author: JUSTICE UNDERWOOD

text:
    (No. 57389.
    AMERICAN STEEL FOUNDRIES, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Robert Binford, Appellee).

      Opinion filed June 17, 1983.

      William L. Rogers of Keefe & De Pauli, P.C., of Fair-view Heights, for appellant.
    Edward F. Brennan, Jr., of Carr, Korein, Kunin, Schlichter and Brennan, of East St. Louis, for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

On October 23, 1977, claimant, Robert Binford, slipped and fell during the course of his employment with respondent, American Steel Foundries, sustaining neck and back injuries. Claimant filed an application for adjustment of his claim for compensation, and an arbitrator awarded benefits for temporary total disability and also for 60% partial permanent disability under section 8(d)(2) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(d)(2)). The arbitrator also ordered respondent to pay for necessary medical, surgical, and hospital services. Both parties sought review of the permanent partial disability award. Based on its finding that claimant was only disabled to the extent of 28%, the Commission reduced the arbitrator’s award, and claimant sought review in the circuit court of Madison County by writ of certiorari. That court reversed the Commission’s decision and reinstated the arbitrator’s award. Respondent appealed directly to this court under Rule 302(a). 87 Ill. 2d R. 302(a).

Because respondent contends that certiorari was improperly issued, we first consider whether the circuit court acquired jurisdiction of the cause. Section 19(f) of the Workmen’s Compensation Act provides in relevant part:

“(1) Except in cases of claims against the State of Illinois, in which case the decision of the Commission shall not be subject to judicial review, the Circuit Court of the county where any of the parties defendant may be found, or if none of the parties defendant can be found in this State then the Circuit Court of the county where the accident occurred, shall by writ of certiorari to the Commission have power to review all questions of law and fact presented by such record.
Such suit by writ of certiorari shall be commenced within 20 days of the receipt of notice of the decision of the Commission.
In its decision on review the Commission shall determine in each particular case the amount of the probable cost of the record to be filed as a return to the writ of certiorari in that case and no praecipe for a writ of certiorari may be filed and no writ of certiorari shall issue unless the party seeking to review the decision of the Commission shall exhibit to the clerk of the Circuit Court a receipt showing payment of the sums so determined to the Secretary or Assistant Secretary of the Commission ***.” Ill. Rev. Stat. 1977, ch. 48, par. 138.19(f).

The record indicates that claimant’s attorney received the Commission’s decision on April 17, 1982. As a part of its order, the Commission had fixed the probable cost of the record to be filed pursuant to a writ of certiorari at $175. Claimant decided to retain different counsel for the purpose of appeal, and on May 5 his new attorney mailed a check for $175 addressed to the Commission and mailed a praecipe for a writ of certiorari to the clerk of the circuit court. The payment of costs to the Commission, which had been sent by certified mail, was delivered to the Commission on May 10. In his letter transmitting the praecipe, claimant’s attorney apparently informed the clerk that payment of costs had been forwarded to the Commission and, because a receipt was not yet available, requested the clerk to confirm payment by telephoning the Commission. The record does not indicate whether the clerk verified that payment was received by the Commission before issuing the writ of certiorari on May 17. On June 18, claimant’s attorney filed with the clerk the Commission’s receipt for payment, dated May 14. As claimant’s attorney acknowledged during oral argument, the record indicates that the Commission did not actually receive claimant’s payment within the 20-day period established by section 19(f). See Ill. Rev. Stat. 1977, ch. 131, par. 1.11.

In keeping with the policy of honoring substance over form, this court has held that section 19(f) does not require physical exhibition of a receipt if payment has actually been made and the circuit court clerk has in some manner confirmed that the Commission has in fact received the payment. (See Berry v. Industrial Com. (1973), 55 Ill. 2d 274, 278.) Because payment is to be made to a State agency, claimant’s attorney, in oral argument, urged this court to further liberalize the requirements of section 19(f) by applying section 1.25 of “An Act to revise the law in relation to the construction of the statutes” (Ill. Rev. Stat. 1977, ch. 131, par. 1.25). The relevant portion of that section provides:

“Unless an Act otherwise specifically provides, *** any payment of any kind or description required or authorized to be paid to, the State or any political subdivisions thereof, by the laws of this State:
(1) if transmitted through the United States mail, shall be deemed filed with or received by the State or political subdivision on the date shown by the post office cancellation mark stamped upon the envelope or other wrapper containing it;
(2) if mailed but not received by the State or political subdivision, or if received but without a cancellation mark or with the cancellation mark illegible or erroneous, shall be deemed filed with or received by the State or political subdivision to which it was required or authorized to be directed on the date it was mailed, but only if the sender establishes by competent evidence that the writing or payment was deposited, properly addressed, in the United States mail on or before the date on which it was required or authorized to be filed or was due. ***” (Ill. Rev. Stat. 1977, ch. 131, par. 1.25.)

See City of Peoria v. Illinois Commerce Com. (1983), 96 Ill. 2d 416, in which this provision was held controlling.

This court has recognized, however, that the legislature, by establishing the section 19(f) requirements, intended to insure that the cost of preparing the record would be borne by the party seeking review. (Arrington v. Industrial Com. (1983), 96 Ill. 2d 505, 509-11; Perusky v. Industrial Com. (1978), 72 Ill. 2d 299, 301; Berry v. Industrial Com. (1973), 55 Ill. 2d 274, 277; Moss Equipment v. Industrial Com. (1973), 55 Ill. 2d 261, 271; Moweaqua Coal Mining & Manufacturing Co. v. Industrial Com. (1926), 322 Ill. 403, 405.) When that purpose is considered in conjunction with the language of section 19(f), as it must be (In re Griffin (1982), 92 Ill. 2d 48, 52; Village of Lombard v. Pollution Control Board (1977), 66 Ill. 2d 503, 507), it is clear that the legislature intended to require a party to present proof that the Commission had actually received payment, rather than allowing proof that payment has been mailed to suffice. The language of section 19(f) that “no praecipe for a writ of certiorari may be filed and no writ of certiorari shall issue unless the party seeking *** review *** shall exhibit to the clerk *** a receipt showing payment *** [of the costs to] *** the Commission” simply admits of no construction which would permit issuance of the writ, as occurred here, prior to the time the Commission received payment. See Arrington v. Industrial Com. (1983), 96 Ill. 2d 505, 511-12, and recommendation there made for legislative change.

Consequently, because section 19(f) thus provides otherwise, section 1.25 of “An Act to revise the law in relation to the construction of the statutes” (Ill. Rev. Stat. 1977, ch. 131, par. 1.25) is by its own terms inapplicable. In addition, we note that the General Assembly has provided that section 1.25, as well as the other statutorily prescribed rules of construction, is to be disregarded if its application would result in a construction which is “inconsistent with the manifest intent of the General Assembly or repugnant to the context of the statute.” Ill. Rev. Stat. 1977, ch. 131, par. 1.

It is well established that jurisdiction to review the Commission’s decisions may be invoked by a party only upon compliance with the provisions of the Workmen’s Compensation Act. (See, e.g., Wabash Area Development, Inc. v. Industrial Com. (1981), 88 Ill. 2d 392, 395; Perusky v. Industrial Com. (1978), 72 Ill. 2d 299, 301; International Harvester v. Industrial Com. (1978), 71 Ill. 2d 180, 185; Boalbey v. Industrial Com. (1977), 66 Ill. 2d 217, 218; Berry v. Industrial Com. (1973), 55 Ill. 2d 274. Accord: Simpson v. Industrial Com. (1982), 91 Ill. 2d 452, 456; Interlake Steel Corp. v. Industrial Com. (1975), 60 Ill. 2d 255, 262.) As this court has noted:

“ ‘Proceedings under the Workmen’s Compensation act are purely statutory. Compensation for injuries received by an employee was unknown at the common law. The jurisdiction conferred on the circuit and superior courts to review findings of the commission by certiorari is special. The writ of certiorari in this class of cases is not to be confused with the common law writ of certiorari. The powers of the court and the methods of procuring jurisdiction are specifically defined in the Workmen’s Compensation act, and the courts can obtain jurisdiction only in the manner provided by that statute.’ ” (Peter H. Clark Lodge No. 483 v. Industrial Com. (1971), 48 Ill. 2d 64, 69.)

Since the record establishes that actual payment was not made to the Commission within the 20-day period during which review proceedings may be instituted, the writ of certiorari was improperly issued and the Commission’s decision became conclusive. Ill. Rev. Stat. 1977, ch. 48, par. 138.19(f); Simpson v. Industrial Com. (1982), 91 Ill. 2d 452, 456.

Because the circuit court’s jurisdiction to review the Commission’s decision was not properly invoked, its judgment must be vacated and the writ of certiorari quashed.

Writ quashed; circuit court vacated.


source: Caselaw Access Project

author: JUSTICE CLARK JUSTICE UNDERWOOD,

license: Public Domain

text:
    (No. 56758.
    THE BOARD OF EDUCATION OF ARBOR PARK SCHOOL DISTRICT NO. 145, COOK COUNTY, Appellant, v. NANCY J. BALLWEBER et al., Appellees.

      Opinion filed June 17, 1983.

      Anthony Scariano and Alan T. Sraga, of Scariano, Kula & Associates, P.C., of Chicago, for appellant.
    Lawrence Jay Weiner and Fredric Bryan Lesser, of Weiner, Neuman & Spak, of Chicago, for appellees.
    Thomas R. Miller, of Miller & Tracy Law Offices, P.C., of Monticello, for amicus curiae Illinois Association of School Boards.
   JUSTICE CLARK

delivered the opinion of the court:

On July 2, 1980, plaintiff, the board of education of Arbor Park School District No. 145 (hereafter the Board), filed a three-count complaint against defendants, Arbor Park Education Association, IEA-NEA (hereafter the Association), and its member teachers. The Board filed suit in the circuit court of Cook County seeking a declaratory judgment that no valid collective-bargaining agreement existed between the parties, or in the alternative, to stay arbitration of three grievances the defendants had filed.

Defendants filed a motion to dismiss the Board’s complaint. After both parties submitted briefs there was a hearing, after which the circuit court dismissed the complaint. The circuit court found that both parties had entered into a valid collective-bargaining agreement and ordered the parties to arbitration on the three grievances that were filed. The Board appealed the circuit court’s dismissal of its complaint to the appellate court. The appellate court affirmed the circuit court’s dismissal of the Board’s complaint and ordered the parties to proceed to arbitration on the three grievances. (105 Ill. App. 3d 412.) The Board appealed to this court, and we granted its petition for leave to appeal (73 Ill. 2d R. 315(a)).

The teachers in the Arbor Park School District began the 1979-80 school year without a contract. On September 10, 1979, the teachers went on strike until September 21, 1979. The Board kept the schools open for the first three days of the strike using substitute teachers. The other six days during the strike, the schools were closed.

On November 16, 1979, an agreement, entitled the “Professional Negotiations Agreement,” was signed by the Board and the Association’s president on behalf of the teachers. Earlier that day, the president of the Association had sent a letter to the Board stating that the agreement that was to be signed did not accurately reflect the true and complete understanding between the parties on three points. The letter also stated that the Association was signing the agreement “under duress in order to gain the other benefits and working conditions contained in the final agreement.” After the delivery of the above-described letter, the Association and the Board signed the agreement.

On November 28, 1979, the Board sent a letter in response to the Association’s letter. It stated in pertinent part:

“The Board regards your signature on the Professional Negotiations Agreement for 1979-1981 as acceptance of the terms and conditions contained therein. We regret that we disagree with three (3) items contained therein, but we still regard your signature as acceptance of the terms of that Agreement as written. Therefore, the Board regards your alleged disputes with the salary schedule, extracurricular pay and docking for strike days/ make-up days as closed.”

Neither the Board nor the Association ever questioned the validity of the agreement for the remainder of the school year, both parties acting in conformity with its terms and conditions. Even the grievances that are the subject of this litigation were handled in conformity with the agreement and processed to the point of arbitration. The agreement had provided for a five-step grievance process, the fifth step being submission to arbitration. All three grievances had proceeded to the fifth step.

The first of the three grievances at issue in this case was filed on December 16, 1979, by Robert McGaghie. McGaghie was a teacher with 30 hours of additional college credit which, under prior collective-bargaining agreements, put him on a higher salary scale. The agreement with which we are concerned here omitted the “+ 30 hours” salary scale. McGaghie sought arbitration of this matter after the Board denied his grievance.

The second of the three grievances was filed on February 11, 1980, by JoAnn Holba, president of the Association. Holba filed her grievance in response to a sick-leave-policy statement which the Board issued on December 12, 1979. Holba stated that the agreement that was entered into between the parties on November 16, 1979, contained a policy on sick leave and that the provision that was agreed upon in the agreement did not include three clauses that the Board issued in its December sick-leave-policy statement. The three clauses that Holba was contesting were:

“6. Certified staff members reporting sick for three or more consecutive days must submit a physician’s certificate upon returning to work.
7. Excessive use of sick days may be cause for an individual conference or a request for a physical examination or other remedies at the discretion of the Superintendent.
8. Illegal use of sick days shall be considered as a breach of contract and may be cause for dismissal.”

Holba alleged that inclusion of these three clauses in the December policy statement was an attempt by the Board to unilaterally modify the terms of the collective-bargaining agreement.

The third grievance was filed on May 19, 1980, by the Association and 50 individual teachers. On April 3, 1980, the Board voted to change the 1979-80 school calendar. The school year under the changed calendar was to end on June 6, 1980, and the teachers were to be docked three days’ pay in addition to the three days they had agreed upon in the coUective-bargaining agreement. The new closing date would provide for 173 days of pupil attendance, which the grievance claimed was in derogation of the minimum 176 days’ attendance which was required under the School Code. (See Ill. Rev. Stat. 1979, ch. 122, par. 10-19.) The grievance was based on the fact that the docking of three days was an illegal pay cut in violation of the agreement between the parties. The agreement had provided that teachers who were absent for the first three days of the strike, the days when substitute teachers were brought in, would not be paid for those days. But the three additional days docking at the end of the year were not provided for, either in the agreement or in each teacher’s individually executed “Statement of Salary and Benefits for Certified Employees.”

The Board filed its three-count complaint in order to stay arbitration of the three grievances outlined above. The first count of the Board’s complaint alleged that the agreement between the parties was invalid and, therefore, there was no basis for arbitration. Count II dealt with the sick-leave grievance, the Board alleging that the sick-leave policy was within the nondelegable discretion of the Board and thus inarbitrable. Count III concerned the three days of additional salary docking. The Board claimed that the grievance involving the docking was inarbitrable because the Association was seeking pay for days which the teachers did not work, and if the Board paid the teachers for those days it would be a violation of public policy.

This appeal involves two main issues. The first issue to be decided is whether a valid coUective-bargaining agreement existed between the parties. The second issue, which is contingent upon the first and can be broken into three separate parts, is whether, if there is a valid agreement between the parties, each of the three grievances which has been raised is arbitrable.

In count I of its complaint the Board alleges that no contract existed between the parties. We find that allegation to be contrary to the Board’s own assertion in its letter to the Association dated November 28, 1979, and contrary to the Board’s conduct in acting in conformance with the allegedly invalid agreement. It is true that the Association, prior to the signing of the agreement, claimed that they were under duress. However, the fact remains that the Association did sign the agreement, as did the Board. In response to the Association’s letter which claimed duress, the Board wrote a letter stating that it regarded the Association’s signature on the Professional Negotiations Agreement “as acceptance of the terms and conditions contained therein.” The Board’s letter further indicated that if the Association’s signature was a rejection of the terms of the agreement and a counteroffer, the Association should be advised that the Board would take action to regard such action as unacceptable and would not, therefore, be bound by the terms and conditions of the agreement. There is nothing in the record to indicate that the Association ever intended its signature or its letter to be either a rejection or a counteroffer. In fact, after the Association received the Board’s letter, both parties acted in conformity with the agreement as written.

“An agreement is a manifestation of mutual assent on the part of two or more persons.” (Restatement (Second) of Contracts sec. 3 (1981).) “It suffices that the conduct of the contracting parties indicates an agreement to the terms of the alleged contract.” (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 331.) We find the parties’ conduct in this case to be a manifestation of their mutual assent to the terms and conditions of the agreement.

As the appellate court correctly stated, “Where parties reduce their agreement to writing, there is a presumption that the 'writing expresses their mutual intentions, and this presumption does not yield unless evidence to the contrary is strong and convincing.” (105 Ill. App. 3d 412, 415, citing Hardy v. Greathouse (1950), 406 Ill. 365, 373.) Since the Association signed the agreement, even after expressing dissatisfaction with three points, there is a presumption that the agreement reflects its intention to be bound by the terms and conditions as expressed therein. There is no strong and convincing evidence to the contrary. Thus, we affirm the circuit and appellate courts’ dismissals of count I of the complaint and hold that a valid collective-bargaining agreement existed between the parties.

We must next consider whether the grievances, which were filed in accordance with the grievance procedure as set forth in the agreement, are subject to arbitration. The appellate court noted that the McGaghie grievance regarding the + 30-hour salary scale was not addressed in a separate count of the Board’s complaint. The inarbitrability of the McGaghie grievance was raised, if at all, in the context of count I. If the agreement was found to be invalid, as count I alleged, there would be no arbitration procedure and, consequently, the McGaghie grievance would be inarbitrable. The appellate court considered the inarbitrability of the McGaghie grievance to be waived since it was not argued in the appellant’s brief. Rule 341 of our own supreme court rules states that “[p]oints not argued [in the appellant’s brief] are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.” (73 Ill. 2d R. 341(e)(7).) Since we have found the contract to be binding in this case, and the Board has waived the issue of the inarbitrability of the McGaghie grievance, we hold that McGaghie is entitled to arbitration on his grievance.

The inarbitrability of the second grievance relating to sick leave was set out in count II of the Board’s complaint. The Board argued that the School Code grants it nondelegable discretion in adopting a sick-leave policy for its teachers and that the sick-leave grievance is therefore inarbitrable. In section 24 — 6 of the School Code, the Code provides:

“The school board may require a physician’s certificate, or if the treatment is by prayer or spiritual means, that of a spiritual advisor or practitioner of such person’s faith, as a basis for pay during leave after an absence of 3 days for personal illness ***.’’ Ill. Rev. Stat. 1979, ch. 122, par. 24-6.

When the agreement was signed by the Board and the Association it contained a provision relating to sick leave, provision No. 5. The Board, in this provision, did not require a physician’s certificate or a spiritual advisor’s certificate after an absence of three days for personal illness. The sick-leave provision in the agreement thus was different from the sick-leave-policy statement the Board announced on December 12, 1979. We agree with the Board’s assertion that section 24 — 6 of the School Code gives the Board the discretion to adopt a sick-leave policy requiring medical or spiritual certification after an absence of three days. However, we do not agree with the Board that subsequent to entering into a valid coHective-bargaining agreement which reflects its discretionary choice regarding sick leave, it can unilaterally change the terms of the agreement and not be subject to arbitration under the grievance procedure as set forth in the agreement. In the November 16, 1979, agreement there was a section entitled “VIII GRIEVANCE PROCEDURE.” In that section it stated that “[a] grievance shall mean a complaint that there has been an alleged violation, misinterpretation, or misapplication of any provision of this agreement.” (Emphasis added.) Holba’s grievanee was based on the fact that the sick-leave policy statement that the Board announced in December substantially altered the previously agreed-upon provision relating to sick leave. Holba’s complaint does present a legitimate “grievance” according to the definition as set forth in the agreement. The fifth step of the grievance procedure, as we have previously stated, provided for submission of the grievance to arbitration. The fifth step provides: “If the grievance is not resolved satisfactorily to the Arbor Park Education Association or the grievant within five (5) days after consideration by the Board, there shall be available a fifth step of impartial arbitration. The Arbor Park Education Association or the grievant may submit in writing a request to enter into such arbitration. The arbitration proceeding shall be conducted by an Arbitrator to be selected by the two parties within seven (7) days after said notice is given. If the two parties fail to reach agreement on an arbitrator within seven (7) days, the American Arbitration Association will be requested to provide an arbitrator in accordance with its Voluntary Labor Arbitration Rules. The decision of the Arbitrator will be binding on the parties.” Since we have determined that Holba’s complaint is a legitimate “grievance” it follows that her grievance is one that is arbitrable under the grievance procedure. We agree with the appellate court that, at the very least, the Board’s new sick-leave policy presents a question of whether that new policy is compatible with the sick-leave provision in the agreement. Thus, we hold that the Board’s unilateral change regarding its sick-leave policy presents an arbitrable issue.

In count III of the Board’s complaint, the Board asserted that the third grievance filed by the Association, which related to docking the teachers three additional days’ pay, was inarbitrable. The Board argued that section 10 — 19 of the School Code gave school boards sole discretion in setting a school calendar and therefore the grievance filed by the Association could not be decided by an arbitrator. The Board’s power to set the school calendar is not in dispute; section 10 — 19 does explicitly give the Board the power to set the school calendar. But, as the appellate court correctly stated, the real issue is whether the Board can dock the teachers an additional three days’ pay without violating the collective-bargaining agreement. We agree with the appellate court that the salary-docking issue is an arbitrable issue.

The Board contends that Board of Education v. Chicago Teachers Union Local 1 (1981), 88 Ill. 2d 63, supports its assertion that the third grievance is inarbitrable. We do not agree. In that case, we held that the school board had the “discretionary power to ‘specify a closing date earlier than that set on the annual calendar when the schools of the district have provided the minimum number of computable days under this Section [176 days of actual pupil attendance].” (88 Ill. 2d 63, 71, citing Ill. Rev. Stat. 1975, ch. 122, par. 10—19.) We held that not only did the school board have the power to close schools a day early in that case but also that the board could reduce the teacher’s salary by the one day’s pay. That case, however, is clearly distinguishable from the instant case for a number of reasons. First, the school board in that case had met the 176-day-minimum pupil-attendance requirement as set forth in section 10—19 of the School Code. Second, the collective-bargaining agreement in the Chicago Teachers Union case had a provision “which gave the Board the right to lay off employees ‘on account of lack of work or lack of funds.’ ” (88 Ill. 2d 63, 74.) Also it should be pointed out that the Board’s action in closing the schools a day early in that case was taken as a last resort to reduce the huge accumulated deficit that had occurred. The financial difficulties that the Board faced in that case had not been contemplated at the time the agreement was entered into. Given the financial situation in that case, we held that closing schools one day early on a day when students were scheduled for only two hours was not arbitrary, discriminatory or unreasonable. 88 Ill. 2d 63, 73.

We reasoned that the appellate court’s concern in that case about allowing a school board an unbridled discretion to lay off teachers at any time because of its accumulated deficit was unwarranted because “the explicit requirements of section 10—19 of the Code that the Board maintain a minimum term of 176 days of actual pupil attendance, and of section 34—18 that a school term in the Chicago public schools must be not less than nine months’ duration, militate[d] against the appellate court’s concern about allowing the Board an unlimited opportunity to lay off teachers at any time because of its accumulated deficit.” 88 Ill. 2d 63, 73.

In the instant case, the new closing date which was set by the school board did not provide for the minimum 176 days of pupil attendance. We do not agree with the Board that, because section 18—12 of the School Code provides for a reduction of State aid if a school district fails to provide for a minimum school term (see Ill. Rev. Stat. 1979, ch. 122, par. 18—12), a school board should not adhere to the minimum requirement of 176 days of pupil attendance if it is financially feasible.

The coUective-bargaining agreement in the instant case did not provide for the layoff of employees in case of a lack of work or a lack of funds. The financial situation in the Chicago Teachers Union case, as we held, justified the one-day pay cut even under the terms of its collective-bargaining agreement. The three days’ docking in this case was not provided for in the agreement, and the Board never asserted that its financial situation was such that it was necessary to dock the teachers. Since the collective-bargaining agreement only provided for three days’ docking and the teachers were actually docked for six days’ pay, we find that the Association and the teachers have raised an arbitrable grievance.

The circuit court ordered the parties in this case into arbitration on the three grievances. The Association did not file a cross-appeal on that order. So, as the appellate court correctly held, the Association could not and cannot now challenge the order or attempt to modify it on appeal.

Accordingly, for all the reasons stated, the judgment of the appellate court is affirmed.

Judgment affirmed.

JUSTICE UNDERWOOD,

dissenting:

I cannot agree that any of the three matters which the majority determines are arbitrable may properly be the subject matter of a collective-bargaining agreement or submitted to arbitration.

Previous decisions of this court have made it unmistakably clear that the discretionary powers vested in school boards over teacher appointment, promotion, discharge, fiscal matters, including teacher compensation, and length of the school year are all nondelegable, nonarbitrable and subject only to the limits found in the School Code. (See Board, of Education v. Chicago Teachers Union, Local 1 (1981), 88 Ill. 2d 63; Bond v. Board of Education (1980), 81 Ill. 2d 242; Board of Trustees v. Cook County College Teachers Union, Local 1600 (1976), 62 Ill. 2d 470, 476; Illinois Education Association v. Board of Education (1975), 62 Ill. 2d 127, 130; Richards v. Board of Education (1960), 21 Ill. 2d 104; Lindhlad v. Board of Education (1906), 221 Ill. 261.) In my judgment those decisions simply preclude the result here reached by the majority. The court accomplishes its result by holding the nondelegability issue has been waived by the school board. That holding might be tolerable if the board were a private party neglecting to assert a right which was its alone, rather than an agency of government failing to assert on behalf of the public it represents a firmly established rule of law incorporating the declared public policy of this State; but that holding is not, in my judgment, appropriate here.

The profound and abiding public interest in our educational system is manifest in the statement in our 1970 constitution that educational development is a fundamental goal of the citizens of this State and that the State is directed to “provide for an efficient system of high quality public educational institutions and services.” (Ill. Const. 1970, art X, sec. 1.) This court has recognized that the responsibility of effectuating that mandate lies with the school boards. (Bond v. Board of Education (1980), 81 Ill. 2d 242, 248.) We recently noted that the waiver doctrine serves as “ ‘an admonition to the parties, not a limitation upon the jurisdiction of the reviewing court.’ ” (Schutzenhofer v. Granite City Steel Co. (1982), 93 Ill. 2d 208, 211, quoting Hux v. Raben (1967), 38 Ill. 2d 223, 224. See also People ex rel. Resnik v. Curtis & Davis, Architects & Planners, Inc. (1978), 78 Ill. 2d 381, 384.) Accordingly, and in keeping with this court’s general reluctance to allow inadvertence on the part of a public body to serve as the basis for impairing public interests as firmly established as the nondelegability of these powers, invocation of the waiver doctrine in this instance is, in my opinion, incompatible with our opinion in City of Shelbyville v. Shelbyville Restorium, Inc. (1983), 96 Ill. 2d 457. See, also, statement of general policy in Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 447-48, cert. denied (1967), 386 U.S. 934, 17 L. Ed. 2d 806, 87 S. Ct. 957; City of Quincy v. Sturhahn (1960), 18 Ill. 2d 604, 614; People v. Brawn (1873), 67 Ill. 435, 438.

Among the duties of a reviewing court is the responsibility to maintain a sound and uniform body of precedent. (See, e.g., Hux v. Raben (1967), 38 Ill. 2d 223, 225.) In my judgment, the majority’s conclusion that the board had irrevocably exercised its discretionary power over sick-leave requirements by entering into the collective-bargaining agreement is simply inconsistent with earlier decisions of this court which squarely held that such contracts could not affect the scope of the board’s discretionary powers. In Board of Trustees v. Cook County College Teachers Union, Local 1600 (1976), 62 Ill. 2d 470, this court held that the board’s failure to comply with the terms of a collective-bargaining agreement which required certain evaluation procedures to be carried out before a teacher’s employment could be discontinued could not be the subject of arbitration because the board’s discretionary power to appoint teachers could not be delegated. Similarly, in a decision handed down shortly before Board of Trustees, it was held that a school board’s exercise of nondelegable discretionary powers in contravention of a collective-bargaining agreement was valid and that the agreement could not serve to restrict or expand the board’s powers. (Illinois Education Association v. Board of Education (1975), 62 Ill. 2d 127. See also Board of Education v. Chicago Teachers Union, Local 1 (1981), 88 Ill. 2d 63, 71.) Since the board could not agree to a collective-bargaining agreement embracing nondelegable matters, I do not understand how entering into the agreement could constitute an irrevocable exercise of the board’s discretion and subject to arbitration the propriety of any further exercise of its discretion.

Nor do I agree that the board’s decision to eliminate three days from the school calendar, which necessarily resulted in a change of the number of days for which the teachers would be paid, could be the subject of arbitration. The majority states, inaccurately I think, that the issue does not concern the board’s power to change the school calendar, but rather concerns whether the board can “dock” the teachers an “additional” three days’ pay without violating the collective-bargaining agreement, which provided that they would be unpaid for only three of the days during which they were on strike. The board is expressly empowered to set the school calendar (see Ill. Rev. Stat. 1979, ch. 122, par. 10—19), and this court has squarely held that power to be nondelegable. (Board of Education v. Chicago Teachers Union, Local 1 (1981), 88 Ill. 2d 63,72.) The board’s power to change the school calendar is thus not susceptible to any restrictions contained in a collective-bargaining agreement. Although the teachers have a remedy for the board’s apparent violation of the School Code’s requirement of a minimum school calendar of 176 days, that remedy does not lie in arbitration.

CHIEF JUSTICE RYAN joins in this dissent.


author:
      JUSTICE MORAN
      JUSTICE SIMON,

text:
    (No. 54790.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. GIRVIES DAVIS, Appellant.

      Opinion filed June 17, 1983.

      5

      Randy E. Blue, Deputy Defender, and John W. McGuire, Assistant Defender, of the Office of the State Appellate Defender, of Mount Vernon, for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Michael B. Weinstein, Darrell Panethiere, and James E. Fitzgerald, Assistant Attorneys General, of Chicago, of counsel), for the People.
   JUSTICE MORAN

delivered the opinion of the court:

Defendant, Girvies Davis, and a codefendant, Richard Holman, were charged by information with the offense of murder in violation of section 9 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1). Following a bench trial in the circuit court of Madison County, defendant was found guilty. Holman, who was tried by a jury in a joint proceeding with defendant, was also found guilty of murder. (Because he was under 18 years of age at the time of the offense, he was sentenced to a term of imprisonment.) At defendant’s separate bifurcated sentencing hearing, a jury unanimously determined that the necessary aggravating factors existed, and that there were no mitigating circumstances sufficient to preclude imposition of the death penalty. The jury returned a verdict directing that defendant be sentenced to death, and the court entered judgment on the verdict. Defendant’s post-trial motions were denied, and he brings a direct appeal to this court (Ill. Const. 1970, art. VI, sec. 4(b); 73 Ill. 2d R. 603), alleging numerous errors at all stages of the proceedings.

The evidence produced at trial indicates that on Friday, July 13, 1979, the victim, 83-year-old Esther Sepmeyer, was shot to death in her home located off Route 162 in Madison County. Rodney Sepmeyer, the grandson of the deceased, testified that he discovered the victim’s body, in her bedroom, at approximately 1:50 p.m. She was found in a “kneeling” position in front of her bed.

The witness identified a lawnmower and a replica antique radio as two items which were taken from the victim’s home. He stated that the radio was kept in her bedroom, and the lawnmower was located in a spare bedroom. Both of these items had been' recovered from defendant’s home pursuant to a search warrant.

Sepmeyer further stated that a stereo, color television set, and his .22-caliber semi-automatic rifle were stolen from the home. The rifle was kept in the back of a metal cabinet in the bedroom. Latent fingerprints recovered from the cabinet, and from a hand mirror found in the home, were identified as belonging to Holman. No fingerprints were discovered which matched those of the defendant.

The State also introduced into evidence a statement defendant allegedly made to a police officer, in which he indicated his complicity in the Sepmeyer murder. The statement, with certain grammatical changes made for purposes of comprehension, reads as follows:

“About two months ago a friend of mine by the name of Ricky Holman who also goes by the name of Ricky Shaw, and I were driving in my 1970 Buick 225. We were driving on the interstate and I remember seeing a sign that said St. Jacobs on it. We drove past this and then we exited the highway by some service stations. We drove down the road until we came to an old house. It was sitting on the right side of the road. This house had a barn sitting in the back. I pulled into the driveway and drove to the back of the house with the front of the car facing the back door. Both Ricky and I got out of the car and went up to the back door. I can’t remember if we had to force the door open or not, but we went into the house. The back door leads into a kitchen and from the kitchen I could see that there was an old lady lying in a bed in a bedroom next to the kitchen. Ricky and I both walked into the bedroom right away I went into the bedroom for a short time and then I started looking around the rest of the house and Ricky stayed in the bedroom. After I left the bedroom, I walked into the dining room and then into another spare room, and then into a hallway. The hallway had stairs leading to the upstairs but I never went upstairs. In the spare room there was a lawn mower, it was yellow with a three and a half h.p. motor. I took the handle off this lawn mower and then I carried it outside and put it in the trunk. While in the back room, I saw a motor thing with a black hose on it. I believe it was used to suck water and things up, but I didn’t take it. In the hallway there was a turntable sitting on a heater. I can’t recall what name it was, but it had a plastic top on it and I loaded it into the car. After I loaded the record player in the car, I came back in and got a T.V. that was sitting in the kitchen. The T.Y. was sitting on a table just to the right of the door when you walked into the kitchen. The T.V. was a little white T.V. with black trim around it and it was a color T.V. When I first went into the bedroom with Ricky, I found a .22 new rifle in a box. This gun was in a cabinet in the bedroom and there were also some shells with it. I loaded the gun and gave it to Ricky. When I was outside putting the T.V. in the car, I heard a gunshot and when I got back in the bedroom, the old lady was shot and she was lying on the bed. At the time I told Ricky, let’s get out of here. Again when I first went in the house, I saw an antique type radio in the bedroom and I unplugged it and set it on the kitchen table. Just as we were leaving the house the last time, I grabbed the radio and took it. Ricky never said why he shot the lady and I never asked. The old lady in the house looked very old and I think she was wearing a long flowered type dress. Early, while Ricky and I were in the house, Ricky asked me what we were going to do with the old lady and I told him, just leave her because she couldn’t identify us. After we left the house, we drove to Perry’s Lounge at 9th and Exchange in East St. Louis. I believe we sold the T.V. set there for about Eighty Dollars. After we left Perry’s Lounge, we drove up the pay bridge and we drove halfway across and then Ricky threw the .22 rifle into the river. The lawn mower and radio I kept at my house and I’m not sure where the record player went to. I understand that I have the right to talk with a lawyer and have him here. But I want to turn State’s evidence and get everything off my mind.”

Additional evidence introduced by the State tended to corroborate defendant’s statement in a number of particulars. For example, at defendant’s direction, a police officer drew a sketch which accurately depicted the interior of the Sepmeyer residence. Defendant was aware of the items which were taken, and the location of those items in the home. He knew that the victim was an elderly woman and that she was shot in her bedroom. Further, a statement given by Holman verified certain details mentioned in defendant’s statement.

Defendant called as a witness Dennis Kuba, a special agent with the Illinois Division of Criminal Investigation. He testified that Lawrence and Harris, two men with whom defendant shared a cellblock, were convicted of another crime to which defendant confessed. The theory of the defense was that defendant merely heard about the Sepmeyer murder from his cellmates and, for some reason, confessed to being one of the perpetrators.

Eric McCray, a friend of defendant, identified the lawnmower and radio taken from the Sepmeyer residence. He stated that, while he was at defendant’s home, defendant bought these items from his cousin.

Defendant testified on his own behalf. He essentially stated that he never made the statement regarding the Sepmeyer murder, but that he signed a number of documents because he was threatened by the police. He also indicated that he confessed to being a perpetrator of the crime for which Lawrence and Harris were convicted because they “made threats” on his life.

Since no question is raised as to a reasonable doubt of defendant’s guilt, further facts will be recited only where necessary to a disposition of the issues.

Defendant first contends that he was deprived of his right to a speedy trial in violation of section 103 — 5(a) of the Code of Criminal Procedure of 1963 (111. Rev. Stat. 1979, ch. 38, par. 103 — 5(a)). This section provides, in relevant part:

“Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant ***.”

On January 18, 1980, and for some time prior thereto, defendant was in custody in the St. Clair County jail awaiting trial and sentencing on certain pending murder charges. On that date, pursuant to a writ of habeas corpus ad prosequendum, the sheriff of St. Clair County brought defendant to Madison County, where he was served with an arrest warrant for the instant offense. That same day defendant was arraigned, a preliminary hearing was held, and an attorney was appointed to represent him. A demand for a speedy trial was filed, and the trial date was set for March 3, 1980. Defendant was then returned to St. Clair County.

For reasons not revealed in the record, the trial was rescheduled for April 29, 1980. Defendant appeared, in the custody of the St. Clair County sheriff, again pursuant to a writ of habeas corpus ad prosequendum. He indicated that he was ready for trial, but the State refused to proceed. Defendant was returned to St. Clair County. The prosecutor subsequently informed the judge that he would not prosecute defendant until the trials in St. Clair County were completed.

On December 5, 1980, proceedings on the final pending charge in that county were concluded, and defendant was transferred to Menard Correctional Center. A writ of habeas corpus ad prosequendum was issued, directing the warden at Menard to bring defendant to Madison County for trial on March 9, 1981. Pretrial motions were filed on that date, and the trial commenced on March 12,1981.

There is no question that the 120-day period prescribed in section 103 — 5(a) commences to run on the date defendant is taken “in custody” for the offense for which discharge is sought. (People v. Woodruff (1981), 88 Ill. 2d 10; People v. Jones (1965), 33 Ill. 2d 357.) The State argues that defendant was not in custody for the instant offense until December 5, 1980, when the proceedings in St. Clair County were concluded. Defendant, relying on this court’s decision in People v. Fosdick (1967), 36 Ill. 2d 524, contends that he has been in custody since January 18, 1980, “when he was first brought to Madison County on a writ of habeas corpus ad prosequendum and served with an arrest warrant for the Madison County charge.” We disagree and find defendant’s reliance on Fosdick misplaced.

In that case, after a complaint was filed in Champaign County charging the defendant with rape, he was arrested in De Witt County on unrelated charges. He escaped from custody, was apprehended by Federal agents, and placed in the Champaign County jail. Defendant was subsequently arrested on the Champaign County warrant and served with a copy of the rape complaint. However, Champaign County then voluntarily dismissed the charge, allowing defendant to be returned for trial in De Witt County, and immediately filed new, but identical charges against him. In determining that defendant was in custody, on the Champaign County charge, from the date on which he was served with the arrest warrant, this court stated:

“Neither the dismissal and refiling of the same charge, (cf. People v. Patheal, 27 Ill. 2d 269; People ex rel. Nagel v. Heider, 225 Ill. 347,) nor the voluntary relinquishment of custody to DeWitt County, (cf. People v. Swartz, 21 Ill. 2d 277), can deny defendant his right to a speedy trial. It is clear in this case that defendant’s removal to DeWitt County did not prevent his trial in Champaign County within 120 days of his original incarceration.” 36 Ill. 2d 524, 528.

The holding in Fosdick was therefore based on the fact that Champaign County voluntarily relinquished custody of the defendant to another county and attempted to evade the provisions of the 120-day rule by refiling an identical charge. In the instant case, Madison County did not voluntarily relinquish custody of defendant. He was already in the custody of St. Clair County authorities, who were under no duty to postpone proceedings so that he could be prosecuted on the Madison County charge. Although defendant was twice brought to Madison County pursuant to a writ of habeas corpus ad prosequendum, the sheriff of St. Clair Comity never released custody of defendant to Madison County. This court has indicated that the application of Fosdick is limited to its facts (see People v. Bixler (1971), 49 Ill. 2d 328, 335), and there is no basis for extending the rationale expressed therein to the instant case.

We are not referred to, nor does our research reveal, any other supreme court cases which have considered the application of the 120-day rule when unrelated charges are pending against a defendant in different counties. However, the vast majority of appellate court decisions resolving the issue have stated that where a defendant “is in custody awaiting trial in one county and there is a charge pending against him in another county, *** he cannot be deemed to be in custody for the latter offense until such time as the proceedings against him in the first county are terminated and he is then returned to, or held in custody for, the second county.” (People v. Clark (1968), 104 Ill. App. 2d 12, 20; see also People v. Hatch (1982), 110 Ill. App. 3d 531; People v. Gardner (1982), 105 Ill. App. 3d 103; People v. Wentlent (1982), 109 Ill. App. 3d 291; People v. Kerley (1979), 72 Ill. App. 3d 916; People v. Evans (1979), 75 Ill. App. 3d 949; People v. Karr (1979), 68 Ill. App. 3d 1040.) This principle has been recognized even where defendant has appeared before the court in the second county, but is subsequently returned to the first county for further proceedings. 109 Ill. App. 3d 291; 105 Ill. App. 3d 103; 75 Ill. App. 3d 949 (dicta).

We agree with the holding of these cases, and adopt the rationale expressed in People v. Clark:

“Any other construction would embarrass and harass the effective administration of criminal justice and would tend to favor an accused who is in custody of one county for a crime, but has formal charges pending against him, for which hold or detainer orders have been placed in several counties. Such an absurd result could not have been intended by the legislature when section 103 — 5(a) was enacted. Further, it would seem that if one county is to be allowed 120 days in which to prosecute an accused who is in custody for an alleged offense, another county should have an equal amount of time, notwithstanding that its charge against the same accused has been concurrently pending while the case in the first county was being disposed of.” (104 Ill. App. 2d 12, 20.)

It should also be noted that where an accused is in custody upon more than one charge in the same county, the State is given additional time in which to proceed with the prosecutions. (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(a).) It would therefore be anomalous to conclude that separate charges in different counties must all proceed to trial within 120 days.

Accordingly, we hold that defendant was not “in custody” for the instant offense until December 5, 1980, when the proceedings against him in St. Clair County were concluded. Since the trial commenced on March 12, 1981, 120 days had not lapsed and defendant was not deprived of his right to a speedy trial.

It is next argued that, because of an alleged conflict of interest, defendant was denied effective assistance of counsel. This contention is based on the fact that Mr. Kinder, who represented defendant during the guilt and innocence phase of his trial, was a personal friend of an individual for whose murder defendant is allegedly responsible.

Prior to the second phase of the sentencing hearing, a conference was held between the judge, Mr. Kinder, Mr. Bateman (who represented defendant at the first stage of the sentencing hearing), and the State’s Attorney. Defendant was not present. Mr. Kinder informed the judge that he recently learned the State intended to introduce, as an aggravating factor, evidence that defendant murdered Mr. James Perdue. He further indicated that he and Perdue were “close personal friends,” and he therefore did not believe that he could continue to represent defendant. Mr. Kinder then stated:

“[T]he very first day that I met Mr. Davis and interviewed him preparatory to the original trial, I explained to him who I was, my relationship with Mr. Perdue. And I wanted him to understand that I didn’t have very good feelings toward him as a result of that particular case, and that if that case comes up, I would not defend him on it. I would rather see him convicted. And I just have a feeling that this prejudices the defendant.”

When asked by the State’s Attorney how defendant responded, Mr. Kinder stated: “Then he said, Well, go ahead. I told him we’re not on that case. So, I don’t mind handling this one for you, but on that one, I won’t represent you. And he seemed to understand that.” The judge did not verify with defendant Mr. Kinder’s statements. There is, however, nothing in the record which indicates that defendant was not aware of the alleged conflict.

Mr. Bateman, who related that he was not acquainted with Perdue, represented defendant during both phases of the sentencing hearing. Mr. Kinder did not participate in either phase of the sentencing proceedings, although, during the first phase of the hearing, he conferred with Mr. Bateman concerning the case during “noon hours and over the telephone.”

Defendant cites a number of cases for the proposition that Mr. Kinder’s relationship with Perdue created a per se conflict of interest, thus justifying reversal without a showing of any prejudice. (People v. Fife (1979), 76 Ill. 2d 418 (counsel was affiliated with the Attorney General); People v. Coslet (1977), 67 Ill. 2d 127 (counsel represented both the defendant, who was charged with murdering her husband, and the administrator of the husband’s estate); People v. Kester (1977), 66 Ill. 2d 162 (counsel represented defendant on a case in which he was earlier involved as a prosecutor); People v. Stoval (1968), 40 Ill. 2d 109 (counsel represented defendant after representing the owner of a store defendant was charged with burglarizing).) However, each of these cases involved a conflict in professional, not personal, relationsMps. “Only in those instances where the conflict arose in counsel’s professional relationships and obligations have the past decisions of this court dispensed with the requirement that prejudice be shown.” (Emphasis added.) (People v. Lewis (1981), 88 Ill. 2d 429, 438.) This is simply because we have “deemed it inadvisable to subject an attorney to the ordeal of attempting to fairly discharge conflicting professional obligations to different clients.” 88 Ill. 2d 429, 440.

The instant case does not involve a conflict in counsel’s professional commitments, and the rationale underlying the per se rule is inapplicable. Where personal relationships are at issue, we must presume that an attorney will not undertake to represent a defendant if his professional duty will be hampered by emotional ties. Consequently,_.we decline, as we have in the past (see People v. Lewis (1981), 88 Ill. 2d 429), to extend the application of the per se rule beyond conflicting professional relationships.

In so holding, we find People v. Williams (1982), 93 Ill. 2d 309, relied on by defendant, inapposite. There, we reversed the defendant’s conviction without a showing of prejudice when it was discovered that his counsel, at the time of trial, was the subject of disciplinary proceedings; that he could possibly be jailed for contempt of court; and that he might be required to sell his home to satisfy a civil judgment. However, the issue in Williams concerned incompetency of counsel; there was no allegation that the attorney labored under a conflict of interest.

Because the facts in the instant case do not establish a per se conflict of interest, it is incumbent upon the defendant to demonstrate prejudice in order to obtain a new trial. This he has failed to do. We are referred to no instances in which counsel presented anything other than a vigorous defense. To the contrary, our review of the record indicates that both Mr. Kinder and Mr. Bateman did all they could for defendant, given the overwhelming evidence against him. For example, numerous motions were filed and vigorously argued, including motions to suppress statements and evidence; motions to declare the death penalty statute unconstitutional; motions to exclude certain evidence; discovery motions; a motion to dismiss on the grounds defendant’s right to a speedy trial was violated; a motion to sever defendant’s and Holman’s trial; and a motion for a mistrial. The State’s witnesses were cross-examined as effectively as possible given the facts, and objections were frequently made to the testimony, evidence and instructions.

We find that defendant was ably and competently represented at all stages of the proceedings, and there is nothing in the record from which prejudice could be inferred. Since the alleged conflict was not manifested at trial, it is unnecessary to address defendant’s related contention that he did not “knowingly and intelligently” waive the supposed conflict.

It is next argued that the State failed to establish defendant voluntarily made certain statements indicating his complicity in a number of murders, and other offenses. The circumstances under which defendant allegedly made the statements regarding the Sepmeyer murder were testified to in detail during a pretrial suppression hearing.

James Lay, a detective with the St. Clair County sheriff’s department, stated that, pursuant to defendant’s request, he met with him in the St. Clair County jail at approximately 10 p.m. on September 9, 1979. Alva Busch, a crime-scene technician with the Illinois Department of Law Enforcement, was also present. At the commencement of the interview, defendant handed Lay a list of 11 offenses in which he claimed involvement. Prior to any questioning regarding the offenses, defendant was shown a form listing the Miranda warnings, and he was advised of these rights. Defendant indicated that he understood his rights, and signed the waiver form. He further stated that he had an attorney but did not wish him to be present.

The witness also testified that he drew a sketch, at defendant’s direction, of the interior of the Sepmeyer residence. Various crimes were discussed, but no formal statements were taken. At approximately midnight, Lay requested that defendant accompany him and Busch to locations at which certain offenses occurred. Defendant agreed, and they visited various crime scenes for approximately three and a half hours. Upon arriving in the vicinity of the Sepmeyer residence, defendant pointed, to the house and stated, “There it is, right there.” He then showed Lay where he had parked his car at the time of the offense.

Subsequently, food was purchased for defendant and he was returned to the jail to eat. A second interview then took place, prior to which defendant was again advised of the Miranda warnings. He indicated that he understood his rights and signed a waiver form. Additional evidence showed that defendant dictated a six-page statement detailing the circumstances of the Sepmeyer murder.

During cross-examination, Lay stated that he and Busch met with two other police officers while visiting the crime scenes. He did not hear the officers make any threats or promises to defendant. He further testified that at one location he met and conversed with Gregory Mitchell, whom he knew to be a “fence.” Mitchell informed him that he had previously purchased guns from both defendant and Holman. Defendant then spoke with Mitchell and told him to give Lay the guns which he had sold him.

The witness also stated that defendant was awake during the entire trip but that he did not give any statements and no notes were made of any conversation which took place. He admitted that the time noted on the interview form, indicating the duration of the questioning, had been altered. He did not recall what time was originally recorded.

Alva Busch also testified and essentially corroborated Lay’s testimony. However, he did not recall defendant making any comments concerning the Sepmeyer residence, except that he pointed it out while they were driving in the vicinity. On cross-examination, he stated that he knew the location of the Sepmeyer residence prior to September 10, 1979, but that he did not “lead” defendant there. He indicated that defendant did not sign any statements during the ride.

Robert Sabo, a deputy sheriff in St. Clair County, stated that he saw defendant at 1 a.m. on the morning of September 10, 1979. He did not threaten defendant, and none of the officers present intimidated or harassed him.

Ed Muzzey, an agent with the Department of Law Enforcement, testified that he interviewed defendant on September 10, 1979, at approximately 4 a.m. Defendant was advised of his Miranda rights and stated that he understood them. He initialed and signed the Miranda form, after which he dictated to Muzzey the statement regarding the Sepmeyer murder. Defendant signed each page of the statement. Finally, the witness testified that the interview commenced at 3:57 a.m., but that he had inadvertently recorded the time, on the interview form, as 4:57 a.m.

On cross-examination, Muzzey stated that defendant was given an opportunity to read his statement, but he was uncertain whether he actually did. He also indicated that he was aware of the circumstances of the Sepmeyer murder prior to talking with defendant.

Defendant testified on his own behalf at the suppression hearing. He stated that, during the evening of September 9, 1979, Lay and Busch forced him to leave the jail in shackles and handcuffs. They brought him to various locations, and inquired as to whether he knew anything about certain crimes. He further testified that he fell asleep during the ride, and the officers awakened him upon arriving at a residence in Madison County. They asked whether he recognized the home, and he said that he did not.

Defendant also stated that other officers joined them at one of the crime scenes. Defendant was taken from the squad car, and his leg shackles were removed. An officer then placed a number of documents on the hood of the car, and defendant was told to sign the papers “or run.” One of the officers suggested that they kill him, and defendant, afraid that he would otherwise be shot, signed the documents.

Further suppression hearings were conducted during the course of the sentencing proceeding. These hearings related to statements defendant purportedly made indicating his complicity in certain other murders. A number of officers testified, for the State, that defendant was informed of, and waived, his Miranda rights prior to dictating the statements. The witnesses stated that defendant appeared coherent at all times; that he voluntarily cooperated with the authorities; that he did not request the presence of an attorney; and that he was never threatened or coerced. Defendant’s testimony at the pretrial suppression hearing was stipulated into evidence at the subsequent hearings.

On the basis of the above-related testimony, the trial court found that defendant voluntarily made the inculpatory statements. It is well established that “ ‘[t]he finding of the trial court on the voluntariness of a confession will not be disturbed unless it can be said that it is contrary to the manifest weight of the evidence.’ ” (People v. Davis (1983), 95 Ill. 2d 1, 25, quoting People v. Brownell (1980), 79 Ill. 2d 508, 521, appeal dismissed (1980), 449 U.S. 811, 66 L. Ed. 2d 14, 101 S. Ct. 59; People v. Medina (1978), 71 Ill. 2d 254, 258.) Here, a question of credibility was clearly involved, and the trial judge was not required to believe defendant’s version of events. There was absolutely no evidence corroborating his claim that he was coerced, by police threats, into making the statements. Neither the minor inconsistencies in certain officers’ testimony, nor the altered numbers on the interview forms, raise a doubt as to the voluntariness of defendant’s statements. We therefore conclude that the trial court did not err by allowing them into evidence. See People v. Davis (1983), 95 Ill. 2d 1, 25.

Defendant next asserts that he was denied his sixth amendment right to confrontation by the admission into evidence of Holman’s statement concerning the Sepmeyer murder. Because Holman would not testify and could not, therefore, be subject to cross-examination, defendant made a motion in limine, in the trial court, to exclude the statement as evidence against him. The trial judge denied the motion but stated that he would disregard that portion of the statement which related that defendant shot the victim.

In Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, primarily relied upon by defendant, the Supreme Court held that a codefendant’s confession, implicating the defendant, is not admissible in evidence where the codefendant does not take the stand and is not subject to cross-examination. However, the other evidence against Bruton was weak, and he had made no inculpatory statements. Both the Supreme Court and this court have subsequently determined that Bruton does not require “reversal of a defendant’s conviction when the defendant himself has confessed and his confession ‘interlocks’ with and supports the confession of his codefendant.” Parker v. Randolph (1979), 442 U.S. 62, 64, 60 L. Ed. 2d 713, 718, 99 S. Ct. 2132, 2135; People v. Rosochacki (1969), 41 Ill. 2d 483.

In the instant case, Holman’s statement was substantially similar to the one given by defendant and cannot be said to have added “substantial, perhaps even critical, weight to the Government’s case.” (Bruton v. United States (1968), 391 U.S. 123, 128, 20 L. Ed. 2d 476, 480, 88 S. Ct. 1620, 1623.) The only significant difference between the two statements is that Holman indicated that defendant actually shot the victim. As previously related, the trial judge, sitting as the trier of fact, clearly stated that he would not consider this portion of the statement as evidence against defendant. Under these circumstances, the admission into evidence of Holman’s statements did not constitute reversible error.

Having determined that no reversible error occurred during the guilt or innocence phase of defendant’s trial, we next consider allegations of error at the sentencing proceeding. Defendant raises two contentions concerning the constitutionality of the death penalty statute which have been resolved. This court has determined that the statutory grant of discretion and authority to the prosecutor is proper (People v. Szabo (1983), 94 Ill. 2d 327; People v. Brownell (1980), 79 Ill. 2d 508; People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, cert. denied (1980), 445 U.S. 953, 63 L. Ed. 2d 788, 100 S. Ct. 1603); and that the statute adequately guides the jury’s discretion in determining when the death penalty may be imposed. See People v. Davis (1983), 95 Ill. 2d 1; People v. Jones (1982), 94 Ill. 2d 275; People v. Brownell (1980), 79 Ill. 2d 508.

It is also argued that the death penalty statute is unconstitutional because it “arbitrarily and capriciously limits imposition of the death sentence to English speaking people.” Defendant points out that people who require translators, or other special assistance at trial, may not be subject to the death penalty. (See Ill. Rev. Stat. 1981, ch. 38, pars. 104 — 22(b), 104 — 26(b).) Since defendant does not directly challenge the constitutionality of these provisions, we express no opinion as to their validity. Nevertheless, he argues that section 104 — 26(b) exempts non-English-speaking people from being sentenced to death. Therefore, the death penalty provided under section 9 — 1(b) may not be constitutionally imposed upon English-speaking people.

The provisions relied upon by defendant are of no avail since they were not in effect at the time the instant offense was committed. The governing law must exist at the timé of the offense, and unless there is “an express statutory provision stating an act is to have retroactive effect, it can only be applied prospectively.” Village of Wilsonville v. SCA Services, Inc. (1981), 86 Ill. 2d 1, 18; see also Johnson v. Franzen (1979), 77 Ill. 2d 513; Stigler v. City of Chicago (1971), 48 Ill. 2d 20; People ex rel. Schmidt v. Yerger (1961), 21 Ill. 2d 338; Voigt v. Kersten (1896), 164 Ill. 314; 2 A. Sutherland, Statutory Construction sec. 41.04, at 252 (1973).

Defendant next argues that the death sentence may not be imposed where his murder convictions, used to establish a statutory aggravating factor, may have been premised upon a theory of accountability. This court has recently rejected this contention, stating that “[i]f the legislature intended that the death penalty not be imposed on those who were personally present but did not actually kill in every case, it could have so provided. *** [Accountability is not incompatible with the death penalty in cases other than felony,murders.” (People v. Ruiz (1982), 94 Ill. 2d 245, 261.) In the instant case, as in Ruiz, the jury determined that defendant was eligible for the death penalty because he was convicted of murdering two or more individuals. Ill. Rev. Stat. 1979, ch. 38, par. 9 — l(bX3).

In a related contention, it is argued that defendant may not be sentenced to death unless he planned or intentionally participated in the murders. (Enmund v. Florida (1982), 458 U.S. 782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368; People v. Tiller (1982), 94 Ill. 2d 303.) Here, the jury was informed that defendant was convicted of four separate, unrelated murders in which the evidence establishes he was an active participant.

Testimony at the first stage of the sentencing hearing revealed that defendant was the actual “triggerman” in the murder of one of the victims, Frank Cash. (Defendant’s conviction in that case was premised on an intent-toIdll theory.) In the instant case, according to defendant’s own statement, he obtained and loaded the rifle with which Holman shot the victim. Similarly, he admitted to obtaining the knife with which he claims Holman stabbed another victim, John Oertel.

Defendant’s fourth murder conviction was for the shooting death of Charles Biebel. Evidence indicates that Holman was the actual triggerman, but that defendant actively participated in the burglary during which the murder occurred. It should be mentioned that this court recently affirmed defendant’s death sentence imposed for this murder, noting that “defendant certainly had reason to contemplate that a life would be taken, or that lethal force would be employed.” (People v. Davis (1983), 95 Ill. 2d 1, 52; see also Enmund v. Florida (1982), 458 U.S. 782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368.) The same reasoning applies here with equal force. Indeed, according to the uncontradicted testimony of police officer James Lay, defendant stated that the victims were murdered to assure that he would not be identified. For these reasons, we hold that the jury could properly determine defendant was eligible for the death penalty pursuant to section 9 — l(bX3).

It is further alleged that the prosecutor, during his opening and closing statements in the first phase of the sentencing hearing, improperly argued facts upon which no evidence was produced. The prosecutor informed the jury that defendant confessed to killing Sepmeyer and Biebel when, in fact, defendant had maintained that Holman actually shot the victims.

Defendant failed to make a timely objection to these statements at trial and did not raise the issue in his post-trial motion. Objections not raised at the trial level are normally waived on appeal. (People v. Carlson (1980), 79 Ill. 2d 564.) Further, defendant did admit to extensive participation in the offenses. His statements were presented to the jury, affording it an opportunity to determine first hand defendant’s version of the events. Other evidence indicated that defendant claimed Holman was the actual “triggerman.” Finally, the jury was clearly instructed to disregard any arguments which were not based upon the evidence. We therefore cannot conclude that the isolated comments resulted in “substantial prejudice” to defendant. See People v. Tiller (1982), 94 Ill. 2d 303; People v. Baptist (1979), 76 Ill. 2d 19.

The next assignment of error concerns the fact that, during the first phase of the sentencing hearing, the jury was informed defendant had previously received the death penalty for the unrelated murder of Charles Biebel. In order to establish the necessary aggravating factor that defendant had murdered two or more individuals, the State introduced into evidence certified copies of defendant’s murder convictions in the Sepmeyer, Cash, Oertel and Biebel cases. The copy of his conviction in the latter case stated that the jury sentenced defendant to death. The clerk’s minute docket, also introduced into evidence, contained the jury’s verdict relating to the Biebel offense, which stated:

“We, the jury, unanimously find beyond a reasonable doubt, that the defendant GIRVIES DAVIS had attained the age of 18 or more at the time that he committed the offense of murder. We further unanimously find beyond a reasonable doubt that the following statutory aggravating factor exists in relation to this offense: The defendant has been convicted of murdering two or more individuals under the law of this State prohibiting murder regardless of whether the deaths occurred as the result of the same act or of several related or unrelated acts so long as the deaths were the result of either an intent to kill more than one person or of separate premeditated acts.
We unanimously conclude that there are no.mitigating factors sufficient to preclude the imposition of the death sentence upon the defendant GIRVIES DAVIS and that the Court shall sentence the defendant to death.”

This verdict form is substantially similar to that which the jury returned in the instant case.

The State argues that evidence of defendant’s prior death sentence was properly before the jury since, in a capital case, the focus should be on both the character and record of the accused. (Lockett v. Ohio (1978), 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954; Woodson v. North Carolina (1976), 428 U.S. 280, 49 L. Ed. 2d 944, 96 S. Ct. 2978; Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(c).) This argument ignores the significant fact that the evidence in question was introduced during the first phase of the sentencing hearing. At this time the question for the jury to determine is whether, on the basis of a statutory aggravating factor, defendant is eligible to receive the death sentence; not whether, in light of his character or record, he should receive this penalty. That defendant received the death sentence for a prior murder has absolutely no relevance to the issue of whether he is eligible to receive that penalty for the instant offense.

More importantly, as noted by defendant, introduction of this evidence may well have improperly influenced the jury’s decision in two respects. In determining his eligibility for the death penalty, the jury was aware that another jury had previously resolved the identical issue adversely to defendant. If a juror was uncertain as to whether defendant was qualified for the death sentence, the knowledge that 12 other people determined he was could have swayed the juror's verdict in favor of death.

Further, the jury’s awareness of defendant’s prior death sentence would diminish its sense of responsibility and mitigate the serious consequences of its decision. Assuming that defendant was already going to be executed, the jurors may consider their own decision considerably less significant than they otherwise would.

In a capital ease, “a high standard of procedural accuracy is required in determining whether or not [the death] penalty will be imposed.” (People v. Walker (1982), 91 Ill. 2d 502, 517.) The possibility that the jury may have found defendant eligible for this penalty on the basis of an irrelevant and prejudicial nonstatutory aggravating factor should not be tolerated. Although this error alone is sufficient to warrant reversal of defendant’s death sentence, it is combined with other errors which mandate that defendant receive a new sentencing hearing.

Also during the first phase of the sentencing proceeding, the State introduced evidence that a murder victim’s wife delivered a baby the day after his death. This evidence was elicited through the testimony of Mr. Ostman, an attempted-murder victim. During his direct examination, the following colloquy took place:

“Q. Is there any possibility that someone else could have shot Frank Cash other than Davis?
A. No, Sir.
Q. Do you know when Cash’s wife had her baby?
A. Yes, sir.
Q. When was that?
A. It would have been the day after he was killed.”

This evidence was also briefly referred to in the prosecutor’s opening and closing arguments. Although objections were not registered to the testimony or comments, we believe the issue should be addressed. See People v. Free (1983), 94 Ill. 2d 378, 425 (wherein this question was addressed although defendant did not object to the evidence at trial).

There is no question that evidence regarding a deceased’s family is generally improper. “[T]his court has consistently condemned the admission of evidence that the deceased left a spouse and a family, inasmuch as such evidence has no relationship to the guilt or innocence of the accused or the punishment to be inflicted upon him, but serves ordinarily only to prejudice him in the eyes of the jury.” (Emphasis added.) (People v. Bernette (1964), 30 Ill. 2d 359, 371.) The State’s argument that the traditional rules of evidence do not apply during the second phase of the sentencing proceeding is inapposite since, here, the evidence was introduced during the first phase of the hearing. But cf. People v. Davis (1983), 95 Ill. 2d 1 (evidence regarding a deceased’s family is not necessarily reversible error where it is introduced during the second phase of the sentencing hearing); People v. Free (1983), 94 Ill. 2d 378 (same principle).

We recognize that, as the State points out, evidence regarding a victim’s family has occasionally been considered harmless error. (See People v. Wright (1974), 56 Ill. 2d 523; People v. Jordan (1967), 38 Ill. 2d 83.) This principle should not be applied during the first phase of the sentencing hearing in a capital case. Here, in particular, it is essential that the jury’s determination be based upon competent evidence, uninfluenced by the prejudice and passion potentially evoked by evidence of this nature.

Further, in this phase of the sentencing proceeding, during which the ordinary rules of evidence apply, the prosecutor introduced into evidence photographs depicting Charles Biebel following his death. Also presented to the jury was a blood-stained shirt which was worn by Frank Cash at the time of his murder. Defendant contends that the photographs and shirt should not have been admitted into evidence because their probative value was outweighed by the prejudicial effect upon the jury. Under the circumstances of this case, we agree.

As previously noted, certified copies of defendant’s convictions for the Biebel and Cash murders were introduced into evidence. The jury heard testimony regarding defendant’s extensive participation in the Cash murder. His written statement describing the circumstances of the Biebel shooting was also introduced and corroborated through testimony elicited from the State’s witnesses. Consequently, the fact that defendant participated in the commission of two or more murders, as required by section 9 — l(bX3), was more than adequately established without introduction of the evidence in question.

The State, however, contends that it was required to prove, under section 9 — 1(b)(3), that defendant intended to kill the victims. It is alleged that admission into evidence of the photographs and shirt was necessary to establish that the death resulted from intentional or premeditated acts. We note initially that, in People v. Davis (1983), 95 Ill. 2d 1, this court determined that the death penalty may also be imposed where the death resulted from knowing as well as premeditated or intentional acts.

Further, we do not consider the evidence probative of defendant’s mental state at the time of the offenses. The fact that Cash’s shirt was blood-stained does not prove whether or not he was shot intentionally. Nor does the photograph depicting Biebel in his wheel chair with a blood stain on his overalls necessarily establish defendant’s state of mind at the time of the offense. Because we believe that the probative value of this evidence was minimal, it should not have been introduced during the first phase of the sentencing hearing.

Since a new sentencing hearing is required, we find it unnecessary to address defendant’s final contentions. We assume that any alleged errors will not recur during the new hearing.

Accordingly, the judgment of conviction of murder is affirmed; the judgment sentencing defendant to death is vacated; and the cause is remanded to the circuit court of Madison County for further proceedings consistent with this opinion.

Judgment affirmed; sentence vacated; came remanded.

JUSTICE SIMON,

concurring in part and dissenting in part:

I concur in the reversal of the sentence of death and in the remand of the cause to the trial court. However, a serious error occurred at the guilt phase of the trial which compels me to dissent from the majority’s denial of defendant’s request for a new trial. I would also hold that, on the basis of the evidence offered in this case, the death penalty may not be considered in the new sentencing hearing which the majority has ordered. In addition, I believe, as I have previously stated, that our death penalty statute is unconstitutional and cannot for that reason be imposed.

I. THE GUILT PHASE

Bill Kinder, Girvies Davis’ appointed attorney through the guilt phase of the instant proceedings, was a “close personal friend” of James Perdue, for whose murder the State eventually claimed Mr. Davis was responsible. Mr. Kinder was aware from the outset that the State might sooner or later attempt to link the defendant to the Perdue murder, as he made clear to the defendant when he first saw him and later to the trial judge. More significantly, however, Mr. Kinder seems to have entertained no doubt that his client had been responsible for that murder; as he himself stated, he told Girvies Davis when he first met him “if that case comes up, I would not defend him on it. I would rather see him convicted. ” (Emphasis added.)

It is unclear from the record what caused Mr. Kinder to be so certain that defendant was the murderer in the Per-due case, or when he arrived at that conclusion. As of the time the sentencing hearing in the case at bar began, no prosecution for the Perdue murder had been commenced; in fact, the State had indicated to Mr. Kinder at one point that it did not intend to press charges against defendant in the Perdue case. Nonetheless, Mr. Kinder’s belief that his client was responsible for the murder of his friend was apparently so strong that he wished to see him convicted of that murder without further inquiry into the truth. This strikes me as an attitude not compatible with a court’s selection of an attorney to provide representation to a defendant, and it is, in my opinion, an indication of a conflict of interest so fundamental as to warrant a reversal without a showing of actual prejudice.

The majority attempts to avoid the impact of cases which hold that dual representation of a criminal defendant and a party with potentially adverse interest is a per se conflict of interest in violation of the sixth and fourteenth amendments (e.g., Wood v. Georgia (1981), 450 U.S. 261, 67 L. Ed. 2d 220, 101 S. Ct. 1097; Glasser v. United States (1942), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457; Porter v. United States (5th Cir. 1962), 298 F.2d 461; People v. Fife (1979), 76 Ill. 2d 418; People v. Coslet (1977), 67 Ill. 2d 127; People v. Kester (1977), 66 Ill. 2d 162; People v. Stoval (1968), 40 Ill. 2d 109) by asserting that the rule prevails only where there exists a dual representation. It does not serve the ends of justice to limit the rule in that fashion. People v. Lewis (1981), 88 Ill. 2d 429, the only case pointed to by the majority in this regard, offers little support for applying this sweeping proposition to this case. The attorney in Lewis expressed confidence in his ability to represent the defendant throughout her trial, unlike Mr. Kinder, whose most explicit statement on the subject was that he preferred to see the defendant convicted of a murder although not the one for which he was being tried; and, as I noted in my concurrence in Lewis, the victim in that case was at most an arm’s length acquaintance of the attorney as a result of professional contacts and was clearly not a “close personal friend.”

Lawyers are not supermen possessed of a supreme ability to overcome all the obstacles their personal life may create for them. Human nature tells us that someone who is convinced that another person has killed a close friend will not feel kindly toward that person, and that while he may wish earnestly and in the best of faith to overcome that feeling he may be unable to do so subconsciously even though he succeeds in doing it in every visible respect. We as judges should be aware, however, that a trial consists of more than filing motions, presenting evidence, and raising objections. Subconscious feelings may surface at trial despite the best efforts of an attorney to suppress them, and even without his knowledge; they may manifest themselves in a number of ways that influence the fact finder yet are invisible to a reviewing court perusing a record. For that reason, courts see it as a futile exercise to pore through records in cases where a potential conflict of interest is apparent. Rather than searching for what probably cannot be found, and rather than allowing a criminal conviction to stand under these circumstances, they remand the cause and permit the parties to begin afresh. See Wood v. Georgia (1981), 450 U.S. 261, 67 L. Ed. 2d 220, 101 S. Ct. 1097.

I believe that the situation here was “too fraught with the dangers of prejudice, prejudice which the cold record might not indicate, that the mere existence of the conflict is sufficient to constitute a violation of [defendant’s] rights whether or not it in fact influences the attorney or the outcome of the case.” (People v. Stoval (1968), 40 Ill. 2d 109, 113; see United States ex rel. Miller v. Myers (E.D. Pa. 1966), 253 F. Supp. 55, 57.) In any event I regard the appearance of impropriety as overwhelming, and that alone should prevent us from letting this conviction stand.

II. THE SENTENCING HEARING

I adhere to the belief, which I stated in my dissent in People v. Lewis (1981), 88 Ill. 2d 129, 179 (Simon, J., dissenting), that the Illinois death penalty statute which is the basis for imposing capital punishment in this State is invalid. In addition I adhere to that belief because a majority of the current members of this court have viewed it as unconstitutional. However, even if the statute were constitutional, I do not believe that, on the basis of the evidence so far presented in this case, Girvies Davis is a candidate for the death penally under its terms.

Our death penalty statute nowhere provides that accountability alone may be the basis for capital punishment. At most, in the context of this case, it permits a sentence of death if “the defendant has been convicted of murdering two or more individuals *** regardless of whether the deaths occurred as the result of the same act or of several related or unrelated acts so long as the deaths were the result of either an intent to kill more than one person or of separate premeditated acts” (Ill. Rev. Stat. 1979, ch. 38, par. 9 — l(bX3)) or if the victim was killed in the course of another felony “if *** the murdered individual was actually killed by the defendant and not by another party to the crime or simply as a consequence of the crime” (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(b)(6)(a))- It allows the jury to consider as a mitigating factor the defendant’s absence from the scene of the murder during the “commission of the act or acts causing death” (Ill. Rev. Stat. 1979, ch. 38, par. 9 — l(cX5)). In this case, there is no finding that Girvies Davis was on the scene while Esther Sepmeyer was killed. His testimony was that he was carrying items out of her house when his accomplice fired the fatal shots; the verdict of guilt, reached by a circuit judge in a bench trial, contains no indication that it was based on anything but a vicarious theory of murder and was in no respect at odds with the defendant’s version of events. The mitigating factor I mentioned above would therefore have applied, and the aggravating factor concerning murders committed in the course of a felony would not have.

The majority notes that the defendant was convicted of four murders and finds him potentially eligible for the death penalty based on the aggravating factor concerning two or more murders (Ill. Rev. Stat. 1979, ch. 38, par. 9— l(bX3)). However, that factor requires either an “intent to kill more than one person” or “separate premeditated,” murderous acts. Only one of the defendant’s murder convictions, that for the killing of Frank Cash, involved a finding of intent to kill. The convictions for the murders of Charles Biebel and John Oertel were both premised at least in part on accountability or felony-murder instructions, which do not require an intent to kill (a fact made clear to the jury in the prosecutor’s closing argument in the Biebel case), and provide no basis for finding that defendant intended to kill in either of these cases. Under the terms of the statute, aggravating factors must be proved beyond a reasonable doubt (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(f)), and the record falls far short of showing that the defendant intended to kill more than one person.

Moreover, I disagree with the idea that the act of removing stolen items from a house, as the defendant testified he was doing when each murder took place, is a separate, “premeditated” act within the meaning of the aggravating factor at issue here, or that either it or the act of loading a gun found in the house and handing it to a burglary accomplice constitutes a “*** ‘contemplation] that a life would be taken, or that lethal force would be employed’ ” (97 Ill. 2d at 24) sufficient to call that aggravating factor into play. Defendant’s statement to the police, which was not contradicted by the finding of guilt in this case in view of the evidence of guilt by accountability that was present, was that he warned his comrade not to kill Esther Sepmeyer. In addition, even if we were to assume that it was foreseeable to the defendant that his companion might commit a murder while he was out of the house, or even that he “contemplate[d]” that such a killing would occur, to use the majority’s language, that alone is not murderous conduct on the part of the defendant, and it would not constitute an aggravating factor under the death pen-ally statute or any other provision of the criminal code. The death penalty statute makes no mention of foreseeability or contemplation of a death; it does not equate contemplation that a life would be taken with intent to take a life. The only section of the death penalty statute which could apply to such conduct speaks of “intent” and “premeditat[ion]” (Ill. Rev. Stat. 1979, ch. 38, par. 9 — l(bX3)), both of which imply an element of volition, while the criminal code explicitly distinguishes “intent” (Ill. Rev. Stat. 1979, ch. 38, par. 4 — 4) from “knowledge” (Ill. Rev. Stat. 1979, ch. 38, par. 4 — 5), “recklessness” (Ill. Rev. Stat. 1979, ch. 38, par. 4 — 6), “negligence” (Ill. Rev. Stat. 1979, ch. 38, par. 4 — 7), and other nonvolitional states of mind for the purpose of virtually every crime defined by that code.

So long as the evidence establishes nothing more than that, in the words of the majority of this court, the defendant “had reason to contemplate that a life would be taken, or that lethal force would be employed,” the record does not reveal, in my opinion, any aggravating factor sufficient for imposition of a death sentence in this case, and I believe the court should prevent that penalty from being considered on the remand unless additional evidence of intent to kill is offered.