author: CHIEF JUSTICE RYAN

text:
    (No. 52388.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. FARRIS WALKER, Appellant.

      Opinion filed June 1, 1982.

    Re0hearing denied October 1, 1982.

      Patrick T. Driscoll, Jr., of Chicago, and John G. Quirk, James E. Doherty, David J. O’Keefe, and William H. Hrabak; law students, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr and Iris E. Sholder, Assistant State’s Attorneys, of counsel), for the People.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

By information filed in the circuit court of Cook County, Farris Walker was charged with the murder (Ill. Rev. Stat. 1977, ch. 38, par. 9-1) and attempted armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 8-4) of Raphael Morrow. At the conclusion of the trial, the jury returned a verdict of guilty on both counts. The prosecutor requested a hearing to determine whether the death penalty should be imposed. (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(d).) A new jury was chosen to hear evidence concerning aggravation and mitigation. The jury found that the victim was murdered “in the course of an armed robbery,” which is an aggravating factor which supports the death penalty under the statute. (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(b)(6)(c).) The jury also found no mitigating factors existed to preclude the imposition of the death penalty. (Ill. Rev. Stat. 1977, ch. 38, pars. 9-1(c), (g).) The trial judge entered judgment sentencing the defendant to death. The defendant was also sentenced on the attempted-armed-robbery conviction. The sentence was stayed (73 Ill. 2d R. 609(a)), pending direct appeal to this court, pursuant to Rule 603 (73 Ill. 2d R. 603). For the reasons expressed in this opinion, we affirm the convictions and the attempted-armed-robbery sentence, but vacate the sentence of death and remand for a new penalty hearing on the murder conviction.

On the evening of January 2, 1978, Raphael Morrow, an 86-year-old man, was on the Granville elevated station platform in Chicago. The ticket agent for the Chicago Transit Authority testified that she heard a train stop and saw an elderly man walking quickly down the stairs from the platform. After he left the station she heard someone scream and she called the dispatcher requesting that the police be summoned. A short time later she heard the door to the stairway open and she heard a voice say “give me your wallet.”

Two uniformed police officers, Thaddeus Dudek and William Morley, entered the station and proceeded up the stairs to the platform. The officers saw the elderly victim sitting on the floor of the platform with his back to the wall and his legs straight out. Standing straddled over the victim and facing him was the defendant, who had a knife in his right hand. Officer Dudek said “Jimmy, he’s got a knife.” Defendant looked up at the officers, who told him to stay where he was. The defendant turned and fled through the doors that led to the platform. Officer Dudek followed him, and Officer Morley went through the other set of doors. After a short chase, the officers subdued the defendant, handcuffed him, advised him of his rights, and escorted him back into the station.

Officer Dudek asked the victim how he felt, and the man responded that he “felt OK.” The victim looked at Officer Morley and at the defendant and said, “That’s him, I’m glad you got the guy that did this to me.”

Officer Christine Erengis testified that when she arrived the victim was “bleeding very heavily.” He pointed to the defendant, saying “that’s, you know, the man who tried to rob me.” The victim also told Officer Erengis that he did not carry a wallet.

Raphael Morrow died the next day. Doctor Lee Beamer, the pathologist who performed the autopsy, found nine stab wounds and three slash wounds. The cause of death was multiple stab wounds.

The defendant challenges the constitutionality of our death penalty statute on several grounds. We need not address those challenges in this opinion as they have been passed on by this court in People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531. The only error the defendant raises in relation to his convictions is that the State failed to produce certain evidence favorable to him prior to trial in response to his discovery motion, in violation of Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, and our Rule 412 (73 Ill. 2d R. 412). During the guilt or innocence phase of the trial, the assistant State’s Attorney tendered certain Chicago Police Crime Laboratory reports and a police report which stated that the defendant had a “crushed green plant” on his person at the time of his arrest. The defendant claims that these reports were favorable to him and, therefore, should have been produced pursuant to his discovery requests prior to trial.

The State argues that the defendant cannot now claim prejudice regarding discovery materials he received at trial and used, particularly since the defendant made no claim of prejudice at trial and failed to request a continuance or a recess. Also, the State points out that the defendant failed to use any of the reports a month later at the sentencing hearing. The defendant was given all laboratory reports the day before Mr. Spreyne, the State’s expert microanalyst, testified. The day Mr. Spreyne testified, defense counsel acknowledged receipt of the reports for the record and stated only that he had not previously received some of the reports. The reports that the defendant apparently had not received were subgrouping tests of the blood samples, which, for the most part, proved inconclusive. The State then called Mr. Spreyne to testify with no objection from defense counsel, no request for a continuance for more time to prepare, and no suggestion that the defendant would be prejudiced in any manner. In fact, defense counsel cross-examined the State’s microanalyst using the reports he now claims “surprised” him. He used the reports on cross-examination to establish that the victim’s blood was subgroup “MN,” while the subgrouping of the blood taken from the elevated station floor, though inconclusive because it was an extremely weak sample, contained only the “M” antigen. These two samples represented the only subgrouping tests performed.

If the reports were “so earthshaking as to require complete reorganization of the defendant’s case, counsel should have asked for a continuance or recess for that purpose before [Spreyne] testified. His failure to do so is persuasive evidence that the prejudice here alleged was in fact trivial.” (People v. Foster (1979), 76 Ill. 2d 365, 384.) The defendant should not be permitted to adopt one strategy and, when it fails, seek the drastic remedy of reversal of a conviction when more moderate corrective measures available during the trial were not utilized, and indeed were not requested. Any claimed prejudice at this late date is purely afterthought and certainly conjectural.

The defendant next contends that the police report which indicates the defendant possessed a “crushed green plant” was exculpatory evidence because he had claimed a “possible drugged or intoxicated condition” as an affirmative defense. Also, the defendant argues that this report could have been used as a mitigating factor during the penalty phase of the trial, in combination with the defendant’s own testimony that he had smoked marijuana the night that Raphael Morrow was murdered.

As with the laboratory reports discussed above, the defendant here also did not claim surprise or ask for a continuance or a recess to further investigate the contents of the police report or prepare his defense in relation thereto. The defendant’s position was not that he was in a drugged condition but that he did not kill Raphael Morrow. He did not testify at the guilt phase of the trial. However, at the penalty hearing he testified he had seen the deceased slumped over on the station platform with blood coming from his mouth and side. As he approached him, Morrow started swinging at him with a knife. The defendant took the knife away from him and set Morrow down against the wall. The defendant had the knife in his hand when the police arrived. He cannot now claim he was prejudiced in that the earlier knowledge of the “crushed green plant” would have aided him in fabricating a completely different story. The defense of a drugged or intoxicated condition would involve an acknowledgment that the defendant killed Morrow, or at least not a denial that he did so, which is completely contrary to the position the defendant has taken. We will not find that the defendant has been prejudiced in the guilt phase of his trial because he was not aided in subverting the process. The defendant testified at the sentencing hearing a month later that he had smoked marijuana the night Raphael Morrow was killed, but defense counsel did not use or attempt to use the police report indicating that the defendant had in his possession a “crushed green plant.”

To prove a violation of Brady v. Maryland, the defendant must show that certain material evidence not produced was favorable to the defendant. “A fair analysis of the holding in Brady indicates that implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial.” (United States v. Agurs (1976), 427 U.S. 97, 104, 49 L. Ed. 2d 342, 350, 96 S. Ct. 2392, 2398.) The above discussion clearly shows that this test has not been met in this case.

Not only defendant’s failure to request more time for preparation and his use of the reports, but also his failure to use the reports to support his position at the penalty hearing one month later, demonstrate that any delay in learning of the information could not have prejudiced this defendant or affected the outcome of the trial. (United States v. Agurs (1976), 427 U.S. 97, 104, 49 L. Ed. 2d 342, 350, 96 S. Ct. 2392, 2398.) If the contents of the reports were favorable, the defendant surely would have used them at the penalty hearing.

The defendant also argues that our statute does not include attempt in the list of enumerated aggravating factors which trigger eligibility for the death penalty. The statute states:

“(b) Aggravating factors. A defendant *** who has been found guilty of murder may be sentenced to death if:
6. the murdered individual was killed in the course of another felony if:
(c) the other felony was one of the following: armed robbery, robbery, rape, deviate sexual assault, aggravated kidnapping, forcible detention, arson, burglary, or the taking of indecent liberties with a child.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(b)(6)(c).)

The defendant argues that his conviction for the attempted armed robbery of Raphael Morrow cannot form the basis for the imposition of the death penalty. He interprets the phrase “in the course of another felony” to include only situations where one of the enumerated felonies has been completed. He asserts, therefore, that since he was convicted of attempted armed robbery, not armed robbery, he did not commit murder “in the course of another felony.” Hence, according to defendant, no statutory aggravating factor exists to make the murder of Raphael Morrow a capital offense.

The statute does not require that the accused be convicted of the commission of one of the listed aggravating felonies. Whether the murder is committed in association with the actual completion of the aggravating felony or only with the attempted felony is not crucial. The aggravating factor which triggers the application of the death penalty statute is that the murder be committed “in the course of’ the aggravating felony. A murder may be committed “in the course of” an armed robbery whether or not the actual armed robbery is consummated.

An essential element of an attempt is that the accused perform “any act which constitutes a substantial step toward the commission of that offense.” (Ill. Rev. Stat. 1977, ch. 38, par. 8-4.) It is a question of fact whether “[an] act which constitutes a substantial step toward the commission of” armed robbery constitutes “in the course of” an armed robbery, so that that act becomes an aggravating factor authorizing the imposition of the death penalty. We again emphasize that the death penalty statute specifies as an aggravating factor that the murder be committed “in the course of” one of the listed felonies. The statute does not require that the other felony be completed or that the defendant be charged with or convicted of the other felony or an attempted felony.

The death penalty statute does require the State to prove beyond a reasonable doubt (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(f)) the aggravating factor, that is, that the murder was committed “in the course of” the armed robbery (or other specified felony). This is so whether the defendant has been convicted of armed robbery (or another specified felony), or of attempted armed robbery. It is establishing that the murder was committed “in the course of” the armed robbery in our case that makes the defendant eligible for the death penalty, not the commission of an armed robbery or an attempted armed robbery. The sentencing jury in the first phase of the sentencing hearing in this case found that the murder was committed “in the course of” an armed robbery.

The Georgia Supreme Court reached a similar conclusion in Amadeo v. State (1979), 243 Ga. 627, 255 S.E.2d 718. The Georgia death penalty statute states that a statutory aggravating factor is established where:

“The offense of murder *** was committed while the offender was engaged in the commission of another capital felony ***.” (Ga. Code Ann. sec. 27-2534.1(b)(2) (1975 Supp.).)

In Amadeo the jury found that the murder was committed “while the offender was engaged in the commission of another capital offense, to-wit: Armed Robbery.” (Amadeo v. State (1979), 243 Ga. 627, 630, 255 S.E.2d 718, 721.) The defendant walked up to a truck, armed with an automatic weapon, and demanded the driver’s money. He shot the driver and fled without taking the money. The court stated:

“The ‘while *** engaged in the commission of’ requirement of that subsection does not require that the subject felony shall have been completed or that the offender shall have been charged with or convicted of the felony.” (Amadeo v. State (1979), 243 Ga. 627, 630-31, 255 S.E.2d 718, 721.)

The court concluded that the defendant was clearly engaged in the commission of another capital offense — armed robbery — when he killed the man.

The defendant also argues that if the legislature had intended to include “attempt” in the statutory aggravating factors it could have easily done so, as it did in the felony-murder provisions of section 9-1(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(a)(3)). This misconstrues the fact that the statutory aggravating factor is, as noted above, not the conviction of armed robbery or attempted armed robbery, but murder “in the course of” armed robbery. It is true, of course, that some of the same facts may go to prove both the attempted felony and the aggravating factor because one of the elements of “attempt” is taking a substantial step toward the commission of a crime (Ill. Rev. Stat. 1977, ch. 38, par. 8-4(a)).

In summary, section 9 — l(bX6) of our death penalty statute requires only that the State prove beyond a reasonable doubt, inter alia, that the murder was committed in the course of one of the felonies enumerated in section 9 — l(bX6Xc). The phrase “in the course of” does not require that the defendant complete one of the enumerated felonies or that he be charged and convicted of any offense other than murder to be eligible for the death penalty. In this case the State had to prove, inter alia, beyond a reasonable doubt that the defendant murdered Raphael Morrow in the course of the armed robbery.

The defendant has raised numerous errors relating to his sentencing hearing, most of which need not be addressed in light of our holding that the cumulative effect of some of the errors requires remandment for a new sentencing hearing. We hold that the prosecutor’s remarks in closing argument that the defendant would be eligible for parole and the judge’s failure to sustain the defendant’s objection to those remarks, plus the judge’s ex parte handling of a question from the jury concerning parole, require that the death sentence be vacated and a new sentencing hearing be held.

In rebuttal closing argument, the prosecutor told the jury:

“As you heard when he committed the crime of killing an 87 year old man, he was on parole. Mr. Walker does not fear the penitentiary system. He did not fear violating any of his parole by robbing people. He has no fear of the penitentiary system. And Mr. Radakovich [defense counsel] would put him in prison for the rest of his life. But Mr. Radakovich knows under the law that is available he is eligible for parole again--
MR. SACKS [Defense Counsel]: Objection, Your Honor.
PROSECUTOR: (Continuing) — in eleven years.
MR. SACKS: Objection, Your Honor.
PROSECUTOR: That is the law.
THE COURT: You may continue.
PROSECUTOR: And he knows that. But they don’t tell you that, do they?
And he spent over a year in jail. He has no fear that he will not see the streets again, because he is going to prey on your weaknesses, that you do respect human life and because you respect life you will not take his. You cannot allow that to happen, because if you do the only thing that is certain is there will be other victims. But as of yet they are unknown, unnamed, and unrepresented in this case. But they will exist.”

The defendant argues that these comments prejudiced the defendant, requiring reversal of his death sentence. The defendant contends that the prosecutor’s remarks introduced the prejudicial consideration of the defendant’s possible parole into the jury’s sentencing decision. The defendant also argues that the judge should have sustained the objection and admonished the jury to disregard the comment.

The State’s position is that the prosecutor’s closing comments were invited by the following remarks of defense counsel:

“[Mr. Walker] will be sentenced by his Honor, Judge Máchala and not by you to a term of years in the penitentiary. He is going to be living in a cage and everything else about a prison. ***
*** And don’t count on somebody else changing your decision, because each and everyone of the twelve of you are judging, each and everyone of the twelve of you has that power to either to give him life in the penitentiary,— life but in a penitentiary. He is not getting away with anything. Each and everyone of the twelve of you has the power to kill.”

The defendant relies on People v. Lynn (1944), 387 Ill. 549. In Lynn the prosecutor informed the jury that the Board of Pardons would take into consideration that the defendant had just finished serving a prison sentence and for that reason would probably require that the defendant serve only one year. The trial court sustained an objection and admonished the jury to disregard the comment. The State argued that the comments were invited by defense counsel’s closing argument to the jury. The court reversed the conviction, stating that the State’s argument was not supported by the record in the case.

In this case, however, the record reflects that the prosecutor’s closing argument comments concerning parole came very close to being invited by defense counsel's own argument. In People v. Myers (1966), 35 Ill. 2d 311, the prosecutor, during closing argument in a death penalty case, stated: “Are you going to gamble in a few years he will find no psychiatrist saying that John Myers [defendant] is psychotic? If the inevitable takes place you have given him the gun and said good boy, John, go out and kill another ***.” The court stated that the prosecutor’s comment “was a legitimate reply which was invited by the defendant’s argument.” (People v. Myers (1966), 35 Ill. 2d 311, 335.) It held that the comments were not prejudicial error requiring reversal.

Were it not for the fact that, as demonstrated later by the inquiry made by the jury to the judge, these remarks obviously caused the jury to consider whether the defendant would be eligible for parole, we could find that the remarks were invited and not grounds for reversal. However, here we are dealing with the penalty of death, which demands strict scrutiny of such remarks and their possible effect upon the sentencing jury. The United States Supreme Court has held that in determining whether death is the appropriate punishment in a given case, the focus should be upon the character and record of the offender, as well as the facts and circumstances surrounding the offense. (Woodson v. North Carolina (1976), 428 U.S. 280, 304-05, 49 L. Ed. 2d 944, 961, 96 S. Ct. 2978, 2991; Lockett v. Ohio (1978), 438 U.S. 586, 604-05, 57 L. Ed. 2d 973, 989-90, 98 S. Ct. 2954, 2964-65.) If, in considering the individual and the offense, the jury concludes that the defendant is not such a person as should be executed, then the fact that he may eventually be paroled by the executive branch of our State government does not mean that he should be executed to prevent that possibility. By injecting the parole consideration into the penalty determination, the jury is diverting its attention from the offense and the offender, and is focusing upon a speculative possibility that may or may not occur. (People v. Morse (1964), 60 Cal. 2d 631, 644-45, 388 P.2d 33, 41, 36 Cal. Rptr. 201, 209; People v. Ramos (1982), 30 Cal. 3d 553, 591-96, 639 P.2d 908, 929-33, 180 Cal. Rptr. 266, 287-91.) Our statute requires that the court or jury, as the case may be, consider aggravating and mitigating factors, which are .relevant to the imposition of the death penalty. (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(c).) Whether or not the defendant may, at some future time, be paroled is not a proper aggravating factor to consider in determining whether the death penalty should be imposed.

That the comments of counsel did raise the question of whether the defendant could be paroled if he were sentenced to prison is apparent from the contents of the note which the jury sent to the judge during its deliberation. The note stated:

“Judge Machala
We, the Jury, were wondering that if we should find that the defendant should serve time in prison — if we have the right and/or authority to be assured that the defendant cannot walk the streets again — determine if he should receive life or 100-999 yrs. where he cannot receive parole at such an age where he cannot again do harm to others. Is there a rule where on the books Please advise.” (Underscoring in the note.)

The defendant’s position is that this note demonstrates that at least one juror was concentrating on the prosecutor’s closing argument comments on parole. The judge responded ex parte by sending the jury a note which stated “a verdict must be arrived at on the basis of the evidence you have been given.”

The defendant contends that the judge’s ex parte communication with the jury is error in and of itself requiring reversal. We reject this position. A communication to the jury, either by the court or by a third person, does not always require setting aside the verdict “where it is apparent that no injury or prejudice resulted ***.” People v. Mills (1968), 40 Ill. 2d 4, 14; People v. Brothers (1932), 347 Ill. 530, 548.

There were present at the penalty hearing three errors which, although individually may have been considered harmless, collectively require that the penalty be vacated. The comments by the prosecutor in closing argument, the failure of the court to sustain objections to the comments, and the ex parte communication by the judge to the jury which did not respond to the jury’s question combine to require this result. Under these facts it is not “apparent that no injury or prejudice resulted” (People v. Mills (1968), 40 Ill. 2d 4, 14). Taken together these events present the very real possibility that the jury was led to believe that whether or not the defendant would ultimately be paroled was a proper matter for them to consider in determining whether the death penalty should be imposed. This belief was not dispelled by the perfunctory response of the judge in his ex parte communication.

Since this is a death penalty case, a high standard of procedural accuracy is required in determining whether or not that penalty will be imposed. The procedural errors in this case do not conform to the high standard which must be followed to insure that proper matters are considered in aggravation and that the penalty is applied in as uniform a manner as possible within the framework of an adversary proceeding.

While we affirm the defendant’s convictions for murder and attempted armed robbery and the sentence for attempted armed robbery, we must vacate the sentence of death and remand the cause to the circuit court of Cook County for a new penalty hearing on the murder conviction.

Affirmed in part and vacated in part; cause remanded, with directions.


source: Caselaw Access Project

license: Public Domain

text:
    (No. 56831.
    DIXON ASSOCIATION FOR RETARDED CITIZENS et al., Appellees, v. JAMES R. THOMPSON, Governor, et al., Appellants.

      Announced June 29, 1982.
    Opinion filed August 20, 1982.

      Samuel K. Skinner, of Chicago, Special Assistant Attorney General (William F. Conlon, Jeffrey R Tone, and Richard J. O’Brien, Jr., of Sidley & Austin, of counsel), for appellants.
    Jerome F. Goldberg and Patrick T. Murphy, of Chicago, for the Dixon Association for Retarded Citizens et al., appellees.
    Roger B. Derstine, Linda S. Ganski, Gerard A. Brest, and Patricia Kenaga, of Chicago, for the Guardianship and Advocacy Commission et al., appellees.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

Plaintiffs, the Dixon Association for Retarded Citizens, whose members consist of parents and guardians of residents at the Dixon Developmental Center, and two individual residents at that institution, by their guardians, commenced this action by filing a complaint for declaratory judgment and injunctive relief against the defendants, James R. Thompson, the Governor of the State of Illinois, and Ivan Pavkovic, the Director of the Department of Mental Health and Developmental Disabilities (hereinafter referred to as Department). Thereafter, the office of State Guardian of the Guardianship and Advocacy Commission intervened as party plaintiff on behalf of 224 Dixon residents. The complaint sought to enjoin the defendants from implementing their announced intention to close the Dixon Developmental Center (hereinafter referred to as Dixon). Following some preliminary matters not germane to this case, the circuit court of Cook County conducted an extensive hearing and issued a preliminary injunction enjoining the defendants from implementing their plan for the closure of Dixon, including any transfer of the residents or layoffs or transfers of personnel until further order of the court. The circuit court found that the proposed transfers may be in violation of the statutory rights of the plaintiff class to adequate and humane care and services under section 2 — 102(a) of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1981, ch. 91V2, par. 2 — 102(a)) and the transfer procedures set forth in section 4 — 707 (Ill. Rev. Stat. 1981, ch. 91^2, par. 4 — 707). The defendants filed a notice of interlocutory appeal pursuant to Rule 307(a)(1) (73 Ill. 2d R. 307(a)(1)), and we granted their motion to transfer the appeal to this court pursuant to Rule 302(b) (73 Ill. 2d R. 302(b)). In order to accommodate the litigants, the court set an expedited briefing schedule and had a special setting of the case for oral argument. Thereafter, on June 29, 1982, we entered our order reversing the trial court and stated that a written opinion would follow. In this opinion we set forth the reasons for our decision.

Plaintiffs commenced this action on November 24, 1981, by filing their initial complaint for relief against the defendants, alleging in substance that the defendants proposed to close the Dixon facility and to transfer its predominantly severely and profoundly retarded residents in violation of certain provisions of the Mental Health and Developmental Disabilities Code, including sections 2 — 102(a) and 4 — 707 (Ill. Rev. Stat. 1981, ch. 91V2, pars. 2 — 102(a), 4 — 707). The complaint also alleged that the proposed closure and transfer of residents would be in violation of the residents’ constitutional due process rights. The complaint was amended to allege violation of the residents’ eighth amendment right to be free from cruel and unusual punishment. The trial court’s ruling was based solely on the statutory provisions. We need not address alleged violations of the residents’ constitutional rights, other than to say that the statutory rights granted under the Code are more expansive than and include the constitutional rights of the Dixon residents. See Youngberg v. Romeo (1982), 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452; Ill. Rev. Stat. 1981, ch. 911/2, par. 2-100.

On February 23, 1982, pursuant to plaintiffs’ motion, the court entered a temporary restraining order prohibiting the defendants from implementing their decision to close Dixon. The temporary restraining order is not before this court but was appealed to the appellate court.

On April 19, 1982, the trial court certified this cause as a class action and designated the named plaintiffs as representative members of that class. On April 19, 1982, the court also commenced an evidentiary hearing on the plaintiffs’ motion for a preliminary injunction. The hearing concluded on May 10,1982.

On June 3, 1982, the circuit court entered a preliminary injunction in the form of a memorandum opinion and order. The injunction enjoined and restrained defendants from any further implementation of their announced closure of Dixon. The effect of the injunction was to prevent the closing of Dixon, including the transfer of residents and the layoff or transfer of Dixon employees, because the judge believed that to do so might violate the residents’ right to “adequate and humane care and services” guaranteed by section 2 — 102(a) (Ill. Rev. Stat. 1981, ch. QlVz, par. 2 — 102(a)) and the transfer standards in section 4 — 707 (Ill. Rev. Stat. 1981, ch. 91x/2, par. 4 — 707). As noted above, the defendants appealed from this interlocutory order pursuant to Rule 307(a)(1) (73 Ill. 2d R. 307(a)(1)), and we granted the motion to transfer the appeal directly to this court pursuant to Rule 302(b) (73 Ill. 2d R. 302(b)).

The plaintiffs and interveners seek to limit the role of this court on review to the traditional role of a reviewing court considering an appeal from an order granting a preliminary injunction. Thus, it is argued that the granting of the preliminary injunction was within the sound discretion of the trial court and that a court of review should determine only whether or not there was an abuse of that discretion. (See Lonergan v. Crucible Steel Co. of America (1967), 37 Ill. 2d 599.) The plaintiffs also argue that the primary purpose of interlocutory injunctive relief is to preserve the status quo until there can be a determination on the merits of the controversy. (See Hydroaire, Inc. v. Sager (1981), 98 Ill. App. 3d 758, 761.) The appellate court, in City of Chicago v. Airline Canteen Service, Inc. (1978), 64 Ill. App. 3d 417, summarized the role of the preliminary injunction and the nature of the review on appeal from an order issuing such an injunction when it stated:

“It is well established that a hearing on a motion for a preliminary injunction does not determine any factual issue. A preliminary injunction is issued to preserve the status quo until the trial court may consider the merits of the case. In ruling on a motion for such relief, controverted facts or the merits of the case are not decided. In reviewing the discretion exercised by the trial court, an appellate court may decide only whether the petitioner has demonstrated a prima facie case that there is a fair question as to the existence of the rights claimed; that the circumstances lead to a reasonable belief that they probably will be entitled to the relief sought, if the evidence sustains the allegations of the petition; and that matters should be kept in status quo until the case can be decided on its merits. In sum, the only question before us is whether there was a sufficient showing to sustain the order of the trial court. [Citation.]” City of Chicago v. Airline Canteen Service, Inc. (1978), 64 Ill. App. 3d 417, 432-33.

In this case we do not feel limited by the traditional scope of review of an order issuing a preliminary injunction. Although the order in this case purports to be a preliminary injunction and many references are made in the order to the fact that the court is only preserving the status quo until there can be a hearing on the merits, this order is, in effect, a decision on the merits of the case. It should be noted that the transcript of the hearing on the motion for the preliminary injunction is in excess of 4,000 pages. Approximately 28 witnesses testified, and more than 80 exhibits were introduced. The hearing lasted approximately 15 days. The court’s order found that the proposed relocation of the residents of Dixon, as set forth in the defendants’ plan, would result in a violation of the statutory requirement that the residents must be provided with adequate and humane care and services (Ill. Rev. Stat. 1981, ch. 91V2, par. 2 — 102(a)), and their statutory right to be transferred to a facility that is appropriate and consistent with their habilitation needs (Ill. Rev. Stat. 1981, ch. 9IV2, par. 4 — 707). The injunction enjoined the defendants’ proposed closure of Dixon and transfer of residents and layoff and transfer of staff “until defendants, at an evidentiary hearing on the merits of this cause can persuade the court that such transfers and layoffs should proceed.” Thus, at the proposed evidentiary hearing on the merits, the burden will not be on the plaintiffs to establish the invalidity of the defendants’ proposed plan of relocation of residents and staff. The effect of the order is to hold the proposed plan invalid, and it placed the burden on the defendants to come forth with a plan acceptable to the court. The court then went on to criticize the proposed plan of the defendants and stated, “What we have here, at this point in time, is a plan (4-Level Plan) which purports to be noble in purpose, but will be void of content until there is a sincere, conscientious and sensitive implementation of adequate planning that is not tethered slavishly to short budget deadlines that demand precipitous actions.” This clearly reveals a complete rejection of the defendants’ relocation plan, and as noted previously, the order has enjoined the transfer, not temporarily pending the disposition of the case, but until the defendants present a different plan acceptable to the judge.

Neither the plaintiffs nor the interveners contend that the Governor and the Department do not have the power or authority to close Dixon. The only question is whether the proposed closure and relocation of the residents at Dixon violate any rights of those residents.

The trial court based its holding on two sections of the Code. It found that the proposed plan for relocating the residents of Dixon violated the transfer standards set forth in section 4 — 707 of the Code (Ill. Rev. Stat. 1981, ch. 91V2, par. 4 — 707). That section provides that the director of any facility “may transfer a client to another Department facility if he determines that the transfer is appropriate and consistent with the habilitation needs of the client.” (Ill. Rev. Stat. 1981, ch. 91V2, par. 4 — 707.) The court also found that the proposed plan violates section 2 — 102(a) of the Code (Ill. Rev. Stat. 1981, ch. 9IV2, par. 2 — 102(a)). That issue will be addressed later. Also, the proposed relocation plan, which the court found to be in violation of these sections of the Code, will be more specifically set forth later in this opinion.

A reading of article VII of chapter 4 of the Code (Ill. Rev. Stat. 1981, ch. 9IV2, par. 4 — 700 et seq.) reveals that these provisions do not apply to the relocation of clients of a facility when that facility is to be closed. The provisions of article VII can apply only to transfers between existing facilities.

Whenever a transfer is to be made under section 4 — 707, the resident, his attorney, parent, or guardian are entitled to notice of the transfer and the reason for the transfer. (Ill. Rev. Stat. 1981, ch. 91V2, par. 4 — 709.) A client or the person who receives the above notice is entitled to object to the transfer, and if an objection is filed, then the client is entitled to a hearing by a utilization-review committee. (Ill. Rev. Stat. 1981, ch. 9IV2, pars. 4 — 707, 4 — 709.) The Department has the burden of proving that the transfer is “appropriate and consistent with the habilitation needs of the client.” (Ill. Rev. Stat. 1981, ch. 914/2, pars. 4 — 707, 4 — 709.) The review committee may recommend that the resident be transferred or not transferred. (Ill. Rev. Stat. 1981, ch. 91V2, par. 4 — 709.) Certain review provisions are provided for the various findings and determinations. Ill. Rev. Stat. 1981, ch. 91V2, par. 4 — 209(c); Ill. Rev. Stat. 1981, ch. 9IV2, par. 6 — 101.

Implicit in the transfer procedures in article VII is the conclusion that the transferring facility must remain open after the decision to transfer a resident is made. The procedures outlined in article VII permit the rejection and reversal at various stages of review of a decision to transfer a client to another facility. Such a reversal or rejection of a transfer determination is not consistent with the closing of the facility from which the transfer is made. The application of the provisions of article VII to a facility that is to be closed could compel the continued operation of that facility and the maintenance of its staff at a great expense to accommodate the few clients whose transfers may not be appropriate under the standards of section 4 — 700 et seq. Article VII of chapter 4 of the Code is silent as to the procedures to be followed in the event the facility from which the transfers are to be made is to be closed and clearly cannot be made applicable to such a case.

In Bell v. Thornburgh (1980), 491 Pa. 263, 420 A.2d 443, the Supreme Court of Pennsylvania reached a similar conclusion. That court held that the statutory right of a resident at a mental health facility to transfer to another facility only upon his written consent would not apply when the facility was to be closed. The court stated:

“Applying these principles of statutory construction, and a little common sense, it is apparent the legislature did not intend section 207 of the Act to be used as a bar to the closing of a particular institution. *** Appellees’ interpretation of section 207 would lead to the unreasonable result that a few patients could, by withholding their consent to transfer, prevent the closing of a particular facility which had been deemed unsafe, uneconomical and unnecessary by those who are charged with the responsibility to make such decisions ***.” Bell v. Thornburgh (1980), 491 Pa. 263, 270, 420 A.2d 443, 446.

As noted, the Code is silent as to the procedures to be followed in the relocation of clients of a facility that is to be closed. It is, therefore, incumbent upon the Department to establish procedures for relocating the clients of a closed facility. In formulating such procedures, consideration must be given to the statutory and constitutional rights of the transferees. Plaintiffs argued and, as noted earlier, the trial court found that the four-phase plan of the defendants to be used in relocating Dixon clients violated section 2 — 102(a) of the Code (Ill. Rev. Stat. 1981, ch. 911/2, par. 2-102(a)), which provides:

“A recipient of services shall be provided with adequate and humane care and services in the least restrictive environment, pursuant to an individual services plan ***.” (Ill. Rev. Stat. 1981, ch. 911/2, par. 2-102(a).)

The defendants agree that the relocation must be in compliance with section 2 — 102(a), but state that their four-phase plan to relocate the residents is in compliance with supplying the residents with adequate and humane care and services. Furthermore, defendants assert that Dixon is an outdated facility, costly to maintain, and that it does not provide the homelike, normalized environment in keeping with the national and State trends for the service of the retarded.

The circuit court concluded that the proposed transfer of the residents would violate section 2 — 102(a) in that (a) the defendants’ timetable of eight to nine months for completing the transfer is unrealistic; (b) the transfers will likely result in serious harm to some or all of the residents; (c) defendants have riot properly planned such transfers, which lack appropriate review of individual habilitation needs of each resident; and (d) some of the receiving facilities are not currently prepared to accept the residents to be transferred and some are not yet operational.

What constitutes “adequate and humane care and services” is not specifically defined in the Code. However, section 1 — 115 states that “services” means “treatment or habilitation.” (Ill. Rev. Stat. 1981, ch. dlVz, par. 1 — 115.) “Habilitation” is defined in section 1 — 111 as follows:

“[A]n effort directed toward the alleviation of a developmental disability or toward increasing a developmentally disabled person’s level of physical, mental, social or economic functioning. Habilitation may include, but is not limited to, diagnosis, evaluation, medical services, residential care, day care, special living arrangements, training, education, sheltered employment, protective services, counseling and other services provided to developmentally disabled persons by developmental disabilities facilities.” (Ill. Rev. Stat. 1981, ch. 911/2, par. 1-111.)

Thus, adequate and humane care and service would seem to include the care or service encompassed within the definition of “habilitation.” For the care and service to be adequate, it would appear that they must also conform to the requirements of the Code that no recipient of service shall be deprived of any rights, benefits or privileges guaranteed by the Constitution of the State of Illinois or the Constitution of the United States. Ill. Rev. Stat. 1981, ch. 911/2, par. 2-100.

The Supreme Court has recently addressed the question of the constitutional rights of one confined to a mental institution. In Youngberg v. Romeo (1982), 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452, the Supreme Court held that the mentally retarded who are involuntarily committed have constitutionally protected liberty rights, under the due process clause of the fourteenth amendment, to reasonably safe conditions of confinement, freedom from unreasonable bodily restraints, and such minimally adequate training or habilitation as reasonably may be required by these interests. In Youngberg the State conceded that the respondent had a right to adequate food, shelter, clothing, and medical care. Thus, we find that adequate “habilitation” is included among the constitutional rights of those involuntarily confined to mental institutions as well as being a right conferred by section 2 — 102(a) of the Code. The Supreme Court in Youngberg noted that the basic requirement of adequacy may be stated as that training which is reasonable in light of identifiable liberty interests and the circumstances of the case. It would appear that the constitutional rights of these residents as discussed in Youngberg essentially overlap the rights conferred by section 2 — 102(a). The adequacy of the care and services required by that section and the Constitution is that which is reasonable in light of identifiable liberty interests and the circumstances of the case.

We have heretofore referred to the defendants’ four-phase plan for relocating the residents of Dixon without specifying what it provides. We do so now. Initial planning in the development of this plan focused on three areas: (1) identifying the area of the State from which the residents were initially placed at Dixon; (2) identifying special needs of the resident groups at Dixon; and (3) determining the capability of other Department facilities to serve additional residents. The initial planning was completed with the assistance of seven task forces: (1) resident assessment, grouping and transferring; (2) equipment identification; (3) facilities certification, assessment, and compliance; (4) budgetary and fiscal control; (5) personnel coordination and employee relocation; (6) location and securing physical plant to serve special need groups; and (7) communication with interest groups.

Eight facilities were identified as potential receiving facilities for Dixon residents. Thereafter, a particular receiving facility was tentatively identified for each resident based on the proximity of the facility to the resident’s family or guardian, the availability of special programs to fit the resident’s habilitation needs, and the overall capability of the facility to meet those needs.

After the receiving facilities were identified, the Department of Public Health surveyed the facility to determine additional bed capacity under applicable certification standards. Also, the plan for the closure of Dixon and the relocation of its residents was presented to a number of public interest groups for review and comment.

The actual transfer of each resident is to be made in accordance with the four-level or four-phase program. It is this transfer program that the trial court found violated the statutory rights of the residents. The first level consists of notice to the responsible relative or guardian concerning closure, transfer, and the review process. The plan requires all residents to be grouped by level of functioning, age, and ambulation. A tentative assignment is made to a specific program or particular facility to best meet the resident’s program needs. Geographic ties to relatives, significant friendships, and customary daily routine are to be considered critical factors in each resident’s placement.

At the second level, a habilitation team from the receiving facility is to assess individuals tentatively assigned to their facility to determine if the individual’s program needs can be met at the receiving facility. That group is then to confirm the appropriateness of the individual for the facility and develop a habilitation plan. The development of a habilitation program is to assure that the receiving facility will be familiar with the resident’s needs and can provide the appropriate program. The parent or guardian is then to be notified of a transfer conference.

The third level consists of a meeting with the parent or guardian, the resident, if appropriate, and the habilitation teams from Dixon and the receiving facility. The habilitation plan is to be presented to and discussed with the parent or guardian, and they are to be given an opportunity to raise objections or concerns with regard to the plan. The staff is to resolve all the problems raised and then is to communicate the final habilitation plan to the parent or guardian. If the plan is agreed to, the transfer will be scheduled. If there are objections, however, the relocation of the resident is to proceed to the fourth level of the Department’s process.

The fourth level, the relative- or guardian-review procedure, consists of a three-member panel which is to hear and consider objections by the parent or guardian, who is also entitled to be present at the review. The procedure requires that the panel jointly confer on each objection and review all relevant data on which the relocation decision is based. The panel has the duty to decide if the habilitation needs of the individual or the plan should be modified. The panel has the authority to modify the transfer plan and to design a new program of transfer. The final requirement is that the decision be communicated to the guardian in writing with the basis for the panel’s decision.

At the time oral arguments were heard in this cause the first level had almost been completed and the second level had begun for some residents.

There was testimony at the hearing on the motion for a preliminary injunction that Dixon has trouble maintaining an adequate level of professional staff — physical therapists, speech pathologists, activity therapists and psychologists; and that Dixon is an older facility built to accommodate 4,000 to 5,000 residents, not the 886 that currently live there.

The constitution of this State provides that the Governor shall have the supreme executive power and shall be responsible for the faithful execution of the law. (Ill. Const. 1970, art. V, sec. 8.) Also, the statutes vest in the Department of Mental Health and Developmental Disabilities the duty and authority to administer the provisions of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1981, ch. 127, par. 53) and to exercise executive and administrative supervision over all institutions, divisions, programs, and services under the jurisdiction of the Department (Ill. Rev. Stat. 1981, ch. 91V2, par. 100 — 4). The authority of the executive branch of State government to close Dixon has not been questioned. Devising the plan or program for relocating the residents of Dixon after its closure clearly falls within the ambit of the statutory authority granted to the Department and the constitutional authority of the Governor as chief executive officer of the State. The question we must determine is whether the order of the trial court unlawfully usurped the authority that has been conferred upon these members of the executive branch of government. We hold that it has usurped that authority.

It is within the realm of judicial authority to assure that the action of the members of the executive branch does not deprive the residents of an institution of rights conferred by statute or by the Constitution. However, under the guise of protecting these rights a court may not substitute its idea of what is best for the residents in lieu of the program devised by those who are vested with the authority and duty to provide care and services. Obviously, there will be differences of opinion even among professionals as to the care, services, and treatment that should be provided. This is particularly true in the sensitive area of providing care and services for unfortunate individuals such as those with whom this case deals. The evidence presented to the court does not indicate a precipitous, unplanned closing and transfer of the residents at Dixon as the trial court intimated. Rather the evidence indicates that there was detailed, considered planning for the closing of this facility and that there was a sincere attempt to develop a program for relocating the residents in a manner that would accommodate the residents’ individual needs. That some of the professionals who testified in the hearing disagree with the program developed by the Department does not warrant judicial interference. Those who devised the relocation plan and those who will administer it are qualified professionals whom the law vested with the authority to make such decisions. We must accept their decisions as presumptively valid.

In Youngberg, the Supreme Court stated:

“[W]e emphasize that courts must show deference to the judgment exercised by a qualified professional. By so limiting judicial review of challenges to conditions in state institutions, interference by the federal judiciary with the internal operations of these institutions should be minimized. Moreover, there certainly is no reason to think judges or juries are better qualified than appropriate professionals in making such decisions.” (Youngberg v. Romeo (1982), 457 U.S. 307, 322, 73 L. Ed. 2d 28, 41-42, 102 S. Ct. 2452, 2461-62.)

(See also Parham v. J.R. (1979), 442 U.S. 584, 61 L. Ed. 2d 101, 99 S. Ct. 2493.) Youngberg involved an action for damages by a mentally retarded resident of a State institution. The Supreme Court, after the portion of the opinion quoted above, and after noting that courts should not second-guess expert administrators on matters in which they are better informed, stated:

“For these reasons, the decision, if made by a professional, is presumptively valid; liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” (Emphasis added.) 457 U.S. 307, 323, 73 L. Ed. 2d 28, 42,102 S. Ct. 2452, 2462.)

Similar consideration of and deference to the professional judgment exercised in our case is appropriate. The four-level relocation program was devised after careful and detailed studies which covered a wide range of concerns. The relocation program was designed by professionals who, in the performance of their statutory duties, had exercised their professional judgment. Although other professionals may disagree with the decisions that were made, the court should not interfere unless it can be said that the program designed is “such a substantial departure from accepted professional judgment, practice or standards as to demonstrate that the person[s] responsible actually did not base the decision” on their professional judgment. (457 U.S. 307, 323, 73 L. Ed. 2d 28, 42, 102 S. Ct. 2452, 2462.) Measuring the four-level relocation program against this criteria we must conclude that the trial court erred in enjoining its implementation.

For the reasons herein stated we reverse the order of the circuit court of Cook County.

Order reversed.


author: JUSTICE MORAN JUSTICE SIMON,

text:
    (No. 55506.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. RONALD C. HUCKSTEAD, Appellant.

      Opinion filed June 18, 1982.
    Rehearing denied October 1, 1982.

      SIMON, J., dissenting.
    Daniel D. Yuhas, Deputy Defender, and Gary R. Peterson, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Melbourne A. Noel, Jr., and Val Gunnarsson, Assistant Attorneys General, of counsel), for the People.
   JUSTICE MORAN

delivered the opinion of the court:

On September 18, 1980, defendant, Ronald Huck-stead, was convicted of murder following a jury trial in the circuit court of Coles County, and sentenced to a term of 25 years’ imprisonment. A divided appellate court affirmed. 98 Ill. App. 3d 1206 (Rule 23 order).

The issues presented are: (1) Did the trial court’s failure to give Illinois Pattern Jury Instruction (IPI), Criminal, No. 25.05 (1968) constitute plain error? (2) Did the trial court commit reversible error by giving IPI Criminal No. 3.04 to the jury?

On the evening of March 28, 1980, defendant was in the Corner Lounge Tavern in Mattoon. Although the testimony was somewhat conflicting, it appears that at approximately 10:30 p.m. he became involved in an argument between Ronald Blagg and Murray Dixon, the victim. When the argument was over, the victim left the two men but subsequently became involved in a dispute with the defendant outside the tavern, where an altercation occurred. Although the testimony again differed with respect to the exact nature of the altercation, it appears that at some point the victim pulled a folding knife and inflicted a cut on defendant above his waistline. Defendant testified that he ran to his home, located about one mile from the tavern. However, a police officer at the scene, Maurice Sparr, testified that after the incident defendant and the victim reentered the tavern, then came out, at which time defendant told Sparr he had been cut and that he didn’t need any help. Sparr testified that, when he told both persons to go back inside or go home, defendant stated he would go home to obtain a gun. Instead, the defendant and the victim returned to the tavern. Several other witnesses also testified that after the altercation the victim and defendant returned to the bar and that defendant made a phone call before leaving. At approximately 11:15 p.m., Officer Sparr observed the defendant run from the tavern and, subsequently, he saw the victim walk outside and enter a van.

The following witnesses also testified for the State. Charles Dyer stated that immediately after the stabbing incident he heard defendant tell Ronald Blagg that “he would get the [victim] before the night’s over.”

Linda Bloxom testified that the victim, upon reentering the tavern after the altercation, repeatedly told defendant, “Forget it, Huckstead” and “We’ve been friends for too long.” She stated that defendant then made a phone call and left the tavern. Bloxom related that later, when she exited the Corner Lounge, she saw the defendant alone in an automobile. She testified that the defendant asked her if the victim was still inside and she responded, “Yeah, just forget it. I thought you guys had *** settled it.” Bloxom testified that the defendant’s reply was, “I’m going to shoot that [expletive deleted].”

Sue Reardon testified that upon leaving the Corner Lounge she observed the victim walk to an auto in which defendant was seated. She stated that she heard the victim say to defendant, “Just forget it; it was over.” While being driven away, she heard three shots, turned, and saw the victim fall and the defendant drive away.

Dean Young testified that while driving by the Corner Lounge he noticed the victim through the window of the bar and stopped to go in. On his way in, he encountered the victim outside the lounge. Young stated that he started to talk to the victim when he heard someone in a parked car yell something like “Murray, I’m going to shoot your [expletive deleted].” According to Young, the victim was staggering as he walked toward the car and the car’s motor was running. Young observed something that looked like a gun protruding about a foot from the car window. Young stated that the man inside the car yelled something like, “You cut me.” The victim yelled “Shoot me if you’re going to shoot me” and “I’m close enough you can’t miss.” Young stated that he then turned to seek assistance, at which time he heard a shot, then several more shots. Young testified that he turned, saw the victim fall to the ground, and observed the car speed away.

As earlier noted, defendant claimed that he ran home after being cut. He further testified that, after he reached home, he retrieved a rifle from the trunk of his car, placed it on the front seat, and drove back to the tavern. Defendant stated that when he saw the victim leave the bar he decided to speak to him in an attempt to resolve their differences. Defendant called to the victim. As the victim approached the car, they got into an argument. Defendant related that the victim said, “You have a gun, so use it” and “Go ahead and shoot me.” He said that he told the victim he was not going to use the gun and to “stay back so we can talk.” Defendant stated that the victim moved toward him, while swearing and reaching toward his right side. Defendant testified that he thought the victim was reaching for a weapon, that he (defendant) panicked and repeatedly squeezed the trigger of the rifle and then drove off. Defendant claimed he did not intend to shoot the victim when he returned to the tavern, but believed it was necessary to do so in order to protect his own life. He also stated that he believed the victim had a reputation for violence when drinking, and that he himself had drunk 16 beers that day. He related that he did not recall speaking to Officer Sparr, that he did not recall reentering the lounge, and that he did not recall using the telephone at the lounge on the night in question.

In addition to the defendant, the following witnesses testified on his behalf. Gary Sanders stated that he left the Corner Lounge at approximately 11:30 p.m. and observed Murray Dixon standing beside defendant’s car door with his right hand on the roof and his left hand on the door of the auto. The two men were arguing loudly. Sanders saw the victim rapidly drop his right hand and heard several shots fired, whereupon the victim fell to the ground and the automobile drove away.

William Prather testified he observed the victim speaking loudly with someone in a car. According to this witness, the victim had both his hands on the car roof. Prather testified that the victim dropped his right hand “real fast” and four shots were fired in rapid succession, whereupon the vehicle sped away.

Paul Logan testified that he heard the victim shouting while standing next to defendant’s car. He stated that it appeared that the defendant tried to put his car in gear but that the victim reached through the window to prevent it. He said that the victim then returned his right hand to the roof of the car. Logan declared that at this point he turned to walk toward his car and, as he was walking away, heard four or five shots fired rapidly.

Marvin Craig testified that he left the tavern with Linda Bloxom that evening and that he did not see defendant’s car or hear anyone say he would shoot the victim.

On rebuttal for the State, Linda Bloxom and another witness, Teri Brackney, testified that Bloxom left the lounge alone, and Sue Reardon testified that Craig left the lounge five minutes before Bloxom.

The victim was pronounced dead at the scene. Subsequent examination revealed seven wounds to the body. A knife was found in a sheath on the victim’s belt. None of the witnesses testified to seeing any weapon in the victim’s hands. Several defense witnesses testified to the victim’s bad reputation for violence while several State witnesses testified to the victim’s reputation for nonviolence.

The jury in this case received a series of instructions which included the following ones based on the indicated pattern instructions:

IPI Criminal No. 2.03:

“The defendant is presumed to be innocent of the charge against him. This presumption remains with him throughout every stage of the trial and during your deliberations on the verdict, and is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty.
The State has the burden of proving the guilt of the defendant beyond a reasonable doubt, and this burden remains on the State throughout the case. The defendant is not required to prove his innocence.”

IPI Criminal No. 7.02:

“To sustain the charge of murder, the State must prove the following propositions:
First: That the defendant performed the acts which caused the death of Murray Dixon;
Second: That when the defendant did so, he intended to kill or do great bodily harm to Murray Dixon, or
he knew that his act would cause death or great bodily harm to Murray Dixon, or
he knew that his acts created a strong probability of death or great bodily harm to Murray Dixon.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty of murder.
If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should not find the defendant guilty of murder.”

IPI Criminal No. 24.06:

“A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force.
However, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.”

The jury was not given IPI Criminal No. 25.05, which provides that, in addition to the elements of the crime, the State must prove beyond a reasonable doubt “[t]hat the defendant was not justified in using the force which he used.”

It is well established that the failure to object at trial to an asserted error in jury instructions waives the question (People v. Tannenbaum (1980), 82 Ill. 2d 177, 180; People v. Roberts (1979), 75 Ill. 2d 1, 14) and that no party may raise on appeal the failure to give an instruction unless he tendered it at trial (People v. Tannenbaum (1980), 82 Ill. 2d 177, 180; People v. Underwood (1978), 72 Ill. 2d 124, 129; 73 Ill. 2d R. 366(b)(2)(i)). This court has also repeatedly recognized that issues not raised in a post-trial motion following a jury trial are effectively waived for appellate review. (People v. Tannenbaum (1980), 82 Ill. 2d 177, 181; People v. Foster (1979), 76 Ill. 2d 365, 380; People v. Coles (1979), 74 Ill. 2d 393, 397.) In this case, the defendant did not object to IPI Criminal No. 7.02 or tender IPI Criminal No. 25.05 to the court. Further, defendant did not raise the matter in his post-trial motion. Thus, the trial court’s asserted error in failing to give IPI Criminal No. 25.05 would be waived.

Defendant argues, however, that the trial court’s failure to give IPI Criminal No. 25.05 constituted plain error under our Rule 451(c) (73 Ill. 2d R. 451(c)), which provides:

“ [Substantial defects [in instructions in criminal cases] are not waived by failure to make timely objections thereto if the interests of justice require.”

Appellate court decisions are divided on the question of whether failure to give IPI Criminal No. 25.05, when not tendered, constitutes plain error under the rule. Cases holding that it is not plain error include People v. Currie (1980), 84 Ill. App. 3d 1056, 1064-65, People v. Churchill (1980), 80 Ill. App. 3d 405, 409-11, People v. Tiller (1978), 61 Ill. App. 3d 785, 796-97, People v. Lynch (1976), 43 Ill. App. 3d 1039, 1043-44, People v. Caldwell (1976), 39 Ill. App. 3d 1, 6-7, and People v. Allen (1976), 35 Ill. App. 3d 342, 347. Cases holding that the failure to give IPI Criminal No. 25.05 is plain error, regardless of whether defendant has tendered it, include People v. Whitney (1980), 86 Ill. App. 3d 617, 619-21, People v. Martinez (1979), 76 Ill. App. 3d 280, 282-84, and People v. Pernell (1979), 72 Ill. App. 3d 664, 666-68. See People v. Sunquist (1977), 55 Ill. App. 3d 263, 268; People v. Wright (1975), 32 Ill. App. 3d 736, 743-44.

Although this court has not addressed the precise issue, we have consistently emphasized the limited nature of the plain-error exception to the waiver rule created by Rule 451(c). (People v. Roberts (1979), 75 Ill. 2d 1, 14-15; People v. Underwood (1978), 72 Ill. 2d 124, 129-30.) The exception is restricted to the correction of “grave errors” (People v. Tannenbaum (1980), 82 Ill. 2d 177, 182; People v. Jenkins (1977), 69 Ill. 2d 61, 66) or to situations where the case is close factually and fundamental fairness requires that the jury be properly instructed. People v. Tannenbaum (1980), 82 Ill. 2d 177, 182; People v. Joyner (1972), 50 Ill. 2d 302, 307.

In the instant case, the instructions informed the jury that the defendant was justified in using deadly force if he reasonably believed that force was necessary to prevent imminent death or great bodily harm to himself (IPI Criminal No. 24.06), that the defendant did not have to prove his innocence and that the burden of proof remained with the State throughout the trial (IPI Criminal No. 2.03). Further, the record reveals that, in closing argument, defense counsel repeatedly and specifically emphasized that the State had the burden of proving defendant was not justified in the force he used. Additionally, the record discloses that the State, in rebuttal argument, also acknowledged this burden when it stated to the jury: “[Defense counsel’s] contention that the State must show that the shooting was not justified is quite correct ***.”

We believe in this case, the instructions, in combination with the closing arguments by counsel for both sides, apprised the jury that the State had the burden of proving that defendant was not justified in the force he used. Consequently, the failure of the trial court to give IPI Criminal No. 25.05 did not constitute “grave error.” See Henderson v. Kibbe (1977), 431 U.S. 145, 52 L. Ed. 2d 203, 97 S. Ct. 1730. See also United States v. Jackson (7th Cir. 1978), 569 F.2d 1003, cert. denied (1978), 437 U.S. 907, 57 L. Ed. 2d 1137, 98 S. Ct. 3096 (where the court, utilizing a plain-error standard no stricter than that employed by this court, found that failure of the trial court to give an instruction that specifically placed the burden of proof on the self-defense issue on the government did not constitute plain error where (1) the court read the self-defense instruction to jury, (2) defense counsel stated, without objection, in closing argument that the prosecution had the burden of proof on the self-defense issue and (3) the evidence of defendant’s guilt was overwhelming).

We note that People v. Jenkins (1977), 69 Ill. 2d 61, and People v. Ogunsola (1981), 87 Ill. 2d 216, cited by defendant, are distinguishable. In Jmkins, this court held that two instructions, in direct conflict with one another, one stating the law correctly and one stating the law incorrectiy, constituted plain error under Rule 451(c). The instant case, however, does not involve such conflicting instructions. Moreover, Jenkins made no mention of closing arguments, whereas the closing arguments in the instant case, combined with the series of instructions that was given, sufficiently informed the jury that the State’s burden included proving defendant was not justified in the force he used. We also find Ogunsola inapposite. There the State’s burden instruction failed to contain a necessary element of the crime charged, i.e., intent to defraud, in a deceptive practice offense. In the instant case, the jury was informed of all necessary elements of the crime charged.

With respect to the “factually-close” prong of the plain-error test, our review of the record leads to the conclusion that the evidence in this case was not factually close. We note initially that the trial court’s instructing the jury on justifiable use of force did not necessarily render this a factually close case. A self-defense instruction, like a voluntary manslaughter instruction, should be given if there is some evidence indicating the defendant’s subjective belief that use of force was necessary. (People v. Lockett (1980), 82 Ill. 2d 546, 552. See People v. Joyner (1972), 50 Ill. 2d 302, 306-07.) The presence of some evidence of defendant’s subjective belief does not necessarily place a case in the narrow constraints of the “factually close” standard of plain error.

In this case, notwithstanding the testimony that the victim moved his hand down from the top of the car, the evidence is not closely balanced on the question of whether the shooting occurred as a result of self-defense. (See Ill. Rev. Stat. 1979, ch. 38, pars. 7 — 1, 7 — 4.) The record, in a consistent manner, reveals that, prior to the shooting, defendant made several statements to the effect that he was going to kill the victim. One witness testified that after he received the knife wound, defendant stated, “He would get the [victim] before the night’s over.” A police officer testified that defendant said he would go home to get a gun. Another witness testified that after the stabbing, when they returned to the tavern, the victim repeatedly told defendant to “forget it.” The record discloses that, after the stabbing, defendant came back in the tavern, made a phone call, then went home, picked up a .22-caliber rifle, and drove back to the bar. Although defendant testified that he told the victim he did not want to shoot him, one witness testified that she encountered defendant in his car after he had driven back to the tavern, and defendant stated, “I’m going to shoot that [expletive].” Another witness testified that she saw the victim walk up to the defendant’s car and tell him to “just forget it; it was over.” Still another witness stated that he observed something that looked like a gun protruding from the car window and heard defendant say something that sounded like “You cut me” and “I’m going to shoot your [expletive deleted].” Thus, the evidence strongly indicates that defendant did not shoot the victim as a result of his reasonable belief that the action was necessary to prevent imminent death or great bodily harm. The events surrounding the shooting lead us to the conclusion that this case was not “close factually.”

In People v. Roberts (1979), 75 Ill. 2d 1, 15, this court, stressing the restrictive nature of the exception to the waiver rule created by Rule 451(c), stated that the “grave error” and “closely balanced evidence” tests create a limited exception that is “applicable only to serious errors which severely threaten the fundamental fairness of the defendant’s trial.” Under the circumstances of this case, we do not believe the trial court’s failure to give IPI Criminal No. 25.05 was a serious error that “severely threatened the fundamental fairness” of the defendant’s trial. Accordingly, we conclude that the failure to give IPI Criminal No. 25.05 did not constitute plain error.

Defendant next asserts that the trial court committed reversible error by allowing the State to argue that defendant had a motive for shooting the victim and then giving IPI Criminal No. 3.04 to the jury. IPI Criminal No. 3.04 provided: “Motive is that which prompts a person to act. The State is not required to prove a motive for the commission of the crime charged.” The instruction accurately states the law (People v. Hobbs (1966), 35 Ill. 2d 263, 269; People v. Mangano (1940), 375 Ill. 72, 76), and we perceive no error in the giving of it even in a case where the State has introduced some evidence of motive and argued motive to the jury. To the extent that People v. Manzella (1973), 56 Ill. 2d 187, 198-200, may imply to the contrary, it is overruled. We note, however, that the second edition of IPI Criminal (1981) has suggested that IPI Criminal No. 3.04 no longer be given, recognizing that motive or lack of it is a proper subject for argument to the jury.

For the above-stated reasons, the judgment of the appellate court is affirmed.

Judgment affirmed.

JUSTICE SIMON,

dissenting:

I disagree with the majority’s conclusion that no reversible error occurred here. I believe the failure to give Illinois Pattern Jury Instruction, Criminal, No. 25.05 (1968) (hereinafter cited as IPI Criminal) was a serious error that could not be remedied by arguments of counsel.

IPI Criminal No. 25.05 lists the elements of the crime of murder that must be proved by the State in cases like this one in which the defendant claims self-defense. The trial judge instead gave IPI Criminal No. 7.02, which defines what the State must prove without any reference to legal justification and is the proper instruction only when no evidence of justifiable use of force has been presented. Only No. 25.05 explains that lack of self-defense must be proved beyond a reasonable doubt — something that is not readily apparent to many jurors and potentially vital to defendants like Mr. Huckstead whose sole defense is self-defense.

I agree with the cases of People v. Whitney (1980), 86 Ill. App. 3d 617, People v. Martinez (1979), 76 Ill. App. 3d 280, People v. Pernell (1979), 72 Ill. App. 3d 664, People v. Sunquist (1977), 55 Ill. App. 3d 263, and People v. Wright (1975), 32 Ill. App. 3d 736, that the failure to give IPI Criminal No. 25.05, when appropriate, constitutes plain error, cognizable on appeal despite the fact it is not objected to at trial. In a case such as this one in which the sole disputed issue is whether the defendant reasonably believed he was acting in self-defense, I believe it is grave error.

Moreover, I cannot agree with the majority that the arguments of counsel effectively substituted for the proper court instruction. Arguments of counsel are, in my opinion, a poor substitute for court instruction, even when both the defense and prosecuting attorneys agree on the legal point in issue. They lack the credibility of the court. Their words are apt to be forgotten as soon as the judge instructs the jury on what the law “really is.” I therefore would reverse the defendant’s conviction.


author: JUSTICE UNDERWOOD

text:
    (No. 55285.
    (No. 56013.
    PATRICIA DEMCHUK, Conservator and as Mother and Next Friend, et al., Appellees, v. MICHAEL DUPLANCICH et al. (Manny Perl’s, Inc., et al., Appellants).—JOANNE DAHLBERG, Indiv. and as Adm’r and as Mother and Next Friend, Appellant, v. MARGUIRITE KOULBACH et al., Appellees.

      Opinion filed June 18, 1982.

    Rehearing denied October 1, 1982.

      John R. Stanton, of Heineke, Burke & Healy, of Chicago, for appellants Manny Perl’s, Inc., et al.

    Glen E. Amundsen and Victor J. Piekarski, of Querrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago, for appellants Joanne Dahlberg et al.

    Robert Handelsman and Michael D. Schlesinger, of Robbins, Coe, Rubinstein & Shafran, Ltd., of Chicago, for appellees Patricia Demchuk et al.

    Timothy A. Kulp, of Brody, Gore & Finenberg, Ltd., of Chicago, for appellees Marguirite Koulback et al.

   JUSTICE UNDERWOOD

delivered the opinion of the court:

These consolidated cases involve the special one-year limitation contained in the Dramshop Act (Ill. Rev. Stat. 1977, ch. 43, par. 135) and its applicability to minors and incompetents.

In cause No. 55285, plaintiffs, Patricia Demchuk, individually and as conservator of the estate of her husband, Richard Demchuk, Sr., and Richard Demchuk, Jr., filed a complaint on January 5, 1977, in the circuit court of Cook County against Michael Duplancich for damages resulting from the latter’s alleged negligence and wilful and wanton conduct in the operation of a motor vehicle while intoxicated. Richard Demchuk, Sr., was seriously injured as a result of a collision on July 7, 1976, between his vehicle and that of Duplancich and adjudicated an incompetent on November 18,1976.

Plaintiffs subsequently deposed Duplancich, a minor, and learned that he had purchased beer at Pershing Liquors in Stickney, where he said he had regularly purchased beer without proof of identification. Plaintiffs accordingly amended their complaint within one year of the occurrence to include a dramshop action against Eli Boskovich, individually and doing business as Pershing Liquors, and Morris Valenti. Plaintiffs added as a party plaintiff Patricia Demchuk as mother and next friend of Michael and James Demchuk, minor dependents of Richard Demchuk, Sr. Plaintiffs later learned through Russel Barone, a passenger in Duplancich’s car, that Duplancich had purchased liquor at Manny Perl’s in Cicero and not at Pershing Liquors. Thereafter, on March 8, 1979, some 32 months after the accident, plaintiffs again amended their complaint, naming as defendants Manny Perl’s, Inc. and First National Bank of Cicero, as trustee (hereinafter referred to as defendants). On motion of defendants, the circuit court subsequently dismissed the dramshop count for failure to file within one year of the occurrence. The appellate court reversed, with one justice dissenting (96 Ill. App. 3d 740), and we allowed defendants’ petition for leave to appeal.

In cause No. 56013, plaintiff, Joanne Dahlberg, individually, as administrator of the estate of her deceased husband, and on behalf of her two minor children, brought a dramshop action on March 20, 1979, in the circuit court of Cook County against defendants, Marguirite Koulbach and Martin Murray, individually and doing business as The Slammer Inn, in Chicago. The complaint alleged that on April 2, 1977, the deceased became intoxicated at the inn and as a result was later involved in a fatal collision when he drove his motor vehicle into a “viaduct pole” on a major Chicago street. On motion of defendants, the circuit court dismissed the action with prejudice. Plaintiff appealed to the appellate court from the dismissal of the claims of her minor children, and we allowed a motion to transfer and consolidate the case with cause No. 55285.

This court has frequently construed various provisions of the Dramshop Act, and it has repeatedly been stated that the dramshop cause of action is sui generis and purely a creature of statute. (E.g., Graham v. General U.S. Grant Post No. 2665 (1969), 43 Ill. 2d 1, 7; Howlett v. Doglio (1949), 402 Ill. 311, 318.) It is not an actionable tort at common law in Illinois either to sell or give intoxicating liquor to a “strong and able-bodied man,” and such an act was not deemed to be actionable negligence either on the theory that it was a direct wrong or on the ground that it was negligence which imposes a liability on the seller for damages resulting from the intoxication. (Cunningham v. Brown (1961), 22 Ill. 2d 23, 29-30; Howlett v. Doglio (1949), 402 Ill. 311, 318; Cruse v. Aden (1889), 127 Ill. 231, 234; see generally Ogilvie, History and Appraisal of the Illinois Dram Shop Act U. Ill. L.F. 175 (1958).) The lack of a common law remedy motivated our legislature and that of several other States to create such liability. (Cunningham v. Brown (1961), 22 Ill. 2d 23, 30.) Hence, the liability imposed, which does not depend upon fault or negligence, and the damages recoverable are expressly and exclusively defined in the Act. Howlett v. Doglio (1949), 402 Ill. 311, 318.

The Act has contained its own special limitation since 1949. (See Ill. Rev. Stat. 1951, ch. 43, par. 135.) Prior thereto, the general five-year statute of limitations was applicable to such suits. (Fourt v. DeLazzer (1952), 348 Ill. App. 191; Desiron v. Peloza (1941), 308 Ill. App. 582.) The 1949 amendment contained the following language: “provided that every action hereunder shall be commenced within two years next after the cause of action accrued” (Ill. Rev. Stat. 1951, ch. 43, par. 135), and was held by this court to be retroactive in application, thus barring a cause of action which had accrued prior to the effective date of the amendment (Orlicki v. McCarthy (1954), 4 Ill. 2d 342). The limitation period was reduced to one year by a 1955 amendment and the language changed to read: “provided that every action hereunder shall be barred unless commenced within one year next after the cause of action accrued.” (Ill. Rev. Stat. 1957, ch. 43, par. 135.) This provision remains substantially unchanged. Ill. Rev. Stat. 1979, ch. 43, par. 135.

In 1960, this court held that the one-year proviso in the Dramshop Act is a special limitation upon a statutory cause of action which is applicable to minors. (Lowrey v. Malkowski (1960), 20 Ill. 2d 280, cert. denied (1961), 365 U.S. 879, 6 L. Ed. 2d 191, 81 S. Ct. 1029.) Prior to Lowrey, the appellate courts of this State had consistently held that actions involving minor plaintiffs were barred if not filed within one year after the cause of action accrued. (Shelton v. Woolsey (1959), 20 Ill. App. 2d 401, 405; Steiskal v. Straus (1954), 3 Ill. App. 2d 479 (abstract of opinion), see also Seal v. American Legion Post No. 492 (7th Cir. 1957), 245 F.2d 908.) The holdings in those cases were predicated upon the well-recognized rule that a special limitation in a purely statutory cause of action, unlike a general statute of limitations, operates as a limitation of the liability itself and not the remedy alone. It is a condition attached to the right to bring the action, and plaintiffs must allege or state facts showing that the action is brought within the time prescribed or they have failed to bring themselves within the compass of the Act. Lowrey v. Malkowski (1960), 20 Ill. 2d 280, 285.

Plaintiffs argue, however, that the rule in Lowrey is contrary to the public policy of this State which protects minors and incompetents and is inconsistent with this court’s more recent decision in Wilbon v. D. F. Bast Co. (1978), 73 Ill. 2d 58. A majority of a First District panel, in reversing cause No. 55285, agreed (96 Ill. App. 3d 740), whereas a unanimous Fourth District panel, finding Lowrey to be the controlling authority, recently affirmed the dismissal of a dramshop action on behalf of a minor which was filed two years after the cause of action accrued. Gustafson v. Mathews (1981), 95 Ill. App. 3d 1204 (Rule 23 order), appeal denied (1981), 85 Ill. 2d 565.

In Wilbon, a divided court held that the two-year limitation contained in the Wrongful Death Act did not apply to the claims of minors. The court questioned the historical basis for the rule at common law denying recovery for wrongful death, and noted that the rule had been described as “ ‘obviously unjust, *** technically unsound *** and based upon a misreading of legal history.’ ” (73 Ill. 2d 58, 62.) The court further noted that the precise question at issue concerning the Wrongful Death Act had never been decided by this court, and ultimately resolved the question on the basis of legislative intent. While the appeal in that case was pending, the legislature had amended the Wrongful Death Act to specifically provide that the two-year limitation was tolled during a plaintiff’s minority. (Ill. Rev. Stat. 1977, ch. 70, par. 2.) The majority interpreted this legislative action as evidence that the General Assembly intended, in accord with the earlier appellate court holding in Wilbon (48 Ill. App. 3d 98), to reaffirm the existing law rather than to change it.

Unlike the situation in Wilbon, the precise issue here presented was decided by this court more than 20 years ago. Despite several subsequent amendments to the Dramshop Act, the legislature has not changed the language of the Act to provide for tolling due to generally recognized disabilities such as minority or incompetency. Under such circumstances, the legislature’s inaction is a persuasive factor in determining the correctness of the prior judicial interpretation. (Graham v. General U.S. Grant Post No. 2665 (1969), 43 Ill. 2d 1, 6.) This court’s rationale in Graham is particularly apposite. The court there held that the Dramshop Act had no extraterritorial effect. The court relied heavily on the fact that 19 years had elapsed without legislative action after the first appellate court decision declined to give the act extraterritorial effect. (See Eldridge v. Don Beachcomber, Inc. (1950), 342 Ill. App. 151.) Subsequent to Eldridge, three other appellate court decisions followed its holding. (See cases cited at 43 Ill. 2d 1, 6.) In the last analysis the court in Graham stated, the policy question is peculiarly within the province of the legislature. It may have been prompted by a variety of reasonable policy considerations in failing to enact a provision giving the Act extraterritorial effect, and “[wjhatever those considerations may have been, the question was uniquely one for the legislature, not the courts, to ponder and decide.” 43 Ill. 2d 1, 7.

Similarly, we consider that the question here is not whether this court believes that public policy considerations in favor of minors (see, e.g., Severs v. Country Mutual Insurance Co. (1982), 89 Ill. 2d 515) or incompetents should override the evils of long-delayed litigation which the one-year limitation seeks to avoid. (Orlicki v. McCarthy (1954), 4 Ill. 2d 342, 353.) Rather, it is the legislative intent which is dispositive, as this court has always recognized in construing statutory provisions of this nature. (Wilbon v. D. F. Bast Co. (1978), 73 Ill. 2d 58; Johnson v. Industrial Com. (1972), 53 Ill. 2d 23; Masin v. Bassford (1943), 381 Ill. 569.) Whether a change in the law should be effected in this statutory cause of action to exempt minors and incompetents from the one-year requirement is not for judicial determination where, as here, the legislature has clearly concluded that the benefits of the limitation outweigh the possibility that a minor or incompetent’s claim will be barred by the failure of a personal representative to institute suit within one year. It is true, as plaintiffs point out, that this court has abolished judicially created doctrines where it considered such doctrines to be unsound and unjust under prevailing conditions. (E.g., Alvis v. Ribar (1981), 85 Ill. 2d 1; Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1; Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11.) Where, however, a time limitation enacted by the legislature as an integral part of a legislatively created cause of action has been construed by this court as a condition precedent to that right of action applicable to minors, and the legislature has acquiesced in such holding, this court is simply not warranted in later construing the same limitation differently. (Ruffing v. Glissendorf (1968), 41 Ill. 2d 412, 419.) Such action would plainly be a forbidden judicial amendment to the statute. 41 Ill. 2d 412, 419.

We accordingly adhere to our original holding that the special one-year limitation in the Dramshop Act is a condition precedent to the right of recovery which must be observed by all plaintiffs in order to bring themselves within the Act.

Plaintiffs in cause No. 55285 also urge this court to recognize a common law cause of action for negligence predicated upon a violation of section 12 of article VI of the Act (Ill. Rev. Stat. 1977, ch. 43, par. 131), which prohibits, inter alia, the sale of alcoholic liquor by a licensee to a minor. Defendants filed a motion to strike this portion of plaintiffs’ brief, and we took the motion with the case. This court has previously refused to recognize a common law cause of action predicated upon negligence, holding that the Dramshop Act provides the exclusive remedy against tavern operators and owners of tavern premises for injuries caused by intoxication. (Cunningham v. Brown (1961), 22 Ill. 2d 23, 30-31; Knierim v. Izzo (1961), 22 Ill. 2d 73, 77; Pearce v. St. John (1961), 22 Ill. 2d 412.) Since the issue is not properly before us there is no need to consider its merits.

Plaintiffs’ complaint against the tavern owner was predicated upon section 14 of article VI of the Act, which imposes liability without fault. The relief sought was the maximum amount of damages recoverable under the Act. Although one paragraph of the complaint alleged that the appellant dramshop “did sell, dispense or give alcoholic beverages or beer to Michael Duplancich,” a minor, in violation of section 12 of article VI of the Dramshop Act, this paragraph was simply added to the one-count complaint against the dramshop owner which sought recovery under the Dramshop Act. Plaintiffs did not plead a common law cause of action for negligence; nor did they plead a statutory violation as prima facie evidence of negligence. In response to defendants’ motion to dismiss the complaint, plaintiffs argued that public policy prevents the one-year limitation provision of the Dramshop Act from barring an action by minors and incompetents. Similarly, as appellants in the appellate court, plaintiffs did not argue that their complaint was improperly dismissed because it stated a cause of action for common law negligence which would not be barred by the one-year limitation of the Dramshop Act. While plaintiffs concede that this theory was not presented to either of the courts below, they argue that, in reviewing a judgment of the appellate court, this court is concerned not with the reasons for the judgment but with the propriety of the judgment itself, citing Robinson v. Workman (1956), 9 Ill. 2d 420. Defendants, on the other hand, agree that an appellee may support his position on appeal by any argument and on any basis which appears in the record and which shows that the order is proper, even if he has not previously advanced such argument (see, e.g., Shaw v. Lorenz (1969), 42 Ill. 2d 246, 248; In re Estate of Leichtenberg (1956), 7 Ill. 2d 545, 549), but argue that the basis for the plaintiffs’ argument here is not supported by the record and has no bearing on the appellate court judgment. We agree.

First, as we have noted, plaintiffs neither alleged in their complaint nor argued in the trial court a theory of negligence based on common law principles or a violation of a statutorily imposed duty. Consequently, such an argument is simply not supported by the record. Secondly, the appellate court’s judgment reversing the dismissal of the dramshop action was based upon its belief that a minor or incompetent is not bound by the limitation contained in the Act. The theory now advanced by plaintiffs does not support the appellate court judgment reversing the dramshop action. The issue now raised is wholly unrelated to whether a minor or incompetent is bound by the special limitation in the Dramshop Act. We note, too, that had plaintiffs, who are the appellees here, raised this argument as a basis for reversal in the appellate court, where they were appellants, that court should not have considered the argument, since it would clearly have constituted substituting on review a theory never advanced in the trial court. Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147-49; cf. Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 156-57.

Plaintiffs also argue, quoting Gatto v. Walgreen Drug Co. (1975), 61 Ill. 2d 513, 520, that “[i]n many instances, this court, acting under [Supreme Court] Rule 366, has decided issues that had not been presented to or decided by the court whose decision is being reviewed.” In Gatto, this court reversed the appellate court, which had held that it lacked jurisdiction to review a trial court order, and, acting under Rule 366 (73 Ill. 2d R. 366(a)), found it unnecessary to remand the cause to the appellate court for that review. Although we consider the posture of the present case entirely different from that in Gatto, any consideration of the issue urged by plaintiffs would be pure dicta at this point, since they did not plead the cause of action they urge us to recognize.

For the reasons expressed, the appellate court judgment in cause No. 55285 is reversed, and the judgment of the circuit court of Cook County is affirmed. In cause No. 56013, the judgment of the Cook County circuit court dismissing the complaint is affirmed.

55285 Appellate court reversed; circuit court affirmed.

56013 Circuit court affirmed.