author: PRESIDING JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES HEBEIN, Defendant-Appellant.
    First District (5th Division)
    No. 79—1536
    Opinion filed December 30, 1982.

      Steven Clark and Richard E. Cunningham, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Stoioff, and LuAnn Rodi, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

After a jury trial, defendant was convicted of murder and sentenced to a term of 20 to 40 years. He contends on appeal that (1) the trial court erred in refusing to give his tendered instruction on the consequences of a verdict of not guilty by reason of insanity; (2) refusal to give an instruction on voluntary manslaughter denied him due process when there was evidence of a mutual quarrel and combat; (3) he was denied a fair trial (a) by improper cross-examination of defendant’s expert witness and (b) by improper, inflammatory remarks during closing arguments; (4) his sentence should be reduced because it is grossly disparate from that of his codefendant; (5) all statements made by defendant were erroneously admitted where his first statement was obtained in violation of his constitutional rights and all subsequent statements were fruits thereof; and (6) he was denied effective assistance of counsel.

Defendant and Steven Johnson were charged by information with the murder of Brian Pillar. Johnson subsequently pleaded guilty and was sentenced to a term of 14 years to 14 years and 1 day. Defendant’s first trial resulted in a mistrial when the jury was unable to reach a verdict.

On the retrial, Laura Reed testified that she had been dating defendant for approximately two years when, on December 4, 1976, he and Brian Pillar came to her place of employment, and she went with defendant to his apartment; then when Pillar and Johnson came in later, they began arguing and defendant told them to go outside if they wanted to fight; that when they continued arguing, defendant threw a knife on the floor between them and told Pillar to use it; that Johnson picked up the knife, placed it on Pillar’s lap, and offered to fight him for it; that after Pillar put the knife back on the floor, defendant and Johnson pulled him into the hallway where Johnson began to “stomp” (kick) him while defendant watched; then after three or four minutes of stomping, the two men dragged Pillar out of the building and down the street; that later, when police officers questioned her about the fight, she took them to defendant’s apartment, and when defendant and Johnson returned, defendant told the officers that Pillar had stolen $20 and he (defendant) had chased him to recover it; that after the police left, defendant told her he had never killed anyone before and sent her out for coffee while he and Johnson went back to move Pillar’s body; that later the police returned and, after arresting her, defendant, and Johnson then took her to the alley where she saw Pillar’s body; that she had never noticed anything unusual about defendant during the two years she had known him, and after the killing he looked and spoke normally; and that in her opinion he was sane and knew what he was doing.

On cross-examination, Reed said that although she had also been charged with murder she was offered nothing in exchange for her testimony; that defendant seemed normal and happy that evening and that he remained calm and took no part in the argument between Pillar and Johnson.

Cathy Groves testified that she and defendant were good friends; that while defendant was jealous of Pillar’s attention to Reed, they otherwise appeared to get along well; that she had never observed defendant do anything unusual; and that in her opinion he was sane.

Officer Hyland testified that when he responded to a call of a battery in progress, he found traces of blood in the hallway outside defendant’s apartment; that he was talking to Reed in the apartment when defendant and Johnson entered; that defendant told him he, Johnson, and Pillar fought over rent money allegedly taken by Pillar; that later, after other officers discovered Pillar’s body in a nearby alley, he arrested defendant, Johnson, and Reed; that defendant admitted stabbing Pillar in the back, stomach, and neck; that he was with defendant for approximately two hours immediately after Pillar’s death; and that in his opinion defendant was sane.

Assistant State’s Attorney Reid testified that defendant was advised of his rights and, after waiving them, gave a statement which was transcribed; that defendant read the statement and signed it; that Johnson gave a similar statement; and that he (Reid) was of the opinion, based on his observation, that defendant was sane, able to appreciate the criminality of his acts, and able to conform his conduct to the law.

The written statement of defendant was received in evidence, and in it he stated that he, Johnson, and Pillar, after drinking in his apartment, went to pick Reed up at her place of employment; that he and Reed returned immediately to his apartment, and Johnson and Pillar came in later; that Johnson began calling Pillar names and accused him of being afraid to fight; that he provided a knife for them to use in their fight, but Pillar put it aside; that he finally told them to go outside and fight, and when Pillar refused, he (defendant) and Johnson pulled Pillar out of his chair and Johnson pushed him into the hall; that when he (defendant) entered the hall, Pillar was on the floor and Johnson was kicking him; that he attempted to help Pillar up and when he (Pillar) swung at him, he hit Pillar — knocking him to the floor; that he and Johnson picked Pillar up and guided him to the front door; that Pillar fell going down the stairs and, after they helped him up, Pillar ran away from them; that he (defendant) threw a knife which struck Pillar in the back, causing him to fall; that he pulled the knife from Pillar’s back and stabbed him in the stomach and throat while Johnson looked on; that he threw the knife away before he and Johnson ran back to the apartment; that he told Reed he killed Pillar, and later he and Johnson returned to Pillar’s body to remove identification and move it to a gangway; and that he then returned to the apartment where he cleaned up the blood in the hall.

Sergeant Merritt testified to an oral statement made by defendant which was essentially the same as the written statement, except he told Merritt that he and Johnson had punched Pillar while in the apartment and both had kicked and beat Pillar and had thrown him down the stairs before dragging him from the building. Merritt further testified defendant told him that after he struck Pillar in the back with the knife, he and Johnson hit him a few more times before he (defendant) stabbed Pillar in the face and stomach to make sure he was dead; and that during the entire interview defendant was lucid, coherent, and, in Merritt’s opinion, sane.

For the defense, Charles Johnson of the Department of Children and Family Services (DCFS) testified, from the records in his keeping, that as a child defendant had been placed in several foster homes and was in various residential institutional facilities for emotional problems.

Sergeant Merritt, recalled by the defense, testified to a statement of Johnson that he and Pillar, before going to defendant’s apartment that evening, went to a fish and chips restaurant where, to get even with the manager for throwing them out earlier that evening, they knocked over the cash register and chased the manager and employees from the restaurant, and that he (Johnson) had a knife which he gave to decedent after they left the restaurant.

Shirley Bernhardt, defendant’s mother, testified that her brother suffered from hydroencephalitis; that one of her five other sons had severe brain damage, another had emotional problems, and a third was a deaf mute; that when she saw defendant in jail the morning after the killing, he was crying, confused, and did not remember the killing nor the fight preceding it; that both she and her ex-husband had physically abused defendant as a child and, as a result, he did not have a good relationship with his father; that the family moved frequently during defendant’s early childhood; that defendant had trouble in school which led to his placement in classes for the educably mentally handicapped; that when he still did not make progress, he was sent, at the age of 10, to Boys Town, where he resided for three years; that upon his return, he was placed in a temporary foster home for one year; and that later he was again placed in a foster home. She stated also that while defendant was with her, he caused problems with her other children; but that, in her opinion, he was sane and knew right from wrong. She said, however, that she thought defendant was mentally disturbed and had taken him to a psychiatrist, but he was never institutionalized.

Carol Domroese, a learning disabilities resource teacher in the Oak Park school system, testified that when defendant was in her class during the 1972 school year, his IQ was in the seventies, and he could not cope with a regular classroom situation; that an educably mentally handicapped child can learn reading and mathematics to a certain level; and that defendant was able to secure and hold a job as a busboy. She acknowledged that other test scores indicated defendant’s IQ was 88; that his common sense level was at a par with other children his age; and that in her opinion he was sane but had difficulty adjusting to certain situations, particularly those involving his immediate family.

Elmer Smith, a psychologist for the Chicago Board of Education, testified that records in his keeping indicated that because defendant’s IQ was 72 at the age of seven, it was recommended he be placed in classes for the educably mentally handicapped, and that defendant had emotional or adjustment problems which interfered with full and effective function. He also stated that IQ scores indicate nothing about ability to conform to law and appreciate the criminality of acts; that being educably mentally handicapped does not mean that a person is insane; and that such a person can function in and contribute to society, including holding a job and forming meaningful relationships.

DCFS reports admitted into evidence indicated that defendant’s home life was troubled due to his father’s alcoholism; that because of his parent’s constant arguing, there was much tension in the home; that defendant failed first grade and was described by his mother as indifferent and unmotivated for learning; that he had behavior problems and was jealous of attention given the other children; that all of the children suffered from varying degrees of emotional disturbance; that there were problems with defendant stealing — -mostly from the family, lying, and abusing his siblings; that while with a foster family, he took their van without permission and struck two other cars; and that he stole money from his foster parents, which resulted in his removal from their home.

Julie Hansen, a social worker for the DCFS, testified that defendant was rejected by his family and suffered a great deal of physical and emotional abuse from them; that at age 13 he had severe emotional problems stemming from his family situation, was withdrawn, passive, and had difficulty relating to people; and that he was referred from residential treatment.

Dr. Marvin Schwartz, a Board-certified psychiatrist, testified that he had interviewed defendant and reviewed his records and it was his opinion that defendant suffered from schizophrenia, latent type, resulting in a poor sense of reality and abnormal emotional responses such that, while he could appreciate the criminality of his acts, he was unable to conform his conduct to the standards of the law and control his behavior. Dr. Schwartz admitted that he had only a single interview with defendant, lasting less than one hour, and in prior testimony he had described defendant’s grasp of reality as good.

In rebuttal, Assistant State’s Attorney Michael Robbins testified that he listened to a telephone conversation between the prosecutor and Dr. Schwartz with the knowledge and permission of both, in which Dr. Schwartz indicated that defendant’s grasp of reality was good; that he had not seen the Psychiatric Institute’s reports; and that his ultimate diagnosis at trial could depend on the cleverness of the lawyer’s hypothetical question. Robbins admitted, however, that the conversation occurred several months before trial and that he had made no notes on it.

Dr. Frederick Gibbs, a psychiatrist, testified that there was no indication of organic brain damage or brain malfunction in defendant’s EEG. He acknowledged, however, that a normal EEG does not, of itself, negate brain damage and had he known that one of defendant’s brothers suffered from brain damage and another was a deaf mute, that he might have recommended further neurological tests.

Dr. Robert Reifman, a court-appointed psychiatrist, testified that he had examined defendant in April 1977 to determine his fitness for trial; that he found he had an antisocial personality, which is not a mental disease or defect but a diagnosis of personality structure; that defendant did not suffer from schizophrenia-type psychosis; that he examined him again in July 1977, after further information had been obtained; that he again diagnosed antisocial personality; that he found defendant had an adequate and normal grasp of reality, did not then suffer from any mental disease or defect, and could not then be classified as a chronic schizophrenic; and that, in his opinion, he could conform his conduct to the requirements of the law at the time of the killing.

Opinion

Defendant first asserts error in the refusal to instruct the jury on the consequences of a verdict of not guilty by reason of insanity. He acknowledges that in People v. Meeker (1980), 86 Ill. App. 3d 162, 407 N.E.2d 1058, this court held that, as a general rule, such an instruction should not be given. However, he asked that we find special prejudicial circumstances existed here which required giving the proffered instruction.

In Meeker, we noted that the vast majority of jurisdictions do not permit any instruction on the result of a not guilty by reason of insanity verdict, and set forth at length are reasons for adhering to the majority rule. (See also People v. Upshaw (1981), 103 Ill. App. 3d 690, 431 N.E.2d 1138.) However, as defendant correctly notes, in Meeker we expressly reversed the question whether “special circumstances in a given case might warrant giving an instruction on the consequences of a verdict of not guilty by reason of insanity.” 86 Ill. App. 3d 162, 171, 407 N.E.2d 1058,1066.

Defendant likens this case to the situation in Dipert v. State (1972), 259 Ind. 260, 286 N.E.2d 405, the case in which the exception noted in Meeker was developed. There, a prospective juror asked what would happen if the defendant were found not guilty by reason of insanity, and the prosecutor stated that he would go “scot-free.” Defendant objected, but his request for a curative instruction was denied. The Indiana Supreme Court reversed, noting that “in view of the scanty evidence as to the sanity of the defendant, the remarks of the Prosecuting Attorney may have had an improper influence on the jurors.” (259 Ind. 260, 262, 286 N.E.2d 405, 406.) The court then formulated the following exception:

“Normally, a defendant, interposing a defense of not guilty by reason of temporary insanity, is not entitled to an instruction as to what post-trial procedures are available to determine whether he should be released or subject to confinement in a mental institution. [Citation.] At the same time, however, a defendant, through an appropriate channel, such as a curative instruction or statement by the judge, will be entitled to inform the jury of such procedures where an erroneous view of the law on this subject has been planted in their minds.” 259 Ind. 260, 262, 286 N.E.2d 405, 407.

Dipert specifically limited its decision to the facts before it, and subsequent Indiana cases have continued to narrowly construe this exception. Thus, no instruction is required there unless the statement complained of is a direct comment on the ultimate disposition of the case in the event of a not guilty by reason of insanity verdict. (Blake v. State (1979), 271 Ind. 75, 79, 390 N.E.2d 158, 162.) In Blake, a psychologist was asked what would happen if defendant were released immediately. He answered that the same kind of problems (i.e., criminal acts) would occur. The court found that this exchange did not require a curative instruction under Dipert, for there was no direct comment on the consequences of a not guilty by reason of insanity verdict.

In the instant case, defendant argues that the remarks in question “implied” that defendant would be set free, rather than being direct comments on the consequences of an acquittal by reason of insanity. The only allegedly direct comment occurred during the State’s rebuttal closing argument, when the prosecutor stated, “Is that why you are supposed to cut him loose, because they did something in the fish store. [Sic.]” Defendant argues that the term “cut him loose” explicitly told the jury he would be released unless he was found guilty. Read in context, this statement was clearly directed at defendant’s insinuation, during closing, that Johnson was the killer, as well as his attempt to portray the decedent as a violent person, a matter entirely irrelevant to defendant’s guilt or sanity. Other comments by the prosecutor, which defendant insists implied that he would be released if found insane, actually sought to impress upon the jury that emotional problems or “sickness” do not equate with legal insanity, contrary to the implication of the defense presented.

Defendant further complains that the court injected into the trial the irrelevant issue of punishment, first by informing the venire that this was not a capital case, then, during questioning of the first prospective juror, by characterizing a successful insanity defense as barring any criminal punishment. We fail to see how these remarks could give rise to an erroneous impression of the law, even by implication. Furthermore, they fall far short of the direct comment found prejudicial in the cases cited.

Finally, defendant argues that the implication was raised by two questions posed by the prosecutor to each expert witness: (1) whether defendant was dangerous to society; and (2) whether, if released, he would kill again. We find these questions almost identical to those found not to be prejudicial in Blake. Here, too, they were relevant to defendant’s sanity, rather than a direct comment on the disposition of the case should defendant be found insane.

Thus, even if we were to adopt the exception urged upon us by defendant, the narrow parameters thereof would not encompass the situation before us, since there was no direct comment on the consequences of a verdict of not guilty by reason of insanity. Furthermore, assuming that the comments cited by defendant mandated giving of the tendered instruction, the failure to do so would not necessarily constitute reversible error. A judgment is never reversed merely because error has been committed, for defendants are guaranteed, not an error-free trial, but a fair one. (People v. Robinson (1979), 68 Ill. App. 3d 747, 386 N.E.2d 559.) Therefore, it must appear that real justice has been denied, or that the finding of guilty may have resulted from such error (People v. Brown (1982), 104 Ill. App. 3d 1110, 433 N.E.2d 1081), and any error in giving or refusing to give instructions is harmless where the evidence is so clear and convincing that the jury’s verdict could not have been different (People v. Geno vese (1978), 65 Ill. App. 3d 819, 382 N.E.2d 872, cert. denied (1979), 444 U.S. 843, 62 L. Ed. 2d 56, 100 S. Ct. 86; People v. Jones (1972), 5 Ill. App. 3d 926, 284 N.E.2d 404). We therefore must consider whether there is a reasonable possibility that the alleged error might have contributed to the jury’s finding. People v. Hairston (1980), 86 Ill. App. 3d 295, 408 N.E.2d 382.

Defendant maintains that failure to give his tendered instruction could not be harmless in the light of his troubled background, the bizarre nature of his involvement in the killing, and Dr. Schwartz’ opinion that he could not then conform his conduct to the requirements of the law due to schizophrenia. However, while we agree that testimony established that defendant suffered from emotional problems as a result of his childhood experiences and was, if not mentally retarded, of marginal intelligence, these factors are insufficient to satisfy the stringent test of legal insanity. Moreover, his actions at the time in question are totally consistent with the diagnosis of antisocial personality, which all expert witnesses agreed is not a form of mental disease or defect. Dr. Schwartz was the only witness of the opinion that defendant was legally insane; however, he was engaged by defendant, and his testimony was seriously undermined when he admitted that on two prior occasions he had stated, contrary to his diagnosis at trial, that defendant had a good grasp of reality. Moreover, Dr. Schwartz admitted that, in previous testimony, he had been unable to say whether defendant was legally insane at the time in question.

On the other hand, the State presented overwhelming evidence of defendant’s legal sanity. Every person who testified to defendant’s early development — his mother, girl friend, friend, teacher, and social worker — expressed the opinion that he was sane. Each witness who had contact with defendant within hours of the incident — Officer Hyland, Sergeant Merritt, Assistant State’s Attorney Reid — shared that opinion. Finally, a court-appointed psychiatrist testified that defendant understood the criminality of his acts and could conform his conduct to the standards of law. In the light of this evidence, we are convinced that, even if refusal to give defendant’s tendered instruction were error, reversal would not be required.

Defendant next contends that the evidence of mutual quarrel and combat required an instruction on voluntary manslaughter.

Section 9 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 9—2) provides in relevant part that “[a] person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by: (1) the individual killed ***.” It is well settled that, if there is evidence which, if believed, would reduce the crime to manslaughter, an instruction thereon must be given; but if there is no evidence supporting a verdict of manslaughter, no instruction should be given. (People v. Lockett (1980), 82 Ill. 2d 546, 413 N.E.2d 378.) Thus, to support an instruction in this case, there must be evidence of serious provocation of defendant by the victim such as to arouse intense passion in the former, for no matter how violent defendant’s passion, no manslaughter instruction is mandated unless it was caused by provocation which the law recognizes as reasonable and adequate. People v. Strange (1980), 81 Ill. App. 3d 81, 400 N.E.2d 1066.

Mutual quarrel or combat is among the recognized forms of serious provocation (People v. Strong (1979), 79 Ill. App. 3d 17, 398 N.E.2d 216), but the combat must be “one into which both parties enter willingly, or in which two persons, upon a sudden quarrel and in hot blood, mutually fight on equal terms” (People v. Hudson (1979), 71 Ill. App. 3d 504, 510, 390 N.E.2d 5, 9). Therefore, mere words or trespass to property do not constitute sufficient provocation (People v. Strong (1979), 79 Ill. App. 3d 17, 398 N.E.2d 216), nor is there mutual combat where a victim is surrounded and subjected to a beating by multiple persons over an extended period of time (People v. Handley (1972), 51 Ill. 2d 229, 282 N.E.2d 131, cert. denied (1972), 409 U.S. 914, 34 L. Ed. 2d 175, 93 S. Ct. 247). Furthermore, the provocation must be proportionate to the retaliation it generates, and if a victim is attacked and killed with a violence out of all proportion to the provocation, a verdict of manslaughter would not be justified (People v. Miller (1981), 96 Ill. App. 3d 212, 421 N.E.2d 406), and no instruction thereon should be given (People v. Simpson (1978), 74 Ill. 2d 497, 384 N.E.2d 373).

Here, in support of his contention that there was mutual combat, defendant points to the argument between Pillar and Johnson and the kicking of Pillar by Johnson. However, in order to be entitled to the requested instruction, defendant must have acted “under a sudden and intpgg^ passion,” and we find no evidence of passion on defendant’s part; in fact, he concedes that during the argument he remained calm and did not participate. In addition, it appears that Pillar remained silent throughout, and in his written statement defendant himself said that the argument was originally provoked by Pillar’s criticism of Johnson. Furthermore, even if defendant were inflamed by the argument between Johnson and Pillar, mere words — no matter how abusive — are insufficient to mandate a voluntary manslaughter instruction, for they do not amount to mutual combat. People v. Strange (1980), 81 Ill. App. 3d 81, 400 N.E.2d 1066.

Finally, defendant notes the fact that Pillar swung at him, arguing that this is further evidence of provocation. However, it appears that this testimony came only from defendant and is the only evidence that Pillar made any move to fight back against his attackers. While defendant asserts that he was trying to help Pillar át the time, it is doubtful that Pillar, after being dragged from the apartment and repeatedly kicked in the head for three to four minutes, was able to distinguish friend from foe. This action alone is insufficient to constitute mutual combat.

Moreover, mutual combat requires that there be a mutual fight on equal terms, entered into willingly by both parties. Throughout, Pillar refused to engage in physical combat, and “equal terms” does not encompass a situation where two parties, one armed with a knife, attack an unarmed, unwilling, fleeing “combatant.” Furthermore, the provocation here, if any, was out of all proportion to the response it generated. The evidence indicates that Johnson and defendant were provoked because Pillar, after his initial remarks critical of Johnson, refused to fight; in fact, he was killed attempting to run away from a fight. Stated quite simply, it appears that Pillar was killed, not because he engaged in mutual combat, but because he refused to do so.

Defendant further contends that the prosecutor’s improper conduct in cross-examination and his inflammatory remarks during closing argument deprived him of a fair trial. He argues also that the prosecutor harassed his expert witness with irrelevant questions that undermined the witness’ credibility, improperly impeached the expert witness on collateral matters, and — -in closing argument — stated his opinion on the evidence, argued facts not in evidence, suggested the defense was a sham, and revealed to the jury that Johnson confessed and was currently in prison. The State maintains that these alleged improprieties have been waived by defendant’s failure to object to most of them and to raise any of them in his post-trial motion.

The issue is waived for purposes of review if a defendant fails to object to allegedly improper cross-examination (People v. Anderson (1981), 93 Ill. App. 3d 646, 417 N.E.2d 663), impeachment (People v. Davis (1982), 106 Ill. App. 3d 260, 435 N.E.2d 838), or prosecutorial remarks during closing argument (People v. Toth (1982), 106 Ill. App. 3d 27, 435 N.E.2d 748), or to raise them in a post-trial motion (People v. Turner (1981), 93 Ill. App. 3d 61, 416 N.E.2d 1149). Furthermore, even if objections to the prosecutor’s conduct are made during trial, failure to include them in a post-trial motion constitutes waiver. People v. Fowler (1981), 98 Ill. App. 3d 202, 423 N.E.2d 1356.

Defendant agrees that there were few objections made to the alleged improprieties, and that he failed to raise any of them in his post-trial motion; in effect, he concedes that they were waived. However, he asserts that they must be considered under the plain error rule, which allows us to consider an issue otherwise waived (People v. Smith (1981), 93 Ill. App. 3d 26, 416 N.E.2d 814), if “the error *** is so prejudical that real justice has been denied or the verdict of the jury may have resulted from such error” (People v. Kincy (1982), 106 Ill. App. 3d 250, 258, 435 N.E.2d 831, 837).

None of the allegedly improper conduct appears to be of such a substantial nature as to mandate consideration under the plain error rule, particularly in the light of the overwhelming evidence of defendant’s guilt, as well as of his sanity at the time of the killing. Furthermore, even if defendant had not waived these questions, we are not persuaded that all of the conduct of which he complains was improper. In particular, the cross-examination and impeachment of Dr. Schwartz was well within the bounds of propriety. Defendant’s only complaint is that they served to undermine the witness’ credibility with the jury; but that is precisely why the matters were important, since the credibility of all witnesses, including experts, is a matter to be determined by the jury (People v. Martin (1980), 87 Ill. App. 3d 77, 409 N.E.2d 114), and it is perfectly proper for the prosecutor to bring to the jury’s attention weaknesses in the factual basis of an expert’s opinion (People v. Romaine (1979), 79 Ill. App. 3d 1089, 399 N.E .2d 319). Finally, many of the allegedly improper remarks in the prosecutor’s rebuttal closing argument are unobjectionable because they were either invited by defendant (People v. Boyd (1980), 88 Ill. App. 3d 825, 410 N.E.2d 931) or constituted reasonable inferences from the evidence (People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840).

Defendant next contends that there is no basis for the gross disparity between his sentence (20 to 40 years) and that of his codefendant (14 years to 14 years and a day), and asks that we reduce his sentence to 14 to 20 years.

While the trial court’s decision is normally given great weight in considering the propriety of the sentence imposed (People v. Jackson (1981), 100 Ill. App. 3d 1064, 427 N.E.2d 994), codefendants should not receive disparate treatment in sentencing (People v. Cowherd (1978), 63 Ill. App. 3d 229, 380 N.E.2d 21) unless they are not similarly situated with regard to rehabilitative potential (People v. Jackson) or nature and extent of participation in the offense (People v. Godinez (1982), 91 Ill. 2d 47, 434 N.E.2d 1121).

Initially, we note that there is nothing in this record from which we can determine whether defendant and Johnson were similarly situated with regard to rehabilitative potential. Both were 18 years old when the crime was committed, and while it appears that defendant was a first offender, we do not have before us a presentencing report on either, nor do we know Johnson’s criminal history, if any. Moreover, it appears that the disparate sentence was justified by the difference in the nature and extent of their participation in the offense.

Defendant likens this case to People v. Gleckler (1980), 82 Ill. 2d 145, 411 N.E.2d 849, where the court found defendant’s death sentence impermissibly disparate with his codefendant’s sentence of imprisonment. In that case, defendant, who was described as a man with no criminal history, a drinking problem, and “the personality of a doormat,” was riding in a car with his two codefendants when Parsons (one of the codefendants), stopped another car and ordered its two occupants out. After the codefendants shot the occupants, defendant “finished them off,” either at the compulsion of Parsons or to end the victims’ obvious suffering, depending on which of defendant’s versions of the occurrence was believed. The court vacated defendant’s death sentence after finding that Parsons was at least as culpable as defendant, stating:

“Parsons first shot the victims in the back with the intent to kill them and was convicted of the double murders. It was Parsons who made the apparently unilateral decision to force the victims off of the road and who first ordered them out of their car. And if Gleckler’s compulsion evidence were believed, there would be no doubt that Parsons was more culpable than Gleckler.” 82 Ill. 2d 145, 166, 411 N.E.2d 849, 859.

Defendant maintains that the evidence shows Johnson was the ringleader here, just as Parsons was in Gleckler. However, we note that, unlike Gleckler, Johnson did not participate in the actual murder, nor is there any evidence that he instigated the escalation from a fistfight to murder with a deadly weapon; in fact, it was defendant who introduced the weapon into this altercation. In addition, although there is testimony that Johnson had leadership ability, was larger than defendant, and had a more forceful voice, there is no evidence of compulsion, as there was in Gleckler, nor even that Johnson suggested that Pillar be murdered.

We find this case is more analogous to People v. Dowd (1981), 101 Ill. App. 3d 830, 428 N.E.2d 894, where the court found imposition of a greater sentence on one codefendant justified on a finding that the one who carried out the physical act of murder was more culpable. In that case, the court also noted that the defendant was the moving force behind the murder plot and supplied the necessary physical means to carry it out. Here, defendant escalated the altercation to murder and supplied the weapon, in addition to committing the actual physical act of murder. Therefore, we cannot say that his greater sentence was unjustified.

Defendant next contends that the trial court erred in failing to suppress his first incriminating statement made orally to Officer Hyland, arguing the State had failed to show that he made a knowing and intelligent waiver of his rights pursuant to Miranda v. Arizona (1966), 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. He further asserts that his subsequent statements must also be suppressed as fruits of this allegedly unlawfully-obtained initial statement.

While it is true that the State bears the burden of demonstrating that a defendant has been warned of his constitutional rights and waived them (Miranda v. Arizona), the findings of the trial court on this issue will not be overturned unless contrary to the manifest weight of the evidence (People v. Willis (1975), 26 Ill. App 3d 518, 325 N.E.2d 715), and although a valid waiver will not be presumed from silence (People v. Rodriguez (1981), 96 Ill. App. 3d 431, 421 N.E.2d 323), it may be found by examination of the totality of the circumstances surrounding a statement (People v. Baer (1974), 19 Ill. App. 3d 346, 311 N.E.2d 418) and is properly found where a defendant has been advised of his Miranda rights and has acknowledged understanding them prior to making a statement (People v. Genus (1979), 74 Ill. App. 3d 1002, 393 N.E.2d 1162).

Here, there was evidence in the record from which the trial court could have concluded that defendant was informed of his rights and acknowledged understanding them. However, defendant argues this warning and acknowledgment occurred some time before the statement in question, with no showing of a further warning and waiver at the time of interrogation. We see no merit to this argument, since once a waiver has been obtained, there is no need to repeat the warnings at each successive interview. A similar argument was considered and rejected in People v. Patton (1980), 90 Ill. App. 3d 263, 412 N.E.2d 1097, where a defendant was advised of his rights and acknowledged understanding them at the time of his arrest, but this procedure was not repeated when he made an oral statement 20 minutes later, nor when he made a written statement approximately 21/a hours later. In the instant case, it appears that the statement was made within one hour of defendant’s arrest. Testimony at the pretrial suppression hearing established that defendant’s second statement, made to Inspector Merritt after being informed of his Miranda rights and waiving them, occurred within 45 minutes to one hour of defendant’s arrest. It follows therefrom that defendant’s first statement must have occurred within the same time period.

Defendant also points to other circumstances in arguing the absence of a knowing and intelligent waiver, in particular that he was not offered the opportunity to make a phone call; that he was 18 years old, classified as educably mentally handicapped, with an IQ of 77, and had not been educated beyond the 10th grade; and that he was confronted with the statements of Johnson and Reed before his statement was elicited. We note that nothing in the record before us indicates that defendant asked to make a phone call, nor has he cited any case which requires an officer to make a spontaneous offer of this opportunity. Furthermore, we have found knowing, intelligent waiver where defendants had mental capacities and educational backgrounds similar to defendant’s (People v. Marek (1980), 92 Ill. App. 3d 746, 415 N.E.2d 1230; People v. Avery (1980), 88 Ill. App. 3d 771, 410 N.E.2d 1093), and it is not a Miranda violation to reveal incriminating evidence against a defendant in eliciting a statement (People v. Colley (1980), 83 Ill. App. 3d 834, 404 N.E.2d 378), including revelation of the fact that a codefendant has made a statement implicating him in a crime (People v. Smith (1981), 93 Ill. App. 3d 1133, 418 N.E.2d 172). Therefore, we find nothing in the circumstances before us requiring suppression of defendant’s initial incriminating statement.

Moreover, even assuming arguendo that defendant’s first statement should have been suppressed, it does not necessarily follow that subsequent voluntary statements are also inadmissible. (People v. Colley (1980), 83 Ill. App. 3d 834, 404 N.E.2d 378.) In People v. Burris (1971), 49 Ill. 2d 98, 273 N.E.2d 605, the defendant argued that a later statement should have been suppressed because it was the product of an earlier statement made prior to proper Miranda warnings. The supreme court rejected the argument, noting:

"[Defendant] did not testify that the subsequent written statement was in any way the product of any previous interrogation or that he felt compelled to give a written statement because of anything he may have previously said to the detective. It would appear that if the written statement had in any way been influenced by any previous interrogation or conduct, the defendant would have given some testimony from which such an inference could have been drawn. We conclude that the written statement was properly admitted into evidence.” (49 Ill. 2d 98, 104, 273 N.E.2d 605, 609-10.)

In more recent cases, we have relied on Burris in finding that subsequent statements need not be suppressed absent evidence that the defendant made them because he had already given the first (People v. Tankson (1980), 92 Ill. App. 3d 328, 415 N.E.2d 1218; People v. Andrus (1976), 37 Ill. App. 3d 533, 346 N.E.2d 435), i.e., because he thought that the first statement conclusively established his guilt, even where the subsequent statement was made to the same police authority only a short time after improper questioning and while defendant was continuously in custody (People v. Principato (1981), 95 Ill. App. 3d 230, 419 N.E.2d 1230). In the instant case, there is no evidence that defendant was induced to give the later statements, for which valid waivers were admittedly obtained, because- he believed that the earlier statement conclusively established his guilt. Therefore, in the absence of any showing of a connection between the statements, we find that, even if defendant’s first statement were inadmissible, it would not have required suppression of his subsequent statements.

Defendant’s final contention is that he was denied effective assistance of counsel. He supports his position by alleging that his appointed counsel failed to (a) exercise a peremptory challenge against a juror he recognized as prejudiced; (b) call four witnesses who testified in defendant’s behalf at his first trial; (c) timely seek a neurological examination; (d) call Officer Hyland before trial to prove a Miranda violation; and (e) take any action after being appointed appellate counsel, which resulted in an earlier dismissal of this appeal and several years of delay. In response, the State asserts that defense counsel’s performance at trial surpassed the required standards of effective assistance, and that defendant’s conviction resulted from the overwhelming evidence of his guilt rather than counsel’s performance.

While an accused has the right to effective assistance of counsel in State criminal proceedings pursuant to the sixth and fourteenth amendments of the United States Constitution (U.S. Const., amends. VI, XIV; People v. Knippenberg (1977), 66 Ill. 2d 276, 362 N.E.2d 681), he is entitled to competent, not perfect, representation (People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649, cert. denied (1979), 444 U.S. 833, 62 L. Ed. 2d 42, 100 S. Ct. 63); thus, it has been held that review of trial counsel’s performance will not extend to areas involving the exercise of judgment, trial tactics, or strategy, even where appellate counsel or the reviewing court might have acted differently (People v. Smith (1980), 81 Ill. App. 3d 764, 401 N.E.2d 1017), and that we will consider the totality of the circumstances in determining the competency of counsel, rather than focusing on isolated instances during trial (People v. Davis (1981), 103 Ill. App. 3d 792, 431 N.E.2d 1210). Therefore, in order to establish a violation of his constitutional rights, defendant must show, within the above limitations, that his appointed counsel was actually incompetent in carrying out his duties as a trial attorney, resulting in substantial prejudice without which the outcome probably would have been different (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233), but he may not rely on mere conjecture nor speculate as to the outcome of his case had representation been of higher quality (People v. Hills (1980), 78 Ill. 2d 500, 401 N.E.2d 523).

Turning to defendant’s initial allegation of incompetence, we note that the juror in question — the wife of a Chicago police officer — assured the court she could be impartial with regard to police testimony and would not discuss the case with her husband. She also stated that her husband had talked with her about homicide cases in which he had participated, but there is no allegation that he was involved in the present case. Defense counsel challenged the juror for cause, in effect arguing that her assurances of impartiality could not be believed; but, when the trial court ruled that cause had not been shown, counsel did not exercise one of his five remaining peremptory challenges to remove her from the jury.

This court has held that jury selection and the exercise of peremptory challenges are matters of judgment and discretion and therefore outside the scope of review of counsel’s competency (People v. Julian (1980), 89 Ill. App. 3d 60, 411 N.E.2d 337), particularly where counsel has otherwise actively participated in the selection process and all jurors seated stated that they could be impartial (People v. Smith (1972), 7 Ill. App. 3d 07, 288 N.E.2d 19). Here, trial counsel participated vigorously in jury selection, exercising eight peremptory challenges, and the juror in question repeatedly assured the court that she could be impartial. Since there were still several jurors to be chosen, it was apparently defense counsel’s considered judgement that the juror not be challenged. Moreover, in the light of the trial court’s determination that the juror was not biased, and her own assurances thereof, we do not find the substantial prejudice which defendant must show in order to prevail. It is not enough to demonstrate that defense counsel believed she was prejudiced; there must be sufficient proof of actual bias such as would probably have affected the outcome of the trial.

Defendant also complains of his trial attorney’s failure to call four witnesses who testified at his first trial — defendant’s father and stepfather, a social worker, and a psychologist who tested defendant three years prior to Pillar’s killing. Decisions on what witnesses to call for the defense, like jury selection, have been recognized as questions of trial strategy (People v. Glover-El (1981), 102 Ill. App. 3d 535, 430 N.E.2d 147; People v. Carter (1980), 85 Ill. App. 3d 818, 407 N.E.2d 584) and are therefore not within the scope of this review, particularly where the testimony of the omitted witnesses would be merely cumulative (People v. Haywood (1980), 82 Ill. 2d 540, 413 N.E.2d 410), since there can be no substantial prejudice in the failure to present repetitive testimony. Having reviewed the testimony in question, we find that it adds nothing to what was said by other witnesses who were called to testify in the instant trial.

A similar argument is presented with respect to defense counsel’s failure to make a timely request for further neurological testing. Defendant asserts that, despite an admittedly normal EEG which experts interpreted as indicating the absence of organic brain damage, testimony at his first trial established that further tests might have revealed damage undetected by an EEG. Approximately two months later, the day his second trial was to commence, defense counsel presented a motion for psychological, psychiatric, and neurological examinations at county expense, which was denied as untimely made, as well as for failure to show that defendant was indigent.

Defendant likens this situation to the failure to interview and present witnesses who would have exonerated him. However, the failure to obtain testimony — even expert testimony — is not incompetence per se (People v. Ellis (1976), 39 Ill. App. 3d 373, 350 N.E.2d 326) and, in People v. Corder (1982), 103 Ill. App. 3d 434, 431 N.E.2d 701, the case relied upon by defendant, there was a showing that the evidence which trial counsel failed to procure would have proved the defendant’s innocence. In the instant case, we have only defendant’s conjecture as to what further testing might have shown, which is similar to the situation in People v. Ellis (1976), 39 Ill. App. 3d 373, 350 N.E.2d 326. There, trial counsel, although relying on an insanity defense, did not arrange for any psychiatric testimony nor ask that the defendant be subjected to testing. This court ruled that defendant had not established incompetence of counsel — finding that, at least in that case, it was a matter of tactics since any report obtained would also be available to the State. We noted that it was questionable whether defendant’s case would be helped or hindered by expert witnesses, because the results might as easily have proved defendant’s sanity. Here, too, it is questionable whether the tests would have been helpful to defendant’s case; the EEG, which was originally requested by defendant, was used instead by the State as evidence of the lack of brain damage. It is likely that defendant was in a better position arguing the unproven possibility of such damage than taking the risk of positive proof of its absence. In the light of the strong testimony that defendant did not suffer from any mental defect, we cannot find that defendant, by mere conjecture, has shown any substantial prejudice in counsel’s failure to make a timely motion.

In regard to defendant’s last two allegations of incompetence, we find that they did not affect the outcome of the trial and therefore are not grounds for reversal. Defense counsel’s failure to present evidence of a Miranda violation prior to trial is irrelevant, since we have concluded that no such violation occurred. We also note that the evidence in question was presented at trial, followed by a motion to suppress defendant’s statements, a circumstance which further undermines defendant’s claim of prejudice. (See People v. Owens (1976), 65 Ill. 2d 83, 357 N.E.2d 465.) Finally, as defendant concedes, counsel’s failure to pursue this appeal could not have had any possible effect on the outcome of his trial.

In addition, when the circumstances of the trial are viewed in totality, we find that defendant was competently represented. Counsel participated actively in voir dire thoroughly cross-examined the State’s witnesses, and skillfully directed the testimony of his own witnesses. Furthermore, counsel made timely and appropriate objections, timely filed motions for direct verdict and for a new trial, and presented an organized closing argument based on the evidence.

For the foregoing reasons, defendant’s conviction is affirmed.

Affirmed.

LORENZ and MEJDA, JJ., concur.

      Defendant has not cited, nor has our own research discovered, any other jurisdiction which has adopted this rule.

      The same question was previously raised, but not decided, in Johnson v. State (1977), 265 Ind. 689, 359 N.E.2d 525.

      At a pretrial suppression hearing, Officer Hyland testified that defendant acknowledged understanding his rights when they were recited to him at the time of his arrest, although the acknowledgement was not mentioned at trial before Judge Strayhom. We consider here the testimony at the pretrial motion to suppress in addition to the trial testimony, since defendant was collaterally estopped from relitigating the motion to suppress already denied by Judge Moran on February 21, 1978, in the absence of additional evidence or exceptional circumstances (People v. Douglas (1981), 100 Ill. App. 3d 181, 426 N.E.2d 950), and declaration of a mistrial did not vitiate the effect of that ruling (People v. Henderson (1976), 36 Ill. App. 3d 355, 344 N.E.2d 239).


source: Caselaw Access Project

author: JUSTICE McGILLICUDDY

license: Public Domain

text:
      In re GREGORY PRYOR, a Minor.—(The People of the State of Illinois, Petitioner-Appellant, v. Gregory Pryor, Respondent-Appellee.)
    First District (3d Division)
    No. 81—837
    Opinion filed December 30, 1982.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Rhoda W. Davis, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Judith A. Stewart, Assistant Public Defender, of counsel), for appellee.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

On August 30, 1980, the State filed a petition for adjudication of wardship alleging that Gregory Pryor, the minor, was delinquent in that he committed a robbery on or about August 29, 1980. A second petition seeking adjudication of the minor as an habitual juvenile offender was filed on September 2, 1980. On March 11, 1981, when the case was set for trial, the minor’s counsel informed the court that the State’s notice of intention to prosecute the minor as an habitual juvenile offender had not been filed simultaneously with the delinquency petition as required by section 5 — 12(b) of the Juvenile Court Act (Ill. Rev. Stat., 1979 Supp., ch. 37, par. 705—12(b)). The trial court thereupon dismissed the habitual juvenile offender petition because it was filed three days after the delinquency petition. The trial court took judicial notice that the delinquency petition was filed on Saturday, August 30, 1980; that the habitual juvenile offender petition was filed on Tuesday, September 2, 1980; and that Labor Day was on Monday, September 1, 1980. The trial court also ordered a stay of proceedings pending the State’s appeal from that dismissal.

The sole issue raised in this appeal is whether the trial court erred in dismissing the habitual juvenile offender petition. Before reaching this issue, we must address the respondent’s argument that this appeal should be dismissed because the order dismissing the habitual juvenile petition is not appealable by the State.

Supreme Court Rule 660(a) provides that appeals from final judgments in delinquent minor proceedings, except as otherwise specifically provided, shall be governed by the rules applicable to criminal cases. (87 Ill. 2d R. 660(a).) Generally, the State’s right to appeal in criminal cases is governed by Supreme Court Rule 604(a)(1) (87 Ill. 2d R. 604(a)(1)). (E.g., People v. Montgomery (1980), 84 Ill. App. 3d 695, 405 N.E.2d 1275.) In accordance with that rule, the State can appeal from the dismissal of a charge by indictment, information or complaint for any of the grounds enumerated in section 114 — 1 of the Code of Criminal Procedure of 1963 (the Code) (Ill. Rev. Stat. 1979, ch. 38, par. 114—1). It has been stated, however, that Rule 604(a)’s reference to section 114 — 1 of the Code was not intended to reduce the State’s right to appeal in other factual situations where the substantive effect of the judgment or order resulted in a dismissal. (People v. Love (1968), 39 Ill. 2d 436, 235 N.E.2d 819; People v. Dellecarto (1978), 67 Ill. App. 3d 490, 384 N.E.2d 902.) Thus, although the reason for the dismissal of the petition in the instant case does not meet one of the grounds enumerated in section 114 — 1 of the Code, we hold that the State has a right to appeal the dismissal in the instant case.

The respondent also argues that the dismissal of the habitual juvenile offender petition was not a dismissal of “a charge” since the respondent still could have been prosecuted for the underlying offense of robbery in accordance with the delinquency petition. We believe that the dismissal of the habitual juvenile offender petition amounted to a dismissal of a charge as provided in Supreme Court Rule 604(a) (87 Ill. 2d R. 604(a)). See In re R.L.K. (1978), 67 Ill. App. 3d 451, 384 N.E.2d 531 (adjudications as a minor in need of supervision and as a delinquent based on commission of the same offense are separate charges subject to double jeopardy bar).

The relevant portion of section 5 — 12(b) of the Juvenile Court Act provides:

“(b) Notice to Minor. The State shall serve upon the minor written notice of intention to prosecute under the provisions of this section simultaneously with the filing of any delinquency petition, adjudication upon which would mandate the minor’s disposition as an Habitual Juvenile Offender.” (Ill. Rev. Stat., 1979 Supp., ch. 37, par. 705—12(b).)

The State argues that this provision should be given a directory rather than a mandatory construction so that its failure to file the habitual juvenile offender petition simultaneously with the delinquency petition should not have resulted in the dismissal of the former petition.

In accordance with the rules of statutory construction, the word “shall” generally is regarded as mandatory, although it may be construed as meaning “may” depending upon legislative intent. (Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 373 N.E.2d 1332.) Legislative intent is determined by examining the entire statute, its nature, its object, and the consequences that result from one construction over another. (Carrigan v. Illinois Liquor Control Com. (1960), 19 Ill. 2d 230, 166 N.E.2d 574, 2A A. Sutherland, Statutory Construction sec. 57.02, at 414 (4th ed. 1973).) Legislative intent also is implied from the presence or absence of negative words importing that the act shall not be done in any other manner than that designated; and where a disregard of the provision would injuriously affect a public interest or private right, the provision is regarded as being mandatory. Carrigan v. Illinois Liquor Control Com.

In In re Armour (1974), 59 Ill. 2d 102, 319 N.E.2d 496, the Illinois Supreme Court construed the word “shall” as it appeared in another section of the Juvenile Court Act. The pertinent statute required the setting of an adjudicatory hearing within 30 days of the filing of the delinquency petition. Recognizing society’s interest “for its own sake as well as for the minor’s individual welfare in guiding and rehabilitating” (59 Ill. 2d 102, 104, 319 N.E.2d 496, 498), the court determined that the legislative intent was against a mandatory interpretation of the word “shall.” As further support for this holding, the court noted the absence of express language requiring the discharge of the minor when an adjudicatory hearing is not held within the 30-day period.

The respondent attempts to distinguish the In re Armour holding by stating that the court in that case was compelled to give the word “shall” a directory interpretation to prevent the discharge of the minor. The respondent states that in the instant case, he still could be adjudicated a delinquent under the delinquency petition and the court could render an appropriate dispositional order. In further support of his argument for mandatory construction, the respondent notes that the word “shall” was given a mandatory interpretation with regard to the requirement that an habitual juvenile offender be committed to the Department of Corrections until the age of 21 (Ill. Rev. Stat., 1979 Supp., ch. 37, par. 705—12(a)). (See People ex rel. Carey v. Chrastka (1980), 83 Ill. 2d 67, 413 N.E.2d 1269.) He argues that different constructions of the word “shall” within the same statutory provision are incongruous.

We disagree with the respondent’s contentions. We do not believe that the holding and rationale of In re Armour should be limited to factual situations where the juvenile offender would be discharged absent a directory construction of the word “shall.” We also believe that the legislative intent was to give section 5 — 12(b) a directory construction since such an interpretation would best serve society’s interest in seeking to correct continued juvenile criminal behavior and the minor’s need for guidance and rehabilitation. This directory interpretation is not irreconcilable with the mandatory interpretation of the sentencing provision of the habitual juvenile offender statute since the interests of society and the welfare of the repeat juvenile offender are best served by a directory interpretation of the word “shall” in the context of the filing of the adjudicatory petition and by a mandatory interpretation of the word “shall” in the context of the dispositional ruling. We therefore hold that the State’s failure to file the habitual juvenile offender petition simultaneously with, or on the same date as, the delinquency petition should not have resulted in the discharge of the habitual juvenile offender petition.

For the foregoing reasons, the order of the circuit court of Cook County is reversed and the cause is remanded for further proceedings in accordance with the views expressed herein.

Reversed and remanded.

McNAMARA and RIZZI, JJ., concur.


author: JUSTICE LINN

text:
    PREMIER ELECTRICAL CONSTRUCTION COMPANY, Plaintiff-Appellant, v. RAGNAR BENSON, INC., Defendant-Appellee.
    First District (4th Division)
    No. 81—1852
    Opinion filed December 30, 1982.

      Patrick J. Mazza, of Chicago (Patrick Mazza & Associates, P.C., of counsel), for appellant.
    Fischel & Kahn, of Chicago (Dan Brusslan, Paul D. Streicher, and Terrie A. Rymer, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Premier Electrical Construction Company (Premier), an electrical subcontractor, filed a three-count complaint against Ragnar Benson, Inc. (Benson), a general contractor, in the circuit court of Cook County. The complaint charged Benson with wrongfully rejecting claims made by Premier for additional payment to cover costs not included in the contract between the two parties. In response, Benson moved to dismiss Premier’s complaint on the ground that paragraph 14 of the same contract precluded litigation of claims by providing alternate dispute-resolving mechanisms to settle disagreements arising under the contract. After reviewing the pleadings and the contract and hearing oral argument, the trial court decided that it had no jurisdiction over the matter and therefore dismissed Premier’s complaint with prejudice. Premier appeals, claiming that (1) the trial court erred in holding that all three counts of Premier’s complaint were to be resolved according to the dispute-resolution procedures specified in the contract, and (2) paragraph 14 of the agreement is so vague that Premier should not be held to the methods of resolving disputes provided by that paragraph.

We find that the one count of Premier’s complaint dealing with substituted construction materials is not covered by the contractual provisions for dispute resolution, and we therefore reverse the trial court’s dismissal of that count. We affirm the trial court’s ruling on the remaining two counts.

Background

The record discloses that Benson was the general contractor for the construction of an addition to the Chicago Stamping Plant of Ford Motor Company. In order to prepare its own bid, Benson had distributed to various subcontractors the construction drawings and specifications provided by Ford. After Benson reviewed the bids, selected Premier as the electrical subcontractor, and in turn was awarded the general contract, the two parties signed a subcontract containing the following clauses pertinent to the instant litigation:

“A. SUBCONTRACTOR [Premier] AGREES:
1. That he has examined the General Contract, all plans, drawings and specifications prepared by the Owner [Ford] ***, for the entire work, *** and that he and his subcontractors will be and are bound by any and all parts of said plans, drawings, specifications and General Contract insofar as they relate *** to the work undertaken herein, and shall be further bound to the General and Special Conditions of the Specifications, also that he has thoroughly familiarized himself with *** all other matters and conditions which will affect the operations and completion of said work and he assumes all risks therefrom.
2. To furnish and pay for all labor, material, tools, supplies, equipment *** necessary to construct and complete in a workmanlike manner all the work included in this Agreement ***.
* * *
13. Contractor [Benson] *** may order additions, omissions or alterations to or in the said work, materials or equipment, but no such changes shall be made except by a written order *** in which the additional amount to be paid *** or to be deducted from said contract price *** shall be stated.
14. All disputes concerning questions of fact, arising under the Agreement, shall be decided by the Contractor subject to written appeal by the Subcontractor within seven (7) days to the Contractor, who in turn will submit said appeal to the Owner [Ford] or his representative, whose decision shall be final and conclusive upon the parties thereto. In the event the Owner or its representative does not have jurisdiction over any such disputes, settlement of disputes shall be in accordance with the Standard Form of Arbitration Procedure as used by the American Institute of Architects. In the meantime, the Subcontractor shall diligently proceed with the work as directed.
* * *
21. To assume all risk and liability for loss or damage to the Subcontractor’s material tools or equipment not incorporated in the work due to Subcontractor’s negligence.”

In addition, section 30 — A of the General Conditions, mentioned in paragraph 1 of the subcontract, states,

“The Owner shall assume the risk of loss of or damage to all work performed and materials delivered to the site whether or not installed *** caused by fire, extended covered perils, vandalism, malicious mischief, and the contractor shall in no event be liable for any such loss or damage.”

During the course of construction, Premier notified Benson of three claims for additional payment. First, Premier requested $18,458.48 as reimbursement for electrical materials that allegedly had been stolen from the jobsite after delivery. Second, Premier requested additional payment for the installation of certain ceiling fixtures because its bid had been based in part on the assumption that an overhead traveling crane depicted in the construction drawings would be available for Premier’s use. The unusually high ceiling precluded the use of ordinary scaffolding, so when the overhead crane was not installed and available as anticipated, Premier was forced to incur additional expenses of $11,000 for a boom truck and operator, an additional ground man, and the additional hours of labor. Third, Premier billed Benson for $4,303.30 to cover the additional cost of supplying at Benson’s direction a higher-priced brand of bus duct than the one Premier had used in calculating its original bid.

Benson, pursuant to paragraph 14 quoted above, submitted the three claims to Ford “for your review and consideration.” Ford replied by rejecting all three claims for compensation, and Benson so informed Premier. Following receipt of Ford’s decision, Premier filed suit against Benson to collect the sums allegedly due on all three claims. Benson responded by filing a motion to dismiss pursuant to section 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48) on the ground that paragraph 14 of the subcontract precluded Premier’s recourse to the courts to resolve disputes arising under the contract. The trial court agreed and granted the motion to dismiss, concluding,

“What the contract says is a question of law for the court to decide unless it is ambiguous and requires extrinsic evidence. I hold that this clause is — at least as to counts two and three— and I haven’t arrived at an opinion yet as to count one — is unambiguous and contemplates that the questions — that disputes concerning questions of fact arising under this agreement — and I hold that extra work is one of those — are to be submitted to the contractor and thereafter to the owner; and the owner or his representative’s decision shall be final and conclusive.
* * *
As to the count for the stolen property, *** the agreement goes on to say that if the owner does not have jurisdiction over these disputes, they will be settled according to the Standard Form of Arbitration. Therefore, the Court will dismiss the complaint with prejudice in that the parties have agreed to dispose of their claims either by an owner’s exclusive decision as to whether they are meritorious or not or by arbitration.”

Opinion

The specific contract clause at issue, paragraph 14, required that Premier submit “all disputes concerning questions of fact arising under this Agreement” to Benson, with provision for a subsequent written appeal through Benson to Ford, whose decision was final. Only when Ford had no “jurisdiction” over a given dispute might a party request arbitration. Our initial step, therefore, must be to determine whether or not each of the individual claims for reimbursement in Premier’s complaint fell within the intended scope of the dispute-resolution provision.

Fundamental to a proper review of the trial court’s holding and the arguments of the parties on appeal is a clear understanding of the posture of the case. Benson successfully based its motion to dismiss on the theory that the dispute-resolution clause at issue totally withdrew jurisdiction over contractual disagreements from the trial court in favor of final decisions by the owner or through arbitration. Section 1 of the Uniform Arbitration Act (Ill. Rev. Stat. 1979, ch. 10, par. 101) establishes that such arbitration agreements are valid, generally irrevocable, and enforceable. However, Benson now argues that this court lacks jurisdiction to hear Premier’s appeal on the authority of precedent cases holding that the scope of the arbitration provision of a dispute resolution clause is to be determined in the first instance by the arbitrator, subject to review by the court and possible vacating of the arbitrator’s award. (Stuart-Dean Co. v. Lurie (1979), 69 Ill. App. 3d 844, 388 N.E.2d 118; School District No. 46 v. A.J. Del Bianco (1966), 68 Ill. App. 2d 145, 215 N.E.2d 25; Ill. Rev. Stat. 1979, ch. 10, par. 112.) We find that Benson’s argument misconstrues the interrelationships of the various provisions of the Uniform Arbitration Act and their application to the instant case.

Section 1 of the Act, which establishes the validity of a written arbitration agreement, has been interpreted to mean that the existence of an arbitration agreement in a contract automatically incorporates the entire Uniform Arbitration Act into the agreement. (Ramonas v. Kerelis (1968), 102 Ill. App. 2d 262, 243 N.E.2d 711.) Section 2(a) of the Uniform Arbitration Act specifies,

“On application of a party showing [a written arbitration] agreement ***, and the opposing party’s refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party, otherwise, the application shall be denied.” Ill. Rev. Stat. 1979, ch. 10, par. 102(a).

Nowhere in the record do we find any application for arbitration made by either party; further, under paragraph 14, the parties agreed to submit to arbitration only questions of fact, not all questions of contract interpretation. As stated in United Steelworkers of America v. American Manufacturing Co. (1960), 363 U.S. 564, 570-71, 4 L. Ed. 2d 1403, 1433, 80 S. Ct. 1343, 1364 (Brennan, J., concurring) in the context of an even stronger arbitration clause in a collective bargaining agreement,

“[Sjince arbitration is a creature of contract, a court must always inquire, when a party seeks to invoke its aid to force a reluctant party to the arbitration table, whether the parties have agreed to arbitrate the particular dispute. In this sense, the question of whether a dispute is ‘arbitrable’ is inescapably for the court.”

Consequently, we find that our review of the trial court’s granting Benson’s motion to dismiss necessarily includes an examination of the arbitrability of the claims in Premier’s complaint.

Although both Benson and Premier attempt to define the scope of paragraph 14 by drawing upon judicial interpretations of arbitration clauses from several earlier cases, we note that no example specifically matches the language of the clause in the instant case. Benson would have us conclude that decisions interpreting contract clauses requiring arbitration of “all disputes arising in connection with this contract” (Silver Cross Hospital v. S. N. Nielsen Co. (1972), 8 Ill. App. 3d 1000, 1001, 291 N.E.2d 247, 248; Harrison F. Blades, Inc. v. Jarman Memorial Hospital Building Fund, Inc. (1969), 109 Ill. App. 2d 224, 228, 248 N.E.2d 289, 291) are dispositive of the instant case and that the trial judge correctly ruled that he had no jurisdiction over any of the issues. On the other hand, Premier would have us emasculate the dispute resolution provision altogether by holding that the generality of its language subjects none of Premier’s claims to arbitration because they are requests for payment, not disputes of fact arising under the contract. “Whether or not and what they arbitrate must be stated *** in crystal clear language unextended and unenlarged either by construction or by implication.” Harrison F. Blades, Inc. v. Jarman Memorial Hospital Building Fund, Inc. (1969), 109 Ill. App. 2d 224, 226, 248 N.E.2d 289, 290.

We find neither position persuasive. Just as the provision is not one that specifies particular issues subject to arbitration (Flood v. Country Mutual Insurance Co. (1968), 41 Ill. 2d 91, 242 N.E.2d 149), neither is it a totally generic clause encompassing “all disputes arising in connection with this contract” (Silver Cross Hospital v. S. N. Nielsen Co. (1972), 8 Ill. App. 3d 1000, 1001, 291 N.E.2d 247, 248). Instead, the arbitrable disputes are limited carefully to those concerning “questions of fact.” Further, the requirement quoted above that “crystal clear language” be used to define the particular issues to be arbitrated applies “not to the generic arbitration provision itself, but rather to the underlying contractual undertaking.” (Roosevelt University v. Mayfair Construction Co. (1975), 28 Ill. App. 3d 1045, 1053, 331 N.E.2d 835, 841.) Premier may not restrict the entire focus of this inquiry solely to the arbitration provision. If, as here, the parties agreed to forego recourse to the courts while resolving “disputes concerning questions of fact arising under this Agreement,” the agreement includes all the provisions of the contract including the plans, drawings, and specifications. (See Intaglio Service Corp. v. J. L. Williams & Co. (1981), 95 Ill. App. 3d 708, 420 N.E.2d 634.) We find, therefore, that proper resolution of the instant case requires that we look to the terms of the contract to see whether the disputes both “concern questions of fact” and “arise under the agreement.”

I

Premier’s first claim is for additional compensation to cover the cost of replacing materials stolen from the jobsite. Although Ford refused to reimburse Premier, we note that the previously quoted provision, section 30 — A of the General Conditions of the Specifications, incorporated by reference into the subcontract, specifically places on the owner the risk of loss of materials delivered to the site. On the other hand, paragraph 21 of the subcontract, also quoted above, appears to place that same risk of loss on Premier. “In construing the Contract Documents as a whole, provisions which seem to be in conflict should be reconciled if possible.” (Roosevelt University v. Mayfair Construction Co. (1975), 28 Ill. App. 3d 1045, 1059, 331 N.E.2d 835, 846.) In fact, the two clauses are not contradictory. Whereas Premier must bear the risk if the loss is due to its own negligence, it appears clear to us that absent such negligence, Ford as owner bears the risk of loss.

Whether Premier acted negligently is clearly a question of fact; which party should bear the risk of loss is therefore a dispute concerning a question of fact arising under the agreement. Because Ford cannot be the judge of its own liability, it can have no jurisdiction over the issue of risk of loss for stolen material. Consequently, we find that on the issue of the stolen material, the trial court correctly decided that arbitration was the appropriate method of dispute resolution.

II

The second count in Premier’s complaint requested reimbursement for the additional expense of installing ceiling fixtures by using a boom truck instead of the overhead traveling crane depicted in the construction drawings. The trial court, designating this an expense for “extra work,” held that a claim of extra work was a dispute conceming a question of fact arising under the agreement and therefore was to be submitted first to Benson, then to Ford, with Ford’s decision being final. While we do not regard this to be a claim for extra work as contemplated by paragraph 13 quoted above, we do find it to be covered by the provisions of paragraph 2 and therefore of paragraph 14. We agree with the trial court’s conclusion that this claim for reimbursement was a decision over which Ford had jurisdiction and thus the contractual right to make the final determination.

Nowhere in the record does Premier ever assert that the overhead crane should have been available for its use/- Premier merely states that had ordinary construction procedures been followed, the crane would have been completed and installed before the time came for Premier to install the ceiling fixtures. In correspondence included in the record, Ford correctly points out that certain general conditions included in the contract specify that Ford will not be liable for additional costs attributable to scheduling changes. Further, Premier never attempted to make any arrangements with Ford to use the overhead crane.

Under paragraph 1 of the the subcontract, Premier agreed to “familiarize [itself] with *** all other matters and conditions which will affect the operation and completion of said work and he assumes all risks therefrom.” Under paragraph 2, Premier agreed to furnish all “labor, material, tools, supplies, equipment *** necessary to construct and complete *** all the work included in this Agreement.” We agree with the trial court that the issue of the traveling crane is one of fact arising under both paragraphs quoted above. Under the terms of paragraph 14, Ford as owner exercised its final authority to decide such an issue. A court may not rewrite a contract “simply to reach what may appear to be a more equitable result when the contract is an unambiguous expression of the entire agreement.” (Touhy v. Twentieth Century-Fox Film Corp. (1979), 69 Ill. App. 3d 508, 513, 387 N.E.2d 862, 866.) Accordingly, we affirm the trial court’s disposition of count II of Premier’s complaint.

Ill

Premier’s third request for additional payment was to cover the cost of supplying at Benson’s direction a higher-priced brand of bus duct than that used to prepare its bid. Benson initially rejected Premier’s claim on the ground that the brand ordered to be substituted was the same brand originally specified in the bid documents and the contract. Premier countered by arguing that the initial specifications called for the brand actually installed “or another approved equal.” Although Benson replied that no other “equal” was ever “approved,” Premier points to the alternate brand name written into the bid submitted to Benson, which bid was in turn used by Benson in preparing its bid for the general contract. Additionally, after Benson passed along Premier’s claim to Ford, Ford rejected the claim on the ground that the bid documents specified use of the substituted brand.

Premier did not affix to its complaint a complete copy of all the contract documents because both parties acknowledged they had copies, the documents themselves were voluminous, and the pertinent sections were either included in the pleadings or established by other documents and correspondence made part of the record. For purposes of review, “properly pleaded allegations and well-pleaded facts must be taken as true and admitted in the face of a motion to dismiss.” (Pollack v. Marathon Oil Co. (1976), 34 Ill. App. 3d 861, 864, 341 N.E.2d 101, 104.) Therefore, it is clear from the argument outlined above that there is a genuine question concerning a material term of the contract.

Correspondence from Ford indicates that the contract term specified the brand of duct eventually installed; Premier claims that by accepting its bid naming the alternate brand, Benson tacitly approved that choice, so the contract term is the alternate brand. The trial judge stated correctly that “[w]hat the contract says is a question of law for the court to decide unless it is ambiguous and requires extrinsic evidence.” No extrinsic evidence is needed here; the question of the term concerning the bus duct can be decided by interpreting the pertinent language of the various documents comprising the entire contract. “It is well settled in Illinois that the construction, interpretation or legal effect of a contract are issues to be resolved by the court as questions of law.” (Illinois Valley Asphalt, Inc. v. La Salle National Bank (1977), 54 Ill. App. 3d 317, 319-20, 369 N.E.2d 525, 528.) Because the dispute-resolution paragraph limits its application to questions of fact, a question of law is not a question both parties agreed to settle either by arbitration or by Ford’s final and conclusive decision. We find, therefore, that the trial court erred in dismissing count III of Premier’s complaint.

As the foregoing discussion clearly demonstrates, the dispute-resolution paragraph is not so overly vague that Premier should not be held to its provisions. “[A] contract fairly entered into for an adequate consideration cannot be avoided or disregarded by one of the parties to it because he discovers that the contract is less profitable to him than he anticipated when he entered into it.” (Diedrich v. Northern Illinois Publishing Co. (1976), 39 Ill. App. 3d 851, 857-58, 350 N.E.2d 857, 862.) One is presumed to know the contents and meaning of the obligations he undertakes when he signs a written contract. (Leon v. Max E. Miller & Son, Inc. (1974), 23 Ill. App. 3d 694, 320 N.E.2d 256.) “Mature adults have a duty to be fully advised as to the nature of the contents of a binding agreement.” (Preston A. Higgins & Co. v. Stevenson (1975), 28 Ill. App. 3d 150, 153, 328 N.E.2d 79, 81.) We therefore find unpersuasive Premier’s final argument: “Premier *** had no idea in entering into the Agreement that it would be submitting such issues as Ragnar Benson’s liability for Premier’s alleged misplaced reliance or Ragnar Benson’s damages, or for ordering materials changes, to Ragnar Benson, the very party whose very liability would be in question (or even to Ford, who in turn might be liable to Ragnar Benson).” Absent fraud, duress, coercion, mutual mistake, or some other nullifying factor not present in the instant case, caveat signator.

For the reasons discussed above, we affirm in part, reverse in part, and remand to the trial court for proceedings in accordance with this opinion.

Affirmed in part, reversed in part, and remanded.

JOHNSON, P.J., and ROMITI, J., concur.


author: JUSTICE McGLOON

text:
      In re MARRIAGE OF DENA SOULELES, Petitioner-Appellee and GEORGE SOULELES, Respondent-Appellant.—(First Federal Savings and Loan Association of Wilmette, Garnishee-Appellee.)
    First District (1st Division)
    No. 81—2766
    Opinion filed December 30, 1982.

      Donald Newman, of Donald L. Newman & Associates, of Chicago (Gordon F. Gault and Charlotte Rubinstein, of counsel), for appellant.
    George D. Karcazes, of Martin & Karcazes, Ltd., of Chicago, for appellee Dena Souleles.
    Erwin Grombacher and Thomas J. Anselmo, both of Chicago, for appellee First Federal Savings and Loan Association of Wilmette.
   JUSTICE McGLOON

delivered the opinion of the court:

This is an appeal from an order denying a motion to quash a non-wage garnishment summons.

The issues we address on appeal are as follows: (1) whether a savings account at a Federal savings and loan association is exempt from garnishment where the association has possession of the passbook without a written assignment from the holders of record; (2) whether orders awarding attorney fees contained in a judgment for dissolution of marriage are valid judgments upon which to base a garnishment action; and (3) whether judgment creditor and garnishee followed the procedures required by the Garnishment Act.

We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Funds held on deposit at a savings and loan association were the subject of the garnishment action in the case below. The sequence of events leading up to disbursement of the funds is particularly relevant and will be set out in chronological order.

On May 18, 1981, judgment for the dissolution of the marriage of Dena Souleles (petitioner) and George Souleles (respondent) was entered by the circuit court of Cook County. The judgment ordered that attorney fees of both parties were to be paid by respondent. It also ordered petitioner to pay her attorney $1,000. At 4:15 p.m. the same day, attorney for petitioner, George D. Karcazes (hereinafter called Karcazes), instituted a garnishment action against First Federal Savings and Loan Association of Wilmette (hereinafter called First Federal). Karcazes commenced the action by filing an affidavit for garnishment (nonwage) and interrogatories to garnishee with the clerk of the court — domestic relations division. Karcazes, the affiant, stated that judgment was entered on May 18, 1981, in favor of judgment creditor (Karcazes) and against judgment debtor (respondent) for $2,000. The clerk of the court issued summons against First Federal the same day; summons was properly served on May 23, 1981. Under cover letter, also dated May 18, 1981, Karcazes forwarded a copy of the judgment for dissolution of marriage to Ms. Alice A. Winkler, branch manager of First Federal. In his letter, Karcazes stated that judgment entered in the case of Souleles v. Souleles awarded him attorney fees in the amount of $2,000 and that judgment in that amount had been entered against respondent. Karcazes also explained how the funds held in respondent’s savings account were to be distributed, informed First Federal of the institution of the garnishment action, and directed First Federal to extinguish respondent’s account upon payment of the various sums due. Five days after its issuance, summons was served on Ms. Winkler as agent of First Federal. The affidavit for garnishment (nonwage) and interrogatories to garnishee were served with the summons.

On June 11, 1981, the day before First Federal filed its answer to the interrogatories, Karcazes telephoned First Federal and informed it that he had obtained a release (satisfaction) of judgment based upon the affidavit for garnishment and the answer to the interrogatories. The telephone conversation was confirmed by letter dated June 11, 1981, from Karcazes which included the following: (1) a copy of the judgment for dissolution of marriage, (2) a stamped copy of the release (satisfaction) of judgment dated June 9, 1981, and filed on June 10, 1981, and (3) the savings account passbook registered in the names of petitioner and respondent.

First Federal filed its answer, under oath, to the interrogatories on the return date, June 12, 1981. The answer stated that First Federal, as garnishee, was indebted to respondent at the time the summons was served (May 23, 1981). Property in which respondent had an interest, which was in the possession, custody or control of First Federal was described as a savings account held in the name of respondent. First Federal also stated the funds in the account totaled $4,592.83.

Thereafter, First Federal disbursed the funds in accordance with Karcazes’ instructions and the judgment of dissolution of marriage. First Federal asserts that it acted within the purview of the law when it disbursed the funds based upon the June 11 telephone conversation, the confirmation letter, and the receipt of the release.

Respondent subsequently motioned the circuit court to set a contempt hearing against Karcazes and First Federal and to quash the garnishment action. These motions were denied and respondent appeals.

Initially we note that the briefs filed in the instant case offer minimal assistance to this court. Our review of the transcript of the proceedings below indicates that appellant was aware that proper garnishment procedures were not followed. The introduction in appellant’s brief so states, yet he failed to comply with various sections of Supreme Court Rule 341 (87 Ill. 2d R. 341). Appellant’s brief contains no citation to the Garnishment Act, as required by section 341(e)(5); appellant fails to analyze how the cases cited in support of his first issue relate to the case at bar; and appellant cites no cases whatsoever to support the other issues he raises.

Reviewing courts are entitled to have briefs submitted that are articulate and present an organized and cohesive legal argument in accordance with the applicable supreme court rules. (47th & State Currency Exchange, Inc. v. B. Coleman Corp. (1977), 56 Ill. App. 3d 229, 371 N.E.2d 294.) Case law supports the proposition that when there is a failure to comply with the rules, the appeal will not be entertained. (Biggs v. Spader (1951), 411 Ill. 42, 103 N.E.2d 104.) It is firmly established that “[reviewing courts are entitled to have the issues clearly defined, to be cited pertinent authorities and are not a depository in which an appellant is to dump the entire matter of pleadings, court action, argument and research as it were, upon the court.” (In re Estate of Kunz (1972), 7 Ill. App. 3d 760, 763, 288 N.E.2d 520, 523.) However, this court has held that Supreme Court Rule 341 states an admonition to the parties rather than a jurisdictional limitation on the court. (Occidental Chemical Co. v. Agri Profit Systems, Inc. (1975), 37 Ill. App. 3d 599, 346 N.E.2d 482.) Therefore, in the interest of justice and fairness, we shall entertain this appeal. In order to reach a just result, based upon the correct principles of law, we address the issues which our research indicates this case presents.

First, appellant contends that the savings account is exempt from garnishment by statute.

The pertinent section of the Illinois Savings and Loan Act provides:

“All withdrawable capital certificates and account books, *** shall be subject to the attachment and execution as provided by the laws of this State, and the association shall not be subject to garnishment proceedings concerning any -capital account ***.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 17, par. 3099(d).)

Appellant is correct in stating that as a general rule a savings account at a savings and loan association is not garnishable. However, an exception applies when a savings account passbook has been returned by the holder of record to the savings and loan association and the association has it in its possession. (Ill. Rev. Stat. 1981, ch. 17, par. 3099(d)(2).) We interpret the statute to mean that if the passbook is returned by someone other than the holder of record, there must be a valid transfer from the holder of record to the third party for the exception to apply.

The statute is very specific about what constitutes a valid transfer. Section 4 — 8(b) provides:

“The holder of a withdrawable capital account may transfer his rights therein absolutely or conditionally to any other person eligible to hold the same, by written assignment accompanied by delivery of the appropriate certificate or account book-, but notwithstanding the effectiveness of such a transfer between the parties thereto, the association may treat the holder of record as the owner of the account for payment, voting, and all other purposes until such assignment and any accompanying certificate or account book have been received by the association with a request for the transfer on the association’s records.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 17, par. 3099(b).

If the transfer is not accompanied in the precise manner set out in the Illinois Savings and Loan Act, the transfer is invalid and the savings and loan association must treat the holder of record as the owner.

In the instant case, Karcazes mailed the savings account passbook to First Federal. Although First Federal had it in its possession when it disbursed the funds, the facts indicate that there was no valid transfer from the holders of record, Dena and George Souleles, to Karcazes. The record is devoid of any evidence of a written assignment of the savings account passbook or a request for transfer. Therefore, the fact that First Federal had the passbook in their possession, without a written assignment and request for transfer, is insufficient to render the account garnishable.

Second, we must ascertain whether Karcazes has recovered a judicial determination of an indebtedness enabling him to institute a garnishment action. Appellant admits that there is an order to pay Karcazes $2,000 but denies that it is a “judgment” upon which to base a garnishment suit. He argues that the award of attorney fees to Karcazes is not worded properly.

The judgment for dissolution of marriage, paragraph N, provided:

“Respondent is ordered to pay to Petitioner’s Attorney, GEORGE D. KARCAZES, the sum of TWO THOUSAND ($2,000.00) DOLLARS, as and for attorney’s fees as Petitioner’s Attorney, and said GEORGE D. KARCAZES shall have and recover of and from said GEORGE SOULELES, the sum of TWO THOUSAND ($2,000.00) DOLLARS, upon the entry of this Judgment and execution thereon may issue.”

Paragraph O ordered petitioner to pay Karcazes $1,000 for her attorney fees.

Furthermore, paragraph Q provided:

“Respondent is further ordered to pay his Attorney the sum of TWO THOUSAND FIVE HUNDRED ($2,500.00) DOLLARS, as and for attorney’s fees, and that Petitioner is not liable for any contribution herein towards Respondent’s attorney’s fees. Judgment be and is entered in favor of DONALD L. NEWMAN and against GEORGE SOULELES in the sum of TWO THOUSAND FIVE HUNDRED ($2,500.00) DOLLARS as and for attorney’s fees.”

The trial judge found that despite the difference in language, paragraph N and paragraph Q both were “judgments.” We agree.

“Judgment,” as defined in Supreme Court Rule 2, also includes “decree, determination, decision, order or portion thereof.” 87 Ill. 2d R. 2(b)(2).

The test of finality of a judgment or order lies in substance, not the form. (In re Marriage of Nilsson (1980), 81 Ill. App. 3d 580, 402 N.E.2d 284.) A final judgment is one which disposes of the rights of the parties, upon the entire controversy or upon a definite and distinct part thereof. (Brauer Machine & Supply Co. v. Parkhill Truck Co. (1943), 383 Ill. 569, 50 N.E.2d 836.) We conclude that the orders awarding payment of attorney fees are valid for purposes of maintaining a garnishment action. The trial court’s holding that the orders constituted valid judgments is affirmed.

Third, we must address whether Karcazes, as judgment creditor, followed the proper procedures set forth in the Garnishment Act. (Ill. Rev. Stat. 1981, ch. 62, pars. 33 through 52.) Garnishment is a purely statutory remedy which must be strictly complied with. The judgment creditor must meet all the requirements of the statute or a judgment will not be entered. (Cole v. Shanior (1979), 69 Ill. App. 3d 505, 387 N.E.2d 860.) It is well settled that when, either by the garnishee’s answer or otherwise, it appears that the property involved is subject to adverse claims, notice to those claimants is mandatory. (B. J. Lind & Co. v. Diacou (1971), 3 Ill. App. 3d 299, 278 N.E.2d 526.) Karcazes was well aware that there were adverse claims. The following facts disclose the existence of such claims. Karcazes was holding the savings account passbook and knew the balance. He knew that the total amount of attorney fees awarded in the judgment of dissolution of marriage exceeded the appellant’s interest in the account at First Federal.

Petitioner is an adverse claimant, entitled to notice, by virtue of the fact that the savings account was held jointly. (Nudelman v. Stern (1942), 315 Ill. App. 215, 42 N.E.2d 853.) Appellant’s attorney was entitled to notice due to the order awarding him attorney’s fees stated above. Both parties had an interest in the appeal due to their claims. The procedures governing a garnishment proceeding contemplate that parties with an interest in the subject property must be given notice and a full opportunity to present their claims. (Meggison v. Stevens (1974), 21 Ill. App. 3d 505, 316 N.E.2d 297.) Until this is done, no garnishment judgment can be entered. Therefore, we conclude that no valid garnishment judgment was entered.

Most alarming is the fact that appellant was never given the opportunity to pay Karcazes. Garnishment affords, in many instances, the only remedy the creditor has for collecting his claim. Its purpose, to compel compliance with a valid judgment, presumes that the creditor has at least given the debtor the opportunity to pay the judgment prior to seeking the statutory remedy. In the instant case, the garnishment suit was filed the same day the debt became due. There is nothing in the record that demonstrates that appellant was asked to pay the debt, or given notice of the commencement of the action.

We find that Karcazes acted improperly in demanding payment (“based upon the answers to the interrogatories”). Furthermore, he was not justified in obtaining and filing the release (satisfaction) of judgment before obtaining a garnishment judgment, before he was paid, and before First Federal filed its answer to the interrogatories.

First Federal, garnishee, also failed to meet its statutory obligations. It disbursed funds on deposit in the names of Dena and George Souleles based upon the oral and written representations of Karcazes, receipt of the passbook and receipt of the release (satisfaction) of judgment. On appeal, First Federal contends that its actions were proper under the statute. We disagree.

Service of summons creates a lien in favor of the judgment creditor on the property in garnishee’s custody. (Scheetz v. Crabill (1944), 322 Ill. App. 49, 53 N.E. 2d 741.) The garnishee has a duty to hold the property subject to the entry of the garnishment judgment. A garnishee also has a duty to call the court’s attention to conflicting claims on the property sought to be garnished (B. J. Lind & Co. v. Diacou (1971), 3 Ill. App. 3d 299, 278 N.E.2d 525), to notify those claimants, and to hold the property. (Ill. Rev. Stat. 1981, ch. 62, par. 39.) If it disburses the funds prior to final judgment, it does so at its peril. Because no garnishment judgment was entered, First Federal’s disbursement was without authority.

For the foregoing reasons, we affirm the trial court’s finding that the orders awarding attorney fees are valid judgments upon which to base a garnishment action; we reverse the trial court’s holding denying appellant’s motion to quash the nonwage garnishment summons. The parties should be restored to status quo. We remand for further proceedings consistent with this opinion.

Orders affirmed in part, reversed in part; cause remanded.

CAMPBELL, P.J., and GOLDBERG, J., concur.