source: Caselaw Access Project

author: JUSTICE HARRISON JUSTICE KARNS,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEE OTIS GRIFFIN et al., Defendants-Appellants.
    Fifth District
    No. 81—430
    Opinion filed May 14, 1984.

      KARNS, J., concurring in part and dissenting in part.
    David C. Hoffman, of Ripplinger, Dixon & Hoffman, of Belleville, for appellant Lee Otis Griffin.
    Randy E. Blue and David M. Raymond, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant Jimmy Lee Smith.
    John Baricevic, State’s Attorney, of Belleville (Stephen E. Norris and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Following a jury trial in the circuit court of St. Clair County, defendants were convicted of three counts of murder and one count of armed violence. Defendant Griffin was sentenced to three concurrent terms of 40 years for the murder convictions, and one concurrent term of 30 years for the armed violence conviction. Defendant Smith received three concurrent life sentences, and one concurrent 60-year sentence. A partial summary of the testimony presented at trial follows.

Charles Kellick testified that on February 5, 1981, he went with his friend, Charles Sims, to an apartment inhabited by Ronald Walker and Christi Smith. Velma Robinson accompanied Kellick and Sims, but remained in Kellick’s truck and did not enter the apartment building. Upon entering the unlocked apartment and proceeding to the bathroom, Kellick and Sims encountered Christi Smith in the company of defendant Griffin. Ms. Smith was crying. As Charles Sims stepped into the bathroom, defendant Griffin shot him. Kellick turned and observed two other men. He ran to the front door of the apartment, and was shot in the back of the head. Defendant Smith then approached Kellick and shot him in the face. Feigning death until his assailants departed, Kellick hid himself under a stairway until police arrived. Kellick testified that he had observed defendant Griffin on two prior occasions. The first occasion was when Kellick patronized a furniture store owned by Griffin. The second occasion was when Kellick and Sims had given Christi Smith a ride to an apartment where Griffin and defendant Smith were present. This was apparently the only time Kellick had observed defendant Smith (known to Kellick by the nickname “Rush City Jimmy”) prior to the shooting.

Velma Robinson testified that she met Kellick and Sims at approximately 5 p.m. on the day in question. Following a discussion, she accompanied Kellick and Sims to the apartment building. Immediately after Kellick and Sims entered the building, she observed two other men (one of which she identified as defendant Griffin) exit a parked car and enter the same building. Within seconds, she heard a shot. The two men emerged from the building and drove away. Several minutes later, she observed Ronald Walker enter the building. After Walker’s arrival, the same two men she had observed previously reentered the building. Upon hearing a shot, she drove away to find a policeman.

Lionel Settles, an East St. Louis police officer, testified that he was working as a security guard at the National Food Store on the evening of February 5, 1981. A person subsequently identified as Ronald Walker ran into the store, bleeding profusely from bullet wounds. Settles testified as follows concerning Walker’s subsequent statements:

“I had a conversation as I was saying with the subject as to what had happened. And when he said he walked into his apartment and saw the two people on the floor, one of which was his girl friend, they were — he just mentioned they, were standing inside of the door, and told him to come inside. And as he made a couple of steps forward, he was shot.
Q. Did he tell you who shot him?
A. Yes, he did.
Q. What did he say?
[DEFENSE COUNSEL]: Continuing objection.
THE COURT: Note the same objection. Same ruling.
A. He said a subject by the name of Lee had shot him.
Q. Did he say anything more to identify Lee?
A. Yes, he said the subject named Lee that owns a used furniture store in the outer State Street area.
Q. Did you ask him who had shot his girl friend?
A. Yes, I did. His reply was a subject only known to him as Rush City Jimmy.”

Darrell Rice, an Illinois State trooper, testified that he was off duty on the evening in question, and purchasing groceries at the National Food Store. At approximately 6:30 p.m., Trooper Rice was engaged in informal conversation with Officer Settles. At that time, Ronald Walker entered the store. Trooper Rice’s account of Walker’s statements concerning his assailant was as follows:

“Q. Did anyone ask who shot him?
A. Yes, we asked him who shot him, and he stated that a fellow by the name of Lee, his friend shot him, Lee’s friend shot him, and he also stated that a fellow they called Rush City Jimmy shot his girl friend at that house.”

David Winchester, associate manager of the National Food Store, testified that he was present in the store at approximately 6:30 p.m. on the same evening, and that he also witnessed Ronald Walker’s statements. According to Mr. Winchester, Ronald Walker had been talking to Officer Settles and Trooper Rice “[p]ossibly 30 seconds” before Mr. Winchester arrived. A portion of Mr. Winchester’s testimony follows:

“Q. *** What remarks do you remember?
A. Okay. He said they were talking about a furniture store, a guy that ran a furniture store, and that they put a gun on his face, and told him to come on inside, and at the time I thought maybe he was in a stick-up or something at a furniture store. But then they asked him where the apartment was, and he said [sic] 11th Street address. *** I remember he said there was three more dead in the apartment, and he said my girl friend is dead. He said they killed my girl friend.
Q. Did he say who had shot him?
A. I didn’t hear that, no.
Q. Did he say who had shot his girl friend?
A. He said Rush City Jimmy had shot his girl friend.”

All three witnesses to Ronald Walker’s statements testified that Walker requested hospitalization and indicated a belief of impending death.

The key defense witness was Priscilla Smith, who testified that in the late afternoon of February 5, 1981, she was present at Robert Easton’s tavern in East St. Louis. Between 4:30 and 5 that afternoon, she observed both defendants playing cards. Sometime after 6 p.m., defendant Griffin approached her and borrowed $5. At some point between 6:30 and 7 p.m. (i.e., “something to 7”), Ms. Smith noted that defendants had left the tavern.

Defendant Griffin testified on his own behalf. He stated that he and defendant Smith arrived at Easton’s tavern shortly before 5 p.m., and left at approximately five minutes before 7 p.m.

One of several allegations of error raised by defendant Griffin, and the only allegation raised by defendant Smith, is that the court erred in admitting certain photographs of the victims which, it is argued, were introduced for the purpose of inflaming the jury and prejudicing it against defendants. The black and white photographs depict the bodies of Charles Sims, Christi Smith, and- Ronald Walker as they appeared in the morgue. While the bodies are unclothed, only the victims’ heads and chests, wherein the bullet wounds were sustained, are visible. One of the pictures of Christi Smith displays a considerable quantity of dried blood on her face.

The decision as to whether a photograph of a deceased person should be admitted into evidence normally rests within the discretion of the trial court. (People v. Lefler (1967), 38 Ill. 2d 216, 221, 230 N.E.2d 827.) Where such photographs are relevant to establish any fact in issue, they are admissible, even though the photographs may be of a gruesome nature. (People v. West (1977), 54 Ill. App. 3d 903, 909, 370 N.E.2d 265.) A defendant may not avoid the introduction of photographic evidence by offering to stipulate to the facts for which the evidence is offered as proof. (People v. Speck (1968), 41 Ill. 2d 177, 201, 242 N.E.2d 208.) Moreover, photographs bearing on the cause of death of an alleged murder victim do not become unnecessarily cumulative because there is oral testimony bearing on the same issues. (People v. Henenberg (1973), 55 Ill. 2d 5, 14, 302 N.E.2d 27.) The photographs of Sims, Smith, and Walker tended to establish the identity of the victims and the fact and cause of death. The instant case is distinguishable from People v. Lefler (1967), 38 Ill. 2d 216, 230 N.E.2d 827, cited by defendants. In Lefler, it was held that autopsic color photographs of incisions in the chest cavity and skull of a baby allegedly murdered by her father were improperly admitted, since the actual body of the deceased child bore little superficial evidence of injury and the gruesome nature of the pictures was caused almost entirely by the autopsy procedures. Detective Evan Kyle, who took the photographs of the victims in the instant case, testified that the photographs, apart from the removal of clothing from the bodies, accurately portrayed the decedents as they appeared at the scene of the crime.

The remaining allegations of error are raised by defendant Griffin. Griffin first contends that the trial court erred in denying his motion for a severance, thus subjecting him to undue prejudice in view of defendant Smith’s criminal record, and preventing his attorney, who also served as counsel for Smith, from pursuing the defensive theory most advantageous to Griffin.

The general rule governing severance is that persons jointly indicted should be jointly tried. (People v. Brown (1975), 27 Ill. App. 3d 569, 575, 327 N.E.2d 51.) In determining whether a severance should be granted, the primary consideration is whether the defenses are of such an antagonistic nature that a severance is imperative to insure a fair trial. (People v. Canaday (1971), 49 Ill. 2d 416, 424, 275 N.E.2d 356.) The defenses of Smith and Griffin were in no manner inconsistent. Indeed, both defendants utilized the same alibi defense. Defendant Griffin’s specific allegation that a joint trial with joint counsel precluded his attorney from utilizing the most favorable defense is properly channeled into an allegation of ineffective assistance of counsel, which we address below. The fact that an accused’s codefendant has a criminal record does not in itself operate as a ground for separate trials, since any prejudice which is feared may be prevented by a proper instruction. (People v. Canaday (1971), 49 Ill. 2d 416, 425, 275 N.E.2d 356.) In any event, we view the issue as moot, since defendant Smith’s criminal record was never introduced into evidence at trial.

Defendant Griffin next contends that the trial court denied effective cross-examination of Charles Kellick by preventing defendant from questioning Kellick about a pending criminal charge. On direct examination, Kellick testified that he had spent three years in prison for burglary, and four years and three months in prison for escape from the St. Clair County jail. Defense counsel began his cross-examination of Kellick as follows:

“Q. Mr. Kellick, you are at the present time indicted here in St. Clair County, are you not?
A. Yes, I am.
Q. And your case is pending here in St. Clair County?
A. Yes.
Q. When were you indicted here in St. Clair County?
A. In October.
Q. In October of 1980?
A. Yes sir.
Q. And your case is still pending at the present time?
A. Yes sir, it is.
Q. Is that right?
A. Yes sir, it is.
Q. I guess it is scheduled for disposition after this is over with, isn’t it?
A. I guess it is, I don’t know.
Q. All right. You have had negotiations with the disposition and settlement of your case [sic] after this case is over, haven’t you?
A. No, I haven’t talked with my lawyer. My lawyer is Mr. Robert Rice. I haven’t talked to him about it at any time.”

Defense counsel proceeded to supply Kellick with a document Kellick identified as a “[federal rap sheet.” Counsel then questioned Kellick concerning a charge of possession of a controlled substance. Kellick explained the charges were dropped when analysis revealed that the allegedly controlled substance was only caffeine. Following this questioning, the State raised the following objection:

“MR. HAMILTON: We have let this go, we have given considerable leeway, because of what we brought on [sic] on direct examination about Mr. Kellick’s background, but [defense counsel] knows full well he can’t interrogate about anything except convictions.”

Defendant argues that the trial court, in sustaining this objection, committed reversible error, notwithstanding the fact that defense counsel proceeded to question Kellick concerning two additional past charges. The case of People v. Barr (1972), 51 Ill. 2d 50, 280 N.E.2d 708, cited by defendant, held that it was error to restrict defense counsel’s attempt to impeach a State’s witness by establishing, as a possible motive to testify falsely, that criminal charges against the witness were dismissed in exchange for the witness’ testimony. Establishing a similar motive on the part of Kellick would appear to have been the objective of defense counsel in the instant case. Accordingly, defense counsel was permitted to question Kellick about the pending charge in St. Clair County, inquiring specifically about “negotiations *** and settlement.” The trial court did not err in sustaining the State’s objection to questions about past charges listed on Kellick’s “rap sheet,” since it was not apparent how these charges would have provided Kellick with a motive to testify falsely. Absent a demonstration of bias, interest or motive to offer false testimony, a witness’ character cannot be impeached by evidence of prior arrests. People v. Galloway (1974), 59 Ill. 2d 158, 319 N.E.2d 498.

Defendant Griffin also argues that the trial court erroneously allowed hearsay testimony regarding the statements made by Ronald Walker as he lay injured in the supermarket. The trial court admitted the testimony on the ground that Walker’s statements constituted a dying declaration. Among the conditions necessary to the admissibility of a statement as a dying declaration are (1) the declarant’s consciousness of impending death and (2) an intelligible communication of the utterance or declaration. (People v. Scott (1972), 52 Ill. 2d 432, 438, 288 N.E.2d 478.) Defendant argues that neither of these conditions was met.

Walker’s consciousness of impending death was established by the testimony of all three witnesses to the declaration. Each testified that Walker stated that he was going to die. Defendant points to the fact that Walker repeatedly requested an ambulance as evidence that Walker did not have the requisite conviction of impending death. The fact that a declarant requests hospitalization, however, is not sufficient to render a statement ineffective as a dying declaration where the totality of the circumstances surrounding the statement indicate a belief of imminent death. E.g., People v. Davis (1981), 93 Ill. App. 3d 217, 232, 416 N.E.2d 1197.

Walker’s declaration was also of such a character as to meet the requisite standard of intelligibility. “Any adequate method of communication, whether by word or by signs or otherwise, will suffice, provided the indication is positive and definite, and seems to proceed from an intelligence of its meaning ***.” (5 Wigmore on Evidence sec. 1445 (3d ed. 1940), cited by People v. Scott (1972), 52 Ill. 2d 432, 438, 288 N.E.2d 478.) The instant case is distinguishable from Scott, where a decedent’s declaration was held unintelligible because a witness, admitting that he did not clearly understand any portion of the statement, nevertheless “interpreted” the decedent’s “mumblings” to mean “brother-in-law.” Walker’s precise expression regarding defendant Griffin’s involvement in the crime was reported differently by the three witnesses. Nevertheless, there is no question regarding the clarity or sufficiency of Walker’s articulated utterances. The fact that each of the witnesses to the declaration offered a slightly different version of what Walker said properly affects the weight, and not the admissibility, of Walker’s statement.

Defendant Griffin’s final argument is that he was denied effective assistance of counsel. Griffin contends that trial counsel’s position as attorney for both defendants precluded counsel from pursuing the theory most advantageous to Griffin. Defendant Griffin cites statements made by police sergeant L.C. Moore before the grand jury, to the effect that Griffin told Moore that it wasn’t his (Griffin’s) idea to kill anyone. Defendant proceeds to argue that trial counsel should have pursued the defense that Griffin had been a nonparticipating bystander while the killings took place. Defendant Griffin also notes that only one of the witnesses to Walker’s dying declaration identified Griffin by name, while all three identified Smith. In representing both defendants, it is argued, trial counsel was not free to exploit this fact in Griffin’s favor.

In criminal cases where codefendants are jointly represented by one attorney, a defendant must demonstrate “ ‘an actual conflict of interest manifested at trial’ ” in order to claim a denial of effective assistance of counsel. (People v. Washington (1984), 101 Ill. 2d 104, 112, quoting People v. Nelson (1980), 82 Ill. 2d 67, 411 N.E. 261.) As we have noted above, the instant case did not present a situation where antagonistic or inconsistent defenses were presented at trial, since both defendants relied upon a single alibi defense. Defendant Griffin argues, in effect, that his attorney was incompetent by his failure to abandon the alibi defense and, keyed by Sergeant Moore’s hearsay testimony before the grand jury, portray defendant Griffin as a “nonparticipating bystander” to the killings. We find this proposed alternative defense too speculative to constitute the actual conflict required by Washington and Nelson. Given the eyewitness testimony of Charles Kellick and the statutory imposition of accountability (Ill. Rev. Stat. 1981, ch. 38, par. 5 — 2(c)), it is apparent neither that such a defense would have been effective nor readily established. Furthermore, there is nothing in the record to indicate that defendant Griffin presented his attorney with any facts other than those supportive of the alibi defense. In the absence of contrary evidence, it must be presumed that the defense pursued by counsel was the defense effectively presented to counsel by defendant, particularly when the defense is supported by defendant’s own testimony at trial. The failure of counsel to adopt a defense inconsistent with his client’s testimony cannot reasonably be characterized as incompetence.

Defendant Griffin alleges that his attorney failed in other respects to provide effective assistance, notably in not objecting to 23 separate instances of “rambling statements of hearsay connected with police procedure.” To the extent that defense counsel’s failure to object to these and other noted statements of State’s witnesses and State’s counsel actually may have involved error or poor tactical judgment, the resulting prejudice to defendant was not of a magnitude sufficient to support the allegation of ineffective assistance. Our examination of the record directs us to the same conclusion regarding the additional alleged errors. The competency of an attorney is determined from the totality of his conduct at trial. (People v. Murphy (1978), 72 Ill. 2d 421, 437, 381 N.E.2d 677.) Mistakes in strategy will not in themselves render a defendant’s representation incompetent. (People v. Robinson (1979), 70 Ill. App. 3d 24, 27, 387 N.E.2d 1114.) Representation by counsel, whether court-appointed or privately retained, is constitutionally deficient if counsel’s alleged inadequacy produced substantial prejudice to the defendant, without which the result would probably have been different. (People v. Royse (1983), 99 Ill. 2d 163, 168.) The record in the instant case does not indicate such prejudice.

For the reasons stated above, the judgments of the circuit court of St. Clair County are affirmed.

Affirmed.

WELCH, P.J., concurs.

JUSTICE KARNS,

concurring in part and dissenting in part:

I concur in the opinion of the court affirming the judgment of conviction of Jimmy Lee Smith; however, I dissent in the affirmance of the judgment of conviction of Lee Otis Griffin for the reasons stated in my opinion in People v. Griffin (1984), 124 Ill. App. 3d 169.

      In the context of Mr. Winchester’s testimony, it is unclear whether the pronoun here refers to Officer Settles, Trooper Rice, or Ronald Walker.


author: JUSTICE HOPF

text:
    COMMUNITY HIGH SCHOOL DISTRICT 155 et al., Plaintiffs-Appellants, v. INGRID DENZ, a Minor, by her Next Friend, ANTHONY J. VERONICO, Guardianship Administrator of the Illinois Department of Children and Family Services, et al., Defendants-Appellees.
    Second District
    No. 83—1096
    Opinion filed May 9, 1984.

      Stanley B. Eisenhammer and Bennet Rodick, both of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., and Wayne Plaza, of Rooks, Pitts, Fullagar & Poust, both of Chicago, for appellants.
    Neil F. Hartigan, Attorney General, of Springfield (Katherine Spalding and Paul Millichap, Assistant Attorneys General, of counsel), for appellees Department of Children and Family Services and Donald G. Gill.
    Kevin M. Kane, of Prairie State Legal Services, of Waukegan, for appellee Ingrid Denz.
   JUSTICE HOPF

delivered the opinion of the court:

This appeal essentially involves the question of what is the appropriate educational placement of defendant Ingrid Denz (Ingrid), a trainable mentally handicapped child with Down’s syndrome who is also a carrier of infectious Hepatitis Type B. Plaintiffs, Community High School District 155 (District 155) and the Board of Control of Special Education District of McHenry County (SEDOM), contend that because of the risk that Ingrid might transmit the disease to others if she is placed in a classroom setting, the appropriate placement is “homebound” placement, whereby Ingrid would receive her special education through a one-to-one tutor at her home. Defendants, on the other hand, maintain that the risk of transmission of the disease is remote and therefore is not a sufficient reason to exclude Ingrid from classroom participation. Defendants therefore argue that the classroom setting is the least restrictive environment in which to educate Ingrid and, as such, is required to be provided by plaintiffs under section 14 — 8.02(c) of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 14 — 8.02(c)), as well as the parallel Federal statute, the Education for All Handicapped Children Act (EAHCA) (20 U.S.C. sec. 1401 et seq. (1982)).

The factual basis for this appeal is as follows. In March 1977, Ingrid Denz was hospitalized and diagnosed as having chronic persistent infectious Hepatitis Type B. Since that time, she has repeatedly tested positive for being a carrier of that disease. Ingrid has also repeatedly tested positive for an “e antigen,” indicating a degree of infectivity many times higher than other carriers of Hepatitis Type B virus. She is, however, totally asymptomatic. In April 1977, the Illinois Department of Children and Family Services (IDCFS) became Ingrid’s guardian and in September 1977 placed Ingrid with the Mauer family. At that time, Ingrid was of elementary school age and therefore the responsibility for her education was with the Crystal Lake Elementary School District 47 (District 47).

Meanwhile, in August 1977, District 47 performed a case study evaluation pursuant to section 14 — 8.02(b) of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 14 — 8.02(b)) to determine Ingrid’s need for special education. Subsequently, two multidisciplinary conferences were held by the plaintiffs in which it was determined that although Ingrid was educationally capable of attending a program operated by SEDOM at the “SEDOM Center” facility, her medical condition made her ineligible for that program. As a result of these conferences, Ingrid was placed in the “homebound” program in February 1978 where she received essentially the same education and services as was provided at the “SEDOM Center.”

Approximately two years later, the IDCFS requested that District 47 change Ingrid’s placement to allow her to interact with other handicapped children. The request was denied and the IDCFS appealed the decision to an independent hearing officer pursuant to section 14 — 8.02(g) of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 14 — 8.02(g)). After hearing the evidence and arguments, the hearing officer found that the dangers posed by the health impairment for Ingrid and other children could be sufficiently minimized by appropriate, relatively inexpensive prophylactic procedures and that Ingrid had an overriding right to an educational placement which affords her some degree of interaction with other children. Thus, the decision of the multidisciplinary conference was reversed and Ingrid’s placement in the SEDOM facility was ordered. The hearing officer also ordered that Ingrid be provided a teacher’s aide to guard against infection of other children. District 47 appealed the order to the State Superintendent of Education pursuant to section 10.16 of the Board of Education’s Rules and Regulations to Govern the Administration and Operation of Special Education. The substance of these rules is not contained in the record on appeal. After hearing additional medical evidence and testimony, which will be discussed in further detail later in this opinion, the State Superintendent of Education affirmed the order of the independent hearing officer.

District 47 then appealed the decision of the State Superintendent of Education to the circuit court of McHenry County pursuant to section 14 — 8.02(k) of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 14 — 8.02(k)). District 155 subsequently intervened as a party-plaintiff when it became legally responsible for Ingrid’s education. After hearing the evidence and arguments of counsel and reviewing the record below, the trial court affirmed the decision of the State Superintendent of Education. Plaintiff’s motion for a stay of the judgment pending appeal was denied.

Plaintiffs appeal from the judgment of the circuit court, raising the following issues for review: (1) whether the trial court and the State Superintendent of Education exceeded the scope of judicial review authorized under section 14 — 8.02 of the School Code by substituting their judgment for that of the local school district; (2) whether Ingrid’s homebound placement is mandated by the school district’s health and safety obligations to its students so that she is being educated in the least restrictive environment, as required by section 14— 8.02(c) of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 14— 8.02(c)) and the EAHCA; (3) whether the State Superintendent had jurisdiction to hear this matter; and, (4) whether the plaintiffs were denied due process by the State Superintendent?

Relying upon Board of Education v. Rowley (1982), 458 U.S. 176, 73 L. Ed. 2d 690, 102 S. Ct. 3034, plaintiffs first contend that the trial court and the State Superintendent did not have authority to conduct de novo proceedings to reach their own independent conclusions, but rather were obligated to defer to the decision of the local school district where that decision is reasonably based on the facts. Defendants argue, on the other hand, that due deference was given by the trial court to the decision of the State authorities as required by Rowley, and that the decision of the trial court was based upon a preponderance of the evidence as required by section 14 — 8.02(k) (Ill. Rev. Stat. 1981, ch. 122, par. 14 — 8.02(k)).

In Rowley, the court considered the educational needs of a deaf child, Amy Rowley, who was an excellent lip reader and was receiving her education in a regular classroom. Amy’s parents requested that the local school district provide Amy with a sign language interpreter. However, after several weeks of experimentation with an interpreter in the classroom, the school administrators concluded that Amy did not need an interpreter and the parents’ request was denied. The parents then demanded and received a hearing before an independent hearing officer who agreed with the administrators’ determination that Amy did not need an interpreter because she was “achieving educationally, academically, and socially” without such assistance. (458 U.S. 176, 185, 73 L. Ed. 2d 690, 698, 102 S. Ct. 3034, 3040.) The examiner’s decision was affirmed on appeal by the New York Commissioner of Education on the basis of substantial evidence in the record. However, the district court reversed the Commissioner’s decision finding that the right to a “free appropriate public education” required that the handicapped child be provided with “an opportunity to achieve [her] full potential commensurate with the opportunity provided to other children.” (458 U.S. 176, 185-86, 73 L. Ed. 2d 690, 699, 102 S. Ct. 3034, 3040.) The district court also assumed that the responsibility for giving content to the requirement of an “appropriate education” had “been left entirely to the [federal] courts and the hearing officers.” (458 U.S. 176, 186, 73 L. Ed. 2d 690, 699, 102 S. Ct. 3034, 3040.) The United States Court of Appeals for the Second Circuit affirmed the district court’s opinion.

The United States Supreme Court considered two questions in its review of the appellate court’s decision: (1) what is meant by the EAHCA’s requirement of a “free appropriate public education?” and (2) what is the role of State and Federal courts in exercising the review granted under the Act? It is undisputed in the instant case that the provisions of the EAHCA and the Illinois statute are essentially identical and that the Illinois statute incorporates by reference the provisions of the EAHCA which were discussed in Rowley. (Ill. Rev. Stat. 1981, ch. 122, par. 14 — 8.02(f).) With respect to the first issue, the court determined that contrary to the opinions of the district and appellate courts, the EAHCA did not require the States to maximize the potential of handicapped children “commensurate with the opportunity provided to other children,” but required only that the child be provided with specialized educational instruction supported by such services as are necessary to permit the child “to benefit” from the instruction. (458 U.S. 176, 186-89, 73 L. Ed. 2d 690, 699-701, 102 S. Ct. 3034, 3040-41.) The court further noted that while the EAHCA also requires participating States to educate handicapped children with nonhandicapped children whenever possible, i.e., “mainstreaming,” that aspect of the Act was not in issue in that case since Amy Rowley was in fact enrolled in a regular classroom of the public school system and was performing above average in that setting. The court emphasized that due to this fact, it was not establishing a test for determining the adequacy of the educational benefits conferred upon children covered by the Act. 458 U.S. 176, 202, 73 L. Ed. 2d 690, 709, 102 S. Ct. 3034, 3049.

Rowley is distinguishable from the instant case in several respects. First, the parties here do not dispute the fact that Ingrid is “benefiting” from her “homebound” education. Thus, the question whether Ingrid is receiving a “free appropriate public education” within the meaning of the Rowley decision is not in issue here. Second, the Rowley case did not discuss the circumstances under which a school district’s refusal to “mainstream” a child would constitute a violation of the EAHCA. (See 20 U.S.C. sec. 1412(5) (1982).) Thus, the decision offers little guidance on the proper interpretation of the “mainstreaming” requirement.

Despite its distinguishing features, however, the Rowley decision is instructive on the proper interpretation to be given to essentially identical provisions in the Illinois statute regarding the scope of judicial review. The Rowley court analyzed certain language in the Federal statute which authorized a reviewing court to base its decision on the “preponderance of the evidence.” This language is also contained in the Illinois statute. (Ill. Rev. Stat. 1981, ch. 122, par. 14 — 8.02(k).) The court determined that this language does not give authority to reviewing courts to “substitute their own notions of sound educational policy for those of the school authorities which they review.” (Board of Education v. Rowley (1982), 458 U.S. 176, 206, 73 L. Ed. 2d 690, 712, 102 S. Ct. 3034, 3051.) The court further stated that any relief which is granted by a reviewing court must have as its reference point the obligations, largely procedural in nature, which are imposed on recipient States by Congress. Thus, the court concluded that a court’s inquiry in suits brought under the EAHCA is limited to determining whether the requirements of that Act have been met, and that questions of methodology are for resolution by the States. In reaching this conclusion, the court cautioned that courts lack the “ ‘specialized knowledge and experience’ necessary to resolve ‘persistent and difficult questions of educational policy,’ ” and stated that “[t]he primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child’s needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child.” (Emphasis added.) 458 U.S. 176, 207-08, 73 L. Ed. 2d 690, 712-13, 102 S. Ct. 3034, 3051-52.

In Roncker v. Walter (6th Cir. 1983), 700 F.2d 1058, 1062, the court discussed the requirement of “mainstreaming” in light of the Rowley decision and determined that a trial court may conduct a de novo review of the “mainstreaming” requirement since it is essentially a question of compliance with the Act rather than methodology of education. However, the court stated that due weight should be given to the State administrative proceedings in reaching a decision. 700 F.2d 1058, 1062.

Applying these principles to the instant case, we believe the trial court here complied with the standards of judicial review enunciated in Rowley and Roncker. In affirming the decision of the State Superintendent of Education, the trial court gave due deference to that agency’s determination of educational policy under the circumstances presented here. Additionally, while plaintiffs argue that the standard of review enunciated in Rowley requires the State Superintendent to give due deference to the decisions of local school districts, we find this argument unpersuasive. First, the role of the State Superintendent in the reviewing process was not in issue in Rowley and thus that decision does not support plaintiffs’ argument. Second, it is clear that the reasons which justify a limited judicial review by the courts, i.e., a lack of specialized knowledge and experience, do not apply to the State Superintendent of Education, whose expertise is in educational policy and methods. We are therefore of the opinion that the proper standard of review was applied by both the trial court and the State Superintendent.

Plaintiffs next contend that in light of Ingrid’s medical condition, homebound placement is the least restrictive and the most beneficial placement for her. Defendants, on the other hand, maintain that in this case the risk of transmission of the disease is remote and is therefore not a sufficient basis on which to exclude Ingrid from classroom participation.

The EAHCA requires as a condition for receiving Federal aid that States establish procedures to assure that handicapped children are educated with nonhandicapped children and integrated to the maximum extent appropriate. (20 U.S.C. sec. 1412(5)(b) (1982).) While “mainstreaming” is not required in every case, there is a strong congressional preference in favor of it whenever possible. (Roncker v. Walter (6th Cir. 1983), 700 F.2d 1058, 1063.) As stated previously, a trial court may conduct a de novo review of a school district’s decision regarding “mainstreaming,” as long as due deference is given to the State administrative proceeding in reaching a decision. (700 F.2d 1058, 1062.) Further, both the Illinois statute and the EAHCA require that the court’s decision be based on a preponderance of the evidence. (Ill. Rev. Stat. 1981, ch. 122, par. 14 — 8.02(k); Board of Education v. Rowley (1982), 458 U.S. 176, 73 L. Ed. 2d 690, 102 S. Ct. 3034.) Thus, on review the trial court’s decision should be affirmed if it has given due deference to the State agencies and if it is not against the manifest weight of the evidence. After reviewing the record here, we conclude that this standard has been met.

At the hearing, it was established that Hepatitis Type B is a disease of the liver which may be transmitted to others through bodily secretions such as blood, saliva, mucus, or semen. Blood is the primary source of the virus, with the other types of secretions being extremely inefficient methods of transmitting the disease. At the State level hearing, three doctors each testified that transmission of the disease is relatively difficult and that the mere presence of a carrier does not result in the disease's.transmission. Rather, transmission requires that highly contagious fluid be in extremely close proximity to an open wound on the skin or to a mucous membrane, and even then transmission most often does not occur. Further, it was established by all the experts testifying that any risk could be minimized with proper hygiene, such as hand washing and separating of personal items. It was also established at the hearing that although others at the SE-DOM Center could potentially be carriers of Hepatitis Type B, they had never been tested for that disease.

The principal of the SEDOM Center, John Fleshman, testified as to the conditions and programs available at the Center. In his opinion, potential routes for transmission of the disease existed at the Center. Specifically, he stated that the students were ages three to 21, and that the adolescent students, although mentally retarded, have emotional drives, i.e., sex drives, which are exhibited by kissing and, at times, sex. The students move from classroom to classroom for the various academic offerings and interact socially and physically in physical education and in the home living center, an apartment-like setting where students jointly prepare meals and learn independent living skills necessary for functioning in a normal environment. They make common use of certain instructional materials and, at times, may share food and utensils. Fleshman stated that there have been situations where students fall in physical education and scrape or cut themselves when preparing meals in the home living center. He stated that it would be difficult to totally control the children so that these situations would never arise, and that the students are enrolled at the Center because they have “inappropriate” behaviors that need to be remedied. Mr. Fleshman stated that the student-to-faculty ratio at the Center is approximately five to one. He further stated that while a one-to-one aide would not eliminate the risk of transmission of hepatitis, it would lessen it.

The superintendent and director of special education in McHenry County, James Albert, testified that SEDOM individually tailors programs for its children. Thus, behavioral disordered children are kept in a classroom separate from other handicapped children. Accordingly, there would be no reason to assume that other children in Ingrid’s class would attack her so as to increase the risk of exposure through Ingrid’s blood or other bodily secretions.

Ingird’s foster mother testified that Ingrid is very well aware of her medical condition. As a result, Ingrid on her own initiative is very meticulous about washing her hands regularly and keeping her dishes and utensils separate and reminds others on her own initiative that they cannot use her dishes. She washes her hands after touching her nose or mouth, and wears rubber gloves when helping to wash dishes, all without prompting by others. If she cuts herself, she immediately washes her hands and puts on a bandage, also without prompting. She does not kiss people, and she has never attempted to attack anyone. She is not particularly prone to “mouthing” or drooling. In summary, she is a very well-behaved teenager with a mild disposition.

Both the Illinois Department of Public Health and Ingrid’s personal physician were of the opinion that Ingrid could be integrated into the classroom if appropriate sanitary procedures are followed. Cf. Ely v. Howard County Board of Education (D.C. Maryland, 1982), 3 EHLR 553: 288, and In re Santa Clara County Superintendent of Schools (1982), 3 EHLR 503: 252, where the experts testified that the risk of transmission was significant given the personal characteristics of the handicapped children involved.

In Hairston v. Drosick (S.D. W. Va. 1976), 423 F. Supp. 180, 183, it was noted that "[a] major goal of the educational process is the socialization process that takes place in the regular classroom, with the resulting capability to interact in a social way with one’s peers.” The Superintendent of Education here recognized this most significant aspect of a child’s education and determined that under the particular circumstances of this case, the risk of transmission of the disease does not outweigh the injury to Ingrid if she remains isolated from her peers. In light of Ingrid’s personal characteristics, the relatively low risk of transmission of the disease as testified to by the experts, and SEDOM’s ability to fashion an individualized program for Ingrid and the other students which could further reduce that risk, we believe due deference was given to the Superintendent’s decision and that that decision is supported by a preponderance of the evidence. Plaintiffs’ argument that a one-to-one aide would ultimately be detrimental to Ingrid’s progress is speculative. If at a later date this fear is in fact realized, Ingrid’s placement may be re-evaluated at that time. The trial court’s decision in this regard is therefore affirmed.

Plaintiffs next contend that the State Superintendent lacked jurisdiction to review the decision of the local school district because the district’s placement of Ingrid derived from her medical condition and not from her handicap. They argue that the fact that Ingrid is handicapped is irrelevant and that there is no basis for special education proceedings in this matter. This argument is without merit.

Regardless of whether the school district was acting in the capacity of in loco parentis, as it claims on appeal, and regardless of whether its decision was based on a physical disease rather than Ingrid’s handicap, it is undisputed that the district’s decision did restrict Ingrid’s interaction with other children. It is also true that Illinois accepts Federal aid in return for compliance with the EAHCA, which requires “mainstreaming” of handicapped children to the maximum extent appropriate. (See Roncker v. Walter (6th Cir. 1983), 700 F.2d 1058, 1062.) It is clear therefore that the school district’s decision had the effect of infringing upon Ingrid’s right to be “mainstreamed” under the EAHCA and section 14 — 8.02 of the School Code. (Ill. Rev. Stat. 1981, ch. 122, par. 14 — 8.02.) Under section 14 — 8.02(h) of the School Code, the State Superintendent is expressly given the authority to review decisions of the school district which affect a handicapped child’s rights under that statute. Ill. Rev. Stat. 1981, ch. 122, par. 14 — 8.02(h).

Finally, plaintiffs claim they were denied due process by the allegedly improper practices of the State Superintendent. Specifically, plaintiffs allege that they were denied the right to present additional evidence, that the hearing panel had prepared their findings of fact prior to hearing testimony, and that the State Superintendent’s decision was premised on information outside the record. These arguments are also without merit.

Plaintiffs’ claim that they were not allowed to present additional evidence at the State level proceeding is without support in the record. At the hearing, the review panel advised plaintiffs that since the transcript and materials submitted to them already contained considerable information on Ingrid’s psychological condition and social behaviors, as well as the activities at the SEDOM Center, the panel “would not look with great favor upon much repetition at this point.” However, the panel further advised that plaintiffs “may feel free to pursue that course, if you wish.” Thus, it is clear that the panel was not prohibiting plaintiffs from presenting evidence at the hearing, but was only advising that it would prefer not to repeat the testimony in evidence which had already been proffered at other stages of the proceeding. Section 14 — 8.02(h) of the School Code provides that at the State level appeal, the parties “shall be afforded the opportunity to present *** additional evidence ***.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 122, par. 14 — 8.02(h).) Plaintiffs were clearly given this opportunity.

We also reject plaintiffs’ contention that the panel improperly prepared their findings of fact prior to the hearing. At the beginning of the hearing, the panel stated that “it might advance the matter somewhat if we agreed upon the basis of what we already considered and thus avoid as much repetition as possible.” The panel continued by noting that it had received the prior proceedings and had ascertained certain “preliminary findings *** which, of course, subject to radical change, possibly depending upon what we hear today, it is merely our effort to state [what] we have been able to determine so far with regard to health impairment.” These comments by the panel indicate its intention to establish the facts already considered by them so that they need not be repeated during that hearing. The findings issued by the panel primarily focused upon the nature and transmission of Hepatitis Type B in general, and did not contain any specific statement on the outcome of the case. Further, the findings of fact issued by the State Superintendent were radically different in that they contained much more detailed and specific findings which reflected the testimony of the doctors at the State level review, and which applied some of the general principles to Ingrid’s particular situation. Under these circumstances, it cannot be said that the preliminary findings of fact presented by the panel violated the due process rights of the plaintiffs.

Plaintiffs’ claim that the State Superintendent relied upon evidence outside the record to support his determination finds no support in the record. The “additional evidence taken from medical experts by the State’s review panel” was merely a reference to the doctors who were called in by the panel to present additional medical testimony at the hearing. These doctors were questioned by the plaintiffs at length, and thus no due process violation occurred on this basis.

For the foregoing reasons the judgment of the circuit court of McHenry County is affirmed.

Affirmed.

SEIDENFELD, P.J., and REESTHARD, J., concur.


author: JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH CLAY et al., Defendants-Appellants.
    First District (5th Division)
    No. 82—578
    Opinion filed May 4, 1984.

      Steven Clark and Elizabeth Clarke, both of State Appellate Defender’s Office, of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Kip R. Owen, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SULLIVAN

delivered the opinion of the court:

Following a simultaneous trial, defendants Heard and Clay were convicted by separate juries of murder, attempted armed robbery, and conspiracy to commit armed robbery. After a finding by the trial court that the convictions for attempted armed robbery merged with the convictions for murder, Heard was sentenced to concurrent terms of 40 years for murder and 15 years for conspiracy; and Clay was sentenced to concurrent terms of 80 years for murder and 30 years for conspiracy. On appeal, Heard contends that (1) the trial court erred in denying his motion for substitution of judge without a hearing; (2) his inculpatory statement should have been suppressed because it was given during an involuntary detainment, in violation of Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248; (3) he was denied a fair trial by improper prosecutorial remarks during closing argument; and (4) his sentences are excessive. Defendant Clay’s sole contention on appeal is that his sentences are excessive.

The charges arose from the fatal shooting of 10-year-old Laura Bruce on December 3, 1980, and as there is no contention that guilt was not established, we will set forth only the testimony relevant to the issues presented.

Prior to trial, counsel for defendant Heard made an oral motion for a substitution of judge, which was denied. He also made a pretrial motion to suppress all statements on the basis that they were coerced. At the hearing thereon, Heard testified that he was asleep at about 6 or 7 a.m. on December 7, 1980, when three police officers came to his home, knocked on his door, and after being allowed inside by his mother, told him to get dressed and come with them to the police station. They did not tell him that he was under arrest, nor did he believe that he was. He did not accompany them voluntarily, but only because he “didn’t want to make any trouble.” Once at the police station, he was placed in a small room and handcuffed; he was given coffee, but nothing to eat. Several officers whose names he did not know talked to him, but he told them that he had no information about the shooting of Laura Bruce and that he wanted to see an attorney; however, they continued to question him and accused him of lying. At about 6 p.m. that evening, he told Officer Keane that he knew nothing about the crime, but he agreed to go with Keane to help him locate certain people. After about an hour they returned, and he was put back into the same room — which was then locked — and he remained there for the balance of the night. He was never told that he was under arrest nor was he ever advised of his constitutional rights. Neither was he told that he was free to leave, and he did not do so because he was handcuffed. On at least two occasions, the police threatened him by telling him that he “better tell the truth.” He stated that he gave a statement to an assistant State’s Attorney only because he was told he “had to talk” and, although he signed the statement and initialed each page, he was never given the opportunity to read it. In the statement, he admitted that he had not been threatened; that he had been advised of his constitutional rights; and that he was given food, coffee, and cigarettes.

Officer Stachula testified that about noon on December 7, shortly after Heard was brought to the station, he spoke to him in the interview room. He advised him of his Miranda rights and questioned him about the homicide, but Heard denied being involved therein. He then informed Heard that the investigation and accounts of other witnesses contradicted his denial. He never specifically told Heard that he was free to leave, but neither was Heard handcuffed or placed under arrest.

Detective Keane testified that when he first saw Heard, at about 4:30 p.m. on December 7, he was neither handcuffed nor otherwise restrained. He advised Heard of his rights, told him that he was investigating the December 3 homicide of Laura Bruce, and questioned him about his involvement therein. When Heard said he needed time to think about it, Keane advised him to knock on the door if he needed anything and left, locking the door behind him. At 6 p.m., after receiving the Miranda warnings, Heard made a statement concerning his participation in the crime and agreed to go with Keane to locate the other offenders. When they returned to the station about three hours later, Heard, who was then under arrest, was put back into the interview room for the remainder of the night.

Assistant State’s Attorney Dorfman testified that he spoke to Heard at 11:20 a.m. and again at 8:20 p.m. on December 8 and advised him of his rights prior to each conversation. Shortly after 9 p.m., Heard gave a court reporter statement in which he gave essentially the same information as he had in the two earlier interviews that day. Prior to making the court reporter statement, Heard told Dorfman that he had not been mistreated by the police. The motion to suppress was denied.

After the juries were selected, Heard made a separate motion to quash his arrest and suppress evidence. At the hearing thereon, Heard testified that when the police came to his home, they told him to get up and come with them. He objected, but one of the officers followed him into the bathroom while he dressed. Once at the police station, he asked several times why he was being held, but he was “just told to sit there.” He was never informed that he was free to leave, and although the police had told him he was not under arrest, he thought he was. On cross-examination, he admitted testifying at the prior hearing that he did not think he was under arrest when he left the apartment with the police, and that the police said he was not under arrest.

Eunice Heard, defendant’s mother, testified that when the police knocked on her door at about 6 or 7 a.m., she opened it slightly and three officers pushed their way in. At their request, she awakened her son and, as one accompanied him to the bathroom, the other searched her washing machine. The police never produced a search warrant nor did they tell defendant he was not required to go with them.

Sergeant O’Connor testified that on the basis of information that a witness had seen a car similar to defendant’s at the scene of the crime and that defendant was known to frequent that area, he and two other officers went to Heard’s apartment at about 10 a.m. on December 7. They knocked on the door, and when Heard’s mother opened it they stated who they were and asked her to awaken him. When she did, they identified themselves and told him that a vehicle similar to the one he owned, which was parked in front of Heard’s building, had been seen leaving the location of a murder on December 3. He then asked Heard if he would come to the police station to answer some questions. Heard got up, went to another room to dress, and then voluntarily accompanied them to Area 6 headquarters, where he was taken to an interview room which was left unlocked. He was not handcuffed nor placed under arrest at that time. The motion to quash the arrest and suppress evidence was denied.

At trial, Detective Keane testified that he separately interviewed defendants Clay and Heard on the evening of December 7, 1980, and that after being advised of their constitutional rights, both voluntarily made statements concerning the crime — with each stating in substance that in late November 1980, Clay met with Gregory Johnson (Johnson) and Joseph Carter (Carter) at Clay’s apartment building at 810 West Bradley and discussed robbing someone. During the conversation, Christine Bruce — the victim’s mother, who was Clay’s landlady-passed by and a discussion was held concerning when and how she collected the rent for the 40-unit building. On December 1, the men were joined by Heard in Clay’s apartment again to discuss whom they might rob. Clay suggested that Mrs. Bruce would be an “easy mark” because she and her family lived alone in the apartment directly below his. On December 3, Johnson, Carter, and an unidentified third man went to Heard’s apartment to tell him that they were going ahead with the planned robbery of Mrs. Bruce. At that time, Johnson was carrying a sawed-off shotgun. The group drove in two cars to Clay’s apartment building, where Clay allowed them to enter through the buzzer security system. Heard said that he remained in his car while the others went inside, but after waiting for about IV2 hours, he went up the back stairway to find out how long the others expected to be. He then returned to his car, and about 10 minutes later upon hearing a shot, he quickly drove away. Clay, however, said that Heard was in the apartment prior to the shooting. Clay also stated that they had all agreed that Johnson and Carter would go downstairs to the landlady’s apartment to commit the robbery; that Heard and the unidentified man would stand at her back door as lookouts; that Clay, who could be identified by the landlady, would remain in his apartment; and that the five men would split the robbery proceeds equally.

The testimony of Christine Bruce and her husband, William Hallars, disclosed the following: Mrs. Bruce was the building manager for the apartment complex, and she collected rents totaling as much as $7,500 to $8,000 between the first and fifth of each month. On December 3, 1980, their daughters, Laura, 10, and Serena, 9, arrived home from school at about 3:15 p.m. Laura was sitting on a chair in the living room, waiting for her sister to get dressed to go outside to play, when there was a knock on the door. Mrs. Bruce opened the door and saw two men she did not recognize. She twice asked them what they wanted, but they did not respond. When she noticed that one had a shotgun, she began screaming. Hallars got up from the couch, but before he could shut the door the man fired the gun. Hallars told his wife to go to the kitchen and call the police, but as she and Serena entered the kitchen she noticed the back door opening and two shadows outside. She screamed again, whereupon Hallars entered the room, threw himself against the door, and locked it. He then called the police and reported that his daughter had been shot. Officer Calabrese testified that when he entered the apartment, he saw Laura lying on the floor in the living room with shotgun wounds in her chest and neck.

Officer Grogman testified that in his search for witnesses to the shooting, he spoke to Clay who told him that he had been in his apartment when he heard a gunshot, and when he ran to the stairwell to investigate, he saw two men running from the front door of the apartment below. He gave a description of the men which was later determined to be false. Also present in Clay’s apartment was a woman named Delores Whittaker, who told Grogman that she had seen two men in the rear of the apartment below, and about a week later she identified a police photograph of Heard as one of those men. Grogman spoke to Clay again on December 5, and on the basis of the information he received from him, a decision was made to question Heard about the crime.

A deputy medical examiner testified that Laura Bruce died of a massive shotgun wound to the chest.

Opinion

We first consider defendant Heard’s contention that his motion for a judge substitution was improperly denied without a hearing thereon. Section 114 — 5(a) of the Code of Criminal Procedure allows an automatic substitution of judge if, within 10 days after the cause has been placed on the trial call of the judge, defendant files a written motion alleging that the judge is so prejudiced against him that he cannot receive a fair trial. (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 5(a); see People v. Samples (1982), 107 Ill. App. 3d 523, 437 N.E.2d 1232.) In addition, section 114 — 5(c) provides that a motion for substitution of judge for cause, supported by affidavit, may be filed by a defendant at any time, and that a hearing thereon should be conducted by a judge other than the one named therein. Ill. Rev. Stat. 1981, ch. 38, par. 114-5(c).

While defendant apparently concedes that his written motion for substitution of judge was not in compliance with the requirements of section 114 — 5(a), he does assert that pursuant to section 114 — 5(c) he was entitled to a hearing on his allegation that he could not receive a fair trial because the trial judge, having presided over the trial of a co-offender, was familiar with and had a hostile predilection toward the evidentiary matters to be presented at his trial. While it is true that section 114 — 5 is to be construed liberally (People v. Hanson (1983), 120 Ill. App. 3d 84, 457 N.E.2d 1048), the right to substitution is not absolute (People v. Robinson (1974), 18 Ill. App. 3d 804, 310 N.E.2d 652), and in order to avail himself thereof, a defendant must comply with the applicable statutory provisions (People v. Ganci (1978), 57 Ill. App. 3d 234, 372 N.E.2d 1077) — one of which, as noted above, is that under section 114 — 5(c) a motion for substitution for cause must be supported by affidavit (People v. Rice (1982), 108 Ill. App. 3d 344, 438 N.E.2d 1333).

Here, defendant’s motion was merely a conclusionary allegation, unsupported by affidavit, that the trial judge was prejudiced against him. Furthermore, our review of the record reveals that when the motion was first presented, the trial judge expressed his willingness to entertain it if it were accompanied by an appropriate affidavit, but counsel apparently chose to stand on the motion as presented. Having failed to bring his motion into compliance with the statute, defendant cannot now complain that he was entitled to a hearing thereon. The motion for substitution of judge was properly denied.

Defendant Heard next contends that he was involuntarily detained in an interrogation room in a police station for nine hours in violation of Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248, and his resulting statement should therefore have been suppressed. In Dunaway, defendant made a confession after he was involuntarily taken into custody by police officers who, having no probable cause to arrest, had been ordered to pick him up and bring him in for questioning. Although he was not formally placed under arrest, evidence at trial disclosed that he would have been physically restrained had he attempted to leave. The United States Supreme Court held that such seizures are reasonable only if supported by probable cause and that, absent probable cause, a custodial detention and interrogation which exceeds the limited investigatory stop held valid in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, constitutes a violation of the defendant’s constitutional protection against unreasonable search and seizure, and that any statements obtained as a result of such a seizure must be suppressed unless it can be demonstrated that there were sufficient intervening circumstances which purged the taint of the illegal arrest. It is the State’s position that defendant voluntarily went to the police station and was not under arrest during the preliminary questioning.

Initially, we note that two of the essential elements in the definition of an arrest are the intent of the officers and the understanding of the arrestee. (People v. Wipfler (1977), 68 Ill. 2d 158, 368 N.E.2d 870.) Although no formal declaration of arrest is necessary for one to occur, the absence of such a declaration as well as the absence of other routine procedures associated with an arrest — such as handcuffing, fingerprinting, and photographing — are factors to be considered in determining the officers’ intent (People v. Gale (1979), 72 Ill. App. 3d 23, 390 N.E.2d 921), and in examining the understanding of the defendant, the test is not what he actually, or subjectively, thought but what a reasonable man, innocent of any crime, would have believed given the same circumstances (People v. Miller (1980), 89 Ill. App. 3d 973, 412 N.E.2d 175). Moreover, where a trial court has conducted an evidentiary hearing on a motion to suppress, its ruling will not be disturbed unless it is manifestly erroneous (People v. Reynolds (1981), 101 Ill. App. 3d 576, 428 N.E.2d 694) and, when examining the propriety of such a ruling, a reviewing court may consider any evidence adduced at trial which supports the trial court’s finding (People v. Sakalas (1980), 85 Ill. App. 3d 59, 405 N.E.2d 1121).

Here, at the hearing on the motion to suppress statements, defendant testified that when the officers came to his home, he agreed to accompany them to the police station for questioning, albeit for the sole purpose of not wanting to cause trouble with the police, and that he did not believe he was under arrest at that time but said that at the station he was handcuffed, placed in a locked room, threatened, and repeatedly questioned without being advised of his constitutional rights. However, at the hearing on the motion to quash his arrest, he stated that he did object to the officers’ demands that he come with them, and that from the outset he believed that he was under arrest, even though the police told him he was not. Several police officers testified that it was not their intention to place Heard under arrest when they came to his home; that he did not object to their request that he accompany them for questioning, but that if he had they would have left the premises without taking further action until consulting with the assistant State’s Attorney; that they displayed no weapons and did not search, handcuff, or restrain him in any manner; that he was not photographed or placed in a lineup; that the door of the interview room was left open, and defendant was free to go; and that he was advised of his constitutional rights prior to any questioning. The assistant State’s Attorney also testified that Heard voiced no complaints when asked about his treatment by the police. It is the function of the trial court to determine the credibility of witnesses and the weight to be given their testimony, and where the evidence is merely contradictory, a court of review will not substitute its judgment for that of the trier of fact. (People v. Clay (1973), 55 Ill. 2d 501, 304 N.E.2d 280.) We believe Dunaway is inapposite, as we find support for the trial court’s finding that defendant voluntarily agreed to accompany the police to the station for questioning, and considering the evidence in its totality, we cannot say that the denial of defendant’s motion was manifestly erroneous. See People v. Reed (1982), 104 Ill. App. 3d 331, 432 N.E.2d 979.

Defendant Heard further contends that certain comments by the prosecutor in closing and rebuttal arguments denied him a fair trial. He argues that the prosecutor improperly referred to facts not in evidence and interjected his personal opinion concerning the strength of the defense.

Although a prosecutor is permitted wide latitude in closing arguments (People v. Belton (1982), 105 Ill. App. 3d 10, 433 N.E.2d 1119), his comments therein must be based upon evidence admitted at trial or on reasonable inferences therefrom (People v. Wallace (1981), 100 Ill. App. 3d 424, 426 N.E.2d 1017) and may not include personal opinions as to the guilt of, or the sufficiency of the evidence presented by, defendant (People v. Rowe (1983), 115 Ill. App. 3d 322, 450 N.E.2d 804). However, such remarks do not generally warrant reversal unless they result in substantial prejudice to defendant (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200); i.e., that they were such a material factor in defendant’s conviction that the jury would likely have reached a contrary verdict had they not been made (People v. Witted (1979), 79 Ill. App. 3d 156, 398 N.E.2d 68). Furthermore, defendant may not assert such prejudice where the comments of which he complains were provoked or invited by the arguments of his counsel. People v. Smith (1982), 111 Ill. App. 3d 895, 444 N.E.2d 801.

Defendant first complains of a reference by the prosecutor in rebuttal argument to evidence contained in a police report concerning two figures allegedly seen by Mrs. Bruce at the back door of her apartment after the shooting-. He maintains that because the police reports were not in evidence, reference to them was improper. Initially, we note that in his closing argument, defense counsel referred to the police report on at least four occasions, and at one point was even admonished by the trial court when he began reading from it. Consequently, the prosecutor’s rebuttal remark that the police report did indeed contain information which defense counsel had previously asserted it did not, was invited by defense counsel’s argument. Moreover, we see no prejudice here, where defendant’s objection to the reference was sustained and because it would have been cumulative to the testimony of Mrs. Bruce that two figures were at her back door.

Defendant also argues that the prosecutor improperly expressed his personal opinion of the strength and credibility of the defense case by variously referring to it as “the biggest bunch of double-talk I’ve ever heard in my life,” and “a ridiculous bunch of crap,” and by prefacing other remarks with “I don’t know why he’s even trying to sell you that,” and “It’s hard for me to believe ***.” It is improper for the prosecutor to interject his personal opinions as to the evidence; however, in the light of the overwhelming evidence of guilt presented here, we do not believe that these remarks could have materially affected the outcome of the trial. It also should be noted that while we agree that the use of some word other than “crap” would better suit the dignity of the court, since no objection was made to it and because it appears in all the standard dictionaries, we attach no particular significance to its effect on the jury here.

Defendant also challenges the prosecutor’s comment that “[t]his happens all the time, guys who plan armed robberies and someone gets killed and they try to escape responsibility ***.” The record reveals that the court sustained defense counsel’s objection to “[tjhis happens all the time,” noting that no evidence had been presented thereon. Furthermore, the court properly instructed the jury to disregard any arguments by counsel which were not based on the evidence. Thus, we believe that any prejudice which might have resulted from the challenged remark was cured by the trial court’s actions.

Defendant’s final argument in this regard concerns the prosecutor’s description of him as a “coward” and a “liar.” We note that because defense counsel failed to object to either of these remarks, any error is considered waived unless we find that they resulted in substantial prejudice to defendant. (See People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174.) Moreover, in view of defense counsel’s reference to his client as a “chicken” and because there were conflicting statements by defendant concerning the circumstances of his arrest, we find that the remarks did not constitute reversible error. See People v. Owens (1984), 102 Ill. 2d 88.

In summary, we do not believe that the challenged remarks were completely unsupported by the evidence, nor do we believe that the evidence was so closely balanced that even were we to find them improper, the comments could be said to have been so prejudicial as to have been a material factor in defendant’s conviction or to have denied him a fair trial. See People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739.

Defendants Heard and Clay both contend that their respective sentences were grossly disparate from that of alleged accomplice Leroy Carter and were, therefore, excessive. It appears that in return for his testimony at the trial of Gregory Johnson who was the gunman in this shooting, Carter was charged with only attempted armed robbery and, after pleading guilty thereto, was sentenced to a term of 10 years. Defendants here argue that aside from Johnson, Carter was the most culpable offender because, in addition to participating in the planning of the aborted robbery, he was also present at the shooting and was the only one of them who might have been able to prevent it.

While it is true that similarly situated codefendants should not receive disparate treatment in sentencing (People v. Gleckler (1980), 82 Ill. 2d 145, 411 N.E.2d 849), we note that the issue of disparity generally arises only when the sentences are imposed for the same offense (People v. Hill (1978), 65 Ill. App. 3d 879, 382 N.E.2d 881). In Hill, defendant was convicted of murder and robbery and was sentenced to concurrent terms of 35 to 100 years and 62/3 to 20 years, respectively, while an accomplice who pleaded to burglary and thereafter testified for the prosecution was sentenced to a term identical to that received by defendant on the robbery conviction. In rejecting defendant’s argument that these sentences were unjustifiably disparate, the Hill court held that an assertion of disparity may not be grounded on a comparison between a sentence for murder and one for an offense other than murder. See also People v. Parish (1980), 82 Ill. App. 3d 1028, 403 N.E.2d 725.

However, Clay also contends that the trial court abused its discretion in imposing extended-term sentences of 80 years on his conviction for murder and 30 years on his conviction for conspiracy to commit armed robbery. Before reviewing the merits of this contention, it is appropriate to note here that although defendant Heard has not raised this issue on appeal, it appears on close examination of the transcript of the sentencing hearing that, contrary to his interpretation of the court’s statements thereat, his sentence for murder was also intended to be an extended term, 40 years being not only the maximum sentence for murder under section 5 — 8—1(a)(1)(a) (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(a)(1)(a)), but also the minimum extended term under section 5 — 8—2(a)(1) (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2(a)(1)). We direct the parties’ attention to the following statement made by the trial court when imposing sentences:

“His [Heard’s] part, as far as this Court, is the most minimal of the whole case. However, the case was no question, a very brutal case. The conduct is where they will qualify for the extended term. However, his [Heard’s] part was not as severe as some of the others, such as Johnson. Defendant Heard, based upon the background, I sentence you to 40 years. ***
Defendant Clay, the case would not have come off if it wasn’t for him. Clay does have an extensive record, many sheets. [H]e is by far one of the worst I have ever seen ***. He knows the people. He sets up the rip-off. He lies to the police and afterward tries to cover up. *** He qualifies for the extended term. Therefore, I will sentence you to *** 80 years ***.” (Emphasis added.)

Similarly, the 15-year sentence imposed upon Heard for conspiracy was both the maximum term for a Class 1 felony under section 5 — 8— 1(a)(4) (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(a)(4)) and the minimum extended term therefor under section 5 — 8—2(a)(3) (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2(a)(3)). It seems apparent therefrom that the trial court first considered, as is required by section 5 — 8—2, the singular question of whether the offense warranted an extended term under section 5 — 5—3.2 (Ill. Rev. Stat. 1979, ch. 38, par. 1005— 5 — 3.2), and upon finding that it did, then considered the relative degree of each defendant’s participation therein, as well as their individual criminal backgrounds in determining the severity of the sentences to be imposed. Moreover, we assume that the capable and experienced trial judge was aware that where the reprehensible conduct of two or more defendants convicted of the same offense is substantially the same, differing only in their relative degree of participation, the sentence of one to an extended term, and not the other, would be improper. (People v. Earullo (1983), 113 Ill. App. 3d 774, 447 N.E.2d 925.) Therefore, except where expressly noted, our findings in regard to the propriety of the imposition of extended terms apply equally to defendant Heard, notwithstanding his failure to raise this issue on appeal.

In this regard, we see that section 5 — 8—2(a) of the Unified Code of Corrections (the Code) (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8— 2(a)) authorized the imposition of an extended sentence when either of the two factors in aggravation, as set forth in section 5 — 5—3.2(b) (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b)) were found to be present:

“(1) When a defendant is convicted of any felony after having been previously convicted *** of the same or greater class felony, within 10 years ***; or, (2) 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 ***.”

Because the factors are set forth in the disjunctive, the presence of either one (People v. Grier (1980), 90 Ill. App. 3d 840, 413 N.E.2d 1316) in a prosecution for murder increases the permissible sentence from a term of 20 to 40 years (Ill. Rev. Stat. 1979, ch. 38, par. 1005— 8— 1(a)(1)(a)) to a term of 40 to 80 years (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2(a)(1)).

Clay first argues that the imposition of an extended-term sentence upon him as an accomplice is violative of the eighth amendment prohibition against cruel and unusual punishment. (U.S. Const., amend. VIII.) Citing no authority to support his position, he merely analogizes an extended sentence to the death penalty, which, under section 9-1(b)(6)(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(b)(6)(a)) may be imposed only “if the murdered individual was actually killed by the defendant and not by another party to the crime ***.” The State argues that in light of the extreme disparity between a sentence of death and an incarceration term of determinate duration, which allows credit for “good time” served and possible eventual parole, the penalties are incomparable.

It should be first noted that Clay raises this argument for the first time on appeal, and that the failure to present a constitutional issue to the trial court generally results in a waiver thereof for purposes of review. (People v. Gomez (1983), 120 Ill. App. 3d 545, 458 N.E.2d 565.) However, we will consider the argument and, in doing so, we note that the test for determining the constitutionality of a criminal penalty is whether it is cruel, degrading, or so wholly disproportionate to the offense committed as to shock the moral sense of the community. (People v. Gomez; People v. Wright (1974), 18 Ill. App. 3d 1028, 310 N.E.2d 494.) Because the legislature has limited the imposition of extended terms to situations where one or more specific aggravating factors are present, apparently determining that these factors enhance the seriousness of the offense, we find nothing which could be described as cruel, degrading, or shocking to the moral sense of the community in imposing a sentence which correspondingly enhances the penalty therefor.

Furthermore, as Clay correctly observes, the language of section 9— 1(b)(6)(a) clearly evinces the legislature’s intention to proscribe the imposition of the death penalty upon accomplices to a murder. Thus, in view of the purposeful inclusion of that language in section 9— 1(b)(6)(a), it is our view that had the legislature intended to similarly exclude accomplice-offenders from the purview of the extended-term statute, it would have inserted language to that effect. The absence of any qualifying language in section 5 — 5—3.2 leads us to the conclusion that no such proscription was intended. Moreover, we have consistently held that because the application of the extended-term statute is determined by the offense, not by the extent or nature of the offender’s participation therein, the fact that a defendant is convicted under the theory of accountability or that his participation in the crime was less than that of his co-offenders does not preclude the imposition of an extended sentence upon him. People v. Rogers (1984), 122 Ill. App. 3d 384; People v. Rowe (1983), 115 Ill. App. 3d 322, 450 N.E.2d 804; People v. Tibbs (1981), 103 Ill. App. 3d 73, 430 N.E.2d 681; People v. Gray (1980), 87 Ill. App. 3d 142, 408 N.E.2d 1150.

Clay next argues that the evidence does not support the trial court’s finding that this crime was accompanied by brutal conduct indicative of wanton cruelty. Citing People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520, he posits that there was sufficient evidence from which the court could have inferred that the shooting was an accident. In Evans, the unintended victim was killed when a stray bullet, fired by defendant at the intended victim after a heated verbal exchange, apparently ricocheted off the windshield of a car and struck him. In affirming the appellate court’s finding that the offense was not heinous or brutal, the supreme court noted evidence adduced at trial that the intended victim was a reputedly violent person who frequently carried a gun, and that it was only after he threatened defendant and walked toward his car that defendant fired the shots— one of which was deflected by the car window — thus raising an inference that defendant was acting on the subjective, albeit unreasonable, belief that the man was going to get his gun and that his (defendant’s) actions were necessary for self-defense. In the instant case, Clay has repeatedly stressed that he was not present at the shooting but, unlike Evans, he can point to no evidence to support his hypothesis that the killing was an accident. To the contrary, the testimony of the victim’s father — that as he approached the doorway, but before he slammed the door, he saw the shotgun come up from the man’s side and go off — belies defendant’s suggestion that the shotgun may have discharged when the door was slammed on it. Further, the mere fact that the shooting occurred before any demand for money was made lends no support for defendant’s accident theory; rather, it demonstrates that the victims in no way antagonized the offenders or provoked the shooting by resisting or by refusing to comply with their robbery demands.

Clay further argues that the trial court failed to specify any particular aggravating factors, such as torture, terrorizing, or other unnecessary physical intrusions upon the victim (see People v. Rogers (1984), 122 Ill. App. 3d 384), to support its findings of brutality and wanton cruelty, positing therefrom that the conduct on which the court based those findings was nothing more than conduct inherent in the offense, i.e., killing. We note, however, that the trial court is under no independent duty to delineate the factors upon which it based its finding of heinous conduct. (People v. Davis (1982), 93 Ill. 2d 155, 442 N.E.2d 855.) Moreover, our supreme court has also held that the phrase “exceptionally brutal or heinous behavior indicative of wanton cruelty” does not require torture or unnecessary pain and, citing Webster’s New Third World Dictionary, has stated that the general acceptation of “heinous” is “hatefully or shockingly evil,” “grossly bad,” or “enormously or flagrantly criminal”; and that the term “brutal” encompasses any conduct which is “grossly ruthless,” “devoid of mercy or compassion,” or “cruel or cold-blooded” (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344); thus, in determining whether a crime was committed in a heinous or brutal manner, trial courts have considered a variety of factors, including but not limited to the extent of the injury inflicted (People v. Davis (1984), 121 Ill. App. 3d 916), the degree of force used (People v. Reese (1984), 121 Ill. App. 3d 977; People v. Tolliver (1981), 98 Ill. App. 3d 116, 424 N.E.2d 44), the motivation of the offenders and the danger created by their actions (People v. Hunter (1981), 101 Ill. App. 3d 692, 428 N.E.2d 666), and the mental anguish inflicted on the victims (People v. Jones (1979), 73 Ill. App. 3d 99, 391 N.E.2d 767) as well as on their famüy (People v. Clark (1981), 102 Ill. App. 3d 414, 429 N.E.2d 1255; People v. Schlemm (1980), 82 Ill. App. 3d 639, 402 N.E.2d 810). In addition, we note that section 5 — 5—3.2(b) has been amended to provide that an extended sentence may be imposed when a defendant is convicted of a felony committed against a person under 12 years of age. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(3)(i)); People v. Green (1983), 118 Ill. App. 3d 227, 454 N.E.2d 792.) Although the statute applicable at the time of this offense did not include that provision, and thus the age of the victim here, standing alone, did not activate the application of the statute, it is our view that its subsequent inclusion as a factor which now justifies an extended term indicates that it has always been a relevant factor to be considered by the court in a finding thereof.

Thus, the factual situation in People v. Davis (1984), 121 Ill. App. 3d 916, to which defendant compares this case, is clearly distinguishable. However, the holding therein actually illustrates the proper reasoning to be applied in determining whether a crime is sufficiently brutal or heinous to warrant imposition of an extended sentence. In Davis, defendant’s 50-year sentence for attempted murder was reduced to 30 years because the trial court improperly classified the offense as “heinous and brutal” solely on the basis of defendant’s intent to kill the victim, intent being a legal element of the offense of attempted murder. In so ruling, however, the Davis court specifically noted the absence of any other aggravating factors in that the victim was shot with a .22-caliber handgun; that he sustained two relatively minor wounds which were described as non-life-threatening and which were treated without the administration of pain medication; and that he was able to return to his full-time police duties within one month. In the instant case, the evidence discloses that in planning the robbery, the offenders were not only aware that Mrs. Bruce had a family, but also considered them in determining that she would be an “easy mark.” Notwithstanding her vulnerability, they agreed that the robbery would be more easily effectuated with the assistance of a weapon with which to “scare her,” deciding that a loaded, sawed-off shotgun, which they knew or should have known would inflict fatal — or at least serious— injuries if fired, would accomplish that purpose. In accordance with their plan, Clay, who had supplied all of the necessary background information regarding the victims, their habits, and the layout of their apartment, and had allowed the others access to the building, remained in his apartment foregoing physical participation in the crime only because he knew he would be recognized by the victims, who were his neighbors, while two other offenders went downstairs to confront the victims in their home. Upon seeing that one of the men to whom she had opened her door was brandishing a shotgun, Mrs. Bruce began screaming; whereupon Hallars, in an effort to protect his family, attempted to bar the men from entering. Apparently realizing that their robbery plans were being thwarted, Johnson then fired the shotgun, killing the couple’s 10-year-old daughter. Furthermore, although Heard maintains that he took no part in this crime — stating that his role was only to act as a lookout in the alley behind the victim’s apartment and that he fled immediately upon hearing the shotgun blast — Mrs. Bruce testified that after the shooting, when she ran into the kitchen with her other daughter to call the police, she saw the back door opening and was able to discern two figures outside who, it appears from the record, could only have been Heard and the unnamed fifth participant.

Considering the premeditated plan to commit this robbery; the agreement of the participants to use one of the most deadly weapons available to effectuate it; their knowledge that young children lived in the apartment and that the victims would be surprised, unarmed, and defenseless; the terror to which the family was subjected in standing helplessly against an unexplained invasion of their home and in seeing their 10-year-old daughter shot by an unprovoked shotgun blast, which according to the medical examiner had caused a wound so large as to allow him to see inside the chest cavity, and in thereafter being subject to further fear as other assailants attempted to enter the rear door of the apartment just after the shooting, we see no abuse of discretion in the trial court’s finding that this crime was accompanied by exceptionally brutal conduct indicative of wanton cruelty.

Nevertheless, although defendant Clay’s criminal history is considerably more extensive and his participation in the planning of the robbery was ostensibly greater than that of Heard, it is our judgment that his 80-year sentence is excessively disparate from the 40-year term imposed on Heard, whose conduct was likewise reprehensible-differing only in the extent of participation. (See People v. Earullo (1983), 113 Ill. App. 3d 774, 447 N.E.2d 925.) Accordingly, we believe the sentence of defendant Clay for murder should be reduced from 80 years to 60 years.

Moreover, notwithstanding the State’s concession that the sentences imposed on the convictions for conspiracy to commit armed robbery exceeded the range permissible for a Class 4 felony (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 2(c); Ill. Rev. Stat. 1979, ch. 38, par. 1005— 8 — 1(a)(7)) and therefore must be reduced, we further note that the Code authorizes the imposition of an extended term only “for the class of the most serious offense” of which defendant was convicted (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2(a); People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520). Although we are aware that this court has issued conflicting opinions regarding the interpretation of the statute as it applies to the permissibility of multiple extended-term sentences (see People v. Mims (1982), 111 Ill. App. 3d 814, 444 N.E.2d 684; People v. Brown (1982), 104 Ill. App. 3d 1110, 433 N.E.2d 1081; People v. DeSimone (1982), 108 Ill. App. 3d 1015, 439 N.E.2d 1311; but see People v. Green (1983), 118 Ill. App. 3d 227, 454 N.E.2d 792; People v. Rowe (1983), 115 Ill. App. 3d 322, 450 N.E.2d 804; People v. Walsh (1981), 101 Ill. App. 3d 1146, 428 N.E.2d 937)- and we are cognizant that this question currently awaits resolution by our supreme court — it is our belief that until such time as that court makes a contrary pronouncement thereon, we are controlled by its holding in Evans under which the imposition of an extended-term sentence upon Clay for conspiracy to commit armed robbery is improper.

Therefore, we reduce the sentence of defendant Heard for conspiracy from an extended term of 15 years to a term of three years — the maximum permitted for the offense — and find that defendant Clay’s 30-year extended sentence for conspiracy must likewise be reduced to three years.

Summarizing, we affirm the convictions of defendants for both offenses; we affirm the extended sentence of 40 years imposed on Heard for murder, but we reduce his sentence for conspiracy to commit armed robbery from 15 years to three years; and we reduce the sentences of Clay from 80 years to 60 years on his conviction for murder and from 30 years to three years on his conviction for conspiracy to commit armed robbery.

Affirmed as modified.

LORENZ and O’CONNOR, JJ., concur.