text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KYLE SMITH, Defendant-Appellant.
    First District (4th Division)
    No. 82—2459
    Opinion filed June 7, 1984.

      James J. Doherty, Public Defender, of Chicago (Marilyn Martin, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Jeanette Sublett, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JIGANTI

delivered the opinion of the court:

The defendant, Kyle Smith, was charged with two counts of murder. Following a bench trial he was found guilty but mentally ill on both counts and was sentenced to 25 years’ imprisonment. The defendant’s only arguments on appeal concern the finding of mental illness. After the offense was committed but before the trial commenced, the Illinois legislature passed a statute that permitted a finding of guilty but mentally ill (Ill. Rev. Stat. 1981, ch. 38, par. 115— 4(j)). The defendant contends that this statute violates the ex post facto clauses of both the United States and Illinois constitutions (U.S. Const., art. I, sec. 10; Ill. Const. 1970, art. I, sec. 16) and is unconstitutional as applied. Further, he contends that the statute is violative of the due process and equal protection clauses of both constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, sec. 2) and is therefore unconstitutional on its face. The defendant also maintains that the trial court committed error in its sentencing.

Prior to the instant offense the defendant was convicted of armed robbery and aggravated battery. While serving a term of imprisonment the defendant complained of hearing voices and his conduct was described as irrational. He was psychiatrically examined and then sent to the psychiatric ward at Menard, where he received antipsychotic medication. Several months after he was released from prison in February 1981 the defendant again complained of hearing voices. His family noticed a change in his behavior when he acted in an excessively nervous manner and mumbled to himself. A week prior to the instant offense the defendant was examined by a psychiatrist and medication was prescribed. He continued to act irrationally and took his prescribed medication on only one occasion. One week later, the defendant fatally stabbed the victim in the instant case.

The defendant’s first contention is that the guilty but mentally ill statute is unconstitutional in its application as violative of the ex post facto clauses of the United States and Illinois constitutions. He argues that the statute increases his punishment since he suffers adverse collateral consequences by being adjudicated mentally ill in addition to being found guilty of murder. The defendant points out that prior to the enactment of the guilty but mentally ill statute he was subject to only one adjudication of guilt if he unsuccessfully raised the defense of insanity. However, under the guilty but mentally ill statute the defendant is subject to adjudication of both guilt and mental illness. This additional adjudication of mental illness, the defendant maintains, increases his punishment because he suffers the stigma of mental illness, the impairment of his ability to find employment or retain custody of a child, the increased probability of future commitment to mental hospitals, and the uncertainty of whether his reputation will be redeemable. The defendant further observes the existence of a number of licenses that may be either suspended or denied if an individual is adjudicated mentally ill.

The defendant argued that the above-cited instances of alleged increased punishment are not balanced out by any benefit received by a defendant who has been adjudicated mentally ill. He points out that the sentencing court may impose identical sentences upon defendants who are guilty of the same offense even if one is adjudicated mentally ill and the other is not. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2— 6(a).) He further asserts that the Department of Corrections has the same discretion under the guilty but mentally ill statute to provide treatment to guilty but mentally ill inmates as it does under the statute controlling inmates who are not adjudicated to be mentally ill. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—6(b).) Finally, the defendant cites empirical data provided by several commissions on the insanity defense. This data reveals that, out of 44 defendants found guilty but mentally ill in Illinois, not a single defendant had been committed to a hospital for treatment. (Final Report of the Task Force on the Insanity Defense, State of Virginia 37-38 (Nov. 30, 1982).) The data further discloses that, on a national level, mental health treatment is clearly no more available to those found guilty but mentally ill than to other convicts. National Mental Health Association, Myths and Realities: Report of the National Commission on the Insanity Defense 26-27, 32-34 (Mar. 1983).

In further support of his argument that he has suffered increased punishment, the defendant cites United States ex rel. Massarella v. Elrod (7th Cir. 1982), 682 F.2d 688, cert. denied (1983), 460 U.S. 1037, 75 L. Ed. 2d 787, 103 S. Ct. 1426. In Massarella the offense of perjury had been reclassified from an indictable misdemeanor to a felony. The court found that the defendant who had been convicted of perjury suffered increased punishment because with the conviction of a felony he was ineligible for State elective office, suffered longer curtailment of his voting rights, and was disqualified from holding numerous licenses. Therefore, the court found that as a result of this increased punishment the reclassification of_ the offense of perjury violated the ex post facto clause.

In response to the State’s contention that three Illinois court decisions have found the guilty but mentally ill statute not to be violative of the ex post facto clauses, the defendant maintains that the issue raised here, whether the defendant’s punishment was increased, was not specifically addressed by those other courts. People v. DeWit (1984), 123 Ill. App. 3d 723; People v. Dalby (1983), 115 Ill. App. 3d 35, 450 N.E.2d 31; People v. Marshall (1983), 114 Ill. App. 3d 217, 448 N.E.2d 969.

We find the defendant’s arguments on this issue unavailing. In order for a law to be ex post facto, it must materially alter the legal situation of the accused to his disadvantage. (Weaver v. Graham (1981), 450 U.S. 24, 67 L. Ed. 2d 17, 101 S. Ct. 960.) To disadvantage a defendant the statute must punish as a crime an act which was previously lawful, increase the penalty for the crime, or deprive one charged with a crime of any defense available according to the law at the time when the act was committed. (Dobbert v. Florida (1977), 432 U.S. 282, 53 L. Ed. 2d 344, 97 S. Ct. 2290.) In Dobbert, the United States Supreme Court stated:

“It is equally well settled, however, that ‘[t]he inhibition upon the passage of ex post facto laws does not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed.’ Gibson v. Mississippi, 162 U.S. 565, 590 (1896). ‘[T]he constitutional provision was intended to secure substantial personal rights against arbitrary and oppressive legislation, see Malloy v. South Carolina, 237 U.S. 180, 183, and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance.’ Beazell v. Ohio, supra, at 171.
Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto.” Dobbert v. Florida (1977), 432 U.S. 282, 293; 53 L. Ed. 2d 344, 356, 97 S. Ct. 2290, 2298.

While the defendant,may be correct in maintaining that he has been stigmatized by the adjudication of mental illness, that his potential ability to retain custody of a child has been impaired, that the probability of his future commitment to a mental hospital has been increased, and that he is uncertain that his reputation will be redeemable, these findings do not materially alter the legal situation to his disadvantage. (Weaver v. Graham (1981), 450 U.S. 24, 67 L. Ed. 2d 17, 101 S. Ct. 960.) Nor has the defendant been deprived of substantial personal rights because of arbitrary or oppressive legislation. (Dobbert v. Florida (1977), 432 U.S. 282, 53 L. Ed. 2d 344, 97 S. Ct. 2290.) Rather, the fact that the defendant has been convicted of the most serious of crimes, murder, imposes the most dramatic stigma on the defendant and also engenders most of the collateral consequences that the defendant claims arise from the finding of mental illness. His argument is premised on the idea that the finding of mental illness increases these possibilities. If they do, they do not do so to a material degree so as to alter his legal situation. It appears to this court that, considering the fact the defendant has been convicted of murder, the additional finding of mental illness ameliorates the culpability attendant to a finding of murder.

The defendant also contends that there is no balancing of benefits to the defendant attendant to the new guilty but mentally ill statute. We fail to see that there is any legal requirement that there must be a balancing. The only requirement we perceive is that stated in Dobbert that the ex post facto provision was intended to secure substantial and personal rights against arbitrary and oppressive legislation. Legislation designed to classify inmates in the penitentiary appears to be a rational classification and is well within the discretion of the legislature in its efforts to provide for the running of the penitentiary system.

Furthermore, Massarella furnishes no support for the defendant. The statute found to be an ex post facto statute in Massarella increased the punishment because prior to this statute the defendant would not have been disqualified from holding licenses nor would he have been ineligible for State elective office. However, the conviction of murder in the instant case is sufficient to cause suspension or revocation of the licenses cited by the defendant absent a finding of mental illness. (Ill. Rev. Stat. 1981, ch. Ill, pars. 4019, 4041; 87 Ill. 2d Rules 757, 761; Ill. Rev. Stat. 1981, ch. 144, pars. 151(4), 151(12).) Therefore, the defendant has not suffered an increased punishment as a result of his being found guilty but mentally ill.

The defendant also argues that the guilty but mentally ill statute is violative of ex post facto clauses by alternatively disadvantaging the defendant by providing the finder of fact another theory of guilt unavailable to the prosecutor at the time of the instant offense. The defendant’s argument is based on the seminal ex post facto case, Calder v. Bull (1798), 3 U.S. (3 Dall.) 386, 1 L. Ed. 648. The Supreme Court in Calder set forth criteria for finding a law violative of ex post facto. According to Calder, ex post facto laws are “1st. Every law that makes an action done before the passing of the law; and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.” Calder v. Bull (1798), 3 U.S. (3 Dall.) 386, 390; 1 L. Ed. 648, 650.

In the instant case, the defendant has emphasized the fourth element in Calder, altering the legal rules of evidence, as supportive of his position that the guilty but mentally ill statute is unconstitutional. We find that the defendant has misinterpreted Calder. Under the guilty but mentally ill statute the prosecution does not have to provide any more or less evidence in order to convict a defendant of the crime charged than he did prior to the enactment of the statute, and therefore no significant change in the rules of evidence occurs. Accordingly, the defendant’s alternative ex post facto violation also fails.

The second issue raised by the defendant is whether the guilty but mentally ill statute violates the due process clauses of the United States and Illinois constitutions. The defendant asserts that the guilty but mentally ill statute violates due process by penalizing only those defendants who unsuccessfully raise the insanity defense by imposing on them the gratuitous label of adjudicated mental illness, with all of its concomitant collateral effects, without any compensatory mitigating impact, and by harboring the potential of chilling the assertion of the insanity defense by way of both the collateral consequences and the encouragement of a compromised verdict without any assurance of treatment.

When determining whether a statute violates due process the court must determine whether the statute is reasonably designed to remedy the evils which the legislature has determined to be a threat to the public health, safety and general welfare. The due process clause requires only that the statute be reasonably designed to accomplish its purposes, not that it be the best means of accomplishing them. People v. Burton (1981), 100 Ill. App. 3d 1021, 427 N.E.2d 625.

In the instant case, the legislature intended to provide a statute that reduced the number of persons who were erroneously found not guilty by reason of insanity and to characterize such defendants as in need of treatment. The guilty but mentally ill statute is clearly rationally designed to accomplish that goal. The statute enables the court to still find defendants guilty that are not so mentally ill as to be legally insane, but it also provides procedures for providing treatment to such defendants. As it was discussed previously, the attendant stigmas asserted by the defendant do not create a significant penalty and are not a sufficient basis on which to find the statute unconstitutional. Moreover, the fact that the treatment is not assured also does not render the guilty but mentally ill statute constitutionally fatal as the defendant argues. Rather, in People v. Kaeding (1983), 98 Ill. 2d 237, 244-45, 456 N.E.2d 11, 16, the Illinois Supreme Court noted that the legislature did not intend to require the court or the Department of Corrections to provide treatment to all guilty but mentally ill defendants.

Additionally, the guilty but mentally ill statute does not chill the assertion of the insanity defense. Under the guilty but mentally ill statute, in order to convict a defendant who raises the insanity defense, the defendant must still be found guilty beyond a reasonable doubt of the crime charged and be found legally sane. (Ill. Rev. Stat. 1981, ch. 38, pars. 115 — 3(c), 115 — 4(j).) The statute does not change any rights, obligations or disabilities (People v. Dalby (1983), 115 Ill. App. 3d 35, 450 N.E.2d 31), so that neither the possibility of adverse collateral consequences nor a purported compromised verdict significantly chills the assertion of the insanity defense so as to render the statute unconstitutional.

The third issue on appeal is whether the guilty but mentally ill statute violates the equal protection clauses of the United States and Illinois constitutions. The defendant asserts that the guilty but mentally ill statute establishes two arbitrary classifications that are violative of the equal protection clause. The first classification is between guilty but mentally ill defendants placed on probation, periodic imprisonment or conditional discharge, who are required to submit to treatment (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—6(e)(1)), and guilty but mentally ill defendants placed in prison who receive no assurance of treatment at all (Ill. Rev. Stat. 1981, ch. 38, par. 1005— 2 — 6(b)). The Illinois Supreme Court in People v. Kaeding (1983), 98 Ill. 2d 237, 456 N.E.2d 11, responded to this exact issue by finding that there was no equal protection infirmity in his first classification. The second classification is among inmates and is based solely on whether an inmate raised the insanity defense at his trial. This defendant contends that only those inmates who unsuccessfully raised the insanity defense are subject to the stigmatic badge of an additional adjudication of mental illness and that, absent any quid pro quo for this harsher form of adjudication, the guilty but mentally ill statute must fail under an equal protection attack.

A statute carries a presumption of rationality when undergoing the traditional equal protection examination, and it is the defendant’s burden to demonstrate the impermissible nature of the classification created. (People v. Mayberry (1976), 63 Ill. 2d 1, 345 N.E.2d 97, cert. denied (1976), 429 U.S. 828, 50 L. Ed. 2d 92, 97 S. Ct. 87.) In the instant case, the defendant has failed to meet his burden. The defendant relies solely on the concept of stigma and adverse collateral consequences as grounds for striking down the statute as unconstitutional on its face. We do not believe that the absence of a quid pro quo renders the guilty but mentally ill statute unconstitutional. Moreover, the court in People v. Kaeding (1983), 98 Ill. 2d 237, 247, 456 N.E.2d 11, 17 found section 5—2—6, the section making treatment discretionary, a rational means of furthering the legislative purpose of prescribing sanctions proportionate to the seriousness of the offenses and permitting the recognition of differences in rehabilitation possibilities among individual offenders. (Ill. Rev. Stat. 1981, ch. 38, par. 1001—1—2(a).) Accordingly, the guilty but mentally ill statute is rationally based on a legitimate legislative purpose and does not create an arbitrary classification.

The final issue on appeal is whether the instant cause should be remanded for resentencing. In this action, the defendant was convicted of murder under sections 9 — 1(a)(1) and 9 — 1(a)(2) (Ill. Rev. Stat. 1979, ch. 38, pars. 9 — 1(a)(1), 9 — 1(a)(2)). The State has agreed that one of the defendant’s murder convictions must be vacated since there can be only one murder conviction when there is only one victim. (People v. Martin (1983), 112 Ill. App. 3d 486, 445 N.E.2d 795.) However, the defendant contends that the cause must be remanded for resentencing since it is impossible to discern on appeal to what extent the second, unauthorized murder conviction may have influenced the trial judge in the sentencing decision. We disagree. There is no indication in the record that the court was in any way influenced by the second conviction of murder when sentencing the defendant. (People v. Martin (1983), 112 Ill. App. 3d 486, 445 N.E.2d 795; People v. Miles (1981), 96 Ill. App. 3d 721, 422 N.E.2d 5.) Accordingly, the murder conviction under section 9 — 1(a)(2) must be vacated but the cause is not to be remanded for resentencing.

The judgment of the trial court is affirmed in part and vacated in part.

Affirmed in part and vacated in part.

LINN, P.J., and JOHNSON, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE MEJDA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL L. DAVIS et al., Defendants-Appellants.
    First District (5th Division)
    Nos. 82—867, 82—905 cons.
    Opinion filed June 1, 1984.

      Steven Clark, of State Appellate Defender’s Office, and Barbara E. Hermansen, of Schiff, Hardin & Waite, both of Chicago, for appellants.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jeanette Sublett, and Karen C. Wirth, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Following a jury trial, defendants Michael L. Davis and Michael Boney were convicted for the offenses of home invasion and armed robbery. Each was sentenced to 60 years’ imprisonment. On appeal, defendants have asserted errors in the trial court’s rulings on pretrial motions, reception of evidence, allegedly prejudical remarks of the trial judge, the sufficiency of the evidence to convict, the length of sentences, and the effectiveness of trial counsel. We affirm.

Defendants were indicted for home invasion, burglary, unlawful restraint, armed violence and armed robbery involving a home in Midlothian, Illinois. Defendants filed motions to quash their arrests and suppress certain evidence. At the hearing on these motions Richard Sólita testified that he is an investigator with the Chicago police department. On July 25, 1980, at about 11:30 p.m., he arrested the defendants without a warrant. He and his partner, Investigator L. Suelke, received a tip concerning an armed robbery of a home in Midlothian, Illinois. The informant stated that he had just left 743 West 61st Street in Chicago, where he had observed a group of men moving the proceeds of the armed robbery from one location to another. Suelke contacted the Midlothian police and verified the fact of the armed robbery. He thereby learned that the proceeds included rifles, a shotgun, a television set and various other household appliances. The Midlothian police described the suspects as two black males in their middle twenties; one had light skin and one had dark skin; and one had tattoos on his arm and was wearing a blue denim vest. On redirect examination, Investigator Sólita stated that the description was “29 year old, dark complected and one with tattoos; denim jacket sleeveless, no shirt on.” The other offender was described as a black male, 29 years old, wearing a green t-shirt and having light skin. As Investigator Sólita approached 743 West 61st Street, he observed defendant Boney seated on the hood of an automobile wearing a blue denim vest and no shirt. The automobile was filled with “stolen property.” Sólita further testified that his report stated that he observed rifle or shotgun stocks in the car. He then placed Boney under arrest. Defendant Davis, who was carrying a small television set, then approached the vehicle and was also arrested.

Investigator L. Suelke corroborated Sólita’s testimony and also stated that he observed two gun butts protruding from the passenger side windows and that he could see numerous household appliances inside the car.

Michael Davis testified that the police arrested him inside the house at 743 West 61st Street and, further, that he did not leave the house all evening and did not carry a television set outside of the house.

The trial court thereupon specifically found that Sólita was credible and denied the motions.

At trial, Eileen Ames testified that she and her husband and their youngest daughter, Kathy, resided together in their home located in Midlothian, Illinois. On July 25, 1980, at about 4:45 a.m., she heard a creaking on the stairs and turned on her bedroom light. Two men walked into the bedroom. One was tall and carried a sawed-off shotgun and the other was shorter. She testified that she could see both men’s faces. She identified in open court defendant Boney as the man with the shotgun and defendant Davis as the other man. Boney remained in the bedroom while Davis brought Kathy Ames into the bedroom. The two men then began ransacking the house. Davis carried a television set out of the room and Boney took Victor Ames into the basement of the home, where Ames kept his gun collection. Boney later returned with Ames and emptied the witness’s purse, taking $500. The two men herded the family into the bathroom after the witness heard Davis say “Our taxi is here.” The family waited until the defendants had left and then called the police. Eileen Ames testified that the house was in disarray and that her husband’s 12 guns were missing. A window in the basement was open and the screen was removed. Before they had gone to bed the previous evening, the screen was in place. She identified various exhibits, including the sawed-off shotgun which she stated that Boney had carried and several of her husband’s guns. She testified that she had seen Boney take several of the items. On cross-examination, she admitted that she was not looking at Boney the entire half hour that the intruders were in her home. She told the police that the man with the gun was dark complected. On redirect examination, she testified that it was fairly bright in the bedroom and that she was able to see Boney’s face as well as that of the other man even though he was wearing a nylon stocking mask. She had no doubt that Boney and Davis were the persons in her home.

Kathy Ames corroborated her mother’s testimony. She also identified both defendants in open court as the men in her home and also identified various exhibits as property taken from her home or carried by the intruders. She denied telling the police that the man with the gun was light complected. She admitted failing to tell the police that the man had any facial hair although he did have a beard and mustache.

Frederick Kozick, a sergeant with the Midlothian police department, testified that he investigated the crime scene for evidence and obtained several fingerprint lifts which he took to the crime laboratory. He admitted that his police report described the taller man as light complected. However, he stated that he had made a mistake and that the description which the witnesses had given to him was that this man was dark complected.

Sergeant Harold Kaufman of the Midlothian police testified that he fingerprinted Davis and Boney after their arrest.

Richard Sólita, a detective with the Chicago police department, testified that on the evening of July 25, 1980, he and other police officers went to 741 West 61st Street in Chicago. There, at the rear of a building, he observed an automobile in an empty lot. He could see a rifle stock sticking out of one of the vehicle’s windows and two men, one of whom he identified in court as defendant Boney, sitting on the vehicle. Detective Sólita testified that he drew his gun and ordered both men to place their hands on top of the car. At this time a man whom he identified in court as defendant Davis walkéd out of the house carrying a portable television set. Detective Sólita ordered Davis to join the other two men. Sólita testified that he looked inside the car and observed a couple of rifles, a sawed-off shotgun, a television set, and various household articles. After establishing a chain of custody, he testified that the exhibits, which had previously been identified by Kathy and Eileen Ames, were the ones found inside the vehicle. On cross-examination, Sólita admitted that he had no warrant at the time he arrested the defendants and that defendant Boney had had none of the items on his person, although he was within reach of the rifle stocks in the car.

Jacqueline Farcaro testified that she is employed by the Illinois Department of Law Enforcement, Bureau of Scientific Services, as a forensic scientist specializing in latent fingerprints and other areas. She testified to her qualifications as an expert in the field of fingerprints and stated that in her opinion the latent lift (People’s exhibit No. 19) and an inked print (People’s exhibit No. 20) had over 20 points in common and were made by the same person. Exhibit No. 19 was a fingerprint lift which Sergeant Kozick had taken from a window screen at the Ames’ home and exhibit No. 20 was Davis’ fingerprint card which Sergeant Kaufman had taken. Both exhibits were admitted into evidence, along with the guns and other property recovered from the vehicle. The prosecution then rested.

Defendants’ motions for directed verdict were denied and both defendants then rested.

After closing arguments and receiving instructions, including an accountability instruction from the court, the jury found both defendants guilty of home invasion and three counts of armed robbery.

At the sentencing hearing, it was revealed that each defendant has had a consistent history of legal involvements since 1969. Both Boney and Davis had prior convictions for armed robbery and aggravated battery on which they had been sentenced to the penitentiary and were on parole at the time of the instant offenses. The trial court expressly relied on the prior convictions and invoked the extended sentencing provisions of the Unified Code of Corrections in sentencing each defendant to 60 years in prison. The defendants thereafter appealed.

Opinion

On appeal both defendants are represented by counsel who have filed briefs on their behalf. In addition, the defendants have each filed briefs pro se which raise additional contentions. Each argument presented will be considered in its logical turn.

Defendants first contend that their warrantless arrests were illegal and that the trial court therefore erred in denying their motions to quash and suppress. Probable cause for a warrantless arrest exists where there are reasonable grounds to believe that the prospecfive arrestee has committed a crime. (People v. Lippert (1982), 89 Ill. 2d 171, 178, 432 N.E.2d 605; Ill. Rev. Stat. 1979, ch. 38, par. 107-2(c).) The facts on which probable cause to arrest is based need not be sufficient to convict, but something more than a mere hunch or suspicion is required. (People v. Gutknecht (1984), 121 Ill. App. 3d 839, 842, 460 N.E.2d 60.) Defendants argue that their arrests were predicated on an uncorroborated informant’s tip and therefore were illegal. We agree with the prosecution, however, that the arrests were effected only after the police observed the rifle or shotgun stocks and other items inside of the vehicle. The vehicle was located at the address provided by the informant and the police had already verified the fact of the robbery with the Midlothian police. Thus, the tip was corroborated in several important particulars and could support a finding of probable cause. (See People v. Helms (1978), 67 Ill. App. 3d 729, 733, 385 N.E.2d 127.) The issue thus becomes whether the additional facts confronting the arresting officer at the scene, together with the tip, gave him probable cause to arrest.

We will discuss this issue first in connection with defendant Boney. The prosecution argues that at the very least the police had probable cause to arrest defendants on a charge of unlawful use of weapons. At the time of the instant arrests in 1980, however, the visibility of gun butts from within a vehicle was apparently not, in and of itself, a crime. Although People v. Glenn (1966), 35 Ill. 2d 483, 486, 221 N.E.2d 241, held otherwise, that decision was based on a violation of section 46 of the Game Code of Illinois (Ill. Rev. Stat. 1961, ch. 61, par. 180) which had since been repealed (see notes preceding Ill. Rev. Stat. 1979, ch. 61, par. 218). In 1980 a charge of unlawful use of weapons under subsection 24 — 1(a)(4) of the Criminal Code of 1961 required that the weapon be concealed. (Ill. Rev. Stat. 1979, ch. 38, par. 24 — 1(a)(4).) The police officers in the case at bar testified that the guns were visible and therefore no violation of subsection 24 — 1(a)(4) occurred, as that statute then provided. Nonetheless, we believe that the police had probable cause to arrest defendant Boney.

The police were aware that an armed robbery had recently been committed and that the proceeds included rifles, shotguns, television sets, and other household appliances. The informant had told the police that these items were being moved from the West 61st Street address. The description provided by the Midlothian police indicated that one of the offenders was a black male with dark skin who was wearing a blue denim vest without a shirt underneath. Sólita testified that Boney was so attired at the time of his arrest, and in addition, that he could see rifle or shotgun stocks, a television set, and various other household appliances inside of the vehicle. Although none of these items was found on Boney’s person, he was sitting on the automobile within reach of the guns, and it is not unreasonable to conclude that the various items in the car were within his control. (See People v. Gibson (1983), 114 Ill. App. 3d 488, 495, 449 N.E.2d 182.) While this information might not be enough to sustain a conviction (see People v. Housby (1981), 84 Ill. 2d 415, 423, 420 N.E.2d 151; People v. Gibson), it is sufficient to warrant a man of reasonable caution in believing that a crime was committed and that Boney had participated in its commission. (See People v. Robinson (1976), 62 Ill. 2d 273, 276-77, 342 N.E.2d 356; People v. Slawek (1981), 98 Ill. App. 3d 1146, 1149, 425 N.E.2d 26.) In light of all of the circumstances, we cannot say that the trial court’s determination that the defendant’s arrest was legal is manifestly erroneous. See People v. Sakalas (1980), 85 Ill. App. 3d 59, 63, 405 N.E.2d 1121.

Whether probable cause to arrest defendant Davis existed must be determined independently from our conclusion that Boney’s arrest was with probable cause as “probable cause to arrest a particular individual does not arise merely from the existence of probable cause to arrest another person in the company of that individual.” (People v. Creach (1980), 79 Ill. 2d 96, 102-03, 402 N.E.2d 228.) Detective Sólita testified that Davis approached the vehicle while he was carrying a portable television set. The trial court was free to disregard Davis’ contradictory testimony. (See People v. Pittman (1982), 93 Ill. 2d 169, 175, 442 N.E.2d 836.) Sólita was aware that television sets were among the proceeds of the robbery and that those proceeds were being moved from the West 61st Street address. In deciding the question of probable cause, the courts deal with probabilities and are not disposed to be unduly technical; these probabilities are the factual and practical considerations of everyday life on which reasonable people, not legal technicians, act. (People v. Robinson (1976), 62 Ill. 2d 273, 277, 342 N.E.2d 356.) Considering all of the circumstances, including Davis’ apparently transporting stolen property from the house to the automobile, there was probable cause to arrest. People v. Robinson; People v. Slawek (1981), 98 Ill. App. 3d 1146, 1149, 425 N.E.2d 26.

Defendants next contend that they were not proven guilty of home invasion beyond a reasonable doubt. The home invasion statute provides that:

“(a) A person who is not a peace officer acting in the line of duty commits home invasion when without authority he or she knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present and
(1) While armed with a dangerous weapon uses force or threatens the imminent use of force upon any person or persons within such dwelling place whether or not injury occurs, ***.” (Ill. Rev. Stat. 1979, ch. 38, par. 12-11.)

Defendants and the prosecution have both cited the decision in People v. Davis (1982), 106 Ill. App. 3d 260, 435 N.E.2d 838, and we find that case to be controlling. The evidence adduced in the case sub judice established that defendants entered a house in the early morning hours, ransacked the dwelling and herded the occupants into a bathroom at gunpoint. As the court in Davis stated, “[t]he defendant’s contention that police officers can act in the line of duty while committing blatantly illegal acts strains credulity.” (106 Ill. App. 3d 260, 266.) Defendants entered the residential structure at a time when the occupants would most likely be at home and asleep, thus satisfying the reason to know requirement of the statute. (People v. Davis (1982), 106 Ill. App. 3d 260, 267, 435 N.E.2d 838.) Finally, the requirement that force or the threat thereof be used on the occupants while defendants are armed with a dangerous weapon was satisfied in the case at bar by the evidence that Boney carried a sawed-off shotgun. Although Davis was unarmed, the evidence was sufficient to sustain a finding of guilty of home invasion on an accountability theory. (See People v. Muellner (1979), 70 Ill. App. 3d 671, 681-82, 388 N.E.2d 851.) We conclude that defendants were proved guilty of home invasion beyond a reasonable doubt.

Defendants next contend that they were not proven guilty beyond a reasonable doubt of the armed robbery of Victor Ames. Defendants apparently base this contention on Victor Ames’ failure to testify. However, the other witnesses testified unequivocally that Victor Ames was not only present but was also forced at gun point to deliver his property to defendants. A positive identification by one credible witness is normally sufficient to sustain a conviction (People v. Molstad (1984), 101 Ill. 2d 128, 133, 461 N.E.2d 398), and such is the case here. Further, overwhelming circumstantial evidence, including Davis’ fingerprint and the recovered property, establish each defendant’s guilt beyond a reasonable doubt.

Defendants also contend that they were denied effective assistance of counsel in that defense counsel failed to introduce certain grand jury testimony to impeach a prosecution witness and various other specified alleged omissions. The testimony in question was that of Detective Kozik at the grand jury hearing that he received a call from the Chicago police stating that they had arrested five individuals with property belonging to the Ames family. Defendants contend that this statement established that the Chicago police did not call the Midlothian police prior to the arrests and that therefore the informant’s tip was uncorroborated. Defendants maintain that the failure to introduce this testimony for impeachment established incompetence of counsel. We disagree. The statement relied on by defendants was in response to the question “Was any of that property recovered and if so under what circumstances and when?” The question and the answer thereto cannot be interpreted as relating to when the first contact concerning the case occurred between the two police departments. As such, we do not view the statement as inconsistent with Kozik’s trial testimony or otherwise particularly helpful to defendants’ cases. The failure to introduce the statement is accordingly not incompetence. People v. Smalley (1984), 122 Ill. App. 3d 70, 78-79, 460 N.E.2d 866.

Defendants also contend that defense counsels’ failure to introduce an alibi defense through defendants’ testimony constituted incompetence. This decision by counsel, however, must be balanced against the possible damage to a defendant’s case which may be inflicted by the prosecutor’s cross-examination. This balancing is for counsel and the decision to place or not to place a defendant on the stand is a matter of trial tactics not subject to judicial scrutiny. (People v. Smalley (1984), 122 Ill. App. 3d 70, 79, 460 N.E.2d 866.) We conclude that defendants were not denied the right to effective representation.

Defendants next challenge the propriety of their sentences. Their first assertion of error therein is that the prosecutor improperly called the court’s attention to another occurrence, which involved a rape, and that defendants were accordingly prejudiced. The record reflects that the prosecutor sought to introduce a map on which the Ames home and another home were apparently circled. The trial court, however, sustained the defense objection to this evidence. The supreme court in People v. Devin (1982), 93 Ill. 2d 326, 346-47, 444 N.E.2d 102, discussed the duty which the trial judge assumes in determining a defendant’s punishment. The court there quoted People v. Crews (1967), 38 Ill. 2d 331, 337, 231 N.E.2d 451, stating that a judge “ ‘must take care to shield his mind from what might be the prejudicial effect of unreliable and other improper evidence.’ ” (People v. Devin (1982), 93 Ill. 2d 326, 347, 444 N.E.2d 102.) The trial court in the instant case did precisely that, and the record demonstrates that prejudice to either defendant from the other occurrence was thereby avoided.

Defendants next assert that the trial court failed to give due consideration to factors in mitigation as required by the Unified Code of Corrections. The record reflects that the trial court reviewed specific mitigating factors and concluded that they were not present in the instant case. Defendants contend that the trial court’s “cursory review” of mitigation factors was error. However, it is clear that a sentencing judge need not recite and assign a value to each fact presented at the sentencing hearing. (People v. Meeks (1980), 81 Ill. 2d 524, 534, 411 N.E.2d 9.) We find no merit in this contention.

Defendants also contend that the trial court relied on aggravating factors which did not exist. The court stated in commenting on the statutory factors in aggravation and mitigation:

“I have already commented no physical harm. There was threatened harm, a sawed-off shotgun was presented, people were placed in closets, bound, threatened, advised to remain silent. Physical harm was threatened, but not caused.”

Defendants contend that because no one was placed in a “closet” or that anyone was bound the 60 year sentences are in error. We disagree. Whether the area in which the Ames family was confined is characterized as a bathroom or a closet is not particularly significant. There was np evidence, however, that any of the victims were bound. Although error, the trial court merely noted this factor in passing; it is clear from the transcript of the sentencing hearing that the primary factor in the trial court’s sentencing determination was defendants’ prior convictions. Where it can be determined from the record that the weight placed on an improperly considered factor was so insignificant that it did not lead to a greater sentence, then a remandment is not required. (People v. Bourke (1983), 96 Ill. 2d 327, 332, 449 N.E.2d 1338.) This standard was satisfied in the instant case. Our reading of the record indicates that the trial court was of the opinion that defendants were extremely dangerous individuals who maintained careers as professional robbers even after completing prior penitentiary sentences. Therefore, we cannot say that the trial court abused its discretion in sentencing defendants to the maximum extended terms. (See People v. Perruquet (1977), 68 Ill. 2d 149, 156, 368 N.E.2d 882.

In addition to the contentions considered herein before, defendants have raised additional contentions of error in their pro se briefs. We have given careful consideration to each issue raised and find upon examination of the record that the additional points of error were either waived by a failure to timely object (see People v. Robinson (1984), 122 Ill. App. 3d 362, 368-69, 461 N.E.2d 493), or find no support in the record.

Accordingly, we affirm the judgment of the circuit court.

Affirmed.

SULLIVAN and LORENZ, JJ., concur.


author: JUSTICE LORENZ

text:
    JAMES McCOLGAN et al., Plaintiffs-Appellants, v. UNITED MINE WORKERS OF AMERICA et al., Defendants-Appellees (Shamrock Mine Products, Inc., et al., Defendants).
    First District (5th Division)
    No. 83—1027
    Opinion filed June 1, 1984

      Leonard M. Ring & Associates, of Chicago (Leonard M. Ring and Judith E. Fors, of counsel), for appellants.
    Arvey, Hodes, Costello & Burman, of Chicago (Malcolm S. Kamin and Judith I. Byrd, of counsel), for appellees United Mine Workers of America and Sam Church, Jr.
    Barbara Gumbel, of Edwardsville, for other appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

This interlocutory appeal presents the issue whether a union owes to workers a common law duty of care which is not preempted by Federal Law. Plaintiffs, James and Deloris McColgan, brought an action in the circuit court of Cook County seeking damages for personal injuries against the United Mine Workers of America (UMW), UMW District 12, and UMW Local 1870, each as an entity and as a class; and against two companies which supply mine equipment. The circuit court dismissed plaintiffs’ complaint as against all union defendants, and plaintiffs appeal.

We accept all well pleaded facts as true on a motion to dismiss. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 329, 371 N.E.2d 634.) On November 16, 1977, plaintiff James McColgan worked as an electrician for the Zeigler Coal Company. He was repairing a drill near a “pull through curtain,” a device used to control ventilation in underground mining, when he was struck by a shuttle car which traveled through the curtain. Plaintiffs allege that the unions undertook to monitor and correct unsafe mine conditions, and that the unions failed to exercise reasonable care in the performance of this undertaking. Specifically, the unions:

“a) Failed to install or cause to be installed available ‘pull through’ curtains through which visibility was possible; or
b) Failed to warn their members including plaintiff;
c) Permitted its members, including plaintiff, to work in an area in said mine without transparent curtains; or
d) Failed to take remedial action against Zeigler Coal Co.”

As a result of these negligent acts, plaintiff James McColgan was seriously injured, and plaintiff Deloris McColgan was injured derivatively.

Common law negligence consists of a duty owed by the defendant to the plaintiff, a breach of that duty and an injury proximately caused by the breach. (Mieher v. Brown (1973), 54 Ill. 2d 539, 541, 301 N.E.2d 307; Prosser, Torts sec. 30, at 143 (4th ed. 1971).) The existence of a duty, that is, a legal obligation to conform one’s conduct to a certain standard for the benefit or protection of another, is a matter of law to be determined by the court. (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 555, 328 N.E.2d 538; Prosser, Torts sec. 37, at 206 (4th ed. 1971).) Illinois has recognized the principle that liability can arise from negligent performance of a voluntary undertaking (Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 74, 199 N.E.2d 769), but the scope of the duty is limited by the extent of the undertaking. Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 209-10, 399 N.E.2d 596.

Plaintiffs urge this court to impose upon the union defendants a duty to exercise reasonable care to monitor safety conditions in the mine and to correct those defects of which they know or should know. Plaintiffs point to the unions’ constitutions and bylaws as well as the collective bargaining agreement to indicate that defendants voluntarily undertook responsibility for safety conditions. We have scrutinized the documents advanced by plaintiffs and considered the relationships of the parties. We find that the undertaking alleged cannot reasonably be construed to impose a duty which would extend to the unions’ conduct at issue.

The collective bargaining agreement pledges the employers’ and unions’ joint and individual efforts to attain a safe and healthful workplace. The agreement establishes an industry-wide health and safety committee, and it provides that a “Mine Health & Safety Committee” (Committee) shall be established at each mine. The Committee is composed of mine workers who are deemed to be acting in the scope of employment within the meaning of applicable workers’ compensation law. The Committee is required to inspect the mine quarterly, and is authorized to perform additional inspections. With one exception, all safety matters are subject to resolution in accordance with grievance procedures, beginning at the worker-supervisor level, rising to the company and district levels, and eventually going to arbitration. The exception reads:

“In those special instances where the Committee believes that an imminent danger exists and the Committee recommends that the Employer remove all Employees from the involved area, the Employer is required to follow the Committee’s recommendation and remove the Employees from the involved area immediately.”

Even so, Committee members who invoke this power arbitrarily may be removed from the Committee by the employer, and disputes over removal of members are referred to arbitration.

The UMW Constitution mentions local safety committees, and the UMW District 12 constitution provides for annual district-wide safety committee meetings “to resolve safety issues and establish uniform and more efficient methods to enforce safety ***.” The local union model bylaws state as part purpose:

“To protect the lives, limbs and health of our members through legislative enactments and effective enforcement of that legislation, through collective agreements and vigorous administration of those agreements and, where necessary, through refusal to work under dangerous conditions.”

The bylaws also state that the safety committee will be responsible for maintaining safe and healthful conditions and enforcing safety provisions of the law and the collective bargaining agreement.

The thrust of defendants’ undertaking was the improvement of mine safety through legislation, negotiation, collective action and independent enforcement. The unions’ power was limited: they could inspect the mine, consult with the mine operator, contact State or Federal agencies, and in extraordinary circumstances, recommend with binding effect upon the operator that workers be withdrawn from the mine. We believe that the most that can be said is that defendants were under a duty to inspect and a duty to report safety-standard violations of which they had actual knowledge. However, it is clear to us that defendants’ undertakings imposed no duty with respect to the negligent omissions alleged in plaintiffs’ complaint.

Plaintiffs allege neither failure to inspect nor failure to exercise reasonable care during inspections. Indeed, while plaintiffs characterize defendants’ duty as a duty to “monitor” and correct unsafe conditions, plaintiffs make no attempt to connect monitoring or inspection to this occurrence. Rather, it appears that an inspection, negligent or otherwise, would have revealed no more than was already known. Similarly, plaintiffs do not allege that the use of opaque pull-through curtains violated any safety standard, and so defendants’ duty to report violations was not implicated.

By the same token, the negligent omissions charged by plaintiffs were not reasonably within the scope of defendants’ undertaking. Plaintiffs allege that defendant unions failed to install or cause to be installed transparent pull-through curtains. Clearly, the unions could not install equipment on company property. They could “cause” equipment to be installed only in the sense that they could persuade, negotiate or pressure the company to install it. Plaintiffs allege that defendants failed to warn of the unsafe condition, but it appears that the parties expected information to flow from the members to the union and not from the union to the members.

Plaintiffs allege that the unions permitted members to work in an area with opaque pull-through curtains, and it is true that defendants had the power to force the employer to withdraw workers from areas of imminent danger. We cannot construe this power to impose liability upon the unions for permitting work in the presence of an unsafe condition. Congress has noted that underground mining is an inherently dangerous industry. (See 30 U.S.C. sec. 801 (1983).) A duty to withdraw workers from the presence of any unsafe condition would either close the mines or render the unions insurers of mine accidents; we believe such an interpretation to be far out of proportion to the unions’ undertaking. Plaintiffs’ allegation that defendants failed to take remedial action against the company essentially restates the earlier allegations, and thus charges no conduct which comes within the scope of the unions’ duty.

It is important to recognize that the imposition of a duty is an exercise of judicial policy making. (See Mieher v. Brown (1973), 54 Ill. 2d 539, 301 N.E.2d 307; Prosser, Torts sec. 53, at 325-26 (4th ed. 1971).) “In determining whether the law imposes a duty, foreseeability of possible harm alone is not the test, for in retrospect almost every occurence may appear to be foreseeable. The likelihood of injury from the existence of a condition, the magnitude of guarding against it, and the consequences of placing the burden upon the defendant must be taken into account.” (Barnes v. Washington (1973), 56 Ill. 2d 22, 29, 305 N.E.2d 535.) We note that the instant injury did not occur in a legal vacuum: Federal regulations seek to reduce the risk of blind collisions through mandatory audible warnings (see 30 C.F.R. sec. 75.1403 — 10(f) (1983)), and claims against equipment manufacturers provide an incentive to design and sell safer equipment. In our opinion, the likelihood of injury from the use of opaque pull-through curtains is too small, the magnitude of duty required to guard against such defects is too great, and the consequences of placing the duty upon the unions are too far-reaching to justify the imposition of a duty to correct unsafe conditions throughout the mining industry.

Plaintiffs strenuously argue that the unions were under a duty to use their economic power to bring about mine safety. We have noted that plaintiffs’ allegations can be construed as charging failure to persuade, negotiate or pressure the company to install pull-through curtains, and it is clear that the unions have undertaken to improve mine safety using these methods. For this reason, we believe that the Federal preemption issue must be addressed.

The United States Supreme Court has interpreted Federal labor law to impose upon collective bargaining representatives a duty of fair representation. (See Vaca v. Sipes (1967), 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903; Ford Motor Co. v. Huffman (1953), 345 U.S. 330, 97 L. Ed. 1048, 73 S. Ct. 681.) The duty of fair representation includes the obligation to enforce fairly the provisions of collective bargaining agreements, and the duty is breached by arbitrary, discriminatory or bad-faith conduct. (See Vaca v. Sipes (1967), 386 U.S. 171, 177, 17 L. Ed. 2d 842, 850, 87 S. Ct. 903, 909-10.) The seventh circuit has interpreted this language to mean that a worker must allege some form of intentional misconduct, and that allegations of negligence are insufficient to state a cause of action for breach of the duty of fair representation. (Graf v. Elgin, Joliet & Eastern Ry. Co. (7th Cir. 1983), 697 F.2d 771, 778-79.) Because plaintiffs at bar allege no intentional misconduct, the sole remaining question is whether the Federal requirement of intention preempts the State from imposing liability upon unions, in their role as collective bargaining representatives, for negligent misconduct. We believe that the Federal standard prevails.

In Ford Motor Co. v. Huffman (1953), 345 U.S. 330, 97 L. Ed. 1048, 73 S. Ct. 681, the Supreme Court reviewed the complaint of an employee who argued that his union had wrongfully bargained his seniority rights away and discriminated against veterans. The Huffman court reasoned:

“Any authority to negotiate derives its principal strength from a delegation to negotiators of a discretion to make such concessions and accept such advantages as, in the light of all relevant considerations, they believe will best serve the interests of the parties represented. A major responsibility of negotiators is to weigh the relative advantages and disadvantages of differing proposals. *** Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement affect individual employees and classes of employees. The mere existence of such differences does not make them invalid. The complete satisfaction of all who are represented is hardly to be expected. A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.” (Emphasis added.) (345 U.S. 330, 337-38, 97 L. Ed. 1048, 1057-58, 73 S. Ct. 681, 686.)

We are persuaded that the intentional misconduct standard must control unions’ discretionary duties.

The unions’ decision to emphasize one unsafe condition over another, or to emphasize wages or hours over safety conditions in their dealings with employers, involves various and subtle assessments which defy enumeration and definition. Generally, unions have an incentive to work for the benefit of their members, thus protection from intentional misconduct should suffice. (See Graf v. Elgin, Joliet & Eastern Ry. Co. (7th Cir. 1983), 697 F.2d 771, 779.) We believe that imposing a duty to exercise discretion to persuade, negotiate or pressure employers to use particular safety equipment would constitute an unwarranted intrusion into the free give-and-take which characterizes the collective bargaining process.

In short, we hold that that the union defendants owed no duty which would provide a basis for relief to plaintiffs in this action. Because the circuit court’s dismissal of all union defendants may be sustained on this ground, we need not decide whether the unions were properly joined as entities. For the foregoing reasons, we affirm the judgment of the circuit court.

Affirmed.

MEJDA, P.J., and O’CONNOR, J., concur.


author: JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HAROLD WILSON, Defendant-Appellant.
    First District (5th Division)
    No. 82—3028
    Opinion filed June 1, 1984.

      Steven Clark and Alan D. Goldberg, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jane E. Liechty, and Nicholas Geanopoulos, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SULLIVAN

delivered the opinion of the court:

Following a bench trial, defendant was convicted of rape, deviate sexual assault and armed robbery and sentenced to concurrent terms of 40 years for rape, 40 years for deviate sexual assault and 20 years for armed robbery. On appeal, he contends that (1) he was denied due process by the trial court’s failure to order a fitness hearing; (2) the psychiatric reports finding him fit to stand trial did not comply with the statutory requirements therefor; (3) his incriminating statements should have been suppressed because they were obtained before Miranda warnings were given; and (4) his sentences were excessive. As there is no contention that guilt was not established, we will set forth only the evidence relevant to the issues presented.

In December 1980, defense counsel requested a pretrial psychiatric examination, informing the trial court that defendant had been found incompetent in a 1978 criminal proceeding. An examination by the Psychiatric Institute of Cook County was ordered and the report thereof concluded that defendant was fit to stand trial and had been legally sane at the time of the offense. In March 1981, the trial court denied a motion of defendant that he be transported to Great Lakes Naval Training Center for a psychiatric evaluation on the basis of documents indicating that he had received a disability discharge from the Air Force in 1976 after a diagnosis of acute manic-depressive illness. In September 1981, the trial court denied another motion of defendant that he be examined by a private psychiatrist but the court did order an updated examination by the Psychiatric Institute, the findings of which were the same as those in the examination performed in December 1980.

Thereafter, at the pretrial hearing on defendant’s motion to suppress statements, Deputy Sheriff Allen Hudson (Hudson) testified that he was at a lounge with complainant, her husband and Robert Rockymore (Rockymore) when complainant pointed out defendant as one of the men who had raped her a week before. Hudson approached the defendant, displayed his badge, informed him that he was a deputy sheriff and asked him to step outside whereupon he and Rockymore led defendant to a vacant lot next to the lounge to move him away from the patrons exiting the front door and searched him. After the police were called, complainant’s husband came out to the lot and questioned defendant while he (Hudson) stood between the two men. By then, a number of people, including some of defendant’s friends, had gathered and were “screaming various things.” Hudson acknowledged that defendant was not free to leave and that he had not advised him of his constitutional rights, but stated that the only question he asked of defendant was his name. The complainant’s husband corroborated Hudson’s testimony and stated also that Hudson neither told him to ask defendant any questions nor directed defendant to answer any. Rockymore further added that the complainant’s husband was very excited and that Hudson was “just trying to keep [him] cool.”

Defendant testified that he was at the lounge with his girlfriend, Shirley Williams (Williams), when two men, one of whom had a badge, grabbed him and took him to a vacant lot next to the lounge where they and several other men hit him and questioned him about a rape. It was only after the men knocked him to the ground and threatened him that he gave them a name. Williams, whose testimony was essentially the same as defendant’s, added that at defendant’s request she called his sister and upon returning to the lot, heard the men, including the one with the badge, asking defendant for the name of his partner. Defendant’s sister testified that when she arrived, she observed her brother lying on the ground in the midst of a group of men who were all asking him questions.

Defendant’s motion to suppress was denied, and at trial, complainant’s mother testified that at about 5:30 a.m. on September 20, 1980, when her daughter came to her apartment, her face was bruised, her clothing was in disarray and she said that she had been raped.

Complainant, an elementary school teacher, testified that at about 3:30 a.m. she was walking toward her mother’s house after returning from a party when she noticed some people leaving a bar. As she entered the outer hallway of her mother’s building, two men came up behind her and pushed her up against the mailboxes inside. One of them grabbed her earrings and wedding rings and tore three gold chains from her neck. The other man, whom she identified as defendant, hit her in the face and threatened her by placing a knife to her neck. She was told to unlock the inner door which she did and they then led her to the landing in the hallway where they ordered her to undress. During the next two hours, defendant hit her 15 to 20 times and both men forced her to perform deviate sexual acts and raped her. She was then tied and gagged with her dress and hose and as he was leaving, defendant kicked her and said that he and his accomplice would never go to jail for what they had done. Complainant further testified that about one week later she and her husband were at a lounge with Hudson and Rockymore when she saw defendant and identified him as one of the men who attacked her.

Officer Dubois testified that when he arrived at the lounge he observed two men struggling with defendant and a security guard for the lounge told him that defendant was a rape suspect. Defendant attempted to escape but Dubois and his partner apprehended him, placed him under arrest, advised him of his constitutional rights and transported him to the police station where after being advised of his rights again, he was told that he had been implicated in a rape and when questioned concerning the identity of his accomplice, he named Tony Dixon as the other offender.

Defendant testified that the two men who took him out of the lounge told him they were looking for someone named “Greg.” He denied knowing a “Greg” but when they punched him and said, “then you better start naming your friends,” he gave them several names. He denied raping the complainant or attempting to escape when the police arrived at the lounge. On cross-examination, he stated that while he was being held in the lot several people had gathered and were all talking at the same time. He denied telling the men who were holding him or the police that Tony Dixon was either his accomplice or “the other guy” and stated that he was with his girlfriend on the night of the rape.

It was stipulated that Assistant State’s Attorney Gainer would testify that defendant admitted telling the men who held him for the police at the lounge that the “other guy” was Tony Dixon and that he referred to Dixon as his partner.

Opinion

Defendant first contends that he was denied due process of law by the trial court’s failure to order a fitness hearing, arguing that there were sufficient facts presented to raise a bona fide doubt of his fitness to stand trial.

Initially, we note that defendant made no formal motion for a fitness hearing before or during trial nor did he raise this issue in his post-trial motion; nevertheless, because it would be a violation of due process to convict a defendant who was mentally unfit to stand trial (People v. Jones (1982), 109 Ill. App. 3d 120, 440 N.E.2d 261), we will consider the issue.

Under the Code of Criminal Procedure of 1963 (the Code), a defendant is unfit to stand trial if, because of his mental or physical condition, he is unable either (1) to understand the nature and purpose of the proceedings against him, or (2) to assist in his defense. (Ill. Rev. Stat. 1981, ch. 38, par. 104 — 10.) The Code further provides that “[w]hen a bona fide doubt of the defendant’s fitness is raised, the court shall order a determination of the issue before proceeding further.” (Ill. Rev. Stat. 1981, ch. 38, par. 104 — 11(a).) The determination of a defendant’s fitness rests largely within the discretion of the trial court and a reviewing court will not overturn its decision absent a clear abuse of that discretion (People v. Murphy (1978), 72 Ill. 2d 421, 431, 381 N.E.2d 677, 682; People v. Bivins (1981), 97 Ill. App. 3d 386, 422 N.E.2d 1044).

In considering the question of defendant’s fitness we initially note, from the transcript of proceedings, that in response to the court’s inquiry, defendant indicated an awareness of the import and ramifications of his written jury waiver; and in a dialogue with the court concerning the numerous illness-related absences of his attorney, defendant expressed his preference for a substitution of counsel, but explained that because he had exhausted his funds in retaining the attorney of record, he could not afford to retain new counsel and thereafter requested that one be appointed by the court. Furthermore, defendant testified on his own behalf at the pretrial suppression hearing and again at trial, giving appropriate, articulate and coherent responses to the examiners’ questions on both occasions; and in a personal plea for leniency at the sentencing hearing, defendant expressed his desire to achieve various goals and to make worthy contributions to his family and to society. Moreover, notwithstanding his first attorney’s pretrial requests for psychiatric evaluations, neither he nor the attorney representing defendant at trial ever asserted that defendant was unable to cooperate with them in his defense.

Apparently cognizant that his conduct as reflected in the transcript of proceedings was inconsistent with his assertion that a bona fide doubt as to his fitness existed, defendant emphasizes his psychiatric history and the trial court’s authorization of two psychiatric examinations to demonstrate that such a doubt had been raised. In this regard, the record discloses that prior to trial it was brought to the court’s attention that defendant had been discharged from the Air Force after being diagnosed as manic-depressive and that he was found incompetent in a prior criminal proceeding and committed to the department of mental health. Before commencing trial the court, on motions of defense counsel, ordered two psychiatric examinations which were performed nine months apart by different psychiatrists and, although defendant challenges the sufficiency of the reports thereon, each concluded that defendant was fit to stand trial.

It is well settled in Illinois that evidence of mental disturbances or even prior commitment for psychiatric treatment do not, in themselves, raise a bona fide doubt of defendant’s current fitness (People v. Green (1983), 116 Ill. App. 3d 815, 452 N.E.2d 767; People v. Jones (1982), 109 Ill. App. 3d 120, 440 N.E.2d 261) because fitness speaks only to defendant’s ability to function within the context of trial and does not refer to sanity. A defendant can be fit for trial even though his mind may be otherwise unsound. (People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677; People v. Davis (1978), 65 Ill. App. 3d 580, 382 N.E.2d 594, appeal denied (1979), 72 Ill. 2d 583.) Furthermore, the mere authorization of a psychiatric examination is not enough to establish that the trial court entertained a bona fide doubt of defendant’s fitness. (People v. Russo (1972), 52 Ill. 2d 425, 288 N.E.2d 412; People v. Olson (1978), 60 Ill. App. 3d 535, 377 N.E.2d 371.) In view of defendant’s apparent lucidity and coherence during the proceedings coupled with the pretrial findings of the examining psychiatrists, we do not believe that his psychiatric history raised a bona fide doubt of his fitness to stand trial and we find that the trial court did not abuse its discretion in refusing to order a fitness hearing.

Defendant correlatively contends that the failure of the examining psychiatrists to comply with the requirements of section 104 — 15 of the Code (Ill. Rev. Stat. 1981, ch. 38, par. 104 — 15) in preparing their reports necessitates reversal and remandment for a new fitness examination. Relying on People v. Harris (1983), 113 Ill. App. 3d 663, 447 N.E.2d 941, he argues that the psychiatric reports received by the trial court were statutorily defective because they were merely conclusionary “form” reports lacking the requisite explanations as to how the diagnoses therein were reached or upon what facts they were based.

It is our view that Harris is factually distinguishable from the case at bar. There, the question of defendant’s fitness was not raised before or during trial; however, at the sentencing hearing defense counsel advised the trial court that defendant could not be present because he had eaten some metal and glass and also informed the court, apparently for the first time, that defendant had attempted suicide both before and after trial. The presentence investigation report also revealed a history of mental problems and therapeutic treatment with an indication that after trial, defendant had been “put in restraints due to some form of acting out.” On the motion of defense counsel, the trial court ordered a psychiatric examination, limiting it, however, to the question whether defendant was fit to participate in the sentencing process. The examination appears to have been hastily performed on the morning of the rescheduled sentencing hearing, and a report thereon — submitted to the court by 10 a.m. that same day-concluded that defendant was mentally fit for sentencing, stating only that he understood the nature of the charge pending against him, the purpose of the proceedings and was able to assist counsel therein.

Noting that nothing in the record disclosed the onset, diagnosis, prognosis or effect of defendant’s mental condition or its possible relevance to his fitness to stand trial, the Harris court held that the facts presented raised a bona fide doubt of defendant’s fitness to stand trial and that a hearing relative to that question should have been conducted; and while the court indicated that a retrospective competency review might otherwise be sufficient, it noted that the trial judge — whose recollection of defendant’s demeanor at trial was vital to resolution of this issue — was deceased, and predicated its decision to reverse and remand on the basis of his absence. Only after determining that a bona fide doubt of defendant’s fitness had been raised did the Harris court address the sufficiency of the psychiatric report, finding that its “conclusory terms precluded the circuit court from independently evaluating its validity and hampered the court’s ability to assess the need or lack thereof of a fitness hearing.” The court reasoned that “[u]nder the circumstances of this case, the error was not harmless ***. As previously noted, defendant had a history of therapeutic treatment, and recently attempted to commit suicide. These facts underscore the importance of statutory compliance.” (Emphasis added.) People v. Harris (1983), 113 Ill. App. 3d 663, 668-69, 447 N.E.2d 941, 945.

While it is true that the challenged reports in the instant case, like those found to be insufficient in Harris, were conclusory, it is our view that the circumstances warranting reversal in Harris are absent here. First, unlike Harris, the question of defendant’s fitness was raised prior to trial and the court was fully apprised of his psychiatric history. Second, there is nothing in the record before us to support defendant’s assertion that the trial court relied solely on the two psychiatric examinations; indeed, as stated above, the court had ample opportunity to observe defendant and to independently evaluate his conduct both before and during this suppression hearing. In view thereof, we believe that the conclusory aspects of the reports were of minimal significance in the court’s apparent finding that a fitness hearing was unnecessary. Finally, and most important, no facts were presented contradicting the conclusions therein. (See People v. Green (1983), 116 Ill. App. 3d 815, 452 N.E.2d 767.) Thus, while the reports may have been statutorily deficient, defendant has failed to demonstrate that he suffered any prejudice therefrom.

Defendant next contends that his inculpatory statement made while being detained by Deputy Sheriff Hudson should have been suppressed because it was unlawfully obtained during a custodial interrogation which was not preceded by the giving of Miranda warnings. Although defendant apparently conceded that there was probable cause for his arrest, he argues that because the deputy sheriff who arrested him did not advise him of his constitutional rights and because he named the “other guy” involved in the crimes only after repeated questioning by the complainant’s husband who was acting as an instrumentality of the sheriff, the statement and its fruit — the subsequent statement to the police, — were improperly admitted.

While it is true that the prosecution may not introduce statements stemming from a custodial interrogation unless it demonstrates the use of procedural safeguards effective to secure the accused’s privilege against self-incrimination (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602; People v. Nunn (1981), 101 Ill. App. 3d 983, 428 N.E.2d 1158), the term “custodial interrogation” refers only to questioning initiated by law enforcement officers after the suspect was taken into custody or otherwise deprived of his freedom in any significant way (Miranda v. Arizona (1966), 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706, 86 S. Ct. 1602, 1612). Confessions or admissions made in response to interrogation by private citizens are admissible even though the accused had not been advised of his Miranda rights before making them. People v. Hawkins (1972), 53 Ill. 2d 181, 290 N.E.2d 231.

At the hearing on the motion to suppress, defendant testified that Hudson, the complainant’s husband and several other men repeatedly hit and questioned him in the vacant lot next to the lounge where he was apprehended, and defendant’s sister and girlfriend also testified that all of the men present were asking defendant questions. However, Hudson testified that the only question he asked defendant was his name and that it was the complainant’s husband who was questioning defendant while he (Hudson) stood between the two men. The complainant’s husband acknowledged that he questioned defendant but stated that Hudson did not ask any questions. Rockymore also testified that the victim’s husband who was “very excited” was the only one questioning defendant and that Hudson was “just trying to keep [him] cool.”

At a hearing on a motion to suppress, it is the function of the trial court to weigh the credibility of the witnesses and to resolve conflicts in their testimony (People v. Clay (1973), 55 Ill. 2d 501, 304 N.E.2d 280), and its findings thereon will not be disturbed unless they are contrary to the manifest weight of the evidence (People v. Hawkins (1972), 53 Ill. 2d 181, 290 N.E.2d 231). At the close of hearing, the court concluded that the statements made by defendant were neither involuntarily made nor the product of a police-initiated or abetted interrogation and that the complainant’s husband was not acting as an agent of the State in questioning defendant. Considering the evidence in its totality, we do not believe those findings were contrary to the manifest weight of this evidence.

Moreover, it is our view that People v. Baugh (1974), 19 Ill. App. 3d 448, 311 N.E.2d 607, cert. denied (1975), 421 U.S. 920, 43 L. Ed. 2d 789, 95 S. Ct. 1587, on which defendant relies, is distinguishable from the facts before us. There, after placing defendant under arrest, the police contacted the victim’s attorney and informed him that an identification was necessary. Due to the victim’s advanced age, defendant was taken from the police station to her home where, in the presence of law enforcement authorities, her attorney conducted a lineup, interrogated defendant, confronted him with incriminating evidence and subsequently elicited his confession. The Baugh court held that the attorney was acting as a police instrumentality and that defendant’s confession was the product of a police-initiated custodial interrogation and should have been suppressed. As we have stated, there is no evidence here that the deputy sheriff initiated or conducted the questioning resulting in defendant’s statement or that he or the police otherwise used the complainant’s husband as the conduit for the questioning. Rather, the testimony reveals that defendant’s statement was made in response to the spontaneous accusations of a private citizen during an emotionally charged encounter. Given our finding that defendant’s first statement was not the product of a “custodial interrogation” as defined by Miranda, it follows that admission of his other, near-identical, statement to police after being advised of his constitutional rights was not improper.

Defendant’s final contention is that his sentences were excessive. Although he does not assert that the trial court erred in finding that these offenses were accompanied by exceptionally brutal and heinous behavior and thus qualified for the extended terms, he argues that the court improperly ignored his rehabilitative potential and that the terms are disproportionate to those imposed in similar cases.

It is well settled that the trial court is the appropriate forum to determine a suitable sentence (People v. Willingham (1982), 89 Ill. 2d 352, 432 N.E.2d 861), and so long as the sentences imposed are within the statutory limits, a reviewing court will not intervene absent a showing that the trial court otherwise abused its sentencing discretion (People v. Gallardo (1983), 112 Ill. App. 3d 764, 445 N.E.2d 1213). Furthermore, while the penalty should be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship (Ill. Const. 1970, art. I, sec. 11), in balancing these factors, defendant’s rehabilitative potential is entitled to no greater weight than the nature of the offense (People v. Gallardo (1983), 112 Ill. App. 3d 764, 445 N.E.2d 1213; People v. Hayes (1979), 70 Ill. App. 3d 811, 388 N.E.2d 818), and a reasoned judgment as to the appropriate sentence must be based on the particular facts of each case (People v. Lukins (1979), 77 Ill. 2d 35, 394 N.E.2d 1182).

Before imposing sentence, the trial court here stated that it had considered all the factors brought to its attention at the hearing in aggravation and mitigation as well as the evidence adduced at trial, the information contained in the presentence investigation report, the defendant’s own plea for leniency and the possibility of his rehabilitation and noted both his age and lack of a criminal record. However, the court also described the case as “an example of a brutal and disgusting criminal act” and noted that complainant was attacked as she was entering her mother’s home, threatened with a knife, robbed of her personal possessions, subjected to the physical and mental degradation of two acts of rape and at least two acts of deviate sexual assault and finally, was bound and gagged “like a bag of garbage” with her own clothing and struck by defendant, who told her that he and his accomplice would not go to jail for their acts.

These comments of the court are clearly supported by the record; indeed complainant’s testimony additionally reveals that this brutal attack lasted at least two hours throughout which she was repeatedly struck about the head by defendant. Moreover, it is apparent that the trial court reached its decision only after a great deal of thought and deliberation, considering all the relevant factors in determining that an extended term of imprisonment was appropriate. Therefore, notwithstanding defendant’s background, we cannot say that the sentences imposed, which were 20 years less than the maximum extended term for a Class X felony (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2(a)(2)) violated either the spirit or purpose of the law and find no abuse of discretion by the trial court in imposing them.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

MEJDA, P.J., and LORENZ, J., concur.