author: JUSTICE TRAPP JUSTICE MILLS,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN A. KRANKEL, Defendant-Appellant.
    Fourth District
    No. 4—82—0296
    Opinion filed April 11, 1983
    MILLS, J., dissenting.
    Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

On January 26, 1981, an information was filed charging defendant with the crime of burglary which alleged that on July 30, 1980, he knowingly and without authority entered a building in Hudson, Illinois, occupied by Isaac L. and Virginia T. Brown with the intent to commit therein a theft.

On March 1, 1982, jury trial began. The State’s chief witnesses at trial were the victims, defendant’s ex-wife Kelly Carr, and Morton police officer Robert Huston. Defendant did not testify at trial and no evidence was offered in his behalf. Prior to trial, defendant’s counsel made an oral motion in limine to exclude testimony of his former wife concerning the circumstances of the alleged burglary, but the motion was denied and no issue has been raised on appeal as to the admissibility of defendant’s ex-wife’s testimony.

On appeal, defendant argues that (a) he was not proved guilty of burglary beyond a reasonable doubt; (b) he was denied the effective assistance of counsel; (c) the trial court erred in failing to appoint counsel other than defendant’s appointed counsel to argue his pro se motion alleging ineffective assistance of counsel; and (d) the trial court erred in imposing a 14-year extended-term sentence to run consecutively to defendant’s other convictions. In view of our disposition of defendant’s second issue, we need not address defendant’s other arguments. A brief description of the facts is necessary.

Isaac Brown testified that on July 30, 1980, he, his wife, and their daughter were in their backyard diming the early evening hours working in the garden or mowing. He testified that they had not locked the door and that he did not know the defendant or give him authority to enter the house. Brown stated that the next day he noticed that his wife’s billfold containing several credit cards was missing but did not file a police report. Isaac first became concerned that his wife’s billfold had been stolen the following month when he received a Visa credit card bill listing a purchase of a television set. It was not until January of 1981, that he filed a police report with the McLean County Sheriff’s office, after he received a phone call from a Detective Huston of Morton, Illinois, who inquired whether his Visa card had been taken. Brown identified People’s exhibit No. 1 which was a credit card receipt from a K-Mart store in Morton listing the purchase of a color TV on July 30, 1980, and denied ever being in the Morton K-Mart store, or authorizing his signature to appear on the draft. Virginia Brown’s testimony was corroborative of Isaac’s. Both related the same occurrence on July 30, and neither testified to seeing the defendant on the premises.

The State’s key witness was Kelly Carr, formerly Kelly Krankel. Carr and defendant were married on April 13, 1979, and divorced on April 9, 1981, three months after defendant was charged. Carr testified that she and defendant were living in Morton, Illinois, in July of 1980 and that on the 30th of the month they traveled to McLean County. Carr stated that defendant, who was driving, exited off of Interstate 74 at Goodfield and proceeded to Hudson. She related that defendant saw “them” in the backyard and pulled in the driveway of “the house.” She testified that she observed her husband walk through the garage and knock on a side door. After no response, she observed defendant enter the house and a minute later exit carrying a wallet in his bib overalls. They then left Hudson and proceeded to the K-Mart store in Morton where she and defendant accompanied by their two small children, purchased a television set with a Visa card that was in the billfold. She identified People’s exhibit No. 1, and testified that she forged the signature of I.L. Brown.

After Carr retained an attorney to commence divorce proceedings against the defendant, she admitted the crime to Detective Huston in Morton, and was prosecuted for forgery in Tazewell County. On cross-examination, she acknowledged that when she was first contacted by the police she denied any knowledge of her husband’s burglary. She denied that her husband had been stuck in the mud near a river in Pekin, Illinois, on the night of July 30, and further denied striking a deal with the authorities in Tazewell County for her testimony against the defendant. She did not indicate how the police became aware of her involvement in the incident but stated that the police had wanted to talk to her as early as October of 1980. Carr explained that she did not want to talk to the police until January because she was pregnant and her parents did not want her to become involved until she delivered the baby. Ms. Carr admitted she had difficulty in serving the defendant in the divorce action, but denied that she had contacted the police so that their location of defendant would make it easier for her to serve him with process.

The State’s final witness was Detective Huston. Huston stated that he was contacted by Sergeant Poynter of Peoria who received information from Kevin Carr, defendant’s ex-brother-in-law, regarding the television set. Huston stated he talked to Carr and the Browns in January of 1981, and requested the Browns to file a report with McLean County authorities. On cross-examination, he admitted that when he first talked to Carr she denied any knowledge of where the card came from but stated that later she admitted forging the signature on the credit card draft.

This was all the evidence presented by the State. No evidence was offered by the defense.

The jury found the defendant guilty and he received an extended-term sentence of 14 years to run consecutively to sentences defendant received in Peoria and Bureau counties. No evidence was offered in defendant’s behalf at his sentencing hearing.

The only claim of error argued by defendant which we consider is his contention that he was denied the effective assistance of counsel. Prior to sentencing, defendant filed a pro se post-trial motion which alleged that he was denied the effective assistance of counsel because of his appointed attorney’s failure to investigate an alibi witness on his behalf. At a hearing on this motion, defendant stated to the court that five months prior to trial he informed his attorney of an alibi witness and contacted the witness to inform him that his attorney would be in touch. The trial court inquired of defendant’s appointed counsel on the validity of this claim:

“THE COURT: All right.
In ruling on the post-trial motion — or prior to ruling on it, is there anything you wish to say, Mr. O’Rourke with respect to the alleged alibi?
MR. O’ROURKE: I did not talk to the man, Judge. That is all I would say. I did not talk to the man, I was never able to contact him.
MR. KRANKEL: That witness was in business in Pekin, Illinois, Tazewell Towing Co. it wasn’t just an individual.
THE COURT: Is there any indication, Mr. O’Rourke of the time you were notified as to the existence of this gentleman in Pekin?
MR. O’ROURKE: I assume what Mr. Krankel says is correct.
MR. KRANKEL: It was on our first meeting.
MR. O’ROURKE: I don’t remember Judge, what the exact chronology of the events were.
MR. KRANKEL: And, Your Honor, I believe one of your conditions in your considering of that is if it is, in fact, new evidence or original evidence — it is original evidence, it is not new evidence — the attorney was informed. I even made a call from the County Jail to the witness.”

The trial court denied the defendant’s pro se motion for a new trial. We reverse.

Arguing in favor of the trial court’s ruling, the State responds that counsel’s decision of whether to call an alibi witness was a matter of trial strategy not amounting to ineffective assistance of counsel. The State also contends that defendant has presented insufficient proof of the identity of the alibi witness and his alleged testimony. We disagree.

The test for determining whether a defendant has been deprived of the effective assistance of counsel guaranteed under both the United States Constitution and the Illinois Constitution (U.S. Const., amends. VI, XIV; 111. Const. 1970, art. I, sec. 8), is whether the defendant’s appointed counsel is actually incompetent as reflected in the performance of his duties as trial attorney, and if this incompetence produced substantial prejudice without which the outcome of the trial would probably have been different. People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203; People v. Royse (1982), 107 Ill. App. 3d 326, 437 N.E.2d 679; People v. Reynolds (1982), 105 Ill. App. 3d 698, 434 N.E.2d 776; People v. Robinson (1979), 70 Ill. App. 3d 24, 387 N.E.2d 1114; People v. Elder (1979), 73 Ill. App. 3d 192, 391 N.E.2d 403.

In Greer, the supreme court indicated that “[t]he failure to interview witnesses may indicate actual incompetence [citation], particularly when the witnesses are known to trial counsel and their testimony may be exonerating [citation].” (79 Ill. 2d 103, 123, 402 N.E.2d 203, 212-13.) Despite counsel’s failure to interview the witnesses in Greer, the supreme court found no reversible error because defendant had not pointed to any favorable testimony the witnesses would have produced, and did not demonstrate any prejudice without which the trial would have been different. In Greer, it was clear that the witness whom defendant wished his counsel would have interviewed would have been unable to give any favorable testimony toward establishing any viable defense.

In People v. Howard (1979), 74 Ill. App. 3d 138, 392 N.E.2d 775, the appellate court held that appointed counsel’s failure to discover psychiatric records of a defendant who was on trial for aggravated battery, and whose only defense was insanity, amounted to ineffective assistance of counsel which resulted in substantial prejudice to the defendant. There, the records at issue came to light only after defendant was convicted at trial and revealed that she had previously been committed to a mental institution for committing a similar aggravated battery. The appellate court indicated that defense counsel’s failure to introduce any evidence of insanity at trial and the failure to discover the records to offer at defendant’s competency hearing substantially prejudiced the accused. As in Howard, here the undiscovered evidence was crucial to the only defense available and no other evidence was offered on behalf of the defendant. The Howard court noted that the records discovered after trial contradicted the expert’s opinion relied upon by the trial court in determining defendant’s competency to stand trial. Here, the prejudice to the defendant is similar. The only witness able to contradict Carr’s testimony was the defendant’s alibi witness, and Carr was the only witness whose testimony connected defendant with the burglary.

In Howard, defendant’s counsel admitted his failure to investigate evidence crucial to the defendant’s only possible defense. Here, counsel’s admitted failure to investigate the witness, in light of the evidence against defendant, cannot be said to be insignificant and without prejudice to him. Although it is true that the substance of the alibi testimony may not exist or be true, this at least should have been a matter to be verified by trial counsel. According to the defendant, the witness was the operator of a tow-truck service in Pekin, Illinois, and had been contacted by him prior to trial. On cross-examination, Kelly Carr denied that her ex-husband was stuck in the mud along a river near Pekin on the night of July 30, 1980. The tow-truck operator, if defendant’s statements are believed, could have testified that defendant’s vehicle was being freed from the mire on the date of the alleged burglary. We disagree with the State’s argument that defendant failed to identify the witness, or the nature of the testimony. Compare People v. Tate (1981), 94 Ill. App. 3d 192, 418 N.E.2d 1048.

We do not agree that counsel’s failure to investigate the witness was a matter of trial strategy. The cases relied upon by the State for the proposition that errors in judgment or trial strategy, such as the decision of whether to call or not to call a witness, do not amount to ineffective assistance of counsel are inapposite. (See People v. Witherspoon (1973), 55 Ill. 2d 18, 302 N.E.2d 3; People v. Elder (1979), 73 Ill. App. 3d 192, 391 N.E.2d 403.) The question of whether to call a witness may certainly be classified as strategy, but the failure to investigate the testimony of a named existing witness cannot be deemed to be strategy.

Nor do we agree with the State that the result is controlled by our decision in People v. Seaman (1977), 53 Ill. App. 3d 755, 368 N.E.2d 1124. In Seaman, this court held that counsel’s failure to offer any evidence on defendant’s claim of insanity did not amount to ineffective assistance of counsel. There, the decision not to call certain expert witnesses was prompted by the defendant, and the defense of insanity was highly speculative in the light of evidence indicating that defendant was an intelligent person with some college training. Here, the situation is altogether different. The only evidence of defendant’s guilt came from Carr and it was for the jury to say whether her testimony was tainted with prejudice. The testimony of a disinterested businessman upon a matter of possible alibi may well have undermined the jury’s assessment of the credibility of the essential witness Carr. In light of the limitations of the State’s case, a conclusion is necessary that defendant was significantly prejudiced.

For the foregoing reasons, the judgment of the trial court is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

LEWIS, J., concurs.

JUSTICE MILLS,

dissenting:

This record — to my view — is too weak a reed to support a finding of incompetency of counsel.

I must dissent.

Krankel’s pro se post-trial motion essentially adopts the issues raised by attorney O’Rourke and then adds:

“(5. The Public Defender, Michael O’Rourke erred in his representation of the defendant by refusing to file the affimative [sic] defense of an alibi.
(6. That the defendant was denied proper counsel pretaining [sic] to through [sic] investagation [sic] by the Public Defenders Office as to the whereabouts of the defendant at the time the alleged offense was supposedly comitted [sic].”

At the post-trial motion hearing, Krankel was given unrestrained opportunity to address the court and during his extensive comments his sole reference to the question of ineffective assistance of counsel was as follows:

“On the ineffective assistance of counsel, the Defendant feels had he received proper counsel he would have had a defense that would have kept the jury from bringing a verdict of guilty back for the reasons as follows:
The court appointed a Public Defender for the Defendant’s being financially unable to acquire counsel, that Public Defender being Michael O’Rourke. Approximately five months prior to the Defendant’s trial by jury, he informed hi[s] attorney of the affirmative defense and how to obtain his alibi. The Defendant even contacted the witness to tell him his attorney would be contacting him. Mr. O’Rourke failed not only to contact the alibi witness but to even claim the affirmative defense which the Defendant learned of after the State had rested their case at trial. It is believed by the Defendant the affirmative defense was a very crucial part of his defense, and so on the grounds of the Defendant’s having ineffective assistance of counsel, he asked the court to grant his motion for a new trial.”

With reference to this issue, the only other comments in the record are as set forth in the majority opinion.

The only attack here on attorney O’Rourke’s competency is that he failed to investigate an alibi witness. Yet the four corners of the record before us simply do not bear this out. If anything, the only deficiency of counsel was that he didn’t say enough on the record to explain what he did or was unable to do. All that defense counsel said was: “I did not talk to the man, I was never able to contact him.” This does not imply to me a failure to investigate.

All we have in this record are the bald assertions of the defendant. Mere allegations. No witness was produced in court at the post-trial hearing. No affidavit of the witness was proffered reciting what he would testify to. No adequate offer of proof at all. Surely the burden is upon the defendant to present specific identification of the witness, the witness himself, an affidavit of the -witness or some other sufficient proof. We still don’t even know the name of the witness! All we have asserted is “Tazewell Towing Co.”

Even if O’Rourke did fail to investigate, such failure is insufficient to reverse a criminal conviction unless it is shown that the testimony the witness would have produced was favorable to the defendant and its absence was prejudicial to him. Greer.

In People v. Davis (1981), 98 Ill. App. 3d 461, 424 N.E.2d 630, the defendant argued on appeal that his attorney failed to call an alleged alibi witness and he was therefore denied effective assistance of counsel. “However,” said the Davis court, “defendant does not disclose the identity of this witness, and there is nothing to indicate how this unknown witness could have established an alibi defense.” (98 Ill. App. 3d 461, 466, 424 N.E.2d 630, 635.) And in Greer, Justice Underwood wrote:

“In this case, however, the defendant does not point to any potentially favorable testimony which his trial counsel failed to investigate, nor does defendant contend that anyone would have contradicted the testimony of Linda Creemens, or that her testimony could have been excluded. Although defense counsel may have been surprised by Creemens’ testimony, there has been no showing of a prejudicial effect without which the outcome of the trial would probably have been different.” 79 Ill. 2d 103, 123, 402 N.E.2d 203, 213.

Davis and Greer on this issue are strikingly similar to the case at bench.

I cannot conclude from this puny record that defense counsel was incompetent.


source: Caselaw Access Project

author: JUSTICE GREEN

license: Public Domain

text:
      In re NATALIE ANN RIDER, a Minor.—(The People of the State of Illinois, Petitioner-Appellee, v. Terrance E. Rider, Respondent-Appellant.)
    Fourth District
    No. 4—82—0577
    Opinion filed April 11, 1983.
    Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

Respondent, Terrance E. Rider, appeals an order of the circuit court of McLean County entered August 9, 1982, pursuant to a juvenile proceeding concerning his minor daughter, Natalie. The order was entitled “Order of Protective Supervision.” It (1) placed Natalie under supervision for a period of 36 months, (2) placed the respondent father and mother under “an Order of Protective Supervision” for a similar period of 36 months, (3) required the parents to cooperate with the court’s juvenile officer, reporting all infractions of the order by the minor to that office, and (4) required the parents “to complete a drug and alcohol evaluation and treatment program and follow all recommendations of said program.”

The proceeding was initiated on May 20, 1982, when a petition was filed in that court alleging that Natalie was a minor otherwise in need of supervision (111. Rev. Stat. 1981, ch. 37, par. 702 — 3). At an adjudicatory hearing on June 24, 1982, the minor, accompanied by her mother, appeared and admitted the allegations of the petition. The minor was then declared to be a minor otherwise in need of supervision and made a ward of the court. After a continuance, a hearing was convened on August 5, 1982, for entrance of a dispositional order and for hearing on a rule entered against Natalie to show cause in connection with alleged violations by her of an order of temporary supervision. In addition to the father’s appearance at the dispositional hearing, he had only appeared on July 22, 1982, the date of the original setting for the dispositional hearing. He had been served previously only by publication.

The order appealed was entered as a part of the entry of the dis-positional order and was apparently entered in aid of the rest of that order. The father maintains the order was erroneous as to him because: (1) He was not a custodial parent, and the Juvenile Court Act (111. Rev. Stat. 1981, ch. 37, par. 701 — 1 et seq.) makes no provision for an order of protective custody against such a parent; and (2) the procedure used was improper.

Section 5 — 4 of the Juvenile Court Act states:

“If the order of disposition releases the minor to the custody of his parents, guardian or legal custodian, or continues him in such custody, the court may place the person having custody of the minor, except for representatives of private or public agencies or governmental departments, under supervision of the probation office. Rules or orders of court shall define the terms and conditions of protective supervision, which may be modified or terminated when the.court finds that the best interests of the minor and the public will be served thereby.” (Emphasis added.) 111. Rev. Stat. 1981, ch. 37, par. 705 — 4.

The dispositional order, entered at the same time as the order on appeal, stated that Natalie was to remain with her mother during the period of supervision. Although the record is not clear, the evidence indicated that the father had some rights of visitation which were not intended to be terminated through the dispositional order. If the father had no rights of visitation, then clearly section 5 — 4 would not have authorized the court to order him to undergo the program provided for in the order on appeal. If he had such visitation rights, a close question is presented as to whether those rights amounted to custody within the meaning of section 5 — 4.

Section 1 — 12 of the Act provides:

“ ‘Legal custody’ means the relationship created by an order of court which imposes on the custodian the responsibility of physical possession of a minor and the duty to protect, train and discipline him and to provide him with food, shelter, education and ordinary medical care, except as these are limited by residual parental rights and responsibilities and the rights and responsibilities of the guardian of the person, if any.” (111. Rev. Stat. 1981, ch. 37, par. 701-12.)

Section 1 — 16 of the Act defines residual parental rights:

“ ‘Residual parental rights and responsibilities’ means those rights and responsibilities remaining with the parent after the transfer of legal custody or guardianship of the person, including, but not necessarily limited to, the right to reasonable visitation, the right to consent to adoption, the right to determine the minor’s religious affiliation, and the responsibility for his support.” (111. Rev. Stat. 1981, ch. 37, par. 701 — 16.)

Nothing in the foregoing is inconsistent with a determination that a parent who has only a right of reasonable visitation has a sufficient vestige of custody to be subject to an order of protective supervision under section 5 — 4.

Section 607 of the Illinois Marriage and Dissolution of Marriage Act (111. Rev. Stat. 1981, ch. 40, par. 607) speaks of a parent not “granted custody” having visitation rights under certain conditions, thus indicating that visitation is not a vestige of custody. On the other hand, section 3.02 of the Uniform Child Custody Jurisdiction Act (111. Rev. Stat. 1981, ch. 40, par. 2103.02) speaks of a “ ‘[cjustody determination’ ” as a decision “providing for the custody of a child, including visitation rights” indicating that in the broad sense, visitation is an aspect of custody. In People v. Harrison (1980), 82 Ill. App. 3d 530, 532, 402 N.E.2d 822, 824, this court cited with approval Delgado v. Fawcett (Alaska 1973), 515 P.2d 710, where visitation was stated to be a form of custody.

The tenor of the Juvenile Court Act is to empower the court to subject to court supervision persons who have special relationships and responsibilities to minors who are themselves under court supervision. Section 5 — 5 of the Act (111. Rev. Stat. 1981, ch. 37, par. 705— 5) provides for orders of protection, perhaps not as encompassing as those under section 5 — 4, against all persons before the court on original or supplemental petitions. Section 1 — 2(1) of the Act (111. Rev. Stat. 1981, ch. 37, par. 701 — 2(1)) stresses the importance of preserving the minor’s family ties. Section 1 — 2(4) (111. Rev. Stat. 1981, ch. 37, par. 701 — 2(4)) provides for the Act to be “liberally construed” to carry out the purposes as above.

In order to permit parents with problems damaging to the welfare of children, who also have problems, to retain as many of their parental rights as possible, it is often desirable to subject those parents to reasonable restrictions of supervision. The necessity of doing so is often less urgent when the parent has only rights of visitation, but it is still of considerable importance. We conclude that the legislature intended the phrase “the person having custody” to include parents who had rights of visitation subject to the general custody in the other parent. Such parents unwilling to abide by the requirements of supervision should be discharged from any such requirements upon formally giving up visitation rights.

We agree with the respondent that the procedure used to determine whether he should be placed under a supervisory order of protection was improper.

In the course of the dispositional hearing, the minor was unresponsive to questions posed by the trial court. The court then proceeded to examine the minor in chambers in the presence of only the minor, her guardian ad litem, her youth advocate, the assistant State’s Attorney representing the petitioner, and a court reporter who transcribed the proceedings. Such a procedure was, under the circumstances, permissible in a dispositional proceeding. (In re Brooks (1978), 63 Ill. App. 3d 328, 379 N.E.2d 872.) However, during the course of this in camera proceeding, the court obtained most of the information it relied on in concluding that the father had a problem with excess consumption of intoxicants. No authority called to our attention supports the use of information obtained in this manner in support of issuance of an order requiring affirmative conduct of a parent not permitted to be present. Moreover, the unfairness to the father was substantially compounded when the minor’s advocate proceeded to narrate substantial unsworn testimony asserting that the father had a problem with alcohol. The policy reasons permitting the examination of the minor in the privacy of chambers do not extend to the reception of testimony of other properly sworn witnesses.

The petitioner maintains the father has waived any error in the proceedings by not making specific objection in the trial court. However, the remarks of the father, who appeared without counsel, made when the court informed him of the supervisory order, indicated that he objected to the procedure used. We hold that under the circumstances no waiver occurred.

Section 5 — 4 of the Juvenile Court Act makes no express requirement for notice to a party against whom an order of supervision may be entered. We recognize the legislative proscription that juvenile proceedings have a nonadversarial flavor (111. Rev. Stat. 1981, ch. 37, par. 701 — 20(1)). Nevertheless, at least where the order of supervision requires affirmative action of a nature not ordinarily expected of a parent (see In re Burr (1970), 119 Ill. App. 2d 134, 255 N.E.2d 57), fundamental fairness requires that such an order not be entered before the person to be subjected to the order has a reasonaole opportunity to present evidence and be heard on the matter. Here, that opportunity was not afforded.

For the reason stated, the order of “Protective Supervision” appealed is reversed. The cause is remanded to the circuit court of McLean County. Such further proceedings for obtaining a similar order may be taken if in conformity to this opinion.

Reversed and remanded.

MILLS and MILLER, JJ., concur.


text:
    JAMES K. WIENKE, Indiv. and as Adm’r of the Estate of Kenneth Wienke, Deceased, et al., Plaintiffs-Appellants, v. CHAMPAIGN COUNTY GRAIN ASSOCIATION et al., Defendants-Appellees.
    Fourth District
    No. 4—82—0708
    Opinion filed April 11, 1983.
    Richard B. Opsahl, of Rantoul, for appellants.
    T. G. Knappenberger, Jr., of Champaign, for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

Plaintiffs, James K. Wienke, individually and as administrator of the estate of Kenneth Wienke, deceased, and Harold G. Kilian, individually and as administrator of the estate of Brett Kilian, deceased, appeal judgments of the circuit court of Champaign County entered August 10, 1982, and September 28, 1982, which together dismissed with prejudice their entire first amended complaint against defendants, Champaign County Grain Association, an Illinois corporation, Marvin Grissom, and Leon Ullrich. The action allegedly arose from an automobile collision at St. Joseph, Illinois, on November 6, 1979. There, plaintiffs’ decedents were killed while riding in an automobile which was hit in the rear by one driven by Michael Eiskamp. The complaint sought recovery for the wrongful death of the decedents, the expenses of their funerals, and damages to the automobile in which the decedents were riding.

The thrust of the complaint was that: (1) on the day of the collision, Eiskamp and defendants Grissom and Ullrich were employees of the defendant Association and worked at an elevator operated by it at St. Joseph; (2) on that day from 12:30 until 7:30 p.m., the Association was entertaining and serving intoxicants to its customers, employees and independent truck drivers at the elevator for the purpose of building good will; (3) in the scope of their employment, Grissom and Ullrich provided Eiskamp with intoxicants causing him to become intoxicated and continued to do so after they knew he was intoxicated; (4) the aforesaid employees then drove Eiskamp, while he was noticeably intoxicated, to another elevator owned by the Association, four miles away, where Eiskamp had parked his automobile; (5) when leaving Eiskamp with his automobile, the two employees knew he was intoxicated and likely to drive his automobile at a reckless speed; and (6) approximately 40 minutes after Eiskamp was served his last drink, he did drive his automobile in that manner causing the collision previously described.

Plaintiffs maintain the first amended complaint was sufficient to allege defendants to be guilty of tortious acts in (1) serving Eiskamp the intoxicants knowing that he was intoxicated, and (2) driving him to his automobile, when at all times it appeared likely he would drive the automobile recklessly and likely injure others. Plaintiffs make no contention that defendants are subject to the Dramshop Act (111. Rev. Stat. 1981, ch. 43, par. 130). They seek recovery at common law. The parties dispute whether the complaint (1) alleged a breach of duty owed by defendants to plaintiffs and their decedents, and (2) whether a breach of any such duty was a proximate cause of the fatal collision. We need not answer the question of whether proximate cause was shown. We conclude that no breach of duty was shown.

Our decision is based largely on the precedent of the decisions of this court in Miller v. Moran (1981), 96 Ill. App. 3d 596, 421 N.E.2d 1046, and Gustafson v. Mathews (1982), 109 Ill. App. 3d 884, 441 N.E.2d 388. These cases concern the question of whether there is a cause of action at common law for damages received by one injured by an intoxicated driver against persons who, knowing the driver to be intoxicated and likely to drive recklessly, either furnish the driver with intoxicants or aid him in getting to his automobile, or both.

Miller concerned the sufficiency of a complaint alleging that the defendant served intoxicants at a fish fry to a person known to be intoxicated and known to be likely to drive recklessly when in that condition. We held that the complaint stated no cause of action in favor of a person injured in a collision caused by the driver shortly after he left the fish fry. In refusing to create a common law cause of action, we noted that to do so would impose an unlimited liability on the server while the dramshop that serves such a person would have a liability limited as to amount. (111. Rev. Stat. 1979, ch. 43, par. 135.) Miller was followed in Lowe v. Rubin (1981), 98 Ill. App. 3d 496, 424 N.E.2d 710.

In Gustafson, we also upheld the trial court’s dismissal of a complaint attempting to effectuate a common law remedy against others for injuries resulting from the negligent driving of an intoxicated person. The defendants were two tavern operators who were alleged to have furnished liquor to the intoxicated driver. The plaintiff was the driver’s widow suing as a personal representative of the estates of four of their children and guardian of a fifth child. The complaint alleged that all of the five children were riding with the driver when he collided with another vehicle, killing himself and the four children and injuring the fifth. The plaintiff maintained, as here, that the tavern operators furnished the driver with liquor knowing him to be intoxicated and then helped him to his car in their respective parking lots knowing of his condition and of the likelihood he would drive recklessly. The plaintiff had failed to timely file suit under the Dramshop Act. Ill. Rev. Stat. 1977, ch. 43, par. 135.

We decided that the collision alleged in Gustafson would obviously have been foreseeable to the tavern employees, but more than foreseeability was required to show a breach of duties on their parts. Citing Lance v. Senior (1967), 36 Ill. 2d 516, 518, 224 N.E.2d 231, 233, we concluded it would be unduly burdensome on one. who might aid another to an automobile to require that person to ascertain whether the person was in condition to drive the automobile. We held this to be so even if the entity that aided the person in reaching the automobile was the entity that had served the intoxicants bringing the driver’s fitness to drive into question.

The allegations in the instant case differed from those in Gustafson only in that (1) there, the intoxicated person was a customer of the dramshop serving the liquor, while here, the intoxicated person was an employee of a corporate defendant and a coemployee of the other' defendants; and (2) the aid given to the intoxicated person in reaching his car was greater here. As far as the element of serving liquor is concerned, the allegations here differ from those in Miller only in that the relationship between the defendants and the intoxicated person here differ from the host-guest relationship there. We do not consider those differences to be of controlling significance.

We noted in Miller the supreme court’s statement in Cunningham v. Brown (1961), 22 Ill. 2d 23, 29, 174 N.E.2d 153, 156, that in enacting the Dramshop Act, the legislature “intended to create a remedy in an area where it believed none existed.” Unlike here, the defendants in Gustafson were subject to the provisions of the Dramshop Act. However, in that case, where dramshop remedies could not be claimed, the provisions of that act would not affect their liability. As we indicated in Miller, the Dramshop Act was not intended to be a limitation on common law liability and would not, of itself, distinguish the situation of the defendants in Gustafson and in this case.

Plaintiffs maintain that defendants here should be held to a duty to the public which was not imposed upon the defendants in Gustafson and Miller, because the intoxicated person here (Eiskamp) was alleged to be an employee of the defendant Association and a coemployee of the other defendants. Plaintiffs maintain that as a result of the employment relationship, defendants had a greater control over the intoxicated person than in those cases. However, in Richardson v. Ansco, Inc. (1979), 75 Ill. App. 3d 731, 394 N.E.2d 801, an allegation that an intoxicated person was an employee of the defendant and had been permitted to become intoxicated during work was held to be an insufficient basis to impose liability on the defendant-employer for damages sustained by those injured by the employee as a result of his subsequent drunken driving. The complaint alleged that the employer knew the intoxicated employee would soon be driving home. Unlike the complaint in the instant case, there, the complaint contained no allegation that the defendant-employer served or furnished the liquor to the intoxicated employee. Nevertheless, the element of control would have been the same. We likewise conclude that the existence of the employment relationship is not a sufficient difference from the situation in Gustafson or Miller for us to impose a duty on the employer for injury to third parties inflicted outside the scope of the employment relationship.

The difference between merely helping the intoxicated person to a car in a parking lot as alleged in Gustafson, and the driving of the intoxicated person four miles to his car, as alleged here, is also an insufficient difference to be determinative of liability.

Plaintiffs point out that from Cruse v. Aden (1889), 127 Ill. 231, 234, through Cunningham v. Brown (1961), 22 Ill. 2d 23, 29-30, 174 N.E.2d 153, 157, and Demchuk v. Duplancich (1982), 92 Ill. 2d 1, 5, 440 N.E.2d 112, 114, the supreme court has stated that no common law tort arises from the furnishing of liquor to a “strong and able bodied man” thus leaving open the question of whether common law tort liability would arise from furnishing liquor to one who was not “able bodied” by reason of intoxication. In Graham v. General U.S. Grant Post No. 2665, V.F.W. (1969), 43 Ill. 2d 1, 248 N.E.2d 657, suit was brought in Illinois against an Illinois dramshop operator for having sold liquor to an intoxicated motorist who then injured the plaintiff in Wisconsin. The supreme court ruled that the trial court’s dismissal of counts under both the Dramshop Act and at common law were proper. The court held that the Dramshop Act had no extraterritorial effect and could not be the basis for recovery. It stated that the dismissal of the common law count was correct because neither Wisconsin nor Illinois recognized a common law action of this nature against a tavern keeper. It cited Cunningham as holding that the only such action against a tavern keeper was under the Dramshop Act.

Plaintiffs maintain that it was the preemption by the Dramshop Act rather than the lack of an otherwise existing common law liability that was the rationale of Graham. We adhere to the view indicated in Miller that Cunningham held that the Dramshop Act was enacted in the absence of common law liability rather than as a limitation upon liability. Although the Cunningham court indicated that it might create a common law action, it did not do so and has not done so. The only opinion of a court of review of this State stating that there is a common-law tort liability to third persons arising from the furnishing of liquor in Colligan v. Cousar (1963), 38 Ill. App. 2d 392, 187 N.E.2d 292, where the appellate court for the first district was called upon to determine the common law of Indiana in regard to such an action. It stated that it presumed the Indiana law to be the same as Illinois law and that Illinois recognized such an action. The court reversed a judgment on the pleadings in favor of the defendants to a count seeking recovery at common law by a person injured, in Indiana by a person who had become intoxicated by liquor sold by the defendant-vendor in Illinois. Any precedent of this case was apparently overruled by Graham where under similar circumstances, the supreme court stated that Illinois recognized no common-law cause of action.

Plaintiffs emphasize that their claim for relief is based upon the totality of the circumstances alleged in their complaint. That would include the furnishing of the intoxicants by employees of the defendant Association, the knowledge that Eiskamp was intoxicated and likely to drive recklessly, and driving Eiskamp four miles to his automobile. However, as we have stated, we adhere to the view in Miller that, as stated in Cunningham, there was no common-law tort remedy arising from furnishing the liquor at the time of the enactment of the Dram-shop Act. We find no precedent of this State for the existence of such a remedy even when, as in this case, the party furnishing the liquor is alleged to have driven the intoxicated person to his car. For us to now proclaim such a remedy would require us to overrule Gustafson. It would also require us to overrule Miller unless the tort would be held to exist only when the party furnishing the liquor also aids the intoxicated person in gaining control of the instrument used to inflict damage. As we stated in Miller, the imposition of such liability would create a situation where the liability against a party not in the business of selling liquor would be unlimited while that against the tavern keeper would be limited.

The supreme court stated in Graham that any determination to give extraterritorial effect to the Dramshop Act should come from the legislature. As the remedy envisioned by plaintiffs involves matters interwoven with that act, a similar argument can be made that any recognition of such remedy should come from the legislature. The imposition of the unlimited liability sought would impose a heavy burden upon those who serve liquor to others or who aid others who may be intoxicated in getting to their automobiles. We find no such cause of action to have previously existed and reject any request that we now proclaim its existence.

In addition to their other arguments, plaintiffs seek to analogize the defendants’ alleged furnishing of a ride to Eiskamp with the duty imposed upon an insurance company that had inspected an insured’s elevator in Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 199 N.E.2d 769. There, the court held that the inspection of the elevator was not merely for the purpose of the insurance company’s appraisal of its risk but was also intended to be for the benefit of those using the elevator. Accordingly, the insurance company was held to be liable for a negligent inspection when a defect which should have been discovered caused the elevator to fall. Here, there is no way that the defendants’ transporting Eiskamp to his car could be deemed to have been for the benefit of the traveling public.

For the reasons stated, the trial court’s judgments dismissing all the counts of the second amended complaint are affirmed.

Affirmed.

WEBBER, P.J., and MILLS, J., concur.


author: JUSTICE LINDBERG

text:
    THOMAS TROTTER, Adm’r of the Estate of Constance J. Trotter, Plaintiff-Appellant, v. CARMEN M. MOORE, Defendant-Appellee.
    Second District
    No. 82—348
    Opinion filed April 6, 1983.

      Bernard P. Reese, Jr., of Reese, Reese & Bagley, of Rockford, for appellant.
    Alfred W. Cowan, of Brassfield, Cowan & Howard, of Rockford, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff, Thomas Trotter as administrator for the estate of Constance J. Trotter, was awarded damages in the amount of $7,000 and $2,125 for funeral expenses by a Winnebago County jury after a directed verdict on the issue of liability against defendant, Carmen M. Moore. Decedent, the 16-year-old daughter of plaintiff, was a passenger in a car driven by defendant at the time of a collision with an automobile driven by Dell E. Bailey in whose favor the trial court directed a verdict denying liability. The decedent died from injuries sustained in the collision. The circumstances of the collision September 12, 1978, are not an issue in plaintiff’s appeal and no further reference to those facts is necessary.

Plaintiff raises three issues: (1) the trial court made an instructional error by disallowing the loss of decedent’s society to be considered by the jury as an element of pecuniary injuries; (2) the verdict was inadequate as a matter of law; and, (3) the trial court erred in denying prejudgment interest from the date of death to the date of judgment.

Defendant asserts: (1) plaintiff failed to preserve the issue of the trial court’s error on the loss of society as a compensable element of damages; (2) the recent supreme court holding in Elliott v. Willis (1982), 92 Ill. 2d 530, is limited to the loss of consortium by a widow and should not be extended to the case at bar; (3) the jury’s award was not inadequate; and (4) plaintiff was not entitled to prejudgment interest absent unreasonable or vexatious delay by defendant.

Defendant’s contention that plaintiff waived the issue of loss of society by failing to object at the conference on instructions to defendant’s tendered instruction on that issue is without merit. There is some language in the record which, when taken out of context, suggests such a conclusion. However, it is clear that at the outset of the trial plaintiff objected to the trial court’s striking a provision of plaintiff’s amended complaint claiming loss of society and continually objected to the trial court’s refusal to permit an instruction or argument on the loss of society as an element of pecuniary loss.

At that time plaintiff directed the court’s attention to the then recent decision of Elliott v. Willis (1980), 89 Ill. App. 3d 1144, 412 N.E.2d 638 (Trapp, J., dissenting in part), wherein the appellate court, sitting in the fourth district, held that loss of consortium is not precluded as an element of pecuniary loss under the Wrongful Death Act (111. Rev. Stat. 1975, ch. 70, par. 1 et seq.). Plaintiff indicated that Elliott was on appeal to the Illinois Supreme Court.

The trial court ruled that it would use the existing Illinois Pattern Jury Instruction (IPI), Civil, No. 31.07 (2d ed. 1971) on the issue and specifically stated it would not follow the appellate court’s decision in Elliott. It is clear from the record that plaintiff continued his objection to the trial court’s position on the issue during the conference on jury instructions and in his post-trial motion. More specifically, as the parties and the court sorted through the several jury instructions bearing on loss of society, it is unmistakably apparent that the trial court was fully aware of plaintiff’s desire for his tendered instruction on the subject and the trial court determined that it not be given. The plaintiff’s claim of error was preserved.

After plaintiff filed his appellant’s brief in this cause, but before the appellee’s brief was filed, the Illinois Supreme Court rendered its decision affirming the appellate court in Elliott. (Elliott v. Willis (1982), 92 Ill. 2d 530.) The supreme court held-in Elliott that the language of IPI Civil No. 31.07 that indicates that in determining “pecuniary injuries” the jury may not consider '“[t]he loss of decedent’s society by the widow and next of kin” is no longer valid. (92 Ill. 530, 541.) The court held that its decision allowing juries to be instructed on the loss of consortium by surviving spouse and Wrongful Death Act cases applies to the Elliott case and to cases not finally adjudicated by the date its Elliott opinion was filed. The instant case is among those not finally adjudicated on the date of the filing of the Elliott opinion.

The supreme court opinion in Elliott construed the following instructions:

“In determining ‘pecuniary injuries’ you may not consider the following factors:
1. The pain and suffering of the decedent;
2. The loss of decedent’s society by the widow and next of kin;
3. The grief or sorrow of the widow and next of kin.” (92 Ill. 2d 530, 533.)

The plaintiffs objected to the language of the second numbered paragraph. The appellate court in Elliott agreed with the plaintiffs that the jury should have been instructed on the plaintiff’s loss of consortium. The supreme court characterized the issue before it as whether loss of consortium is compensable as a “pecuniary injur[y]” under the Wrongful Death Act. 92 Ill. 2d 530, 534-35.

The parties in Elliott acknowledged that “consortium” is unique to the marriage partner (Mitchell v. White Motor Co. (1974), 58 Ill. 2d 159, 162), and that it includes society, guidance, companionship, felicity and sexual relations. (Dini v. Naiditch (1960), 20 Ill. 2d 406.) The supreme court relied upon its discussion in Hall v. Gillins (1958), 13 Ill. 2d 26, 31, that the term “pecuniary injuries” has received an interpretation that is broad enough to include most of the items of damage that were claimed by the plaintiffs in Hall. One of those plaintiffs was a child of the decedent. The supreme court in Elliott cited with favor its language in Hall that “ '*** [t]he broad scope of the phrase “pecuniary injuries” is further shown by those cases which hold that in the case of a [surviving] child the jury may take into account the loss of instruction and moral, and physical and intellectual training brought about by the death of the father. [Citations.]’ ” Elliott v. Willis (1982), 92 Ill. 2d 530, 535.

The supreme court has repeatedly held that a jury may award damages for such intangibles as the decedent’s felicity and care as a father. (Allendorf v. Elgin, Joliet & Eastern Ry. Co. (1956), 8 Ill. 2d 164, cert. denied (1956), 352 U.S. 937, 1 L. Ed. 2d 170, 77 S. Ct. 219.) The court in Elliott thus concluded that if a child’s loss of felicity and care of a father are capable of evaluation as pecuniary injuries it was compelled to conclude that the companionship and conjugal relationship of a spouse are equally compensable as pecuniary injuries. Elliott v. Willis (1982), 92 Ill. 2d 530, 538.

We observe that if felicity and companionship, i.e., loss of society as between a decedent and his child (Allendorf v. Elgin, Joliet & Eastern Ry. Co.) or a decedent and his spouse (Elliott v. Willis), are capable of evaluation, the damages would be no less capable of evaluation where the decedent was a child and the survivors were the next of kin. This analysis is consistent with the observation noted in Elliott that whether such damages are classified as “pecuniary” or recognized and allowed as “nonpecuniary” the recent trend among the States is unmistakably in favor of permitting such recovery. (Elliott v. Willis (1982), 92 Ill. 2d 530, 538; Sea-Land Services, Inc. v Gaudet (1974), 414 U.S. 573, 587, 39 L. Ed. 2d 9, 22, 94 S. Ct. 806, 816, quoting S. Speiser, Recovery for Wrongful Death 218 (1966).) The court in Elliott identified several States where recovery has been allowed in wrongful death actions for the pecuniary value of the loss of a decedent’s society. Elliott v. Willis (1982), 92 Ill. 2d 530, 538.

However, the appellate court (fourth district) recently rendered its decision in Bullard v. Barnes (1983), 112 Ill. App. 3d 384, 445 N.E.2d 485. The court interpreted both its holding in Elliott v. Willis and that of the supreme court in Elliott v. Willis as to not sanction as an element of pecuniary injury the loss of a child’s society. (Bullard v. Barnes (1983), 112 Ill. App. 3d 384, 389-90, 445 N.E.2d 485, 489-90.) The court found a qualitative difference between the “society” of spouses and that of a child. The court observed that there was no common law recovery in Illinois for the loss of a child’s society from a nonfatal injury (see Curtis v. County of Cook (1982), 109 Ill. App. 3d 400, 440 N.E.2d 942, appeal allowed (Docket Nos. 57472, 57473 cons.)). Nor was there a right at common law for wrongful death. The court concluded that there was no common law recovery shortcoming arising from the death of a child which the Wrongful Death Act could be extended to obviate. Finally, the court observed that the supreme court holding in Elliott v. Willis was limited to the loss of consortium by a widow.

We agree that Elliott v. Willis involved the question of recovery by a widow for loss of consortium under the Wrongful Death Act. However, an analysis of the supreme court’s rationale discloses its primary concern to be the ability to quantify the loss in money damages. The court found that the loss of a husband’s companionship and sexual relations are not immeasurable. A jury can put a money worth on the elements of consortium. Consortium consists of society, guidance, companionship, felicity, and sexual relations. Elliott v. Willis (1982), 92 Ill. 2d 530, 540.

We find no logical qualitative difference between the elements of relationship that exist between children and their next of kin and decedent spouses and their surviving spouse and next of kin. The loss of society, companionship, and felicity are no less measurable in the one context than in the other.

Nonetheless, we are persuaded by the holding in Bullard in two particular regards. As the court in Bullard observed, the supreme court in its Elliott opinion appears to have carefully confined its holding to the fatal loss of consortium to a spouse (92 Ill. 2d 530, 540). Further, we agree with Bullard that there is no recovery at common law for the loss of a child’s society from a nonfatal injury. Thus, there is no shortcoming for the Wrongful Death Act to obviate where the loss of society arises from the wrongful death of a child. (Bullard v. Barnes (1983), 112 Ill. App. 3d 384, 390, 445 N.E.2d 485, 490.) Therefore we affirm the ruling of the trial court that the jury may not consider the loss of a child’s society as a pecuniary injury under the Wrongful Death Act.

Next, plaintiff attacks the amount of the jury’s verdict, $7,000 compensatory damages and $2,125 funeral expenses, as inadequate as a matter of law. Plaintiff asks that we adopt a “range of reasonableness” (see Mansfield v. Smithie (Mo. App. 1981), 615 S.W.2d 649) and conclude that the instant award falls below that standard and mandates a new trial on damages. Plaintiff maintains such a standard is needed particularly for the wrongful death of young people whose earning capacity is largely “speculative.” We are directed to Long v. Bennett (1977), 55 Ill. App. 3d 50, 370 N.E.2d 627 (Webber, J., dissenting in part), where the majority found an award of $8,000, which was $5,000 in excess of the special damages, as inadequate as a matter of law. There the court reversed and remanded for a new trial on damages.

We share plaintiff’s concern about the disparity in amounts of awards by juries upon the wrongful death of young people not dissimilar in circumstances to those of the decedent. It is not a new problem. (See Wallace v. City of Rock Island (1944), 323 Ill. App. 639, 56 N.E.2d 636.) We are aware of the decision in the fourth district of the appellate court that an award of $8,000, of which $5,000 was compensatory damages, for the death of a young man with a life expectancy of 54.2 years was inadequate. Long v. Bennett (1977), 55 Ill. App. 3d 50, 370 N.E.2d 627.

The amount of damages in a wrongful death action cannot be determined with mathematical certainty and is largely within the discretion of the jury. (Naslund v. Watts (1967), 80 Ill. App. 2d 464, 224 N.E.2d 474.) Only the economic contribution to her family that she could be expected to make can be recovered. (111. Rev. Stat. 1979, ch. 70, par. 2.) However, a rebuttable presumption arises that decedent’s death resulted in a substantial pecuniary loss to the parents (Wallace v. City of Rock Island (1944), 323 Ill. App. 639, 641, 56 N.E.2d 636, 637). The presumption was confirmed here by plaintiff’s unrebutted evidence. Constance Trotter, the decedent, had set up pricing and cash deals and wrote advertising for an expansion of her father’s wholesale food business. It was anticipated she would operate the business sometime in the future. The evidence established a work life expectancy of 44.8 of her life expectancy of 60 years.

We cannot say, however, considering all plaintiff’s unrebutted evidence, that the jury’s award of $7,000 compensatory damages was insubstantial as a matter of law. It cannot be said that $7,000 together with $2,125 for funeral expenses is “nominal” so as to be inadequate. (See Wallace v. City of Rock Island (1944), 323 Ill. App. 639, 56 N.E.2d 636.) The compensatory award approved in Bohnen v. Wingereid (1979), 80 Ill. App. 3d 232, 398 N.E.2d 1204, was slightly more than double the award in the instant case. However, it was sufficiently less than the $35,000 recommended by plaintiff as the minimum reasonable award for a case of this kind, that Bohnen is indistinguishable from the case at bar and we choose to follow it.

Additionally, plaintiff claims that the trial court denied its tendered instructions as to the burden of defendant to rebut the presumption of substantial damages to a parent for the loss of a child and thus allowing defendant to argue mitigating elements “"without objection from plaintiff.” While plaintiff’s argument is somewhat obtuse we conclude that defendant’s burden to rebut the presumption was accurately conveyed in plaintiff’s instruction No. 15A (IPI Civil No. 31.03 (modified)). Plaintiff cites no authority for requiring the trial court to further define terms used in plaintiff’s instructions and we find none. We agree with defendant that plaintiff’s rejected supplementary instructions were cumulative and argumentative.

Nor does plaintiff cite any authority for its claim of error in the trial court’s refusal to admit exhibits of decedent’s bulletin board, memorabilia and certain photographs of her and the court’s disallowing a lone photograph of decedent from going to the jury. Plaintiff raises these issues without argument or citation of authority. Nonetheless we conclude that the denial of admission of such exhibits is within the discretion of the trial court (Long v. Bennett (1977), 55 Ill. App. 3d 50, 370 N.E.2d 627), and the court did not abuse its discretion.

Finally, we conclude it was not error to deny plaintiff prejudgment interest absent vexatious or unreasonable delay by defendant which again is argued without the benefit of citation to authority. The trial court correctly denied plaintiff’s request for prejudgment interest. Schulz v. Rockwell Manufacturing Co. (1982), 108 Ill. App. 3d 113, 438 N.E.2d 1230.

The judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

VAN DEUSEN and NASH, JJ., concur.


author: PRESIDING JUSTICE BARRY

text:
    JILL M. FOGLIANO, Petitioner-Appellant, v. ANTHONY T. FOGLIANO, Respondent-Appellee.
    Third District
    No. 82-431
    Opinion filed April 14, 1983.

      Stephen W. Bush and Michael L. Bush, both of Bush and Bush, of Morton, for appellant.
    Jack C. Vieley, of Peoria, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The parties were divorced on July 12, 1976. Custody of the parties’ minor child was given to the petitioner, Jill M. Fogliano. The decree provided that the respondent, Anthony T. Fogliano, pay a sum of $25 per week for the support of the minor child. The support payments were to increase to $40 per week after the respondent completed an apprenticeship.

On January 28, 1982, the petitioner filed a petition for rule to show cause why the respondent should not be held in contempt for wilfully failing to pay the weekly child support payments. The petition alleged that $9,835 in arrears was due her. She also asked the court to award attorney fees and court costs.

The respondent stated his reasons for his failure to make support payments in his response to interrogatories put to him by the petitioner. He alleged that the petitioner came to him in 1979 and told him “it was more important that the Respondent be a father to the minor child than the actual money.” The respondent said he was in poor financial condition at that time. He claimed that the petitioner said that if “he saw and kept the minor child for the Petitioner the Petitioner would not take Respondent into Court to collect this money.”

The respondent also stated in his answers to the interrogatories that he did not complete the apprenticeship program mentioned in the divorce decree.

On April 6, 1982, the respondent filed a petition to suspend child support because he was being “laid off” from his job at Caterpillar Tractor Company. He filed a motion for specific visitation of the minor child on April 14,1982.

After a hearing on petitioner’s petition for rule to show cause, the court entered an order on June 7, 1982. The order stated that the respondent had failed to prove his asserted defense of equitable estoppel. The duty of support was due and owing from the respondent to the petitioner at all times since the parties’ divorce. The amount of support was $25 per week and not $40 per week, so that the amount in arrearage was $6,160. The order provided for a judgment against the respondent in the amount of $6,150. The court found the respondent in wilful contempt of court for failing to pay child support.

The order provided that the respondent pay the $25 per week support for so long as his supplemental unemployment benefits were received. In the event that the benefits ceased during his unemployment, the duty to pay support would abate. The respondent was ordered to use his best efforts to obtain employment. When the respondent became employed, he was to pay the petitioner $25 per week as support and an additional $25 per week towards the arrearage.

The respondent's motion for specific visitation was denied in the order.

The order further stated: “That Petitioner’s request for attorney’s fees is denied and that each party is directed to pay his and her own respective fees.”

The petitioner filed a timely appeal. She asserts that the trial court did not have the discretionary power to deny attorney fees under section 508(b) of the Illinois Marriage and Dissolution of Marriage Act (111. Rev. Stat. 1981, ch. 40, par. 508(b)). The petitioner argues that while the court had discretion to determine reasonable fees, it had no authority to deny fees. She asks this court to vacate the order denying her request for fees and to remand the cause to the trial court for a determination of a reasonable amount of attorney fees.

The respondent argues that the petitioner’s appeal cannot prevail because she has failed to file a complete record of the trial court’s proceedings; that her issue cannot be reviewed without a report of proceedings or bystander’s report. The respondent also argues that the awarding of attorney fees was discretionary with the court. He points out that the trial court acted properly in denying .the petitioner’s attorney fees, because there was no evidence presented, either in the trial court or in the record, concerning the basis of reasonableness of the fees requested. There is no response to these allegations as the plaintiff did not file a reply brief.

The respondent filed a motion to dismiss the appeal on the ground that an inadequate record has been filed by the petitioner. He alleges that the petitioner has not filed a report of proceedings and has failed to comply with Supreme Court Rule 323 (87 Ill. 2d R. 323). This motion, along with the petitioner’s objection to the motion, are taken with the case.

The petitioner argues against the respondent’s motion to dismiss on the ground that the June 7, 1982, order constitutes a sufficient record for review of the question of law presented to us.

We have reviewed the June 7, 1982, order and find that it contains sufficient information to allow review of the petitioner’s issue. Therefore, the respondent’s motion to dismiss is denied.

Section 508 of the Illinois Marriage and Dissolution of Marriage Act (111. Rev. Stat. 1981, ch. 40, par. 508), was recently amended by Public Act 82 — 515, effective January 1, 1982. The Act changed the section to read:

“Sec. 508. *** (a) The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order either spouse to pay a reasonable amount for his own costs and attorney’s fees and for the costs and attorney’s fees necessarily incurred by the other spouse, which award shall be made in connection with the following:
* * *
(2) The enforcement or modification of any order or judgment under this Act other than the enforcement of a provision for child support.
(b) In every proceeding for the enforcement of an order or judgment for child support in which relief is granted to the parent having custody of the child and the court finds that the failure to pay child support was without cause or justification, the court shall order the party against whom the proceeding is brought to pay the custodial parent’s costs and reasonable attomey’s fees.” (Underlined portions were added by Public Act 82-515.) (1981 Ill. Laws 2613.)

The language of former part (b) remains unchanged; however, it is found under part (c).

The petitioner argues that under the new section 508(b), she should have been awarded reasonable attorney fees. She claims that the awarding of such fees is no longer discretionary with the trial court. The petitioner points out that the court had the discretion to determine reasonable fees in any amount but had no power to deny fees outright.

The primary consideration in construing the language of a statute is to give effect to the intent of the legislature. Where several constructions may be placed on a statute, the court should select that which leads to a logical result and avoid those which would be absurd. (Board of Education v. Community High School District No. 211 (1967), 89 Ill. App. 2d 481, 485, 232 N.E.2d 316, 318.) From a review of the case law, we note that the interpretation of section 508(b) in the instant case appears to be one of first impression in Illinois.

Section 508(a) allowed the trial court to exercise its discretion in awarding attorney’s fees and costs in certain actions brought under the Illinois Marriage and Dissolution of Marriage Act. (111. Rev. Stat. 1981, ch. 40, par. 508(a); In re Marriage of Pedersen (1979), 77 Ill. App. 3d 716, 396 N.E.2d 659.) Public Act 82 — 515 specifically excludes support orders or judgments from that discretionary provision by the additional language in 508(a)(2). The language in section 508(a)(2), “other than the enforcement of a provision for child support,” states an exception to that to which section 508(a) applies. The trial court’s discretionary power to order a spouse to pay a reasonable amount for costs and attorney fees incurred by the other spouse in the enforcement or modification of any order or judgment under chapter 40 does not apply to child support enforcement actions. An examination of section 508(b) under traditional rules of statutory construction reinforces this interpretation.

Public Act 82 — 515 not only specifically excluded child support enforcement actions from the court’s discretionary power in awarding costs and attorney fees, but added an additional paragraph, section 508(b), concerning support actions. The language of section 508(b) provides that the court “shall” order the payment of costs and fees under certain conditions. Those conditions require that in every child support enforcement action where the custodial parent of the child is granted relief and the failure to pay child support was “without cause or justification,” the party against whom the action was brought “shall” be ordered to pay the costs and reasonable attorney fees incurred by the custodial parent. While the statute’s meaning appears quite clear, it is necessary to determine whether the use of the word “shall” requires a mandatory interpretation.

The use of the word “shall” is generally regarded as mandatory, however, it does not have a fixed or inflexible meaning. It can be construed as meaning “may” depending on the legislative intent. (Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 373 N.E.2d 1332.) In order to construe the meaning of “shall” in section 508(b), we have examined the intent of the legislators who enacted it.

In reviewing the legislative history of Public Act 82 — 515, the arguments in the House and Senate clearly indicate that the awarding of costs and attorney fees was intended to be mandatory. (Illinois House of Representatives, 82nd General Assembly, Transcription of Debate, House Bill 534, April 22, 1981, at 63-64; May 14, 1981, at 267-76; June 29, 1981, at 23-28; Illinois Senate, 82nd General Assembly, Transcription of Debate, House Bill 534, June 16, 1981, at 72-73; June 23, 1981, at 76-79.) The legislature was concerned with the problem of nonsupport by parents who had been ordered by prior court decree to pay child support. It was pointed out during the debates that in the majority of cases the parent who is supposed to be paying child support to the custodial parent fails to do so. Because of this lack of support many custodial parents and their children must live on public aid. If the custodial parent tries to enforce the order of child support by court action, the party has the added financial burden of paying costs and attorney fees. This financial burden deters many custodial parents from enforcement action. It was noted that in some instances the amount of fees can exceed the amount of support arrearage so that there is no advantage in enforcement. The legislature also thought that if the change were enacted, out-of-court settlement of these child support cases would increase because the delinquent parent would know he or she was liable for costs and fees if the matter went to court.

The legislature also took into consideration the fact that in certain cases the delinquent parent may have reasons for nonpayment of support. The original bill was amended in the Senate to reflect this consideration by adding the requirement that nonpayment of support was “without cause or justification.” The legislature specified that it would be within the discretion of the trial court to determine if the nonpayment of support was without cause or justification.

Clearly the intention of the legislature was that the word “shall” in section 508(b) be mandatory. The purpose behind the amendment to section 508 would not be served if a permissive meaning was placed on “shall.” The custodial parent would be in the same position he or she was prior to the passage of the amendment if “shall” is not meant to be mandatory. Therefore, we find that section 508(b) is a mandatory provision requiring the trial court to order the parent against whom the child support enforcement action was brought to pay the costs and reasonable attorney fees incurred by the custodial parent in bringing the action. Of course, the court must find the delinquent parent failed to pay support “without cause or justification.”

The trial court in the instant case failed to order the respondent to pay the reasonable attorney fees incurred by the petitioner. The June 7, 1982, order indicates that the respondent was “without cause or justification” in his failure to pay child support. The order stated that the respondent failed to prove his defense of equitable estoppel and found the respondent in wilful contempt of court. The petitioner, the custodial parent, was awarded relief in her child support enforcement action against the respondent. Section 508(b) required that the respondent be ordered to pay the petitioner’s costs and reasonable attorney fees under the circumstances here.

Based on the foregoing analysis, that part of the order of the circuit court of Tazewell County which denied attorney fees to the petitioner is vacated. The cause is remanded for a hearing to determine the costs and reasonable attorney fees incurred by the petitioner in the enforcement action, the payment of which is to be made by the respondent.

Vacated and remanded.

ALLOY and SCOTT, JJ., concur.


author: JUSTICE JONES

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v SAMUEL CAGLE, Defendant-Appellant.
    Fifth District
    No. 81—621
    Opinion filed March 8, 1983.

      Randy E. Blue and Kent Bartholomew Mann, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Donald W. Weber, State’s Attorney, of Edwardsville (Stephen E. Norris and Robert G. Frederick, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE JONES

delivered the opinion of the court:

Defendant appeals the judgment of conviction and sentence imposed following a jury verdict finding him guilty of murder and armed violence. Defendant raises the following issues: (1) he was denied a fair trial by improper argument of the prosecutor, (2) he was denied effective assistance of counsel when his attorney failed to impeach a witness with a prior inconsistent statement and declined to call witnesses on his behalf, and (3) he was improperly charged with armed violence because of the double enhancement of a misdemeanor offense in which a weapon was used.

The State’s principal inculpatory witnesses were David Taylor, “Fat Sam” Thomas and an ex-girlfriend of the victim. Approximately one week before the killing in question, the defendant accompanied “Fat Sam” Thomas and two others on a trip to Alton to see the deceased, James Jennings. Once in Alton they went to the apartment of Jennings’ ex-girlfriend and waited for him. The ex-girlfriend testified that she suspected that the attempted meeting involved drug dealing. A few days later Jennings was seen with a large sum of money, perhaps $1,000 to $1,200. He asked the ex-girlfriend to leave town with him, but she refused.

On Saturday night, November 1, 1980, “Fat Sam” Thomas called David Taylor at midnight and asked him to pick him up. Taylor picked up “Fat Sam” and defendant, and “Fat Sam” gave instructions to Taylor to drive to Alton. While en route, Taylor heard defendant and “Fat Sam” conversing about some person owing them some money. The trio arrived in Alton between 12:45 and 1 a.m. “Fat Sam” told Taylor to stay in the van while he and defendant went into an apartment building. They found Jennings in the apartment of his ex-girlfriend. Jennings told them that his ex-girlfriend had his money and they went looking for her in an apartment next-door. She was not there. The next-door neighbor said that Jennings asked for his ex-girlfriend, then asked him for money. He testified that Jennings looked desperate and nervous and that a tall man and a fat man were waiting for him. The three next walked to the apartment of the ex-girlfriend’s parents, but she was not there. The three men then returned to the van and got in. When the defendant, “Fat Sam” Thomas, and the deceased entered the van, “Fat Sam” sat in front with Taylor and defendant and Jennings got in the back seat. Taylor testified that after he started driving he heard a shot from the back of the van. He also heard some tussling and a grunt-like moan. He figured someone had been shot back there. He further testified that he heard defendant say something about blood on the floor in the back of the van. “Fat Sam” Thomas testified that he heard a shot from the back of the van. Both Taylor and Thomas testified that the defendant later told Taylor to stop the van and that he then dragged or threw Jennings’ body out of the van. At the time, Taylor had turned the radio up very loud. Taylor testified that the defendant and “Fat Sam” Thomas later washed out the van. “Fat Sam” Thomas testified that the defendant and Taylor later washed out the van. While the three were at the car wash, defendant threw his hat onto the roof. It was later found by police and identified at trial as belonging to defendant.

Taylor initially told police that he had not driven to Alton on the night in question but that he had loaned the van to someone else. He testified that he did not tell the police about the murder because he was afraid. Sometime later “Fat Sam” Thomas told Taylor to tell the police what had happened, adding that he was sorry for involving Taylor in the incident.

“Fat Sam” Thomas initially told the police that he did not know Jennings and had not gone to Alton. He testified at trial that he did not remember exactly what had occurred. He had previously spoken with the St. Clair County public defender and told him that he had no recollection of the facts of the case.

Crime technicians testified for the State. A foot impression taken near the place where the body of the deceased was found was similar to defendant’s shoe. Shotgun pellets found in the back of Taylor’s van were similar to those found in the victim’s hand. Flesh and bone fragments were found in the back of the van. A gold-colored fiber found on the road near the body of the victim was consistent with fiber in the carpet in the back of the van. Blood samples from the van were consistent with the victim’s blood type.

As his initial issue defendant contends that in the rebuttal portion of his final argument the prosecutor made an argument that was inflammatory, prejudicial, not based upon any evidence in the record, and so prejudicial that it denied him a fair trial.

In that argument the prosecutor stated in pertinent part:

“[Mr. Jensen, Assistant State’s Attorney]: Again, sometimes it’s easy to think that, ‘Well, this is the type of crime that doesn’t touch me or my family.’ Or, ‘This is the kind of crime that’s isolated, and people in ghettos and projects have to put up with that kind of thing.’ That’s not true. People like Mrs. Joiner [a witness for the State], people around the area, they depend on the juries in Madison County to see that law and justice is done. When an offense like this is committed, it’s a tragedy. But what would have been more a tragedy is if, when that person was getting shot, someone had been witnessing it, someone had been standing in the way of the pellets, or someone had seen something, and they too would have had to have been killed. Because this man is very careful about cleaning up his evidence. The hat, throwing it away. The van, washing it out.
To prevent further crime, you must find him guilty. Because you cannot let this man out to do again what he has done. Because he’ll be a little more careful next time. And there won’t be any witnesses. Or there will be witnesses that he makes sure don’t talk.
The witnesses that have testified, you noticed that some of the later witnesses happened to be very hesitant to answer? Wouldn’t you be when you saw who was in the back of the courtroom here? Up from East St. Louis, or wherever they’re from?
MR. HAWKINS: I would object to that, Your Honor.
THE COURT: Objection sustained.
MR. JENSEN: Each of the witnesses that testified have placed themselves in an awkward position. Their life is at stake because they testified in the matter. They’ve come forward truthfully. They have no reason to want to implicate someone who is not guilty of anything. And for that reason I ask that you also protect society, the witnesses, and further future victims.”

Defendant argues that “[t]he prosecutor’s explicit statement of a threat to the life of each witness necessarily carried with it an implicit statement that the defendant was responsible for ‘who was in the back of the courtroom *** [u]p from East St. Louis’ who apparently represented that threat.” Defendant points out that there is no evidence in the record that the life of any witness had been threatened by anyone, either directly or by implication, nor was there any evidence that anyone in the courtroom was from East St. Louis, or elsewhere.

We must agree with defendant that the portion of the prosecutor’s argument in which reference was made to threats upon the lives of witnesses, and in which he directed the jurors’ attention to some person or persons sitting in the courtroom with the implication that those persons in the courtroom were the ones who would carry out the threat to the lives of the witnesses, was without any foundation in the record and wholly improper. Such argument, not being based upon evidence or susceptible of being inferred from any evidence, is improper and could serve no purpose other than to inflame and prejudice the jury. The State in its brief argues that the defense attorney invited the comments by arguments he had made, but we cannot find any basis for that position.

Defendant’s attorney made only one objection during the course of the contested argument and that objection was sustained. The rule is that where an objection to improper argument is sustained, the error is cured. People v. Bluitt (1981), 98 Ill. App. 3d 19, 424 N.E.2d 62; People v. McCottrell (1969), 117 Ill. App. 2d 1, 254 N.E.2d 284.

The remainder of the allegedly improper argument was not objected to by the defendant. The State contends, and we must agree, that this constitutes a waiver of asserted error. We find that the supreme court adheres to a waiver rule in all but the most egregious cases of improper argument. For instance, in three recent cases involving the appeal of murder convictions in which the death penalty had been imposed, our supreme court has held that the failure to object to improper argument constitutes a waiver of error, thus precluding argument on appeal that the improper argument constitutes error. People v. Free (1982), 94 Ill. 2d 378; People v. Lewis (1981), 88 Ill. 2d 129, 430 N.E.2d 1346; People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.

Aside from the fact of waiver, however, we find that although the argument objected to was improper, it does not constitute reversible error because the evidence of defendant’s guilt was overwhelming. The argument could not, in our opinion, have contributed to the jury finding of guilt, as that was surely based upon the evidence alone. As was said by our supreme court in People v. Smothers (1973), 55 Ill. 2d 172, 176, 302 N.E.2d 326, 327:

“[N]o objection was made during argument, and we are unable to say that the improper remarks were so prejudicial that defendant did not receive a fair trial or were so flagrant as to threaten deterioration of the judicial process. (People v. Moore, 9 Ill. 2d 224, 232.) The character and scope of argument to the jury is left very largely to the trial court, and every reasonable presumption must be indulged in that the trial judge has performed his duty and properly exercised the discretion vested in him. (North Chicago Street Ry. Co. v. Cotton, 140 Ill. 486.) The general atmosphere of the trial is observed by the trial court, and cannot be reproduced in the record on appeal. The trial court is, therefore, in a better position than a reviewing court to determine the prejudicial effect, if any, of a remark made during argument, and unless clearly an abuse of discretion, its ruling should be upheld.”

Also see People v. Baptist (1979), 76 c. 2d 19, 389 N.E.2d 1200; People v. Dukett (1974), 56 Ill. 2d 432, 308 N.E.2d 590; People v. Naujokas (1962), 25 Ill. 2d 32, 182 N.E.2d 700.

Defendant cites People v. Ellison (1980), 89 Ill. App. 3d 1, 411 N.E.2d 350, a case in which a conviction was overturned and a new trial ordered because of improper argument. The Ellison case is distinguished because it was a case close on its facts in which the prosecuting witness had changed her story on more than one occasion and the prejudicial argument of the prosecutor could well have swayed the jury to return a verdict of guilty. People v. Sullivan (1978), 72 Ill. 2d 36, 377 N.E.2d 17, is a supreme court case in which a conviction was reversed because of an improper argument by the prosecutor. However, as in the Ellison case, we think the conviction was overturned in that case because the argument of the prosecutor could well have brought about the verdict of guilty.

In sum upon this issue, although the prosecutor’s argument was improper, the overwhelming evidence of guilt would preclude a finding that the impropriety brought about or led to the jury’s finding of guilt. Furthermore, failure of the defendant to object to parts of the argument constituted a waiver, and where objection was made, the error was cured by the court’s sustaining the objection.

In support of his second issue, defendant contends, citing People v. Hills (1980), 78 Ill. 2d 500, 401 N.E.2d 523, that he is entitled to a new trial due to the ineffective assistance of his counsel if he can show that his counsel was actually incompetent and that substantial prejudice resulted therefrom. Defendant notes that ineffective assistance of counsel can exist because of an attorney’s lack of diligence. (People v. Harter (1972), 4 Ill. App. 3d 772, 282 N.E.2d 10.) Defendant contends that the incompetency of his counsel is shown by the fact that he failed to impeach a State’s witness with a prior inconsistent statement, failed to permit defendant to testify in -person, and failed to call witnesses to testify in defendant’s behalf.

Our examination of the record, with attention to the quality of representation given defendant by his trial counsel, leads us to differ with defendant’s argument. It is our appraisal that defendant’s trial counsel was both active and attentive. He prepared and argued a motion to suppress; he presented and argued a motion in limine; he effectively cross-examined the State’s witnesses and successfully impeached State’s witnesses David Taylor and “Fat Sam” Thomas with prior inconsistent statements. While in retrospect it may be argued that there were some additional things trial counsel could have done differently, and that there were other things that trial counsel omitted to do, we think that it is fair and accurate to say that defendant received representation by competent counsel.

In support of this issue, defendant contends that “Fat Sam” Thomas gave telling testimony against him but admitted that on the night of the occurrence he had been taking medication and was drinking heavily. Defendant also points out that at a time prior to trial, “Fat Sam” Thomas had told defendant’s previous attorney, St. Clair County public defender James Donovan, that he had no recollection of any of the facts of the instant case. Defendant complains that this statement of “Fat Sam” Thomas to Donovan should have been used to impeach Thomas’ credibility and that the failure so to impeach cannot be considered a matter of trial tactics.

Defendant’s argument in this regard is not well taken. Mr. Hawkins, defendant’s trial counsel, was called to testify at the hearing on defendant’s post-trial motion. He stated that he had talked to Mr. Donovan prior to trial and that Donovan had

“informed me that he had tried to talk to Mr. Thomas concerning the case, but that when Mr. Thomas appeared at his office to discuss the matter with him he could not remember anything and he appeared to be intoxicated or on drugs. He could not remember any of the facts or instances of the case.”

Defendant states that the Donovan statement, as related by Hawkins, is ambivalent with respect to whether the statement that “Fat Sam” appeared to be intoxicated or on drugs related to the time of the Donovan interview with “Fat Sam” or related to “Fat Sam’s” condition at the time of the occurrence. We cannot agree with defendant that the Donovan statement is ambivalent. It is plain that Donovan was describing the appearance of “Fat Sam” at the time of the interview. Thus considered, there was little, if anything, in “Fat Sam’s” interview with Donovan that could be used by way of impeachment. Since “Fat Sam” had already been impeached with a statement that he did not “remember exactly what was going on” at the time of the occurrence, the use of the statement he made to Donovan, as related by Hawkins, would not have served to discredit further the Thomas testimony. We note that defendant did not call Donovan to testify at the hearing on his post-trial motion.

The defendant additionally claims prejudice because his trial counsel failed to call any witnesses to testify in his behalf. He contends that although they were not eyewitnesses, or even alibi witnesses, they would have testified that “Fat Sam” was involved in drug dealings with the deceased, Jennings, that he owned a shotgun and had the shotgun when he arrived at the defendant’s house, and, thus, that “Fat Sam” Thomas had a motive for killing Jennings. The defendant testified at the hearing on the post-trial motion that his attorney did not talk to his witnesses, but his attorney claimed that he did. Defendant also stated at the hearing on the post-trial motion that his attorney refused to allow him to testify although he had wanted to, but his attorney stated that after a discussion of the matter, the defendant agreed that he should not testify.

The names of four prospective witnesses for defendant had been given to attorney Hawkins. Hawkins testified that he had talked to two of the witnesses but had not talked to the other two. He had not talked to a Mr. Witherspoon because he could not be found. This is corroborated by the fact that the State was also looking for Mr. Witherspoon for service of a subpoena, but it was also unsuccessful in finding him. Hawkins did not talk to a Lewis Cagle because he was incarcerated in the St. Clair County jail on two murder charges, and his usefulness and credibility as a witness would be highly questionable. Hawkins did interview two of the proposed witnesses and determined that their testimony would be irrelevant, and he therefore elected not to call them.

The defendant furnished no affidavits or live testimony to show what any of the four witnesses would be able to.testify to. Upon this state of facts we can only conclude that the defendant has failed to show incompetence upon the part of his counsel and that, taken at its worst, the decision of the attorney not to call any of the four witnesses represents a matter of trial strategy and not incompetency. It is the same with regard to defendant’s contention that he wanted to testify but his trial counsel refused to permit it. Mr. Hawkins testified at the hearing on the post-trial motion that the matter of defendant’s testifying in person had been discussed before and during the trial and that it was the decision of Hawkins, in which the defendant joined, that because of defendant’s prior criminal record and the impeachment that was sure to result therefrom, defendant should not testify.

It thus appears that the ruling of the trial court in denying the defendant’s post-trial motion was not against the weight of the evidence and did not constitute a breach of discretion.

Defendant’s final issue is his contention that he was improperly charged with the crime of armed violence in count III of the information where the presence of a weapon was first used to elevate a misdemeanor offense to aggravated battery and then used again to elevate the crime of aggravated battery to armed violence. Such double enhancement was proscribed by People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627, and the State so concedes. But the State interposes with the argument that the defendant waived the point by not including it in his post-trial motion, a point the defendant then concedes. By way of a riposte, the defendant contends that the issue is not waived because count III of the information failed to state an offense and, therefore, is void, citing People v. Gresham (1982), 104 Ill. App. 3d 81, 432 N.E.2d 654. The State urges that we decline to follow the Gresham case and, instead, hold that the point has been waived. However, we deem the Gresham case to have been decided properly and adhere to it, holding that count III of the information, insofar as it charged defendant with the crime of armed violence, is void.

The State, anticipating our following of Gresham, next asks that we exercise the power granted by Supreme Court Rule 615(b)(3) (87 Ill. 2d R. 615(b)(3)) and find defendant guilty of aggravated battery, a lesser included offense of armed violence. The State contends that the defendant could not claim surprise by such action in this case because count III of the information, in express terms, charged defendant with the crime of aggravated battery as a part of the charge of the greater crime of armed violence. Furthermore, the State points out, the jury was instructed that in order to convict defendant of armed violence, they must find that he had committed the crime of aggravated battery. The jury was given instructions on both simple battery and aggravated battery. Finally on the point, the State maintains that implicit in the verdict of guilty of armed violence is a finding that the defendant was guilty of aggravated battery. We agree with the State’s characterization of the sufficiency of the charge and trial ingredients necessary for a proper finding of guilty of the crime of aggravated battery.

We see no impediment in finding the defendant guilty of the crime of aggravated battery. We do so by utilizing the authority granted by Supreme Court Rule 615(b)(3). In People v. Robinson (1981), 92 Ill. App. 3d 397, 416 N.E.2d 65, the court acted in a similar fashion in reducing the charge on a conviction of armed robbery to a charge of attempted armed robbery. The conviction of attempted armed robbery was affirmed, and the case remanded for reimposition of sentence.

Count III of the information contained all essential elements of the crime of aggravated battery and was sufficient to support a verdict of aggravated battery, assuming sufficient evidence. In People v. King (1966), 34 Ill. 2d 199, 215 N.E.2d 223, the supreme court held that to sustain a conviction for a lesser included offense on an indictment for the greater offense, all of the elements of the lesser offense must be included within the greater. There is no question here that all the elements of the offense of aggravated battery are included within the offense of armed violence. See People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477.

The result we reach in this issue does not run afoul of the rule which prevents multiple convictions arising out of the same act, as proscribed by People v. King. The facts brought out at the trial indicate that the victim was shot in the hand with a shotgun and was also shot in the head and body with bullets, thus establishing that there were separate acts of shooting that led to the death of the victim. See People v. Myers (1981), 85 Ill. 2d 281, 426 N.E.2d 535.

For the foregoing reasons, we affirm defendant’s conviction and sentence for murder. We find defendant guilty of the crime of aggravated battery under count III of the information. Believing that the sentence imposed on defendant for murder conviction did not result, in whole or in part, from his conviction of armed violence, we remand the case to the trial court for resentencing on the conviction of aggravated battery. The conviction and sentence for armed violence are vacated.

Judgment of conviction and sentence for murder affirmed; judgment of conviction and sentence for armed violence vacated; judgment of conviction of aggravated battery entered, and case remanded for imposition of sentence for aggravated battery.

WELCH and KASSERMAN, JJ., concur.