author: JUSTICE VAN DEUSEN

text:
    THE VILLAGE OF CARY, Plaintiff-Appellee, v. DONALD J. JAKUBEK, Defendant-Appellant.
    Second District
    No. 83—247
    Opinion filed January 27, 1984.

      Richard C. Kelly, of Kelly & McGlory, of Crystal Lake, for appellant.
    Narusis & Narusis, of Cary, for appellee.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

The defendant, Donald Jakubek, appeals from the trial court’s finding of probable cause after an implied consent hearing (Ill. Rev. Stat., 1982 Supp., ch. 951/2, par. 11 — 501.1(c)), which he had requested. On appeal, he raises three assignments of error, none of which have merit. •

Defendant’s principal contention on appeal is that upon refusal by the motorist to take a blood alcohol test, the officer must determine whether the refusal was owing to confusion in understanding the stated rights or stems merely from a knowledgeable refusal.

The evidence pertinent to this issue was that the officer requested the defendant to take a breathalyzer test and informed him that his refusal to submit to the test would result in a suspension of his license to operate a motor vehicle for six months for the first such arrest and refusal and a suspension of his driving privilege for 12 months for the second and each subsequent arrest and refusal within five years. In response the defendant asserted that he would not take the test unless he consulted an attorney. Defendant was then provided an opportunity to make a telephone call but was unable to reach his attorney, who was out of town.

Defendant cites no Illinois authority in support of his main contention, and we are unaware of any such authority; rather, defendant relies principally on two cases from other jurisdictions which discuss the interplay between the giving of Miranda rights or warnings and a defendant’s subsequent refusal to take a breathalyzer test (Graham v. State (Alaska 1981), 633 P.2d 211; Rust v. Department of Motor Vehicles (1968), 267 Cal. App. 2d 545, 73 Cal. Rptr. 366). While it is true that cases such as Rust and Graham have held that an officer must advise an arrested person who refuses to submit to a breathalyzer test after being read the Miranda rights and warnings that the rights under Miranda do not apply to the breathalyzer examination (Graham v. State (Alaska 1981), 633 P.2d 211, 214-15; Rust v. Department of Motor Vehicles (1968), 267 Cal. App. 2d 545, 546-47, 73 Cal. Rptr. 366, 367-68), other out-of-State cases have held that an officer has no affirmative obligation to clarify the nature of the defendant’s right to counsel under Miranda in the context of the implied consent law unless the arrestee objectively manifests confusion regarding that right (e.g., Spradling v. Deimeke (Mo. 1975), 528 S.W.2d 759, 766, and cases cited therein; Shoemaker v. State Department of Motor Vehicles (1974), 11 Wash. App. 860, 861-64, 526 P.2d 908, 909-10). In other words, the reading of the Miranda rights and warnings and the implied consent warnings does not create reasonable grounds for refusing a breathalyzer test as a matter of law. State Department of Public Safety v. Stavaas (1975), 303 Minn. 371, 373-74, 227 N.W.2d 819, 821.

The fatal flaw in defendant’s contention, however, rests in the fact that even if we were to recognize the doctrine espoused in Rust and Graham that an officer must advise an arrested person who refuses to submit to a breathalyzer test after being read the Miranda rights and warnings that the rights under Miranda do not apply to the breathalzyer examination, there is no showing in the record in this matter that the defendant was given Miranda warnings or that he was in any way confused upon being advised of the consequences of his refusal to take the breathalyzer test.

It is manifest that a person arrested for operating a motor vehicle while under the influence of intoxicating liquor has no constitutional right to refuse to submit to a breathalyzer test (Graham v. State (Alaska 1981), 633 P.2d 211, 214), nor does section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat., 1982 Supp., ch. 95x/2, par. 11 — 501.1) or any other Illinois statute grant the arrestee such a right to refuse. Furthermore, section 11 — 501.1 does not require that the arresting officer inform the defendant that his right to counsel in criminal cases is inapplicable to a situation involving the implied consent statute. We note that section 11 — 501.1(a)(3) of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95V2, par. ll-501.1(a)(3)), as amended by Public Act 82 — 221, stated that the arrested person may consult an attorney within 90 minutes of being requested to take a breathalyzer test. That same statute, however, expressly provided that the “[failure to consult counsel shall not excuse or mitigate the effect of the refusal to take or complete the test.” (Ill. Rev. Stat. 1981, ch. 95V2, par. 11 — 501.1(a)(9).) That version of the statute does not control this case. Nevertheless, it indicated the legislature’s intent that a refusal to take the examination cannot be predicated or conditioned upon the failure to consult counsel. Significantly, the current statute (Ill. Rev. Stat., 1982 Supp., ch. 95V2, par. 11.501.1), under which defendant was tried, does not even grant the arrestee an opportunity to consult with counsel before submitting to the test.

In those jurisdictions in which the courts do not recognize a right under the implied consent statute to communicate with an attorney, and in which there is no contention in the case regarding confusion resulting from the recitation of the Miranda warnings, the courts generally have held that a request to consult with counsel constituted a flat refusal to submit to a breathalyzer test. (Annot., 97 A.L.R.3d 852, 856, 870-74 (1980); 36-37 (1983 Supp.).) Thus, where, as here, the arrested person declined to take a breathalyzer test unless he first consulted with his attorney, his conduct constituted a clear refusal to submit to the examination because the implied consent statute does not sanction a qualified or conditional refusal. Winter v. Peterson (1981), 208 Neb. 785, 787-88, 305 N.W.2d 803, 806; Rusho v. Johns (1970), 186 Neb. 131, 133, 181 N.W.2d 448, 449; State v. Pandoli (1970), 109 N.J. Super. 1, 3-4, 262 A.2d 41, 42; Robertson v. State (Okla. 1972), 501 P.2d 1099, 1104; Lundquist v. Motor Vehicles Division, Department of Transportation (1975), 23 Or. App. 507, _, 543 P.2d 29, 31; Wilson v. Commonwealth (1980), 53 Pa. Commw. 342, 345-46, 417 A.2d 867, 868; State v. Braunesreither (S.D. 1979), 276 N.W.2d 139, 140; State v. Heles (S.D. 1978), 272 N.W.2d 808, 810; Fjeldsted v. Cox (Utah 1980), 611 P.2d 382, 383; State v. Berry (W. Va. 1980), 271 S.E.2d 776, 778.

In sum, based on the cases discussed in the preceding paragraph, we conclude that the defendant in this matter refused, under section 11 — 501.1, to take the breathalyzer test when he qualified or conditioned his refusal upon prior consultation with an attorney. In addition, the arresting officer had no duty under section 11 — 501.1 to inform the defendant that he did not have a right to consult counsel in an implied consent situation.

Defendant’s other two assignments of error are that (1) the trial court erred in failing to provide a court reporter and (2) the trial judge erred in failing to enter a written order containing his findings of fact. Defendant cites no authority in support of these propositions, contrary to his obligation under Supreme Court Rule 341(e)(7) (87 Ill. 2d R. 341(e)(7)). They represent wishful thinking on the part of defendant rather than valid contentions of trial court error.

As to the first, there is no requirement that a court reporter be supplied in a nonjury civil case such as this, although the parties are permitted to supply their own reporter if they so desire. (Sections 10.2(a)(2) and 10.2(a)(3) of the Rules of Practice of the Nineteenth Judicial Circuit.) In lieu of a verbatim report of proceedings or a bystander’s report (87 Ill. 2d R. 323(c)), the defendant as appellant here chose to file an agreed statement of facts (87 Ill. 2d R. 323(d)).

As to the second, the docket sheet in this matter reflects that on March 1, 1983, after conducting a hearing, the trial court found that “probable cause” existed and the Secretary of State was notified of the disposition. No written order was entered containing findings of fact upon which the court determined “probable cause.” We observe here that in People v. Rehfeldt (1982), 103 Ill. App. 3d 368, 369, as in the present case, the trial court merely stated in its order that probable cause existed and ordered the clerk of the court to notify the Secretary of State of that finding. However, the Rehfeldt court did not address the sufficiency of the findings of the circuit court because the defendant had not raised that issue on appeal.

The general rule in this State is that in a nonjury civil case the order of the circuit court is not required to contain findings of fact or conclusions of law. (Stony Island Church of Christ v. Stephens (1977), 54 Ill. App. 3d 662, 668; Royer v. Bedwell (1977), 47 Ill. App. 3d 331, 333-34; Long v. Arthur Rubloff & Co. (1975), 27 Ill. App. 3d 1013, 1022; 87 Ill. 2d R. 366(b)(3)(i).) The reviewing court will extend all reasonable presumptions in favor of the judgment or order from which the appeal is taken. (Stony Island Church of Christ v. Stephens (1977), 54 Ill. App. 3d 662, 668; Cogdill v. Durham (1976), 43 Ill. App. 3d 940, 942.) In addition, the party who prosecutes an appeal bears the burden of overcoming the presumption that the trial court’s judgment is correct (Thanopoulos v. Pickens (1980), 87 Ill. App. 3d 906, 909), for the court of review will not presume that error occurred below (Flynn v. Vancil (1968), 41 Ill. 2d 236, 241-42). In particular, the reviewing court will not assume that the trial court misunderstood the applicable law. (Wabash Life Insurance Co. v. Cadillac Associates, Inc. (1966), 72 Ill. App. 2d 413, 416.) We also point out that there is no language in the statute in question that mandates that the trial court enter findings of fact or conclusions of law as part of its order. Ill. Rev. Stat., 1982 Supp., ch. 951/2, par. 11 — 501.1(c).

From our review of the evidence furnished in the agreed statement of facts, it is apparent that there is credible evidence upon which the trial court could determine that the State had proven the necessary elements required under the implied consent statute and upon which the trial court’s conclusion of “probable cause” rested. While the better practice would have been for the trial court to enter findings of fact to facilitate appellate review (see, e.g., Long v. Arthur Rubloff & Co. (1975), 27 Ill. App. 3d 1013, 1022 n.4), and while the terms the court used to convey its determination may have been inartful, the court’s failure to make explicit findings of fact, by itself, was not error, for the defendant has failed to overcome the presumption that the court below understood, considered and applied the law correctly.

The decision of the trial court entered March 1,1983, is affirmed.

Affirmed.

SEIDENFELD, P.J., and HOPF, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE SEIDENFELD

license: Public Domain

text:
    THE CITY OF CRYSTAL LAKE, Plaintiff-Appellant, v. LA SALLE NATIONAL BANK, Trustee, et al., Defendants-Appellees.
    Second District
    No. 83—61
    Opinion filed January 25, 1984.

      Michael F. Kukla, of Cowlin, Cowlin & Ungvarsky, of Crystal Lake, for appellant.
    James R. Green and Scott M. Green, both of Holmstrom and Green, of Woodstock, and Philip W. Tone, of Jenner & Block, of Chicago, for appellees.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The city of Crystal Lake appeals from an order dismissing its petition to condemn approximately 601 acres of land for a municipal airport. In issue is the effect of an earlier filed petition to condemn a portion of the same property for an airport filed by the village of Lake in the Hills, a nonparty to these proceedings.

The subject land consists of three parcels: the “Cohn” property, approximately 158 acres contiguous to the southern boundary of the village of Crystal Lake; the “Pedersen” property, 208 acres contiguous to the northern boundary of the village of Lake in the Hills (LITH); and a 236-acre tract lying between these properties. The “Cohn” property has been owned by the defendant Material Service Corporation (MSG) since 1956; the “Pedersen” property has been owned by the defendant Mineral Land and Resources Corporation (MLR) since late 1980; the middle parcel has been owned beneficially by MLR since early 1981. The Lake in the Hills airport which was formerly operated privately and known as the Crystal Lake Airport (the Airport) occupies approximately 27 acres of the middle parcel.

Before any activity leading to the instant suit began, the subject property lay in unincorporated McHenry County. On January 21, 1981, the defendants' requested annexation to LITH and rezoning to M-l to allow excavation of sand and gravel and other raw materials. LITH filed a petition to condemn the airport property on January 26, 1981. Crystal Lake filed its condemnation petition against the subject property on March 5, 1981. On August 24, 1981, LITH annexed and rezoned the subject property to allow gravel mining on most of the property and to allow the airport to continue as a special use. Following this, Crystal Lake filed a petition for leave to intervene in LITH’s eminent domain proceedings with an attached traverse and motion to dismiss.

On February 2, 1982, LITH and the defendants entered into a stipulation to settle the condemnation suit in accordance with the provisions of an attached agreement.

Defendants filed a traverse and motion to dismiss Crystal Lake’s condemnation suit April 16, 1981, and an amended traverse and motion on February 16, 1982. At the close of Crystal Lake’s case the trial court granted defendants’ amended traverse and motion to dismiss. The trial judge found that LITH had filed its petition to condemn prior to the filing of the petition by Crystal Lake to condemn the same property; that all subsequent proceedings related to the filing date; and that after annexation of the subject property to LITH the parties to the LITH suit sought to enter into a consent decree to confirm the taking. The court rejected Crystal Lake’s contention that acts subsequent to the filing of the petition including the exchange of deeds amounted to an abandonment of the LITH condemnation action.

On December 28, 1982, the trial court denied Crystal Lake’s motion to intervene in the LITH condemnation suit, denied defendants’ traverse and motion to dismiss, granted LITH’s petition to condemn the subject property, and stated that it would enter a decree in accordance with the agreement when presented. When Crystal Lake objected to the granting of the motion prior to the judgment in the LITH suit the court agreed to stay its order in that case “to make sure they follow through.” It is conceded that Crystal Lake did not appeal the denial of its petition to intervene in the LITH suit nor otherwise seek review of the final judgment in condemnation in that case.

Crystal Lake here appeals from the December 22, 1982, judgment granting defendants’ traverse and motion to dismiss.

I

Crystal Lake essentially contends that to have priority LITH must be able to relate its title to the date of the filing of its petition to condemn; that this requires payment of just compensation under a valid condemnation decree and that LITH by entering into an agreement for payment of compensation in installments over a period of years failed to comply with the judgments section of the Eminent Domain Act. (Ill. Rev. Stat. 1979, ch. 47, par. 10; now Ill. Rev. Stat. 1981, ch. 110, par. 7 — 123.) (Hereafter all references will be to the 1982 recodification of the Eminent Domain Act in the Code of Civil Procedure, Ill. Rev. Stat. 1981, ch. 110, pars. 7 — 101 et seq.) Crystal Lake also argues that the acceptance of a deed prior to judgment for a small portion of the property described in the petition cannot effect the relation back of title, thus, that the Crystal Lake condemnation suit must be given priority.

It is not disputed that, in Illinois, title does not vest until the condemnor pays the just compensation required, and that when payment is made the title relates back to the date of the filing of the condemnation petition. (See, e.g., Board of Junior College District 504 v. Carey (1969), 43 Ill. 2d 82, 84-85.) However, we do not perceive the essential question before us to involve the date of title to the condemned property but rather the priority as between two municipalities seeking the same land, one of whom files its condemnation petition prior to the other. It is well established in condemnation law that “the rights and interests of the parties date from the time of the filing of the condemnation petition.” Dowie v. Chicago, Waukegan & North Shore Ry. Co. (1905), 214 Ill. 49, 54.

The condemning body, absent statutory quick-take provisions, does not have the right to take possession until the ascertainment and payment of just compensation. (Ill. Rev. Stat. 1981, ch. 110, par. 7— 123; South Park Commissioners v. Dunlevy (1878), 91 Ill. 49, 54.) In Dunlevy there is a suggestion that park commissioners did assume control over the property prior to payment of full compensation but that this was not an issue in the case since it had not been raised. (91 Ill. 49, 54.) Commonly, cases discussing the relation back of title upon the payment of full compensation involve tax liens or other rights or obligations which have accrued after the filing of the condemnation petition; it has been uniformly held that the liens do not affect title since that relates back to the filing of the petition although the obligations may be subject to resolution and payment from the compensation awarded. See, e.g., Chicago Park District v. Downey Coal Co. (1953), 1 Ill. 2d 54, 59; City of Chicago v. McCausland (1942), 379 Ill. 602, 604.

In deciding the question of priority and in the absence of direct authorities in Illinois the trial judge placed reliance on San Bernardino Valley Municipal Water District v. Gage Canal Co. (1964), 226 Cal. App. 2d 206, 37 Cal. Rptr. 856. In San Bernardino a municipal water district pursuant to an authorizing statute filed a petition to condemn the water rights and certain of the physical properties of a water company. The company, as a special defense, alleged that there had been a condemnation action for the same property filed by the city of Riverside some 10 months prior to this suit. On the motion of the San Bernardino Water District the trial court stayed further proceedings until the termination of the condemnation action pending in the Riverside case, and on appeal this was affirmed. The court reasoned that condemnation is an in rem action, that two condemnors cannot have title and right to possession of the same res, that to allow both suits to go to judgment would be a disservice, and that, therefore, one judgment or the other must be conclusive. The court concluded that since a court of competent jurisdiction obtains jurisdiction of the res upon the filing of a petition, the first condemnor so to file must prevail. 226 Cal. App. 2d 206, 211, 37 Cal. Rptr. 856, 859.

While we have found no other cases in Illinois or elsewhere involving competing claims for condemnation by adjoining municipalities, we find the reasoning of the San Bernardino case to be persuasive.

II

However, we must then examine Crystal Lake’s further argument that LITH has lost its rights as a condemning authority by entering into what Crystal Lake characterizes as a private contract for purchase and an exchange of deeds.

The airport purchase agreement entered into on February 11, 1982, between LITH and the defendants common to both condemnation petitions, recites that LITH had heretofore filed a petition for condemnation and that the parties desire to settle the case by entering into the airport purchase agreement. The agreement provides that the total purchase price for the approximately 27 acres, of the airport is $820,000, payable $4,783.33 per month, not to exceed 10 years or until the full purchase price is paid, and that on the 10th anniversary the unpaid principal balance together with all unpaid interest shall become due and payable if not sooner paid. The agreement further provides that the installment payments are payable solely out of net -revenues derived by LITH from the operation or leasing of the airport and provides that the owners shall execute a trustee’s deed conveying to the village legal title to the airport real estate “for so long as said real estate is being used for a public airport,” with further provisions that on default the legal title shall revert to the owners. The agreement also grants various easements and rights of way and further, provides that upon full payment of the purchase price a full warranty deed will be delivered omitting the limitation as to the airport use and reverter. The owners reserve mineral rights on the land underlying the airport and adjoining lands but agree not to commence the extraction of minerals from the runway area unless a substituted runway has been made available as provided in another section of the agreement.

The agreement specifically provides that it is being entered into in settlement of the LITE condemnation case and that the parties shall petition the court in that case to enter a final decree by consent, settling and disposing of the case in accordance with the agreement.

The authorities reveal that as a common practice stipulations and agreements are entered into by the parties, with the agreement being incorporated into the final condemnation judgment. (Parker v. Board of Trustees (1966), 74 Ill. App. 2d 467, 470.) Such stipulations are generally confined to an agreement as to the compensation to be paid, but a variety of other matters may also be agreed upon and adopted in the consent decree. See Chicago & Western Indiana R.R. Co. v. Alquist (1953), 415 Ill. 537, 540 (stipulation to release errors and waive appeal); Hoskins v. Chicago Park District (1942), 380 Ill. 78, 81-83 (contract and stipulation relating to real estate and air rights); Forest Preserve District v. Eckhoff (1939), 372 Ill. 391, 394 (stipulation included the nature of improvements intended); Miller v. Commissioners of Lincoln Park (1917), 278 Ill. 400, 402-03 (contract limiting property claimed including waiver of accretions); County of Will v. George (1982), 103 Ill. App. 3d 1016, 1017 (stipulation to abide by decision of court as to disputed title to part of land to be taken); Department of Transportation v. Catholic Diocese of Belleville (1978), 63 Ill. App. 3d 683, 686 (settlement of “all issues ***,” except damage to the remainder); Department of Business & Economic Development v. Pioneer Trust & Savings Bank (1973), 15 Ill. App. 3d 269, 271 (stipulation as to required findings).

Crystal Lake does not disagree with the general proposition that stipulations may be used in condemnation cases but argues that they cannot be used to circumvent the statutory requirement that compensation must be paid in full before title vests under the condemnation decree. LITE agrees that if payment is not made under the condemnation judgment when due then LITE may be deemed to have abandoned its condemnation proceeding; but that nothing in the Condemnation Act or in the cases governs the particular time period in which full compensation must be made.

As previously noted the statute merely provides that petitioners “shall enter upon such property and the use of the same upon payment of full compensation as ascertained, within a reasonable time to be fixed by the court, ***.” Ill. Rev. Stat. 1981, ch. 110, par. 7— 123(a).

We have been directed to no case holding that a particular time interval is or is not reasonable. It has been recognized that “[tjhere is always a time interval between the filing of a petition and the ascertainment and payment or deposit of just compensation, and the duration of that interval may vary widely from one case to another.” (City of Chicago v. R.R. Building Corp. (1962), 24 Ill. 2d 20, 22.) It also appears in City of Chicago v. McCausland (1942), 379 Ill. 602, 604, that almost seven years elapsed between the final judgment ascertaining just compensation in June 1929 and the depositing of the amount due on January 27,1936.

The trial court’s final order approving and incorporating the consent decree providing that title would finally vest when compensation had been paid in full, implicitly finds that the period provided is not unreasonable. In the absence of contrary authority defining the “reasonable time” for the full payment of compensation, particularly since the owners, who obviously are the parties the statutory provision is meant to protect, are not objecting, we can find no violation of the language or purpose of the Condemnation Act. LITH is in possession and in the position to accomplish the purpose for the condemnation, the operation of the existing airport as a municipal function.

Crystal Lake also argues that LITH abandoned its original petition and thereby has lost its claim to priority, when the consent decree, pursuant to the stipulation, provided for the reduction of the property taken from 236 acres, the “middle” property originally sought, to the same 27 acres constituting the actual airport together with easements over other property. We have recently held, however, that an amended petition which deletes part of the property originally sought, and adds no new property or different property is not a “substitution” of property and does not affect the valuation date. Department of Transportation v. LaSalle National Bank (1981), 102 Ill. App. 3d 1093, 1097-98.

The interests acquired by LITH under the settlement and judgment are not confined merely to the fee simple interests in the 27 acres. In addition, permanent easements are acquired which affect a substantial part of the 236 acres for which fee simple title was originally sought. Easements are considered “property” which may be acquired under the Condemnation Act. (See, e.g., Village of Bradley v. New York Central R.R. Co. (1921), 296 Ill. 383, 388; Department of Public Works & Buildings v. Schmauss (1972), 6 Ill. App. 3d 470, 473.) It follows that the condemning body may acquire the fee or a lesser estate, within its power to acquire “property.” (Ill. Rev. Stat. 1981, ch. 110, par. 7 — 101. And see, e.g., Department of Public Works & Buildings v. Bozarth (1968), 101 Ill. App. 2d 99, 102.) It may also be noted that the easements acquired by LITH over property not finally taken as well as the mineral rights retained by the defendants involve the same property as to which fee simple title was originally sought, so that no new or additional property is being condemned.

Crystal Lake further argues that the condemnation judgment does not convey fee simple title to the airport because it contravenes rights given in the stipulation and the agreement that the owners may mine the land under the airport and that LITE may terminate and reconvey at any time. Crystal Lake reasons that LITE acquired nothing further by reason of the condemnation judgment since it had acquired everything under the agreement and by the deed. The owners argue, however, that the preliminary deed grants fee simple title to the 27-acre airport subject to defeasance, and grants no easement rights over surrounding property of the owners; whereas the final judgment grants fee simple title upon payment of just compensation as well as easement rights over the surrounding property as necessary for airport operations.

We agree with the defendants’ contentions that the final judg- . ment establishes the full rights of the parties, not the preliminary deed given under the stipulation and agreement. While we have found no reference in the cases to an exchange of a preliminary deed in a condemnation case, we also find no provision in the statute which either prohibits the procedure or states that the court has no authority to exercise its jurisdiction by entering a final judgment based on an agreement of the parties when a previous deed of any nature has been exchanged. Neither the municipality nor the owners have challenged the procedure followed here, and the trial court has given its approval by incorporating the previous arrangement in accordance with the stipulation of the parties in the final condemnation judgment.

We conclude that LITE does not take under the preliminary deed and the agreed settlement but takes under the final condemnation judgment.

Mattion v. Trustees of Schools (1971), 2 Ill. App. 3d 1035, relied upon by Crystal Lake, does not suggest a different conclusion. In Mattion, negotiations for settlement took place during the course of a condemnation proceeding which never went to final judgment. The parties incorporated no purchase agreement into the warranty deed which consummated the sale. When, five years later, the trustees declared the land surplus, the prior owners sought to establish and enforce a reverter clause in the deed. The Mattion court held that the trustees took by deed, not by condemnation, and that the deed contained no provision for reverter in case the trustees declared the land surplus, so that the land would not revert to the prior owners even though the purported basis for the condemnation had been use as a school site. (2 Ill. App. 3d 1035, 1038-39; compare La Salle National Bank v. County Board of School Trustees (1974), 23 Ill. App. 3d 575.) In La Salle, where the facts were similar to those in Mattion except that no deed was exchanged, we held that the owners could not challenge the condemnation decree which incorporated the settlement agreement where no fraud had been shown. (23 Ill. App. 3d 575, 577-78.) LITH’s initial entrance into the property by the temporary deed in this case, which was subject to defeasance as we have previously noted, does not alter the fact that the taking was here pursuant to the final judgment.

Much of the argument which Crystal Lake makes in this proceeding is based on the premise that it, as an adjoining municipality has the same right that a landowner has to insist on strict compliance with all of the provisions of the condemnation statute. In attempting to sustain a later filed condemnation petition it seeks to challenge an earlier filed a condemnation petition. It has been stated that in order to challenge a taking one must have a property interest affected and that one not alleging a property interest affected has no standing to challenge a taking. (Midwest Television, Inc. v. Champaign-Urbana Communications, Inc. (1976), 37 Ill. App. 3d 926, 934-35.) The only interest which Crystal Lake can claim is that it has filed a petition seeking to condemn the same property previously condemned under which it seeks priority. It is doubtful that this is a property right. Of course, if the earlier condemnation judgment were considered void for lack of jurisdiction or if the taking is not, as a final result, considered to be under the Eminent Domain Act there would then be no obstacle to Crystal Lake’s petition. As noted, however, we have rejected both of these arguments.

We also reject the premise that an adjoining municipality has the same right as a landowner to insist on strict compliance with all of the provisions of the Eminent Domain Act. The entire purpose of the act is to regulate the rights and duties between the condemning authority and those holding property interests. It is designed to protect the landowner from the taking of his property without just compensation. (Ill. Const. 1970, art. I, sec. 15; Ill. Rev. Stat. 1981, ch. 110, par. 7 — 101 et seq.) The statutory process can survive a constitutional challenge only because it provides due process in the form of notice (Ill. Rev. Stat. 1981, ch. 110, par. 7 — 114), adequate opportunity to all persons who own the fee or have a property interest in the premises to challenge the condemnor’s right to take (Ill. Rev. Stat. 1981, ch. 110, par. 7 — 102), and an opportunity to have a jury determine just compensation if the parties cannot agree. (Ill. Const. 1970, art. I, sec. 15; Ill. Rev. Stat. 1981, ch. 110, par. 7 — 101 et seq.; Illinois Cities Water Co. v. City of Mt. Vernon (1957), 11 Ill. 2d 547, 551; Chicago Park District v. Kenroy, Inc. (1978), 58 Ill. App. 3d 879, 891.) As in other circumstances, the Illinois authorities have recognized that a settlement may be reached in condemnation, which, when incorporated in a decree of condemnation, will have the authority not merely of a private contract but of a court judgment. (See, e.g., Chicago & Western Indiana R.R. Co. v. Alquist (1953), 415 Ill. 537, 540; Hoskins v. Chicago Park District (1942), 380 Ill. 78, 81-83; Forest Preserve District v. Eckhoff (1939), 372 Ill. 391, 394; Miller v. Commissioners of Lincoln Park (1917), 278 Ill. 400, 402-03; County of Will v. George (1982), 103 Ill. App. 3d 1016, 1017; Department of Transportation v. Catholic Diocese of Belleville (1978), 63 Ill. App. 3d 683, 686; Department of Business & Economic Development v. Pioneer Trust & Savings Bank (1973), 15 Ill. App. 3d 269, 271.) The statutory restriction against a condemning authority’s entitlement to possession until it pays the compensation awarded is for the protection of the landowner. (Ill. Rev. Stat. 1981, ch. 110, par. 7 — 123(a); Department of Public Works & Buildings v. Butler Co. (1958), 13 Ill. 2d 537, 545; People ex rel. Hesterman v. Smart (1928), 333 Ill. 135, 137.) The rule fixing the date for valuation of the property as the date of filing the petition (Ill. Rev. Stat. 1981, ch. 110, par. 7 — 121) operates to prevent “unjust enrichment to an unfair penalization of property owners” due to fluctuations in the value of the property after the petition was filed (Department of Transportation v. La Salle National Bank (1981), 102 Ill. App. 3d 1093, 1095) and to allow the condemnor to make accurate financial plans. The rule requiring the relation back of title to the date of filing the petition prevents the taking of private property for public use without just compensation by preventing liens against the just compensation for liabilities accruing after the valuation date. (Chicago Park District v. Downey Coal Co. (1953), 1 Ill. 2d 54, 59; Board of Junior College District 504 v. Carey (1969), 43 Ill. 2d 82, 86; In re Application of County Collector (1973), 13 Ill. App. 3d 927, 930.) The statute nowhere speaks of the rights of competing governments or their citizens which, because of the modern extension of extraterritorial intrusions, may have legitimate expectations of what is a proper or what is the best development of a nearby site. And none of the Illinois authorities cited by either party deal with these kinds of questions or issues of good regional planning.

We do not diminish the importance of such considerations, but in our view we may not consider or decide who has a plan which better serves the public in a review of condemnation law designed to deal only with the relationship between the taker and the property interests affected by the taking. The matter of competing authorities’ condemnation rights in the same property is best left to the legislature.

In sum, we agree with the resolution of the pure condemnation issues by the trial court and with the acceptance of the reasoning of San Bernardino Valley Municipal Water District v. Gage Canal Co. (1964), 226 Cal. App. 2d 206, 37 Cal. Rptr. 856, giving the first to file the prior right to proceed to judgment. The trial court throughout, in the absence of objections by the landowners, did not exceed its jurisdiction of the subject matter and entered a judgment which is not void.

In this view, we do not reach other arguments made by the defendants: that Crystal Lake is collaterally estopped from challenging the judgment in the LITE case because it did not appeal from the denial of its motion for intervention or from the judgment entered; that Crystal Lake’s petition to condemn is subject to dismissal because of abuse of the power conferred on an adjoining municipality by sections 11 — 103—1 and 11 — 103—2 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, pars. 11 — 103—1 and 11 — 103—2), as constituting an invasion of a property which was in the process of being annexed to another municipality; that Crystal Lake was attempting to condemn property for park district purposes when the park district had no such authority to condemn; and that the taking was excessive and motivated by a purpose to prevent gravel mining anywhere on the property. While all of these subjects were addressed in the trial of the case, we conclude that they require factual determinations, and we find no evidence in the record that the trial judge made findings on the stated challenges in the traverse and motion to dismiss except as to the excessive taking, on which the court ruled in Crystal Lake’s favor.

The judgment of the Circuit Court of McHenry County is affirmed.

Affirmed.

NASH and HOPE, JJ., concur.


author: JUSTICE WHITE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EARL JOHNSON (Impleaded), Defendant-Appellant.
    First District (3rd Division)
    No. 80—1783
    Opinion filed January 18, 1984.

      Steven Clark and Patricia Unsinn, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik, and Mark R. Fuller, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WHITE

delivered the opinion of the court:

Following a jury trial, defendant, Earl Johnson, was found guilty of murder, attempted murder, attempted armed robbery, and armed violence. He was sentenced to concurrent terms of imprisonment of 80 years for murder, 20 years for attempted murder, and 15 years for attempted armed robbery. On appeal, Johnson contends: (1) that evidence of a statement made by him and of an out-of-court identification should have been suppressed as the fruit of his illegal arrest; (2) that the State failed to meet its burden of proving that his statement was voluntary; (3) that he was denied a full and fair hearing on his motion to suppress identification testimony; (4) that he was deprived of a full opportunity to present evidence to the jury relevant to the question of the weight to be given to identification evidence; (5) that a closing argument comment by the prosecution was not based on any evidence; and (6) that the trial court erred in imposing an extended-term sentence for the conviction of murder.

Evidence at trial showed that at 6:30 p.m. on December 14, 1978, three men attempted to rob the K and M Food and Liquor store located at 1257 West Roosevelt Road in Chicago. Khalil Matariyeh was the owner of the store, and he and his three sons, Walid, Nabil and Suleiman (Steve), were working in the store at the time of the attempted robbery. The only prosecution witness able to identify Johnson as one of the assailants was Steve Matariyeh. Steve testified that at 6:30 p.m., three men entered the store and that Johnson was the first of the men to enter. Johnson was holding a gun in his hand, and he said, “This is a hold up.” At this time, Steve was approximately two feet from Johnson. Walid was approximately six feet from Johnson, and after Johnson announced the hold-up, Walid said, “You can get hurt playing like that.” Johnson then shot Walid. At the time of the shooting, Walid had nothing in his hand and he was not moving toward anything. After the shot was fired, Steve hit Johnson on the hand with a broom. Steve continued to strike Johnson with the broom, and Nabil came from the other side of a counter and grabbed Johnson. Nabil and Johnson struggled, and then Khalil came from the back of the store and grabbed Johnson. The gun fell to the floor. Earl Peterson, one of the other assailants, picked up the gun, pointed it at Steve and shot at him; however, Steve was not hit by the shot. After this, Steve saw the three assailants run from the store. The assailants had been in the store for approximately two minutes. Steve further testified that prior to December 14, 1978, he had seen Johnson in the store on approximately nine or 10 occasions over a period of one year, that on those occasions Johnson was a customer, but that on those occasions he had not spoken with Johnson. In addition, Steve testified that on December 15, 1978, he viewed a lineup at a police station and that he picked out Johnson as the man who shot Walid. The testimony of Steve Matariyeh as to the events that took place at 6:30 p.m. on December 14, 1978, was largely corroborated by the testimony of Nabil and Khalil; however, neither of these prosecution witnesses identified Johnson as one of the assailants or as the man who shot Walid Matariyeh.

Dr. Lee F. Beamer, a pathologist employed as an assistant medical examiner by Cook County, testified that on December 16, 1978, he performed a post-mortem examination on the body of Walid. He observed a projectile wound to the right eye, and he removed two projectile fragments from the brain. His opinion as to cause of death was that Walid had been shot to death.

An out-of-court statement made by Johnson after his arrest on December 15, 1978, to an assistant State’s Attorney was also admitted into evidence. In that statement, Johnson stated: that at approximately 6:30 p.m. on December 14, 1978, he entered a store located at 1257 West Roosevelt Road in Chicago with Earl Peterson and Reginald Burks; that Burks had a gun and that he knew Burks had a gun; that either Burks or Peterson told everybody in the store, “Don’t nobody move”; that someone started moving and Burks fired two shots; that he saw Walid Matariyeh duck but did not know if he fell; and that he ran outside and eventually went home. Johnson also said in his statement that it was Peterson’s idea to rob the store, and that he had a discussion with Peterson in this regard prior to the attempted robbery.

I

Johnson first contends that evidence of his out-of-court.statement and of the out-of-court identification by Steve Matariyeh should have been suppressed as the fruit of his illegal arrest. He argues that his arrest was illegal because he was arrested in his home without a warrant. In Payton v. New York (1980), 445 U.S. 573, 576, 63 L. Ed. 2d 639, 644, 100 S. Ct. 1371, 1374-75, the United States Supreme Court held that “[t]he Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment [citations], prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest.” (See also United States v. Johnson (1982), 457 U.S. 537, 538-39, 73 L. Ed. 2d 202, 206, 102 S. Ct. 2579, 2581.) The presence of exigent circumstances will, however, justify such a warrant-less entry into a suspect’s home to arrest. Payton v. New York (1980), 445 U.S. 573, 590, 63 L. Ed. 2d 639, 653, 100 S. Ct. 1371, 1382.

At the hearing on Johnson’s motion to quash his arrest, the only witness to testify was Chicago police officer James Branick. He testified that during the evening hours of December 14, 1978, he was investigating the attempted armed robbery and shooting that had occurred at the grocery store located at 1257 West Roosevelt Road at 6:30 p.m. on December 14. Pursuant to his investigation, he went to Illinois Research Hospital where he interviewed Steve Matariyeh, Nabil Matariyeh and Khalil Matariyeh. They advised him that three black males had attempted to rob the store, shot the victim, fought with them and ran away. They described the shooter as a black male, 19 to 23 years of age, 5 feet 5 inches to 5 feet 8 inches tall, 140 to 150 pounds, of medium complexion and with a moustache. Nabil told him that prior to the incident he had seen two of the assailants as customers of the store, and Khalil told him that he recognized one of the assailants as a previous customer of the store. Subsequently, Branick went to the police station located at 3151 West Harrison Street. At approximately midnight, he spoke with Reginald Burks, who was under arrest at the time, in an interview room at the police station. Burks stated that he, Earl Johnson, and a man known as Pearl, committed the attempted robbery, that Earl Johnson shot the victim, and that they ran away. Burks also told him that Johnson lived in the project area. Branick was not sure if Burks gave him Johnson’s address or whether he obtained it from police records. Branick then checked various police records, and he found a record for a person by the name of Earl Johnson which stated that Johnson’s address was 1111 West Roosevelt Road. After obtaining this information, Branick went without a warrant to 1111 West Roosevelt Road where he placed Johnson under arrest at approximately 2:15 a.m. He then transported Johnson to the police station, where Johnson made a statement and was identified in a lineup. According to Branick, Johnson was approximately 5 feet 7 inches tall and weighed approximately 145 pounds, with a small moustache and goatee. Officer Branick also testified: that he learned from the police officer who arrested Burks that Burks was arrested at 1239 South Racine Street; that 1239 South Racine is located approximately 100 yards from 1111 West Roosevelt Road and approximately IV2 blocks from the store at 1257 West Roosevelt Road, and that 1111 West Roosevelt Road is also located approximately IV2 blocks from the store.

Although no other witnesses testified at the hearing on the motion to quash arrest, other evidence relevant to the question of the presence of exigent circumstances was introduced both at the hearing on Johnson’s motion to suppress his confession and at trial. (See People v. Braden (1966), 34 Ill. 2d 516, 520, 216 N.E.2d 808.) At the hearing on the motion to suppress confession, in which the circuit court addressed the issue of whether Johnson’s statement was voluntary, Johnson testified that he was arrested after midnight by four police officers at a housing project located at 1111 West Roosevelt Road. According to Johnson, four police officers entered his residence while he was sleeping, went into his bedroom and told him he was under arrest. The officers did not kick the door to the residence down; rather, somebody in the home had opened the door for the officers. His mother and two of his sisters were home that night. The officers did not strike him, and he was allowed to dress before he was driven to the police station. At trial, Officer Branick testified that he arrested Johnson at 1111 West Roosevelt Road, a CHA project building, that Johnson was in his apartment, and that Johnson did not resist arrest.

Chicago police officer Daniel Kmety testified at trial that on December 14, 1978, at 11 p.m., he entered an apartment in a CHA apartment building located at 1239 South Racine Street, where he arrested Reginald Burks. Kmety recovered an unloaded .22-caliber revolver from under the mattress in Burks’ bedroom. Later, at the police station Kmety talked to Officer Branick concerning Burks. Chicago police officer Joseph Celovsky, a firearm’s examiner, testified at trial that on December 18, 1978, he examined the revolver and the contents of a coroner’s bullet envelope, a fired .22-caliber bullet and a metal fragment. Celovsky testified that he was unable to determine whether or not the bullet had been fired from the revolver.

The guiding principle in determining whether exigent circumstances exist is reasonableness, and each case must be decided on the basis of the facts known to the arresting officers at the time they acted. (People v. Yates (1983), 98 Ill. 2d 502, 515; People v. Abney (1980), 81 Ill. 2d 159, 173, 407 N.E.2d 543.) In Abney, our supreme court identified three exigent circumstances: (1) the need for prompt action; (2) the absence of any deliberate or unjustified delay by the officers during which time a warrant could have been obtained; and (3) the belief that the suspect was armed and exhibited some sign of a violent character. (81 Ill. 2d 159, 169-71; see also People v. Eichelberger (1982), 91 Ill. 2d 359, 367, 438 N.E.2d 140, cert. denied (1982), 459 U.S. 1019, 74 L. Ed. 2d 514, 103 S. Ct. 383.) In the same opinion, the court also identified additional factors which suggest that officers had acted reasonably: (1) the officers were acting on a clear showing of probable cause based on reasonably trustworthy information; (2) the defendant was clearly identified as the assailant; (3) there was strong reason to believe that the defendant was in the premises entered; and (4) the entry was peaceful. (People v. Abney (1980), 81 Ill. 2d 159, 171-72; see also People v. Eichelberger (1982), 91 Ill. 2d 359, 367-68.) Still other factors considered useful in judging the exigency of a particular situation are that: (1) a grave offense is involved, particularly a crime of violence; (2) there is a likelihood the suspect will escape if not swiftly apprehended; and (3) the arrest was made at a reasonable hour of the day. (People v. Yates (1983), 98 Ill. 2d 502, 515.) According to our supreme court, the aforementioned factors “should be utilized only as guidelines, not as cardinal maxims to be rigidly applied in each case.” (People v. Yates (1983), 98 Ill. 2d 502, 515-16.) Thus, in Yates, the court indicated that “exigent circumstances may well exist where there is only a serious crime coupled with a reasonable possibility of imminent danger to life, serious damage to property, destruction of evidence, or the likelihood of flight.” (People v. Yates (1983), 98 Ill. 2d 502, 516.) In other words, the factors mentioned above must only be satisfied on balance and may not be present in every case. People v. Cobb (1983), 97 Ill. 2d 465, 484, 455 N.E.2d 31.

In our opinion, the events that occurred on the evening of December 14 and during the early morning hours of December 15 justified the police in making a warrantless, in-home arrest. The police were investigating a shooting that had occurred in the course of an attempted armed robbery, and in our opinion, there was a clear showing of probable cause to believe that Johnson was one of the assailants. Burks told Officer Branick that he and Johnson were two of the three men who committed the attempted armed robbery, that Johnson shot the victim, that they fled, and that Johnson lived in the project area. This information from Burks bore indicia of reliability since Burks implicated himself in the offense and since it was corroborated by other information known to Officer Branick at the time of the arrest. Steve, Nabil and Khalil Matariyeh had advised Branick that three men had attempted to rob the store, shot the victim and ran away. The address which Officer Branick obtained from police records for Johnson was located only IV2 blocks from the store, and this corroborated Nabil’s statement to Branick that he had previously seen two of the assailants as customers of the store. This last information also strengthened the arresting officers’ belief that Johnson was in the premises entered. In any event, it would be reasonable to look for a man at his home after midnight. Johnson may also have had incentive to flee. Since the police had arrested Burks in an apartment located only 100 yards from Johnson’s home, the possibility existed that Johnson would be alerted to the fact that Burks had been arrested and would attempt to escape. (People v. Cobb (1983), 97 Ill. 2d 465, 486.) All of these facts suggested the need for prompt action.

Johnson argues that exigent circumstances are not present here, in part, because the arresting officers had no reasonable belief that he was armed. In our opinion, Burks’ statement to Officer Branick that Johnson had participated in a violent crime and was the shooter certainly gave the arresting officers reason to believe that Johnson had a violent disposition and might be armed.

The evidence shows that there was no deliberate or unjustified delay by the arresting officers during which time a warrant could have been obtained. Johnson’s arrest occurred at approximately 2:15 a.m. on December 15, 1978, or approximately seven hours and 45 minutes after the commission of the offense. Probable cause to arrest Johnson, however, did not arise until approximately midnight when Burks made his statement to Officer Branick. Officer Branick then obtained an address at a housing project for an Earl Johnson. The law is clear that “[ejxigent circumstances may arise *** not only immediately after the perpetration of the crime, but also when additional facts justify immediate action.” (People v. Cobb (1983), 97 Ill. 2d 465, 486.) The record indicates that Officer Branick acted promptly once probable cause developed for Johnson’s arrest and the police ascertained his whereabouts. Officer Branick testified that after he obtained information from Burks and ascertained an address for an Earl Johnson, he went to that address, where he arrested Johnson.

Furthermore, the evidence in the court below supports a conclusion that the entry into Johnson’s apartment was peaceful. Johnson testified at the hearing on the motion to suppress his confession that the arresting officers did not kick down the door to his apartment, that a family member opened the door to the apartment, that the arresting officers did not strike him, and that he was permitted to dress. The fact that the arrest occurred at approximately 2:15 a.m. is offset by the presence of other factors demonstrating the existence of exigent circumstances.

“[A] trial court’s determination on a motion to suppress will not be overturned unless it is manifestly erroneous.” (People v. Winters (1983), 97 Ill. 2d 151, 158, 454 N.E.2d 299.) In our opinion, the totality of the circumstances in this case demonstrated the reasonableness of Johnson’s arrest, and we will not disturb the trial court’s decision denying Johnson’s motion to quash his arrest.

II

Johnson next raises several alleged errors which occurred at the hearing on his motion to suppress his confession, at the hearing on his motion to suppress a lineup identification and at trial. None of these issues, however, were specified in Johnson’s written motion for a new trial (see Ill. Rev. Stat. 1979, ch. 38, par. 116 — 1(c)), and the general rule followed by Illinois reviewing courts is that “the failure by the defendant to raise an issue in the written motion for a new trial constitutes a waiver of that issue and it cannot be urged as a ground for reversal on review.” (People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856.) Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)), however, provides an exception to the waiver rule in cases where there has been “plain error.” We examine the alleged errors raised by Johnson to determine whether they rise to the level of plain error.

A

First, Johnson contends that the trial court erred in denying his motion to suppress confession because the State failed to meet its burden of proving that his statement was voluntary. His argument is that the prosecution failed to produce all material witnesses connected with the taking of his statement or explain their absence. (See People v. Armstrong (1972), 51 Ill. 2d 471, 475-76, 282 N.E.2d 712.) In his motion to suppress confession, Johnson alleged that any statement or confession elicited from him was the direct result of either physical or mental coercion, and by an amendment to this motion, he alleged, in part, that he had requested to make a phone call before questioning and that police officers had told him that if he made a statement things would go easy for him.

At the hearing on this motion, the State produced three witnesses: Chicago police officers James Branick and Thomas Shine and Assistant State’s Attorney Leonard Wojtecki. Officer Branick testified that after he arrested Johnson, he had a conversation with Johnson in an interview room at a police station at approximately 2:30 or 3 a.m., on December 15, 1978, that Johnson remained in the interview room until 4:20 a.m. when he was taken to the lockup, and that he saw Johnson at 8:30 p.m. that day when Johnson was placed in a lineup. Branick further testified that he was not aware of any other officers who spoke to Johnson during the time he was in the interview room prior to being placed in the lockup, and that between 2:30 a.m. and 4:20 a.m., Johnson never asked him if he could make a telephone call and neither Branick nor anyone in his presence made promises of leniency to Johnson in exchange for a statement by Johnson. At the lineup, Branick only told Johnson that he could pick his spot in the lineup. Officer Shine and Assistant State’s Attorney Wojtecki testified that they had two conversations with Johnson on December 15, 1978. The first conversation occurred at approximately 10 p.m. and lasted approximately 10 minutes. The second conversation occurred at approximately 11 p.m. and was recorded by a court reporter. Shine and Wojtecki testified that during these conversations Johnson never asked if he could use a telephone and, Shine testified that neither of them made any promises of leniency to Johnson. Johnson testified on his own behalf as to what occurred at the police station prior to the time he made his statement. According to Johnson, he made several requests for permission to make a telephone call; however, he could not identify the persons to whom the requests were made. Johnson also testified that a police officer told him that if he made a statement, the police would try to fix it so that the State would go easy on him; however, Johnson did not remember the name of the person who said this to him or the time that this alleged promise was made. It is clear from Johnson’s own testimony that this alleged promise did not occur while Johnson was in the lockup. Johnson testified that four or five officers were present when the alleged promise was made but that only two officers interrogated him in the lockup.

Johnson never objected in the trial court to the failure of the prosecution to produce any other witnesses. Pursuant to Illinois statute, “[objection to the failure of the State to call all material witnesses on the issue of whether the confession was voluntary must be made in the trial court.” (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 11(d).) If the defendant does not raise the objection in the trial court, the matter is waived for purposes of appeal. (People v. Lumpp (1983), 113 Ill. App. 3d 694, 696, 447 N.E.2d 963.) We observe, however, that defense counsel, in making an argument to the trial court on the motion, did argue that Johnson’s testimony at the hearing concerning promises of leniency made to him was uncontradicted because the prosecution witnesses could only testify to those periods of time during which Johnson was in their immediate presence. This statement by defense counsel, at best, raises the issue of failure to produce material witnesses only vaguely, and we conclude that this issue has been waived for purposes of appellate review, especially since Johnson was unable to identify the officers who allegedly refused his requests for phone calls or who made promises of leniency to him and since any objection that was made to the failure of the State to produce material witnesses was not specified in the written motion for a new trial. In our opinion, the failure of the prosecution to produce additional witnesses to establish the voluntariness of Johnson’s statement did not rise to the level of plain error.

B

Secondly, Johnson contends that he was denied a full and fair hearing on his motion to suppress the identification testimony of Steve Matariyeh. In his motion Johnson alleged that the lineup in this case was impermissibly suggestive, and prayed that evidence of an out-of-court identification by Steve Matariyeh and that any in-court identification testimony by Steve Matariyeh be suppressed. After a hearing, the motion was denied.

Two witnesses testified at the hearing: Officer Branick and Steve Matariyeh. Johnson’s argument is that the trial court erred by improperly restricting the defense counsel’s examination of these two witnesses. Officer Branick testified on direct examination by defense counsel that on December 15, 1978, he conducted a lineup and that Johnson was one of the six participants in the lineup. Prior to entering the room in which the lineup was conducted, Branick advised Johnson that he could pick any spot in the lineup. Branick further testified that prior to the lineup, he only told Steve Matariyeh not to say anything until after the lineup was over; that he had no conversation with Steve Matariyeh during the lineup; and that Steve Matariyeh identified Johnson “directly” after the completion of the lineup which lasted for approximately three minutes. During the course of direct examination, the trial court sustained three objections to questions by defense counsel concerning conversations between Officer Branick and Steve Matariyeh. The relevant segment of the direct examination follows:

“DEFENSE COUNSEL: Do you recall the conversation that occurred between the two of you [after the lineup was over]?
ASSISTANT STATE’S ATTORNEY: Objection.
THE COURT: Sustained.
DEFENSE COUNSEL: What exactly did Mr. Matariyeh say ?
ASSISTANT STATE’S ATTORNEY: Objection.
THE COURT: Sustained.
DEFENSE COUNSEL: What, if anything, did you say to him at that time?
ASSISTANT STATE’S ATTORNEY: Objection.
THE COURT: Sustained.
DEFENSE COUNSEL: May I have the basis Judge?
THE COURT: The question as to whether or not a violation of a defendant’s constitutional rights relative to a lineup relates to the suggestivity, if there be any relative to the lineup itself, and the procedures that are used during the course of the lineup, and does not relate to what was said after the lineup.
DEFENSE COUNSEL: Was there any conversation between yourself and Steve Matariyeh during the time the lineup was being conducted?
WITNESS: No, sir.
ASSISTANT STATE’S ATTORNEY: Objection.
THE COURT: Question and answer may stand.”

Defense counsel then proceeded to ask questions in other areas relating to the issue of suggestiveness. Later, during direct examination the following question was asked and answered:

“DEFENSE COUNSEL: How long after the lineup was concluded did Steve Matariyeh identify Mr. Johnson?
WITNESS: Directly after the lineup.”

According to Johnson, the trial court's rulings on the prosecution’s objections prevented defense counsel from inquiring of Officer Branick about any conversations between Officer Branick and Steve Matariyeh which may have occurred after the lineup but prior to the out-of-court identification by Steve Matariyeh. In our opinion, any restriction of the direct examination of Officer Branick caused by the trial court’s actions in sustaining the objections did not constitute plain error. First, defense counsel never asked Officer Branick whether he had a conversation with Steve Matariyeh after the lineup but prior to Steve Matariyeh’s out-of-court identification of Johnson. Secondly, defense counsel never made an offer of proof concerning any such conversation. Thirdly, Officer Branick testified that Steve Matariyeh identified Johnson “directly after the lineup,” suggesting that no such conversation took place. Lastly, Steve Matariyeh testified at the hearing that no police officer spoke to him about any of the participants in the lineup immediately after the lineup. All of these factors militate against a finding of plain error.

Johnson also contends that the trial court erred in restricting defense counsel’s examination of Steve Matariyeh. Steve Matariyeh testified that he viewed a lineup at the police station and that he identified one person from the lineup. Johnson first complains that he was unable to elicit evidence of descriptions that Steve Matariyeh had given of his assailants. The relevant segment of direct examination follows:

“DEFENSE COUNSEL: Did you ever give any police officer any description of any person involved in this?
WITNESS: Yes.
ASSISTANT STATE’S ATTORNEY: Objection.
THE COURT: The question and answer, I will rule stand.
DEFENSE COUNSEL: Do you recall when and where you gave those descriptions?
ASSISTANT STATE’S ATTORNEY: Objection.
THE COURT: The objection will be sustained.
DEFENSE COUNSEL: Did you ever describe any of the assailants as wearing a long black coat?
ASSISTANT STATE’S ATTORNEY: Objection.
THE COURT: He may answer.
WITNESS: No.
DEFENSE COUNSEL: Did you ever describe any of the assailants wearing a black hat, dark hat?
ASSISTANT STATE’S ATTORNEY: Objection.
THE COURT: You may answer.
WITNESS: I don’t remember what color it was.
DEFENSE COUNSEL: Do you remember what kind it was?
WITNESS: No.”

Only one objection by the prosecution during this examination of the •witness was sustained. In our opinion, the action of the trial court in sustaining that objection did not amount to plain error, because defense counsel subsequently was able to ask questions concerning descriptions that Steve Matariyeh had given to the police.

Johnson also complains that during his direct examination of Steve Matariyeh the trial court’s rulings on objections prevented his counsel from questioning Steve Matariyeh about conversations that he may have had with police officers prior to the lineup. The relevant segment of direct examination follows:

“DEFENSE COUNSEL: Where was the first time you [spoke to any policeman about the case]?
ASSISTANT STATE’S ATTORNEY: Objection.
THE COURT: Sustained.
DEFENSE COUNSEL: Did you have such a conversation immediately preceding the lineup?
ASSISTANT STATE’S ATTORNEY: Objection.
THE COURT: The objection will be sustained. The question is now phrased.
DEFENSE COUNSEL: Immediately prior to the beginning of the lineup, just before the lineup began, did you talk to any police officer about the incident?
ASSISTANT STATE’S ATTORNEY: Objection.
THE COURT: Sustained.
DEFENSE COUNSEL: Did you have any conversation with the police officer about the incident immediately prior to the incident?
ASSISTANT STATE’S ATTORNEY: Objection.
THE COURT: Sustained.
DEFENSE COUNSEL: May I have the basis?
THE COURT: The issue is whether or not it is unconstitutional. Although there is some latitude afforded, the matters adduced should relate to the line conducted.
DEFENSE COUNSEL: Your Honor, I would think, if I may be heard, that the procedures of the investigating officer immediately prior to conducting the lineup would for purposes of this motion be part of the lineup.
THE COURT: The Court will say that certain questions are allowed. The questions as phrased are objectionable, and the Court has sustained the objections.
DEFENSE COUNSEL: *** Within the 15 minute period preceding the beginning of the lineup, did any police officer have any conversation with you concerning those people who were going to participate in the lineup?
WITNESS: What do you mean by that?
DEFENSE COUNSEL: Did any police officer talk to you about the people who were going to participate in that lineup?
WITNESS: No.
DEFENSE COUNSEL: Was there anything said to you by any police officer about any of the people who were going to participate in the lineup?
WITNESS: No.
ASSISTANT STATE’S ATTORNEY: Objection.,
THE COURT: Question and answer may stand.
DEFENSE COUNSEL: Did any police officer talk to you about any of the people who participated in the lineup immediately following the conclusion of the lineup?
WITNESS: No.”

Defense counsel then proceeded to examine Steve Matariyeh in other areas concerning his ability to identify Johnson. In our opinion the action of the trial court in sustaining objections by the prosecution was not plain error. Although the trial court sustained objections to general questions concerning whether Steve Matariyeh had conversations with police officers about the “incident,” it permitted defense counsel to inquire about conversations that Steve Matariyeh may have had with police officers about persons who participated in the lineup. Furthermore, it appears from our reading of the record that the trial court did not restrict defense counsel’s direct examination to conversations relevant to the issue of suggestiveness that occurred within the 15-minute period prior to the lineup. Rather, it appears that defense counsel chose only to examine Steve Matariyeh as to such conversations within that 15-minute period. We cannot say that plain error occurred here.

We agree with Johnson that “a defendant has a right to a fair and impartial hearing to determine whether his identification [as the offender] was based solely on the [witness’] observation of the [assailant] at the time of the crime or whether it was improperly influenced either by actions of the investigative officers or other extraneous factors that may have unduly affected the judgment and conclusion of the witness.” (People v. Robinson (1970), 46 Ill. 2d 229, 231-32, 263 N.E.2d 57.) Unlike Robinson, we do not believe that Johnson was deprived of his right to a fair and impartial hearing on his motion to suppress identification testimony.

C

Thirdly, Johnson contends that he was deprived of a full opportunity to present evidence to the jury relevant to the issue of the weight to be given the identification testimony of Steve "Matariyeh. At trial, during the cross-examination of Steve Matariyeh, by defense counsel, the trial court sustained objections by the prosecution to questions concerning whether Steve Matariyeh had an opinion or agreed that the person who shot his brother Walid had a “common appearing” or “unusual” face and whether he had ever seen a face similar to Johnson’s face or similar to the face of the person who shot his brother. Steve Matariyeh did testify, however, over an objection by the prosecution, that there was nothing "peculiar” about the face of the man who shot his brother. He also testified that he did not notice any scars on the face of this person, and that nothing in particular about this person’s face drew his attention to it. In our opinion, this testimony sufficiently cured any error that may have occurred when the trial court sustained the objections made by the prosecution. In any event, we cannot say that any error that occurred rose to the level of plain error.

Johnson also contends that his cross-examination of Nabil Matariyeh was unduly restricted because the trial court sustained an objection by the prosecution to the question, “You were able to see him while you were fighting with him, weren’t you?” Nabil Matariyeh did not identify Johnson at trial, and Johnson argues on appeal that if defense counsel at trial had been able to establish the extent to which Nabil had had a face-to-face confrontation with the shooter, defense counsel may have been able to demonstrate that Nabil’s opportunity to observe the offender was equal to Steve Matariyeh’s opportunity to observe him. Such testimony, Johnson contends, would have weakened Steve Matariyeh’s identification testimony. In our opinion, this argument is very speculative, and we do not believe that any error in this regard rose to the level of plain error.

D

Fourthly, Johnson contends that he was deprived of due process of law by a closing argument comment made by the prosecution that he alleges was not based on any evidence at trial.

During closing argument, defense counsel had argued that Johnson’s out-of-court statement was untrustworthy, because Johnson had been “ripped from his home” at “some ungodly hour in the night” and “locked up for at least eighteen hours in a police station” before making the statement. During rebuttal closing argument, the prosecution responded to this comment by arguing that the taking of Johnson’s statement had been delayed until a lineup had been conducted. Johnson argues that this comment by the prosecution was improper because there was no evidence at trial “that Johnson’s statement was delayed or necessarily had to be delayed until an identification was made.” According to Johnson, the prosecution’s comment “unfairly deprecated the effect the prolonged detention of Johnson may have had on the voluntariness of his statements.”

Testimony at trial by Officer Branick established that Johnson had been arrested at approximately 2:15 a.m. on December 15., 1978, and that the lineup occurred at approximately 8:30 p.m. on that date. Assistant State’s Attorney Wojtecki testified that he first spoke to Johnson in an interview room at the police station at 9:50 p.m. on that date and that Johnson made the statement which was recorded by a court reporter at approximately 11 p.m. that night.

Although we would agree with Johnson that his statement did not necessarily have to be delayed until an identification was made, we observe that the identification of Johnson at the lineup may have been an inducement for him to confess. In any event, we do not believe that the comment by the prosecution was a material factor in his conviction, and accordingly, it did not constitute reversible error.

Ill

Lastly, Johnson contends that the trial court erred in imposing an extended term of imprisonment of 80 years for the conviction of murder.

Section 5 — 8—2(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2(a)) provides:

“A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5 — 8—1 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5 — 5—3.2 were found to be present.”

The second factor in aggravation set forth in paragraph (b) of section 5 — 5—3.2 (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b)(2)) is: “When a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” In imposing an extended-term sentence for murder in this case, the trial court stated:

“The Court, however, does find that the crime was committed in a manner that is indicative of wanton cruelty. The crime was exceptionally brutal and heinous. The Court is mindful that the victim had no signal that he might be killed by virtue of the comment he made. He may have thought that it was a game. What caused the defendant to pull the trigger as he did is something the Court cannot account for and that is what bothers this Court substantially. That is what makes the offense especially cruel. The offense qualifies for the sentence of an extended term and the Court considers it to be necessary to do so in this case in order to serve the ends of justice and protect this society.”

Johnson argues that the trial judge’s explanation for the imposition of an extended-term sentence could not justify the imposition of such a sentence. His argument is succinctly stated in his reply brief:

“[Wjhere the sentencing judge focuses on the fact that a murder is irrational and unjustified to justify imposition of the extended term sentence, he has construed the phrase ‘exceptionally brutal and heinous behavior indicative of wanton cruelty’ in such a manner as to qualify every murder for an extended term because every murder necessarily includes those elements. It is this construction of the statute which appellant has argued renders the statute unconstitutionally vague ***.”

We agree with Johnson that a construction of the extended-term statute which qualified every murder for the imposition of an extended-term sentence would be improper. “(Ejection 5 — 8—2 of the Unified Code of Corrections was not intended to convert every offense into an extraordinary offense subject to an extended-term sentence.” People v. Evans (1981), 87 Ill. 2d 77, 88-89, 429 N.E.2d 520.

The Illinois Supreme Court has held that the phrase “exceptionally brutal or heinous behavior indicative of wanton cruelty” contained in section 5 — 8—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1) is not unconstitutionally vague. (People v. La Pointe (1981), 88 Ill. 2d 482, 500, 431 N.E.2d 344.) The court stated: “Coupled with the objectives sought to be achieved and the evil the statute seeks to remedy [the descriptive adjectives employed in section 5 — 8—1(a)(1)] give sufficient direction to trial judges who must determine when and whether to impose the natural life sentence of imprisonment.” (88 Ill. 2d 482, 500, 431 N.E.2d 344.) Furthermore, our supreme court rejected an argument by the defendant that the statutory language permitting the imposition of a natural life imprisonment sentence where conduct is “accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty” authorizes that sentence only if he had inflicted “torture or unnecessary pain upon his victim.” The court stated:

“ ‘Heinous’ is defined by Webster’s Third New International Dictionary (unabridged) as ‘hatefully or shockingly evil: grossly bad: enormously and flagrantly criminal’; ‘brutal’ includes ‘grossly ruthless,’ ‘devoid of mercy or compassion: cruel and cold-blooded.’ Clearly, in our opinion, the statute does not limit the imposition of a sentence of natural life imprisonment to only those murders involving torture or the infliction of unnecessary pain.” 88 Ill. 2d 482, 501.

Similarly, the appellate court has held that the phrase “exceptionally brutal or heinous behavior indicative of wanton cruelty” contained in section 5 — 5—3.2(b)(2) of the Unified Code of Corrections is not unconstitutionally vague. (People v. Clark (1981), 102 Ill. App. 3d 414, 424, 429 N.E.2d 1255.) In Clark, the court stated: “[Tjhe criteria of the instant statute are not so ill-defined as to depend upon the opinion or whim of the trier of fact for its [sic] meaning.” 102 Ill. App. 3d 414, 424.

The imposition of a sentence, including an extended-term sentence, is a matter of judicial discretion, and absent an abuse of discretion, the sentence of the trial court may not be altered upon review. (People v. Clark (1981), 102 Ill. App. 3d 414, 424.) Given the definitions that our supreme court has adopted for the words “heinous” ánd “brutal,” we cannot conclude that the trial court abused its discretion by imposing an extended-term sentence of imprisonment of 80 years for the murder of Walid Matariyeh. From our review of the record, the trial judge imposed the extended-term sentence because of the specific facts of this case, and not merely because he thought the murder was “irrational and unjustified.”

For the aforementioned reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

RIZZI, P.J., and McGILLICUDDY, J., concur.

      The amendment to the motion does not state whether any such requests were denied.

      Johnson did object to the prosecution’s failure to call Wojtecki after the trial court had heard testimony from the two police officers. Subsequently, Wojtecki was called as a witness. Johnson made no further objections to the prosecution’s failure to call any material witnesses.

      It is unclear from the record whether the jury found Johnson guilty of the murder on an accountability theory or whether it found that he actually killed Walid Matariyeh. We observe, however, that in determining whether the death sentence was appropriate in this case, the trial judge found that the evidence at trial established beyond a reasonable doubt that Walid Matariyeh was actually killed by Johnson. The arguments on appeal concerning the propriety of the extended-term sentence for murder assume that Johnson was the actual killer, and we accept this assumption for purposes of this argument. Neither party argues whether an extended-term sentence can be imposed on a defendant convicted of a felony on an accountability theory, where the only basis for the imposition of such a sentence is a finding of exceptionally brutal or heinous behavior indicative of wanton cruelty.


author: JUSTICE MILLER

text:
    JULIET WADE, Plaintiff-Appellant, v. JOHN KRAMER, Secretary, The Department of Transportation, et al., Defendants-Appellees.
    Fourth District
    No. 4—83—0199
    Opinion filed January 19, 1984.
    Rehearing denied March 5, 1984.
    David Lincoln Ader, of Ancel, Glink, Diamond, Murphy & Cope, of Chicago, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Russell R. Eggert, Assistant Attorney General, of counsel), for appellees.
   JUSTICE MILLER

delivered the opinion of the court:

Plaintiff filed a four-count complaint seeking injunctive relief to prohibit the construction of a highway bridge across the Illinois River near Valley City in Pike County. Defendants filed a motion to dismiss on the ground that the complaint was “substantially insufficient in law.” Judge Burrows granted the motion and dismissed the complaint on November 23, 1982. On December 23, 1982, plaintiff moved to vacate the dismissal order and sought leave to amend counts III and IV of her complaint. On February 9, 1983, the trial court refused to vacate the order and denied leave to amend counts III and IV. This appeal followed.

This action arises out of a dispute over the proposed location of a bridge over the Illinois River. The bridge is a necessary link in the proposed Central Illinois Expressway which will connect Springfield and Quincy. Plaintiff owns farmland which borders on the Pike County Conservation Area (PCCA). Defendants propose that the bridge and connecting highway will be built through a portion of the PCCA known as Napoleon Hollow.

Plaintiff appeals from the order of the trial court concerning counts III and IV. Counts I and II of her complaint are not before this court. Count III of plaintiffs complaint alleged that the construction of the proposed bridge and highway would have an adverse impact on certain endangered species of plants and animals and on archaeological sites of great significance located within the PCCA. Plaintiff alleged that the State held title to wildlife and archeological remains as trustee for the public and that the planning and construction of the highway along its proposed route was a violation of its fiduciary duty to preserve the corpus of the trust. Count IV alleged that the acquisition of the land for the highway and the bridge was a violation of section 4 — 504 of the Illinois Highway Code (Ill. Rev. Stat. 1981, ch. 121, par. 4 — 504), which permits the taking of State land for highway purposes only if the taking does not interfere with the use of such land by the agency controlling the land.

Defendants filed a motion to dismiss on December 1, 1981, contending that plaintiff’s complaint was “substantially insufficient in law.” On November 23, 1982, Judge Burrows dismissed plaintiff’s complaint. In his dismissal order, Judge Burrows discussed several cases involving the public trust doctrine and then dismissed count III, stating:

“The Court is of the opinion that Count III must be dismissed. The tests alluded to in [the] Paepcke case have never been implemented by a Court of Review, only cited as useful guides ‘for future administrative action.’ Perhaps a harbinger of a possible ruling, however, absent such, this Court is loath to impose such standards on the exercise of executive discretion. It further appears that the policy for administrative action is the Illinois Highway Code. Count III be and it is hereby dismissed.”

Judge Burrows also dismissed count IV on the ground that section 4 — 509 of the Illinois Highway Code (Ill. Rev. Stat. 1981, ch. 121, par. 4 — 509) provided “an escape hatch” from the prohibition against acquiring land held by another State agency contained in section 4 — 504.

A motion to vacate the dismissal order was denied on February 9, 1983. In its order denying the motion to vacate, the court stated that it was undoubtedly true that the State has a type of guardianship or trust over wildlife in the State. The court refused to intervene to monitor activities of the State affecting wildlife, however, holding that function to be better left to the executive and legislative branches of government.

We are faced with two issues on appeal: (1) whether the trial court erred in dismissing count III of plaintiff’s complaint alleging a violation by the State of the public trust doctrine; and (2) whether the trial court erred in dismissing count IV of plaintiff’s complaint.

The “public trust” doctrine provides that certain types of public property, for example, navigable waters, are held “in trust” by the State for the benefit of the public. The “lodestar” of the public trust doctrine in American law is Illinois Central R.R. Co. v. Illinois (1892), 146 U.S. 387, 36 L. Ed. 1018, 13 S. Ct. 110. In 1869 the Illinois legislature granted over 1,000 acres of submerged land extending one mile from the Chicago shoreline to the railroad in fee simple. A few years later the legislature repealed the original grant and the matter ended up in the courts. The United States Supreme Court upheld the repeal of the grant because the grant had the effect of divesting the State of its authority over the entire Chicago waterfront; in essence, the legislature had abdicated its responsibility over navigation in that portion of Lake Michigan. The court said:

“The ownership of the navigable waters of the harbor and of the lands under them is a subject of public concern to the whole people of the State. The trust with which they are held, therefore, is governmental and cannot be alienated, except in those instances mentioned of parcels used in the improvement of the interest thus held, or when parcels can be disposed of without detriment to the public interest in the lands and waters remaining.” 146 U.S. 387, 455-56, 36 L. Ed. 1018, 1043, 13 S. Ct. 110, 119.

In count II of their complaint plaintiff alleges that the State is a trustee of property it owns, including wildlife and archaeological relics, for the benefit of the citizens of this State. The State does not dispute its status as trustee for the public but does contend that it has the power and the authority to alter a particular use of the property subject to a public trust where the public interest requires such alteration. Plaintiff contends that the State, as trustee, has a duty to preserve the corpus of its trust and that the construction of the proposed highway and bridge through the PCCA will be a violation of that duty.

The power of the legislature over property subject to a public trust has been broadly interpreted. In Fairbank v. Stratton (1958), 14 Ill. 2d 307, 152 N.E.2d 569, the court upheld a lease, pursuant to statutory authorization, of submerged lands in Lake Michigan held by the Chicago Park District to the agency overseeing the development of McCormick Place. The court held that property of a municipal corporation or political subdivision not restricted or dedicated to a particular use was subject to the will of the legislature. The planned facility was in the public interest and had been approved by the proper authorities. Therefore, no violation of the public trust over submerged lands had occurred.

The court used even stronger language in outlining the legislature’s power over property held by the State in People v. Illinois Toll Highway Com. (1954), 3 Ill. 2d 218, 120 N.E.2d 35. The court upheld the Toll Highways Act against a claim that the act authorized acquisition of land of other State agencies contrary to provisions of the Illinois Constitution. The court said:

“The legislative power to transfer property from one public use to another seems to be sustained by the authorities. Property devoted to the public use may be taken by authority of the legislature for a different public use, even if the earlier enterprise is thereby wholly destroyed. (18 Am. Jur. 719, Eminent Domain, sec. 93.)” 3 Ill. 2d 218, 234, 120 N.E.2d 35, 44.

In Paepcke v. Public Building Com. (1970), 46 Ill. 2d 330, 263 N.E.2d 11, the court discussed the public trust doctrine and the power of the State to divert trust property to new and different uses. Paepcke involved a suit to enjoin the construction of public schools in certain city parks. The court quoted extensively from an article by Professor Joseph L. Sax in the" Michigan Law Review, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471 (1970). The court quoted Professor Sax on the question of whether certain allocations of resources made by a State should be deemed irrevocable:

“ ‘To accept such claims of property rights would be to prohibit the government from ever accommodating new public needs by reallocating resources. Certainly any such notion strikes at the very essence of governmental power, and acceptance of such a theory by a court would be as unwise as it is unlikely. It is important to recognize that the assertion of a taking is not a mere claim to compensation, for the objectors do not want cash; rather, it is a claim that when a resource is dedicated to public use, that dedication is irrevocable. However strongly one might feel about the present imbalance in resource allocation, it hardly seems sensible to ask for a freezing of any future configuration of policy judgments, for that result would seriously hamper the government’s attempts to cope with the problems caused by changes in the needs and desires of the citizenry.’ ” 46 Ill. 2d 330, 337, 263 N.E.2d 11, 16.

The court went on to say that an assertion that the legislature could never change or reallocate the use of trust property would be contrary to well-established precedent. The court found that adequate legislative authorization existed to support the change in the use of the property.

In the case at bar, the State, through legislation passed by the General Assembly, has concluded that a highway connecting Quincy and Springfield is necessary for the public good. The legislature authorized the Department of Transportation (DOT) to select a site for this highway. In order to reach Quincy, it is necessary to cross the Illinois River at some point. DOT has determined that the most advantageous point for the construction of the bridge is in a portion of the PCCA.

The legislature and DOT have determined that the benefits flowing to the citizens of this State, especially those in the western portion of the State, from the construction of a new highway outweigh the potential damage to the PCCA and the wildlife and archaeological remains therein. The case law indicates that the legislature may reallocate property from one public purpose to another without violating the public trust doctrine. See, e.g., Paepcke.

Plaintiff argues that the court erred by denying her a hearing on the merits of her complaint. Not every case which alleges a breach of the public trust doctrine requires a hearing on the merits. In Paepcke, the case came to the supreme court following a dismissal of the complaint by the trial court. The supreme court affirmed the dismissal. In Young v. Public Building Com. (1972), 5 Ill. App. 3d 892, 284 N.E.2d 485, the appellate court upheld the dismissal of a complaint for a temporary injunction prohibiting the demolition of the St. Clair County Courthouse. Plaintiffs alleged that the planned demolítion was a violation of the public trust doctrine. Finally, in Clement v. Chicago Park District (1983), 96 Ill. 2d 26, 449 N.E.2d 81, the supreme court affirmed the dismissal of a complaint seeking an injunction against the construction of a driving range in Jackson Park, which plaintiffs claimed was a violation of the public trust in which the park land was held. We find that the dismissal of count III of the complaint was proper.

Count IV of plaintiff’s complaint was grounded on allegations that the proposed construction would interfere with the present use of the PCCA, in violation of section 4 — 504 of the Illinois Highway Code (Ill. Rev. Stat. 1981, ch. 121, par. 4 — 504), which provides:

“Subject to the approval of the Governor and the consent of any department, board, commission, officer or other agency of the State government having control and custody of any land now or hereafter owned by the State, the Department is authorized to take and use such portion as may be deemed necessary for State highway purposes over such land, provided such taking and use by the Department does not interfere with the use of such land by the agency so having control and custody.”

The trial court held that plaintiff had standing to sue to prevent a violation of section 4 — 504, but dismissed count IV of the complaint because the court held that section 4 — 504 must be read in conjunction with section 4 — 509 of the Illinois Highway Code (Ill. Rev. Stat. 1981, ch. 121, par. 4 — 509), which provides:

“In addition to other powers of the Department, whenever it is necessary as an incident to the construction of a new State highway *** that property already devoted to a public use be acquired, and the Department and the public agency having jurisdiction over such property have entered into an agreement concerning the acquisition of such property, the Department is authorized to purchase, or to acquire through the exercise of the right of eminent domain, such easements, rights, lands or other property as may be necessary to replace the public property being acquired.”

The trial court characterized section 4 — 509 as an “escape hatch” to the prohibition contained in section 4 — 504.

The State has argued that plaintiff does not have standing to bring an action for a violation of section 4 — 504 of the Illinois Highway Code. We agree. The requirements for standing to bring an action based upon the violation of a statute were outlined in Lynch v. Devine (1977), 45 Ill. App. 3d 743, 748, 359 N.E.2d 1137, 1140, in which the court stated:

“Where the suit alleges injury due to violation of a statute, the doctrine of standing requires that the plaintiff be one of the class designed to be protected by the statute, or for whose benefit the statute was enacted, and to whom a duty of compliance is owed. (73 Am. Jur. 2d Statutes sec. 433 (1974); see Association of Data Processing Service Organizations, Inc. v. Camp (1970), 397 U.S. 150, 153-54, 25 L.Ed. 2d 184, 188, 90 S. Ct. 827; Boyer v. Atchison, Topeka & Santa Fe Ry. Co. (1st Dist. 1962), 34 Ill. App. 2d 330, 335, 181 N.E.2d 372.) The object of the statute, the nature of the duty imposed by it, and the benefits resulting from its performance dictate what persons are entitled to sue thereunder. See 73 Am. Jur. 2d Statutes sec. 433 (1974).”

Section 4 — 504 protects State agencies from undue interference resulting from State highway projects. The State has a duty to minimize or prevent such interferences, subject to the provision contained in section 4 — 509. The resulting benefit is the protection of the efficient functioning of State agencies against the difficulties caused when a parcel of land used by a State agency is taken for highway purposes.

The provision of the Illinois Highway Code does not confer any special benefit on plaintiff. The statute was designed to protect a State agency suffering the loss of its land for highway purposes, herein the Department of Conservation. Plaintiff has no standing to sue for violation of section 4 — 504 and the trial court should have dismissed count IV of the complaint on that basis.

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

Affirmed.

TRAPP and GREEN, JJ., concur.