 881-95, 96 S. Ct. 2909, 2931-41; Proffitt v. Florida (1976), 428 U.S. 242, 258-60, 49 L. Ed. 2d 913, 926-27, 96 S. Ct. 2960, 2969-70.) The decision to execute a defendant must be, and appear to be, based upon reason rather than caprice or emotion. (Gardner v. Florida (1977), 430 U.S. 349, 358-59, 51 L. Ed. 2d 393, 402, 97 S. Ct. 1197, 1204.) The key elements of the decision are the nature of the offense and the character of the defendant. Roberts v. Louisiana (1976), 428 U.S. 325, 334, 49 L. Ed. 2d 974, 982, 96 S. Ct. 3001, 3006.

Our appellate-review procedure was designed with these principles in mind. (Ill. Rev. Stat. 1977, ch. 38, par. 9-1 (i); 73 Ill. 2d Rules 603, 606(a), 607(a), 609(a), 611(a), 613(a), 615; see generally People v. Brownell (1980), 79 Ill. 2d 508, 541-42.) This court historically has exercised its power to reduce criminal sentences, in both capital and noncapital cases, where it deemed them unduly severe. (See, e.g., People v. Viser (1975), 62 Ill. 2d 568, 586-87; People v. Cannon (1971), 49 Ill. 2d 162, 167-68; People v. Crews (1969), 42 Ill. 2d 60, 66; People v. Walcher (1969), 42 Ill. 2d 159, 165-67; People v. Carlson (1980), 79 Ill. 2d 564, 587-91.) And we are constitutionally required to consider both the circumstances of the offense and the character of a defendant. Ill. Const. 1970, art. I, sec. 11.

The State produced no additional evidence at Gleckler’s sentencing hearing. After argument from both sides, the jury found, in aggravation, that the defendant was over 18 years of age and intentionally had killed two individuals while in the course of an armed robbery. Therefore, two aggravating factors were proved. (See Ill. Rev. Stat. 1979, ch. 38, pars. 9 — 1(b)(3), 9 — 1(b)(6).) No other written findings were made.

Officials at the Harmony House testified in mitigation about Gleckler’s alcoholism. The substance of their testimony was that the defendant was hard to motivate, was more of a follower than a leader, that although at a time he made some progress and undertook some responsibility under their supervision, he ultimately never conquered his problem and in fact denied that he had one or blamed it on the influence of friends. Gleckler’s rationalization of his problem was deemed normal for one in his circumstance.

Defendant’s mother testified about the defendant’s generally normal childhood. She stated, however, that he was always very timid. And she recounted that his “habit” of going through her dresser drawers and “bothering” her underwear had led her and her husband to take him to a psychiatrist at some undisclosed point while he was growing up. Her testimony regarding defendant’s alcoholism generally paralleled and supplemented that of the Harmony House officials. He lost rank in the army and several civilian jobs as a result of his alcoholism.

The defendant testified again at the sentencing hearing, reiterating the substance of his trial testimony, admitting that he failed to tell the police that Parsons had threatened him and that such a fact was a “significant thing to tell somebody ***.” He also said he was “truly sorry those young gentlemen are dead.”

A psychologist from the Institute for Personality Testing discussed Gleckler’s personality. Relying on a “widely accepted” test, “between .75 and .85 reliable,” he said that the defendant was not below average as to intelligence, scored high as to stability, was “more sober or serious or depressed than about 89 out of 100 people,” was “more conscientious and more rigid than 89 out of 100 people,” was “as tough-minded or realistic as about 60 out of 100 people,” was slightly above average as to his imagination, and was “more polished, more astute, more sophisticated than about 89 out of 100 people,” and “not particularly apprehensive.” The psychologist’s conclusion, however, based on these and additional questions, was that the term “doormat” best described defendant’s personality: “He had the unusual profile of the type of person who gets walked on by almost anybody. His profile showed very few strengths.”

For this conclusion, the psychologist relied upon factor H, which showed defendant to be “more shy, more timid and more sensitive to threats than some 99 out of 100 people, factor E, which showed defendant to be “more docile, more accommodating and more easily led than some 99 out of 100 people,” factor A, which indicated defendant to be “more cool, aloof and detached than some 96 out of 100 people,” factor L, which showed defendant to be “more trusting and accepting than about 90 out of 100 people,” and the “Q-2” scale, which showed defendant to be “more of a loner and self-sufficient than about 96 out of 100 people.”

A psychiatrist testified that from personal examination and study of defendant’s medical records and Harmony House records, listening to the confession tape, and discussions with defendant’s jailer, he concluded that defendant “had mental difficulties,” short of insanity, which primarily involved a “definite propensity to go along with whatever events were happening at the time.”

The court sustained the State’s objection to further questioning regarding whether it would have been easier for this defendant to have fired the shotgun if he had believed that the victims were already dying. Defendant’s offer of proof was that the defendant, in the psychiatrist’s opinion, would have been more apt to fire the fatal shots under those circumstances. The State’s motion in limine, which was granted, prevented the psychiatrist from testifying, according to the offer of proof, that defendant was not likely to have volunteered information other than what was asked at his in-custody interrogation.

We face an initial difficulty in reviewing the jury’s sentence because of the evidence of compulsion. It is true, of course, that defendant’s testimony on this point did not duplicate his in-custody statement. Normally we defer to the jury’s superior opportunity to resolve such conflicts. But here we do not know whether the jury disbelieved defendant’s compulsion evidence or whether it regarded compulsion as a mitigating factor insufficient to preclude execution.

If compulsion had been available to the defendant at the trial as a defense to the murder charge, we would know whether the jury believed defendant’s evidence. Only if it had not believed it, would defendant have been found guilty of murder. Similarly, if our death penalty statute were structured so that a finding of one mitigating factor precluded a death sentence, the imposition of such a sentence in this case would constitute conclusive evidence that the jury believed that Gleckler shot the victims voluntarily — although we would not know whether that finding was attended by a reasonable doubt.

This difficulty is not merely academic. In reviewing a sentence under the circumstances presented here we must note the evidence presented in the related but separately conducted trials. Neither Kirkpatrick nor Parsons testified at Gleckler’s trial.

Kirkpatrick testified at his own trial, however, that he heard Gleckler refuse Parsons’ orders to shoot the victims, although his arrest statement was generally consistent with Gleckler’s arrest statement. (People v. Kirkpatrick (1979), 70 Ill. App. 3d 166, 169-70.) At Parsons’ sentencing hearing it was revealed that previously he had committed an armed robbery in California; the officer testifying at that sentencing hearing quoted the complaining witness as saying that he heard Parsons order his accomplice to shoot him.

The State, in seeking to uphold the sentence, argues that Gleckler’s sentence was imposed by a jury and a trial court that did not abuse their discretion, citing People v. Perruquet (1977), 68 Ill. 2d 149, People v. Allen (1974), 56 Ill. 2d 536, cert. denied (1974), 419 U.S. 865, 42 L. Ed. 2d 102, 95 S. Ct. 120, People v. Sprinkle (1974), 56 Ill. 2d 257, People v. Taylor (1965), 33 Ill. 2d 417, and People v. Hampton (1969), 44 Ill. 2d 41, and further argues that codefendants can receive disparate sentences when “the sentence was within the statutory limits for the offense and the trial court could have considered other relevant factors concerning defendant’s conduct,” citing People v. Spears (1971), 50 Ill. 2d 14, 18, and People v. Fuca (1969), 43 Ill. 2d 182. We do not deem these holdings to represent an attempted limitation on this court’s duty to ensure that the cases in which death is imposed are rationally distinguished from those in which it is not imposed. Indeed, none of the cited cases even involved the death penalty.

Thus, the State argues: “Most importantly, Defendant admits in his brief [that] he fired the shots that fatally wounded the victims.” (Emphasis in original.) We interpret this statement as a contention that Gleckler was more culpable than Parsons and reject it. Parsons first shot the victims in the back with the intent to kill them and was convicted of the double murders. It was Parsons who made the apparently unilateral decision to force the victims off of the road and who first ordered them out of their car. And if Gleckler’s compulsion evidence were believed, there would be no doubt that Parsons was more culpable than Gleckler.

In a secondary argument, the State, citing United States v. Grayson (1978), 438 U.S. 41, 57 L. Ed. 2d 582, 98 S. Ct. 2610, argues that inconsistencies between defendant’s trial testimony and his in-custody statement to the police justify his execution. A conclusion of testimonial untruthfulness is relevant, as the Grayson court held, in determining a defendant’s attitude toward society and his or her rehabilitative prospects. (United States v. Grayson (1978), 438 U.S. 41, 50-51, 57 L. Ed. 2d 582, 590, 98 S. Ct. 2610, 2616; see also People v. Jones (1972), 52 Ill. 2d 247; People v. Meeks (1980), 81 Ill. 2d 524.) Unlike Grayson, Jones and Meeks, however, no finding that the defendant peijured himself at trial has been made. In any event, our inquiry here involves a proportionality review.

We consider Parsons’ sentence of imprisonment relevant to that inquiry. Parsons, 20 years old, submitted mitigating evidence showing that his childhood home was acutely discordant. The State presented evidence in aggravation of his prior conviction in California for grand theft. This was the incident, previously mentioned, where there was evidence that he ordered his accomplice to shoot the victims. He was originally charged with armed robbery and kidnapping with the intent to commit robbery, but these charges were reduced to grand theft pursuant to a plea bargain, and Parsons was sentenced to six months in jail and three years of probation. Further evidence in aggravation was Parsons’ shooting of the gas station attendant the night before the crimes at issue here.

The jury heard this evidence and could not agree to impose death. At the sentencing hearing, the court heard arguments from both sides and imposed concurrent prison terms of 500 to 1,000 years. The court explained its decision:

“In cases involving crimes of the nature of the one that the defendant stands convicted, courts are sometimes wont to apply a number of adjectives to the crime. I think it’s sufficient to say that I have heard the evidence in this case three times and the horror of what happened last September 25th, 1977, will remain with this Court for a long time and I believe that I’ve had the opportunity to consider and think about every possible mitigating factor whether provided under the old law or the new or which would be dictated by common sense and I find nothing to mitigate the defendant’s crime and therefore his sentence. I believe it is correct that the Court must make a clear statement to those who would review this matter in time and by the sentence of the trial court I believe it should be indicated to the persons who will review this at some future date by way of parole that they should perhaps read the record in this case and very possibly the response of anyone who would read this record would be, not now and not ever. I think the defendant has proven, and, of course, we can’t speculate about the future as far as possibility for rehabilitation is concerned, we can only deal with what we know, but at some point we have to look at the facts, and the facts in this case show that the defendant had his opportunity and that any possibility for rehabilitation is so slight as to not bear any weight or only a very, very small amount of weight in any consideration of the Court. Considering the nature of the crimes and considering that I find nothing to mitigate the defendant’s conduct, not one single thing, and considering that the Prisoner Review Board must somehow be signaled by any sentence that this is a matter of years down the road that should deserve their serious consideration before anything is ever done with respect to the release of this man and considering the need to protect the public from the type of crimes that Mr. Parsons has indicated he can so wantonly commit, realizing that the number of years when they become so high probably in and of themselves lose some credibility, I think nevertheless the Court has to say something about this crime, and accordingly the sentence of the Court will be that the defendant, and the record should show, is hereby sentenced to the Department of Corrections on the judgment on the verdict of guilty of the murder of Mark Harris to an indeterminate term and the minimum of said term is hereby fixed at 500 years and maximum is hereby fixed at a thousand years, and show that the defendant is hereby sentenced to the Department of Corrections on the judgment of the verdict of guilty of the murder of Douglas Scott Simmons for an indeterminate term and the minimum of said term is hereby fixed at five hundred years and the maximum of said term is hereby fixed at a thousand years, said sentences to run concurrently with each other, said sentences to run consecutively to a sentence or sentences heretofore imposed in cause number 77 — CF—224 in Vermilion County, Illinois.”

In People v. Walcher (1969), 42 Ill. 2d 159, a case cited by neither party, the defendant was convicted of murder and sentenced to death. The evidence showed that the defendant, while on parole following imprisonment for a forgery conviction, met two ex-convict friends who suggested he commit an armed robbery of a liquor store. The defendant was an alcoholic, and all three had consumed alcohol that day. In the course of the robbery, defendant testified, the store proprietor grabbed at the gun he held. The defendant testified that the gun fired not “of his own volition” and went off twice more in the ensuing struggle. The proprietor’s wife testified that defendant fired one shot as her husband began turning toward the cash register; following that shot her husband fell against or pushed the defendant and, after both men went through the store doorway, a second and final shot was fired. The store proprietor died from his wounds.

The court held that the “record does not show the [defendant] to have been intoxicated,” and that his responsiveness to suggestion after drinking did “not exempt [him] from criminal responsibility.” (42 Ill. 2d 159, 163.) However, the court held:

“[C] onsidering all of the circumstances of this case, that the penalty should be reduced to a sentence for a term of years. It is clear from the record that the appellant is and has been for a considerable number of years an alcoholic. We do not mean to suggest that such a person, without more, does not have the capacity to commit crime but we judge the condition is a circumstance to be considered in determining punishment in this case. The record of the Decatur police department discloses some 35 notations of appellant’s having been arrested or ‘picked up’ for investigation. Eight of the notations unmistakably are related to drinking. It cannot be said how many of the other notations, such as ‘disorderly conduct,’ ‘vagrancy,’ ‘investigation,’ ‘window peeping’ and ‘trespassing’ may have involved drinking by the appellant. One arrest record for disorderly -conduct, when the appellant was 17 years of age, notes that he ‘continually frequents the taverns and was told by the officer to go home on three different occasions and on the last time, told the officer to go to hell.’ Materials in the record from the Illinois Department of Public Safety reflect that he received an undesirable discharge from the Army because of drunkenness and disorderly conduct. They contain entries, too, such as ‘chronic and acute alcoholism. Doubtfully improvable offender’; ‘*** very inadequate dependent alcoholic ***. The prognosis is doubtful.’
After considering all the circumstances of this crime and the offender we deem that the sentence of death imposed by the trial court would be inappropriate.” 42 Ill. 2d 159, 166.

Unlike that case, the defendant here killed two individuals and did not do so in the context of a struggle. On the other hand, in Walcher the proprietor’s wife testified that the first shot was fired before any struggle and there was no evidence of compulsion. Gleckler, moreover, had never before been imprisoned or on parole and had not had the numerous brushes with the law which characterized the defendant in Watcher.

A reviewing court may well be unable to perfectly implement both the Supreme Court’s command to prevent the arbitrary imposition of capital punishment and the public’s demand to execute loathsome criminals. (See Dix, Appellate Review of the Decision to Impose Death, 68 Geo. L.J. 97 (1979).) But that possibility will not excuse a lack of effort. Judicial review is not an idle function, and this court has always reduced death sentences where the circumstances seemed to so warrant.

In People v. Walcher (1969), 42 Ill. 2d 159, we did so in circumstances similar to this case. And from the record here it can be seen that Gleckler, with no criminal history, the personality of a doormat, and a problem with alcohol, was not the ringleader in this sordid affair; nor are his rehabilitative prospects demonstrably poorer than those who received imprisonment terms. Our revulsion toward this crime and our lack of sympathy for Gleckler cannot justify executing only him.

The convictions are affirmed but the death sentence is vacated and the cause remanded to the circuit court of Champaign County with directions to impose a sentence upon defendant other than death.

Judgment affirmed; death sentence vacated; cause remanded, with directions.

MR. JUSTICE RYAN,

specially concurring:

I agree with the view expressed by Mr. Justice Underwood in his dissent and would join therein except for my belief that our death penalty statute is unconstitutional as expressed in my dissent in People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531. Because of my belief I cannot join in Mr. Justice Underwood’s dissent; however, I do not believe that the death penalty should be vacated for the reasons set forth in the opinion.

MR. JUSTICE UNDERWOOD,

concurring in part and dissenting in part:

I agree that the murder convictions should be affirmed. I cannot agree that the death sentence should be vacated. In view of the inconsistencies between defendant’s statements at the time of his arrest and his trial testimony, coupled with his failure to mention to the police in his original statement the compulsion to which he later testified, the jury may well have regarded as a total fabrication his testimony that he was compelled by Parsons to shoot the two boys. We can never know the precise reasons for the jury’s verdict, but it seems not unreasonable that it was, in part at least, influenced by the belief that defendant lied. Absent any compulsion, defendant’s callous and brutal action in shooting each of the boys twice in the back of the head with a shotgun at close range seems to me to eliminate any problem of disproportionality. I would affirm the death sentence.

MR. JUSTICE WARD joins in this partial concurrence and partial dissent.


source: Caselaw Access Project

author: MR. JUSTICE MORAN

license: Public Domain

text:
    (No. 52838.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JERRY L. HALE, Appellee.

      Opinion filed October 17, 1980.

      William J. Scott, Attorney General, of Springfield, and Paul Komada, State’s Attorney, of Charleston (Donald B. Mackay and Melbourne Noel, Assistant Attorneys General, of Chicago, and Gary J. Anderson and Karen L. Boyaris, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Daniel D. Yuhas, Deputy Defender, and Diana N. Cherry, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The defendant, Jerry L. Hale, pleaded guilty to armed robbery in the circuit court of Coles County. Prior to sentencing, he filed a motion to withdraw his guilty plea under Supreme Court Rule 604(d) (73 Ill. 2d R. 604(d)). The motion was denied and defendant was sentenced to six years’ imprisonment. Thereafter, defendant’s second motion to withdraw his guilty plea was also denied. On appeal, the appellate court ruled that the trial court had abused its discretion in refusing to allow defendant to withdraw his guilty plea, and, accordingly, it vacated the judgment and remanded the cause to the circuit court with directions to allow defendant to do so. (77 Ill. App. 3d 721.) The State appeals.

The State contends that the circuit court properly refused to allow the defendant to withdraw his guilty plea in that he failed to prove, by substantial objective proof, that he submitted his guilty plea under a misapprehension of law or fact. The State points out that this court has not yet established a standard to be applied in determining what evidence a defendant must produce before permission to withdraw a guilty plea will be granted. The defendant counters that, because his testimony was unrefuted regarding his mistaken subjective impression, the appellate court correctly found that the trial court had abused its discretion in refusing to allow him to withdraw his guilty plea.

The defendant was charged by information with armed robbery. On September 11, 1978, defendant submitted a plea of guilty. The trial court judge extensively admonished the defendant of his rights in accordance with Supreme Court Rule 402 (73 Ill. 2d R. 402). The judge carefully explained that all of defendant’s rights would be waived by his decision to plead guilty. After this elaborate explanation, the defendant replied that he still wished to submit a plea of guilty and that he was not acting under any threats or promises but of his own free will. On October 10, 1978, defendant filed a motion to withdraw his guilty plea on his understanding that such could be withdrawn within 30 days of entry. A hearing was held on the motion on November 9, 1978. Defendant testified that he would not have pleaded guilty if he had known that he did not have the right to change his mind and withdraw that plea within 30 days. He made no statement as to how such a misapprehension was acquired, nor did he state he was not guilty of the charge. The trial judge denied defendant’s motion, finding that the defendant’s misapprehension was not sufficient to require the granting of leave to withdraw his guilty plea. The judge proceeded to sentence defendant.

On December 6, 1978, defendant filed a second motion to withdraw his plea of guilty. This motion, in addition to alleging the same grounds as did the first, stated that his plea was based on a guarantee from the assistant State’s Attorney that charges would be filed against an accomplice, Robert White. This motion was amended on January 4, 1979, to allege further that the assistant chief of police promised the defendant probation in return for his guilty plea. A hearing on the second motion was held on January 19, 1979. The State produced evidence refuting the two grounds added in the second motion. The only evidence introduced concerning defendant’s belief that he could withdraw his plea within 30 days was his own assertion. When asked during cross-examination what led him to this mistaken belief, defendant replied, “My attorney.” The trial court denied the motion, finding that the defendant failed to sustain his burden of proof on all three grounds asserted.

The requirements of Rule 402 (Pleas of Guilty) exceed the requirements established by the Supreme Court in Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709. Therefore, a trial judge who has complied with the rule’s extensive requirements has scrupulously afforded a defendant his constitutional safeguards. Allowing the withdrawal of a guilty plea is, under Rule 604(d), a matter for the trial court’s discretion. Here, it cannot be said that the trial court abused that discretion when the only evidence before the judge was defendant’s own subjective impression. “[A] defendant’s mistaken subjective impressions gained from conferences with his legal counsel, in the absence of substantial objective proof showing that they were reasonably justified, do not provide sufficient grounds upon which to set aside his guilty plea. *** [T]he petitioner must bear the burden of showing that the circumstances as they existed at the time of the plea, judged by objective standards, reasonably justified his mistaken impression.” United States ex rel. Curtis v. Zelker (2d Cir. 1972), 466 F.2d 1092, 1098. (See also United States ex rel. LaFay v. Fritz (2d Cir. 1972), 455 F.2d 297, 302; United States v. Barker (D.C. Cir. 1975), 514 F.2d 208, 220-21, cert. denied (1975), 421 U.S. 1013, 44 L. Ed. 2d 682, 95 S. Ct. 2420.) Defendant here has presented no objective proof to show that he was reasonably justified in his mistaken impression. Further, there is no allegation that the defendant has a valid defense, or that any other factors are present which would, in the ends of justice, require a finding of error.

Consequently, we reverse the finding of the appellate court and reinstate the judgment entered by the circuit court.

Appellate court reversed; circuit court affirmed.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 52395. (No. 52409.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ROBERT TANNENBAUM, Appellee.—THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ROY LEE McCOY, Appellee.

      Opinion filed October 17, 1980.

      William J. Scott, Attorney General, of Springfield, and Eugene L. Armentrout, State’s Attorney, of Geneva (Donald B. Mackay and Melbourne Noel, Jr., Assistant Attorneys General, of Chicago, and Phyllis J. Perko and Jan Tuckerman, of the State’s Attorneys Appellate Service Commission, of Elgin, of counsel), for the People.
    Mary Robinson, Deputy Defender, and Paul J. Glaser, Assistant Defender, of the Office of the State Appellate Defender, of Elgin, for appellees.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Defendants Robert Tannenbaum and Roy Lee McCoy, were convicted of felony theft in separate jury trials in Kane County. Their convictions were reduced to misdemeanor thefts by the appellate court in orders entered under Supreme Court Rule 23. (People v. McCoy (1979), 71 Ill. App. 3d 1114; People v. Tannenbaum (1979), 81 Ill. App. 3d 1201.) We granted leave to appeal and ordered the cases consolidated for argument and opinion.

Under our statute, theft of property valued at less than $150 is a misdemeanor; if more than $150 a felony. (Ill. Rev. Stat. 1975, ch. 38, par. 16 — 1(e).) In cause No. 52395, Tannenbaum was charged with the July 1977 theft of a cash register worth over $150 from a filling station. His guilt of theft was conclusively proved and we are concerned only with the absence of a jury finding as to the value of the cash register. A co-owner of the service station described the stolen cash register as an electronic model which had been purchased on March 3, 1977, for $1,345, plus tax. In his opinion, the machine had not depreciated more than one or two hundred dollars since its purchase. Moreover, the owner of the company from whom the cash register had been purchased estimated the fair market value of the register at $1,100 to $1,200.

In the conference on instructions at the close of trial, the State submitted Illinois Pattern Jury Instructions, Criminal, No. 13.02 (1968) on theft and a guilty verdict form, neither of which referred to the element of value. Defendant did not initially object to the issues instruction but did object to the guilty verdict form, without offering alternative instructions or forms of verdict. Recognizing that the instructions required no finding on value, the court examined the text of Illinois Pattern Jury Instructions and ruled that the instructions were adequate.

On appeal before the appellate court defendant argued, relying on this court’s opinion in People v. Dell (1972), 52 Ill. 2d 393, that the general verdict returned by the jury would support only a conviction for misdemeanor theft since the jury had not been instructed on the element of felony value. The appellate court agreed, as earlier noted, reversing and remanding for correction of the sentence.

In cause No. 52409, McCoy was charged with the theft of a motorcycle valued over $150. The owner of the motorcycle testified that it was a Harley Davidson XL 8 1000 with a “black, custom paint job,” and that he had paid $2,888.38 for the vehicle a few months prior to the theft and that it was in “A-l shape” at the time it was stolen. In this case, too, proof of guilt of theft was overwhelming and we are concerned only with the absence of a jury finding as to value. During the conference on jury instructions, the defense made no objections to any of the instructions tendered by the State, and all instructions offered by the defense were given. Neither the instructions nor the form of verdict required a finding as to value. On appeal, the appellate court held that the absence of instructions and a finding on the value of the stolen property mandated a reduction of the conviction to misdemeanor theft. The cause was accordingly remanded for resentencing.

In this consolidated appeal, the State argues that the decisions of the appellate court improperly found that per se reversible error exists where the jury instructions for felony theft fail to include the element of value. The State maintains that the conviction of the defendants for felony theft should not have been reduced to misdemeanor theft since the asserted error was not properly preserved in the respective trial court proceedings and that, apart from any waiver, the error was harmless inasmuch as the felony verdicts were supported by overwhelming and uncontradicted proof of felony value. We agree.

It is well established that the failure to object at trial to an asserted error in jury instructions waives the question. (People v. Roberts (1979), 75 Ill. 2d 1;People v. Coles (1979), 74 Ill. 2d 393; People v. Precup (1978), 73 Ill. 2d 7.) This court has also repeatedly recognized that no party may raise on appeal the failure to give an instruction unless he tendered it at trial. (People v. Masini (1979), 78 Ill. 2d 17; People v. Underwood (1978), 72 Ill. 2d 124; 73 Ill. 2d R. 366(b)(2)(i).) Our decisions have also emphasized that issues not raised in a post-trial motion are effectively waived for appellate review. (People v. Foster (1979), 76 Ill. 2d 365; People v. Coles (1979), 74 Ill. 2d 393; People v. Edwards (1978), 74 Ill. 2d 1, cert. denied (1979), 442 U.S. 931, 61 L. Ed. 2d 299, 99 S. Ct. 2862; People v. Precup (1978), 73 Ill. 2d 7.) People v. Jones (1979), 81 Ill. 2d 1, contains language which might be thought to indicate that where an instruction is objected to at trial, failure to include that objection in a post-trial motion is not a waiver. A close reading of that case, however, demonstrates that the instruction there complained of raised a “significant issue” which the court wished to settle. (81 Ill. 2d 1, 7.) When viewed in light of this authority, the circumstances before us in both of these cases demonstrate that neither defendant properly preserved the alleged errors for review. In McCoy’s case, no objections were made to any of the instructions tendered by the State, and no alternate instructions containing the element of felony value were submitted by defense counsel. The proof of value was not mentioned during argument on the motions for directed verdict, or during the closing argument of defense counsel. Though a post-trial motion was filed, defendant made no mention of the instructional errors he now asserts. Clearly those errors were waived.

The circumstances in Tannenbaum’s case are somewhat equivocal. There defense counsel stated, “No objection,” when the pattern instruction under attack was initially submitted. When the guilty verdict form was tendered, a colloquy occurred between defense counsel and the judge as a result of which the judge ruled that value was an element of the offense but need not be included in the issues instruction. Defense counsel did not tender a proper instruction and, though a date was set for the filing of and hearing on any post-trial motion, there is no indication that a motion was ever filed or presented, either in oral or written form. Consequently the instructional error was not properly preserved.

A limited exception to the waiver rule is contained in Rule 451(c) which permits the review of “substantial defects” in instructions “if the interests of justice require.” (58 Ill. 2d R. 451(c); see People v. Masini (1979), 78 Ill. 2d 17, 21; People v. Roberts (1979), 75 Ill. 2d 1, 16; People v. Underwood (1978), 72 Ill. 2d 124, 130.) However, this court has limited that exception “to correct ‘grave errors’ (People v. Jenkins (1977), 69 Ill. 2d 61, 66), or to be applied where the case is close factually and fundamental fairness requires that the jury be properly instructed (People v. Joyner (1972), 50 Ill. 2d 302, 307).” (People v. Roberts (1979), 75 Ill. 2d 1, 14.) In our view, neither case in this consolidated appeal qualifies for this exception. Although the jury ought to be instructed to find whether the value of the stolen property exceeds $150 wherever felony theft is charged, particularly where value is disputed, the evidence here is overwhelming and uncontradicted in each case that the value of the stolen property greatly exceeded $150. In these circumstances it seems inconceivable that defendants could have suffered any prejudice. People v. Beller (1979), 74 Ill. 2d 514, 525.

The circumstances here involved are dissimilar to those present in People v. Dell (1972), 52 Ill. 2d 393, 396, and the appellate court misconstrued that opinion to require reduction of a felony theft conviction whenever a value instruction was not given and a finding not made. In Dell the evidence relating to the value of the stolen property was sufficiently unpersuasive to have “troubled the trial court considerably.” (52 Ill. 2d 393, 396.) Too, the verdict form had been submitted to the jury with the value amount already inserted, even though it had not been in that condition when viewed by defense counsel. That case does not require reduction of a felony theft conviction where, as here, there is no doubt whatsoever that the value of the stolen property was far above the required minimum.

In cause No. 52395 the judgment of the appellate court is reversed and the judgment of the circuit court affirmed. In cause No. 52409 the judgment of the appellate court, except as to count II (two convictions for same act), is reversed, and the judgments of the circuit court affirmed except as to count II.

52395 — Appellate court reversed; circuit court affirmed.

52409 — Appellate court affirmed in part and reversed in part; circuit court affirmed in part and reversed in part.


author: MR. JUSTICE CLARK

text:
    (No. 52685.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. RONALD JEROME WEATHINGTON, Appellee.

      Opinion filed October 17, 1980.

      William J. Scott, Attorney General, of Springfield, and Thomas J. Difanis, State’s Attorney, of Urbana (Donald B. Mackay, Melbourne A. Noel, Jr., and Suzan Sutherland, of Chicago, Assistant Attorneys General, and Gary J. Anderson and Larry Wechter, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Daniel D. Yuhas, Deputy Defender, and David Bergschneider, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The defendant, Ronald Jerome Weathington, was convicted of aggravated battery (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 4) and restricting or obstructing a police officer (Ill. Rev. Stat. 1977, ch. 38, par. 31 — 1) by a jury in the circuit court of Champaign County. After a hearing on a post-trial motion, the trial court vacated the judgment as to the aggravated battery conviction and denied the motion to vacate the judgment of conviction for resisting or obstructing a police officer. The defendant appealed. The appellate court reversed the trial court as to the resisting or obstructing charge. (76 Ill. App. 3d 173.) The State appealed pursuant to Rule 315(a). 73 Ill. 2d R. 315(a).

On September 8, 1978, at approximately 8 a.m., Champaign police officers in an unmarked car were patrolling in the area of Champaign Centennial High School. They observed some students crouching in the north parking lot who appeared to be gambling with dice. The officers drove over to the students, stopped and asked the defendant if he had any dice. The defendant replied he did not. One of the officers searched the defendant and found the dice. Another officer began talking with the defendant and “poked” the defendant in the chest several times with his finger. The defendant attempted to push the officer’s hand away and hit the officer’s sleeve twice. The defendant was thereupon arrested for aggravated battery and transported to Champaign County jail.

At the jail, officer John Schuffert asked defendant for his name, address, birth date, birth place, social security number, occupation, and physical description. Initially, defendant refused to give any information to Schuffert, even though Schuffert asked for defendant’s identification several times. Schuffert warned defendant that he was required by law to disclose the information, and after numerous requests, defendant gave his name, address, and date of birth. Defendant refused to disclose any further information. Defendant was then placed in a holding cell, and, after a few minutes, he agreed to provide the rest of the information.

Defendant testified that he refused to answer the remainder of Schuffert’s questions until after he was placed in the holding cell. Defendant also indicated that he twice requested the use of the telephone to call his mother, but Schuffert would not allow defendant to do so until he answered all of Schuffert’s questions. After defendant answered the booking questions, he was allowed to place a telephone call to his mother. The officer testified he did not recall whether the defendant had asked to make a telephone call.

On appeal to the appellate court the defendant argued that the right to remain silent guaranteed by the United States and Illinois constitutions prohibits his prosecution for refusing to answer booking questions after arrest. The defendant also argued that his refusal to answer did not constitute the crime of resisting or obstructing a police officer. Section 31 — 1 provides:

“A person who knowingly resists or obstructs the performance by one known to the person to be a peace officer of any authorized act within his official capacity commits a Class A misdemeanor.” (Ill. Rev. Stat. 1977, ch. 38, par. 31 — 1.)

The appellate court agreed that the defendant’s conduct did not come within the elements of section 31 — 1. The court also stated that “[i]t would be incongruent to say that one may remain silent and yet must provide ‘booking’ information.” 76 Ill. App. 3d 173, 177.

In People v. Roby (1968), 40 Ill. 2d 392, cert. denied (1969), 393 U.S. 1083, 21 L. Ed. 2d 776, 89 S. Ct. 867, we quoted with approval the following explanation of what constitutes a violation of section 31 — 1:

“[T] he statutory terms [resisting or obstructing] ‘convey commonly recognized meanings. “Resisting” or “resistance” means “withstanding the force or effect of” or the “exertion of oneself to counteract or defeat.” “Obstruct” means “to be or come in the way of.” These terms are alike in that they imply some physical act or exertion. Given a reasonable and natural construction, these terms do not proscribe mere argument with a policeman about the validity of an arrest or other police action, but proscribe only some physical act which imposes an obstacle which may impede, hinder, interrupt, prevent or delay the performance of the officer’s duties, such as going limp, forcefully resisting arrest or physically aiding a third party to avoid arrest.’ (280 F. Supp. at 959.) We agree with these observations, and we hold that section 31 — 1 is neither vague nor overbroad.” (Emphasis added.) People v. Raby (1968), 40 Ill. 2d 392, 398-99, quoting Landry v. Daley (N.D. Ill. 1968), 280 F. Supp. 938, 959.

In the instant case, the defendant twice asked the officer if he could call his mother. The officer insisted that the booking questions be answered first. The defendant answered three of the questions and then refused to answer any more. The officer then placed the defendant in a detaining cell until, a few minutes later, the defendant agreed to answer the remaining questions. At that time, the defendant was permitted to make a telephone call to his mother.

We think that in these circumstances, where the defendant merely argued with the officer as to when he would answer the booking questions and then, after an indefinite but certainly a brief time, did answer the questions, no offense took place. No physical act of resistance or obstruction occurred; merely argument coupled with eventual cooperation. The defendant is therefore not guilty of violating section 31 — 1. (People v. Holdman (1975), 73 Ill. 2d 213, 222; People v. Raby (1968), 40 Ill. 2d 392, 399, cert. denied (1969), 393 U.S. 1083; 21 L. Ed. 2d 776, 89 S. Ct. 867.) Because we decide that the defendant engaged in mere argument with the officer, we need not decide, as the State urges, whether an activity falling between mere argument and a physical act could constitute a violation of section 31 — 1. (See People v. Gibbs (1969), 115 Ill. App. 2d 113, 118.) Accordingly, for the reason stated, the judgment of the appellate court is affirmed.

Judgment affirmed.


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 52795.
    TERRY WARNER, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Pelco Structures, Inc., Appellee).

      Opinion filed September 29, 1980.

    Rehearing denied November 26, 1980.

    Harvey & Stuckel, Chartered, of Peoria (R. Wayne Harvey, of counsel), for appellant.

      McConnell, Kennedy, Quinn & Johnston, Chartered, of Peoria (Murvel Pretorius, Jr., of counsel), for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

An arbitrator for the Industrial Commission found that petitioner, Terry Warner, sustained accidental injuries arising out of and in the course of his employment by respondent, Peleo Structures, Inc., and awarded compensation for a period of temporary total disability and medical expenses. On review the Industrial Commission found that petitioner had failed to prove that he sustained such accidental injuries and set aside the award. On certiorari the circuit court of Peoria County confirmed and petitioner appealed. 73 Ill. 2d R. 302(a).

The testimony shows that petitioner was employed as a laborer by respondent at the construction site of the Caterpillar Tractor Company foundry in Mapleton. The construction site was on the east side of Kingston River Terminal Road, a two-lane blacktop road which provided the only access to the construction area from U.S. Route 24. During the day, construction workers parked their vehicles along the shoulder on the west side of the road.

At the time of the accident petitioner had left his place of employment at the end of his shift and was attempting to cross to the west side of Kingston River Terminal Road, where the automobile of a coworker with whom he was riding that day was parked. He was struck by a northbound automobile traveling in the westerly lane. The road was owned by Hollis Township of Peoria County, but title was ultimately to pass to Caterpillar Tractor. The public road was then to be relocated to a point southwest of its present location. There was testimony that, although no agreement existed with the township, employees of the general contractor occasionally scraped and watered the road, apparently to reduce the accumulation of dust caused by the movement of construction equipment. Petitioner frequently crossed the road to transport materials to a dumping or storage area maintained by the general contractor on the west side of the road. It appears from the testimony that the road was open to public travel at all times.

As a general rule, injuries sustained by an employee while going to or coming from his place of employment have been held not to arise out of and in the course of employment. Hess v. Industrial Com. (1980), 79 Ill. 2d 240; Reed v. Industrial Com. (1976), 63 Ill. 2d 247.

It is petitioner’s contention that the general rule does not apply here for the reason that the road was used, controlled and maintained by the general contractor and that it was an essential part of the construction site. Citing Schafer v. Industrial Com. (1931), 343 Ill. 573, and Christian v. Chicago & Illinois Midland Ry. Co. (1952), 412 Ill. 171, he argues that the road provided the only means of access to the construction site, that the area in which employees parked was a reasonable place to park, that parking there was necessitated by the nature of the employment, and that petitioner, while on the roadway, was exposed to risks to which the general public was not exposed. He argues that the only distinction that can be drawn between this case and Schafer v. Industrial Com. (1931), 343 Ill. 573, is that the road here was owned by the township, while the road in Schafer was owned by a hospital. He argues, too, that since the facts are not in dispute the question is one of law and on review the decision of the Commission is not binding on the courts.

Concerning petitioner’s argument that the decision of the Industrial Commission is not binding because the facts are undisputed, we find apposite our statement that “We may not disregard the decision of the Commission merely because the facts here are undisputed. It is well within the province of the Commission to draw inferences from undisputed facts to determine whether injury resulted from conduct which unreasonably or unnecessarily increased the risks of injury which attend such employment. (Jewel Companies, Inc. v. Industrial Com. (1974), 57 Ill. 2d 38, 43; Union Starch v. Industrial Com. (1974), 56 Ill. 2d 272, 275.) When the Commission’s decision is based upon such permissible inferences, we will disturb it only if it is against the manifest weight of the evidence. Malco, Inc. v. Industrial Com. (1976), 65 Ill. 2d 426, 430-31.” (Yost v. Industrial Com. (1979), 76 Ill. 2d 548, 551.) Schafer v. Industrial Com. does not support petitioner’s contention, for the reason that in that case the court affirmed the finding of the Commission in favor of the petitioner. Christian relied on Schafer, and its holding that the plaintiffs’ decedents were not at the time of their deaths covered by the provisions of the Workmen’s Compensation Act is consistent with the decision of the Commission here.

The decision of the Industrial Commission is not contrary to the manifest weight of the evidence, and the judgment is affirmed.

Judgment affirmed.


author: MR. JUSTICE CLARK MR. JUSTICE RYAN,

text:
    (No. 52920.
    JANE BOMMARITO, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Bressmer’s, Appellee).

      Opinion filed October 17, 1980.

      RYAN and UNDERWOOD, JJ., dissenting.
    Robert Weiner and Terry L. Fields, of Springfield, for appellant.
    W.J. Simhauser, of Heckenkamp & Simhauser, P.C., of Springfield, for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The claimant, Jane Bommarito, applied for workmen’s compensation benefits as a result of injuries sustained when, on her way to work, she fell in an alleyway behind the respondent’s store. The arbitrator awarded compensation. The Industrial Commission did not hear any additional testimony. It did admit a notice of injury given to the city of Springfield. The Commission then reversed the arbitrator, and the circuit court of Sangamon County confirmed the Commission. The claimant has appealed pursuant to Rule 302(a). 73 Ill. 2d R. 302(a).

The claimant was employed by the respondent, Bressmer’s store, in Springfield on August 13, 1976. She had parked her car in a lot on 7th Street and proceeded to walk down one of the four entrances to the two alleyways which led to the rear door of Bressmer’s store. A memorandum issued by the store’s management, and admitted into evidence in this case, states that all employees were required to enter and exit the store through the rear door. Testimony of the claimant and several employees, including a store manager, is to the same effect. As the claimant came within eight feet of the rear door, she stepped into a hole in the alley and fell, fracturing her left elbow and spraining her right ankle and right wrist.

The question is whether these undisputed facts establish that the claimant suffered injuries arising out of and in the course of her employment. This question is one of law and the decision of the Commission is not binding upon this court. Osborn v. Industrial Com. (1971), 50 Ill. 2d 150, 151; Williams v. Industrial Com. (1967), 38 Ill. 2d 593, 595.

The claimant argues initially that one-half of the alleyway is owned by the respondent. There is no indication of such ownership in the record; thus, we are unable to assume, without some evidence, that the alleyway belongs to the respondent. Therefore, the claimant’s injury must be deemed to have occurred off the respondent’s premises.

The rule is clear and well established that when an employee incurs injuries at a place off the employer’s premises while traveling to and from work, the injuries are not compensable unless the employee’s presence at the place where the accident occurred was required in the performance of his duties. (Eisenberg v. Industrial Com. (1976), 65 Ill. 2d 232, 233; Northwestern University v. Industrial Com. (1951), 409 Ill. 216, 220; Browne v. Industrial Com. (1967), 38 Ill. 2d 193, 194.) Further, injuries incurred off the employer’s premises are compensable only when the employee “is exposed to a risk common to the general public to a greater degree than other persons.” (Deal v. Industrial Com. (1976), 65 Ill. 2d 234, 239; Bartley v. Industrial Com. (1970), 45 Ill. 2d 374, 376; Chmelik v. Vana (1964), 31 Ill. 2d 272, 278.) “Moreover, if the risk or hazard is so increased by the employment, it does not matter that the injury is unusual, or unexpected, or that it is not peculiar to the employment.” C. A. Dunham Co. v. Industrial Com. (1959), 16 Ill. 2d 102, 105; Jefferson Ice Co. v. Industrial Com. (1949), 404 Ill. 290, 295; City of Chicago v. Industrial Com. (1945), 389 Ill. 592, 600.

Professor Larson has stated that where an injury took place in an area which is the sole or usual route to the employer’s premises, and the route is attendant with a special risk or hazard, the hazard becomes part of the employment. Special hazards or risks encountered as a result of using a certain access route satisfy the “arising out of” requirement, whereas the employer’s requirement that the employee use the route fulfills the “in the course of” element. Thus, any injuries encountered when both of the elements are met are compensable. (See 1 A. Larson, Workmen’s Compensation sec. 15.13, at 4—18 to 4—34 (1978).) The United States Supreme Court has taken the same position. In Cudahy Packing Co. v. Parramore (1923), 263 U.S. 418, 68 L. Ed. 366, 44 S. Ct. 153, a stationary engineer was struck and killed by a train while crossing tracks which intersected the only access route to the employer’s plant. The court stated: “The fact that the accident happens upon a public road or at a railroad crossing and that the danger is one to which the general public is likewise exposed is not conclusive against the existence of such causal relationship, if the danger be one to which the employee, by reason of and in connection with his employment, is subjected peculiarly or to an abnormal degree.” (263 U.S. 418, 424, 68 L. Ed. 366, 369, 44 S. Ct. 153, 154.) The court went on to conclude that since the hazardous route over which the employee was forced to travel to get to work was a “necessary concomitant of his employment, resulting in a degree of exposure to the common risk beyond that to which the general public was subjected” (263 U.S. 418, 426, 68 L. Ed. 366, 370, 44 S. Ct. 153, 155), a necessary causal relation between the employment and the accident saved the Utah statute in question from a successful due process attack. The original award of compensation to the employee’s widow was allowed to stand.

In the instant case it is not disputed that the employees were required to enter and exit the rear door of the store only. The stated purpose of the requirement was to permit the store’s security guards to observe the employees in an effort to prevent theft.

It is not material that there are four entrances to the two alleyways leading to the rear door. Since the claimant was within eight feet of the rear door, she was in the area where the alleyways converge. Moreover, she testified that she could only park on 7th Street, making the entrance to the alley from that street her only practical means of access.

The claimant’s undisputed testimony was that on the morning of her accident the alleyway was crowded with trucks “getting ready for a big sale at the time.” She also testified that the alley was filled with debris. The claimant stated that she walked around a truck and tried to avoid walking into a car parked diagonally in the alley. It was as she walked around that car that she fell into the hole. William Sartain, the respondent’s operations manager, testified that the respondent’s warehouse was across the alley from the store. He further said that the trucks in the alley on the morning of August 13, 1976, were delivering merchandise to the warehouse for the respondent.

This case thus does not present a situation where a claimant freely chooses to use a certain route and is injured in doing so. (See Northwestern University v. Industrial Com. (1951), 409 Ill. 216, 221.) Instead the claimant was directed to enter through one door for the convenience of the respondent and, considering the hazardous and congested condition of the alley, to the substantial detriment of the employees. Injuries sustained

off the employer’s premises have been held compensable when the injuries occurred while the employee was acting under the direction of the employer or for his benefit or accommodation. (Osborn v. Industrial Com. (1971), 50 Ill. 2d 150, 151.) We think the special risks or hazards encountered by the claimant, as a result of the respondent’s order to enter through the rear door only, must be deemed to arise out of her employment. Moreover, the claimant’s obedience to that order operates to place the claimant’s consequent injuries within the course of her employment. If she had not obeyed the order, she could not have gained admittance to her place of employment. Accord, Deal v. Industrial Com. (1976), 65 Ill. 2d 234, 239; 1 A. Larson, Workmen’s Compensation sec. 15.13, at 4—24 to 4—25 (1978); Brienza v. Le Chase Construction Corp. (1962), 17 App. Div. 2d 83, 85, 230 N.Y.S.2d 362, 363.

In Deal this court affirmed the Commission’s award granted when the claimant suffered a fractured right arm after he was struck by a bicyclist as the claimant exited the employer’s premises. At the time he was struck the claimant had one foot on a concrete apron which was under the control of the employer but as to which no evidence of ownership was admitted. This court stated:

“In this case, the only practical way for an employee to leave the respondent’s premises was through the doorway which opened directly onto the sidewalk. Considering that employees leaving the office would be immediately exposed to the hazards of any type of traffic on the sidewalk, the Commission may have concluded that leaving by this doorway presented a situation involving a greater degree of risk of injury than that to which the general public was exposed. We cannot say that as a matter of law such an inference was unreasonable or that the finding of the Industrial Commission was contrary to the manifest weight of the evidence.” (65 Ill. 2d 234, 239.)

The respondent herein has created a situation whereby the claimant was forced to dodge traffic and debris in order to gain admission to her place of work. The respondent cannot seriously expect to disclaim responsibility for the claimant’s injuries simply because the claimant was unable to traverse this obstacle course successfully.

Accordingly, for the reasons stated, the judgment of the circuit court is reversed and the cause is remanded to the Industrial Commission with directions to reinstate the award of the arbitrator.

Reversed and remanded, with directions.

MR. JUSTICE RYAN,

dissenting:

I find it impossible to distinguish this case from Warner v. Industrial Com. (1980), 82 Ill. 2d 188, decided by this court at this term, in which we reached a contrary result.

In Warner, the employee, a construction worker, had left his place of employment and was on his way to an automobile in which he was going to ride home. As he was crossing a public road, he was struck by an automobile. The employee in Warner, as in our case, contended that the general rule excluding compensation for injuries incurred while going to or coming from the place of employment should not apply because the road provided the only means of access to his place of employment, the construction site, and that while on the road he was exposed to risks to which the general public was not exposed. In Warner the employee argued, as the majority held in our case, that the decision of the Industrial Commission was not binding because the facts were undisputed, making the question one of law. However, in Warner we held, quoting from Yost v. Industrial Com. (1979), 76 Ill. 2d 548:

“ ‘We may not disregard the decision of the Commission merely because the facts here are undisputed. It is well within the province of the Commission to draw inferences from undisputed facts to determine whether injury resulted from conduct which unreasonably or unnecessarily increased the risks of injury which attend such employment. [Citations.] When the Commission’s decision is based upon such permissible inferences, we will disturb it only if it is against the manifest weight of the evidence.’ (Yost v. Industrial Com. (1979), 76 Ill. 2d 548, 551.)” (Warner v. Industrial Com. (1980), 82 Ill. 2d 188, 190-91.

The majority in our case, however, states:

“The question is one of law and the decision of the Commission is not binding upon this court.” 82 Ill. 2d at 194.

It is interesting to note that in our case, unlike the employee in Warner, the employee never argued that the undisputed facts created a question of law. In fact, the employee treated the issue as a question of fact and relied on the finding of the arbitrator in her favor instead of the finding of the Commission and requested that the finding of the arbitrator be reinstated. The employer, in its brief, likewise never addressed the issue of whether the question was one of law. Nevertheless, the majority, sua sponte, without attempting to distinguish Warner, held that the “question is one of law and that the decision of the Commission is not binding upon this court.” The cases cited in the opinion do not support its holding. Deal v. Industrial Com. (1976), 65 Ill. 2d 234, is relied upon by the majority in support of its position that injuries incurred off the premises are compensable when the employee is exposed to a risk common to the general public to a degree greater than other persons. However, in Deal, the Commission had found for the employee and this court was upholding the decision of the Commission, not reversing it as in our case. In doing so, this court stated:

“[T] he Commission may have concluded that leaving by this doorway presented a situation involving a greater degree of risk of injury than that to which the general public was exposed. We cannot say that as a matter of law such an inference was unreasonable or that the finding of the Industrial Commission was contrary to the manifest weight of the evidence.” (Emphasis added.) Deal v. Industrial Com. (1976), 65 Ill. 2d 234, 239.

The majority also relies on Eisenberg v. Industrial Com. (1976), 65 Ill. 2d 232, Browne v. Industrial Com. (1967), 38 Ill. 2d 193, and Northwestern University v. Industrial Com. (1951), 409 Ill. 216, in support of its position that the noncompensability rule does not apply if the employee’s presence at the place where the accident occurred was required in the performance of his duties. However, in those three cases, as in Deal and Warner, the question was held to be one of fact and this court, in denying compensation, affirmed the holdings of the Industrial Commission.

Also cited by the majority is Osborn v. Industrial Com. (1971), 50 Ill. 2d 150, and Williams v. Industrial Com. (1967), 38 Ill. 2d 593. In Osborn a woman employee was struck by an automobile while crossing a public street on her way from her place of employment to a parking lot. This court noted that it was undisputed that the street where the injury occurred was not under the control of the employee, nor was the employee acting at the direction of her employer, or for its benefit or accomodation. The question was thus held to be one of law. There was no evidence from which inferences could be drawn that would make the general rule of noncompensability inapplicable. In Williams the employee was eating a doughnut and drinking coffee while at work. He choked on the doughnut, blacked out, fell and injured himself in the fall. The court characterized the case as an idiopathic fall, a type of case which the courts have held would not warrant compensation. This court distinguished this type of a case from one in which the Industrial Commission could reasonably infer that a condition of the employment caused the fall. These cases do not support the holding of the majority opinion. We do not have in our case the type of a situation which automatically entitles the injured employee to recovery. In fact, the well-defined rule of law with regard to off-premises injuries is to the contrary. To bring such injuries under the compensation act there must be evidence from which the Commission can find that the employee, by virtue of his employment, was exposed to a greater risk than was the general public. This was a question of fact. There is no undisputed testimony that would preclude the drawing of inferences by the Industrial Commission. For instance, there is no undisputed evidence, assuming the admissibility of such evidence, that the employees using the alley were exposed to greater dangers because of their employment than was the public in general. It was permissible for the Industrial Commission to draw or not to draw such an inference from the evidence that was presented. The question was purely one of fact as set forth in the above cases.

With regard to the special hazard to which the employee in our case was subjected, the opinion cites Professor Larson in support of its holding. That treatise discusses the special-hazard exception to the general rule of noncompensability of off-premises injuries. (1 A. Larson, Workmen’s Compensation sec. 15.13, at 4—18 to 4—34 (1978).) However, Larson states:

“But it was never the intention behind this exception to mark out an off-premises area, merely because it is a normal access route, and then invest it with all the characteristics of the premises for course of employment purposes. Suppose, for example, that a particular road, alley or sidewalk could meet the test of being the sole or normal access route to the plant. Suppose also that two railway tracks ran across that route near the plant gate. Now assume that the employee suffered an unexplained fall, under circumstances that would have rendered it compensable under the decisions of the jurisdiction if it had happened during active employment. Would it be held compensable? It would not, although injury from being struck down by a railway engine would be. The extended course of employment based upon a special hazard in the access route is valid only for that hazard.” (Emphasis in original.) (Footnotes omitted.) (1 A. Larson, Workmen’s Compensation sec. 15.13, at 4-23 to 4-24 (1978).)

The majority opinion defines no special hazard. Was it the hole in the pavement, the congestion, or is it that the alley is more dangerous than the street in front of the store? This the claimant must prove. Larson continues:

“The point here is merely that the question of special hazard should not be ignored, and awards should not be made solely on a showing that an injury took place in an area which was the sole or usual route to the plant. Thus, compensation has been denied when the injury took place in an alley, although all employees were required to use the back alley entrance to the restaurant, since the alley was no more dangerous than the street in front.” (Footnotes omitted.) (1 A. Larson, Workmen’s Compensation sec. 15.13, at 4-24 to 4-25 (1978).)

Thus, in our case the mere fact that the employee fell and was injured in an alley she was compelled to use as a means of ingress and egress from the employer’s place of business is not controlling. To come within the special-hazard exception the employee must prove that she was subjected to a hazard to which the general public was not exposed or to which she was exposed peculiarily and to a greater degree than the public. (Deal v. Industrial Com. (1976), 65 Ill. 2d 234, 239.) As noted above, the congestion in the alley and the hole in the pavement may have been facts from which the Industrial Commission could have drawn the inference that the employee was exposed to hazards to which the general public was not exposed, or at least to a greater degree, but the Commission did not so find. It could have drawn, and apparently did draw, a contrary inference, or it may simply have found that the employee had not proved to its satisfaction that she was exposed to a greater risk of harm. This was purely a question of fact to be determined by the Industrial Commission, as we held in Warner, which this court should not disturb unless the finding is against the manifest weight of the evidence. Simply because we, as a court which, if sitting as a trier of fact, may have decided otherwise is no justification for substituting our opinion as to who should prevail for that of the trier of fact. I would affirm the circuit court of Sangamon County.

MR. JUSTICE UNDERWOOD joins in this dissent.