author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID RHOADS, Defendant-Appellant.
    First District (5th Division)
    No. 80—2464
    Opinion filed December 10, 1982.

      James J. Doherty, Public Defender, of Chicago (John Lanahan, Assistant Public Defender, and David Barish, law student, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Joel A. Stein, and Michael J. Kelly, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Defendant David Rhoads was accused of killing his wife Vickie, and he was convicted upon retrial (see People v. Rhoads (1979), 73 Ill. App. 3d 288), of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(a)) and arson (Ill. Rev. Stat. 1979, ch. 38, par. 20 — 1) after a trial by jury.

The crucial issue of fact at trial was whether defendant (who admitted that he tied up his wife and soaked her with gasoline while he was high on L.S.D.) acted with criminal intent when he started the fire that killed her, or whether, as he claimed, it was just an accident. The jury returned a verdict of guilty, and the trial court, entering judgment on the verdict, sentenced defendant to imprisonment for a term of 50 years to 50 years and a day.

Defendant now appeals from the results of his second trial, contending that the charges against him should be dismissed, or his convictions reversed, based on the following arguments:

(1) He was deprived of equal protection of the laws under the Federal Constitution (U.S. Const., amend. XIV, sec. 1), and was deprived of life, liberty or property without due process of law under the Illinois Constitution (Ill. Const. 1970, art. I, sec. 2), when the trial court refused to calculate the speedy-trial term in this case with the new procedure established by Public Act 79 — 842 (codified at Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(f)).

(2) The trial court erred when it admitted into evidence, under the dying declaration exception to the rule against hearsay, testimony about accusatory statements made by Vickie Rhoads concerning the circumstances under which she suffered her fatal injuries.

(3) Defendant’s mother-in-law was permitted to give improper rebuttal testimony.

(4) The prosecutors made improper comments during closing arguments.

(5) The evidence is not sufficient to prove defendant guilty of murder and arson beyond a reasonable doubt.

Based on the reasoning set forth below, we affirm the judgment of the circuit court. The following evidence is material to our decision.

Eighteen-year-old Vickie Rhoads suffered massive burns as the result of the fire, fueled by one or two quarts of gasoline, which occurred in her parents’ home in Palatine, Illinois, at about 5:30 p.m. on July 17, 1976. A neighbor rescued her from the burning building, and it was discovered that Vickie had been hogtied with an electrical cord.

Another neighbor, David Bone, testified that after Vickie was carried out into the yard she said, “I think I am going to die. Get me to the hospital. I think I am going to die.” Bone also testified that he heard Vickie say that “it was an accident.”

It was stipulated that Vickie suffered burns over 80% of her body: 10% third degree burns, 50% second degree burns, and 20% first degree burns.

Dr. James Kozlowski, a physician who examined Vickie in the emergency room of Evanston Hospital within an hour of the fire, testified that after his initial examination he concluded Vickie would probably die from her burns. But she was not in much pain because the fire destroyed the nerve endings in her skin, and Dr. Kozlowski testified that Vickie was alert and lucid. He further found that she showed no signs of disorientation, shock, hallucinations, or psychic derangement.

The paramedic who worked on Vickie on the way to the hospital testified that she answered all of his questions, and was alert and lucid at all times. As part of Vickie’s emergency treatment, he gave her Talwin (a pain killer) and Decadron (a drug that reduces swelling and inflammation caused by severe burns).

Although, on cross-examination, Dr. Kozlowski stated that Talwin and Decadron could cause psychic derangement, there is no evidence in the record that such symptoms could be caused by the dosages administered to Vickie.

Dr. Kozlowski further testified that he asked Vickie what had happened, and “She replied that her husband had tried to kill her, that he tied her into a chair, that he poured gasoline on her and had set her on fire and then tried to burn the house down.”

Emergency Room Nurse Patricia Halevy testified that Vickie was asked what had happened, and that she replied, “My husband tied me to a kitchen chair, poured gasoline from a boat all over me, and lit a match and, the pain, the pain.” Halevy explained that Vickie was not in pain when she made this statement, and that her reference to “the pain” was to the agony she suffered during the fire. Additionally, Ha-levy testified that Vickie was alert and lucid at all times while being treated in the emergency room.

Palatine Police Officer Dale Ott testified that he interviewed Vickie at Evanston Hospital at about 8 p.m. the day of the fire. She had tubes in her nostrils and she signaled, by shaking her head, that she could understand his questions, but that she could not talk. During this interview, Vickie signaled “yes” when Ott asked if defendant had tried to kill her; if he had tied her up; and if he had poured gasoline on her. She indicated “no” when asked if defendant had poured gasoline all over her body, but answered “yes” when asked if defendant had just poured the gasoline over the lower portion of her body.

Officer Ott concluded the interview by asking Vickie why defendant did these things to her. On direct examination the police officer stated that “she responded by visualizing I don’t know.” He clarified this on cross-examination by explaining that (despite the tubes in her nostrils) Vickie answered the last question by speaking the words “I don’t know.”

Palatine Fire Captain William DePue testified that he questioned defendant at the scene of the fire, and asked what had happened in the house. In response, defendant “said he was carrying a can of gasoline through the house and his wife lit a cigarette and the gas ignited.”

A neighbor, Terry Dineen, testified that he also questioned defendant at the scene of the fire, and defendant claimed, “I was fixing a motor, I love her, it wasn’t suppose [sic] to end this way, I love her, we were foiling [sic] around and I love her.”

Captain DePue also testified that he questioned defendant a second time about the cause of the fire:

“He said it was just a game and I responded back questioning it’s just a game. And he said he had gotten the gas can and brought it into the house and said something to her like this is it. And then he said he lit a match and the gas ignited.”

Cindy Jerard, a friend of both Vickie and defendant, testified that she wrote defendant asking what had happened, and defendant responded with a letter from jail in which he stated:

“I would like to tell you what really happened that day, but first you would have to promise me you wouldn’t tell anybody. It would be incriminating if the wrong people heard about it. That’s no line of B.S. either.”

Testifying on his own behalf, defendant admitted that he drank beer all morning long on July 17, 1976, and that he took some L.S.D. around noon. Vickie was drinking that morning, and defendant claimed that she also took some L.S.D.

Vickie’s parents were away on vacation, and he and Vickie went to her parents’ house. He drank more beer and watched static lines on a television set. According to defendant, watching static lines on a television set is “a real trip when you’re taking L.S.D.”

Defendant gave the following explanation of the cause of the fire that killed his wife:

Vickie asked him to move things from the yard because her family had been having trouble with neighborhood children. Among the things he brought into the house was a can of gasoline from the family motor boat. He placed this can in the kitchen, took another beer from the refrigerator, and went back to watching television static.

Vickie approached him with an electrical cord and asked him to tie her up and make love to her. This was not unusual for them, and defendant complied by binding her legs, tying her hands behind her back, and (using the same piece of cord) tying a noose around her neck. Vickie also asked him to get some rubbing alcohol because she enjoyed the astringent feeling it produced when rubbed on her skin.

When he could not find any rubbing alcohol, he suggested that they try gasoline instead. She agreed, and defendant poured gasoline on a rag. Some of the gasoline spilled on the floor and, at Vickie’s suggestion, defendant placed her in the puddle of gasoline on the floor and rubbed the gasoline soaked rag on her leg.

Then, while Vickie was hogtied and soaked in gasoline, defendant decided to smoke a cigarette. As soon as he struck a match, Vickie said, “What the hell are you doing?” Defendant said, “Oh, shit,” blew the match out, and threw it toward another room. Suddenly, the house and Vickie were on fire. He tried to extinguish the flames, unsuccessfully, and left to get help.

Nineteen and one-half hours after the fire, Vickie died as a result of her burns.

Based on this evidence, the jury was convinced, beyond a reasonable doubt, that defendant was guilty of murder and arson. This appeal followed. Additional evidence is discussed below where pertinent.

Opinion

Defendant’s first argument is that he was denied equal protection of the laws under the Federal Constitution (U.S. Const., amend. XIV, sec. 1), and was deprived of life, liberty or property without due process of law under the Illinois Constitution (Ill. Const. 1970, art. I, sec. 2), because the trial court denied his motion for discharge under the speedy-trial statute. (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5.) Explanation of the constitutional issues raised by defendant requires an understanding of the Illinois speedy-trial laws.

Defendants in criminal cases have a constitutional right to a speedy trial (Ill. Const. 1970, art. I, sec. 8), but this constitutional right “cannot be defined in terms of an absolute or precise standard of time, within which an accused must be given trial.” (People v. Henry (1970), 47 Ill. 2d 312, 316.) Thus, the speedy-trial statute (now codified at Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5) was enacted to give some concrete meaning to the right to speedy trial. People v. Meisenhelter (1942), 381 Ill. 378, 385.

The portion of the speedy-trial statute which is pertinent to the present case (a case in which the defendant remained in custody pending trial) provides that:

“Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant [or certain other exceptions, immaterial to this case, are applicable].” Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(a).

If a defendant is not brought to trial within the specified period of time, and the matter is properly raised before the trial court, the statute provides that the defendant “shall be discharged from custody or released from the obligations of his bail or recognizance.” (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(d).) The trial court is specifically authorized to dismiss the charges if the speedy-trial provision is violated. (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 1(a)(1); People v. Reimolds (1982), 92 Ill. 2d 101, 104.) And if a defendant is entitled to be discharged under the speedy-trial act, the prosecution cannot evade the mandate of this provision by dropping the initial charge and thereafter filing a new charge based on the same offense. People ex rel. Nagel v. Heider (1907), 225 Ill. 347, 350; Newlin v. People (1906), 221 Ill. 166, 175.

Therefore,

“The operation of the statute typically will prevent the constitutional question of a speedy trial from arising, since if an accused is tried within 120 days after being taken into custody, or demand of trial while on bond, there will have been ordinarily no arbitrary or oppressive delay which the constitution prohibits.” People v. Love (1968), 39 Ill. 2d 436, 441.

The issue which underlies the constitutional arguments raised in the present case concerns the manner in which the 120-day limitation period is calculated. Before section 103 — 5 was amended by Public Act 79 — 842, the rule was that for each delay in commencing trial which was “occasioned by the defendant” (Ill. Rev. Stat. 1975, ch. 38, par. 103 — 5(a)), the clock went back to zero on the 120-day speedy trial period. (People v. Lee (1969), 44 Ill. 2d 161, 166.) This took much of the “concreteness” out of the speedy-trial statute, however, and as amended by Public Act 79 — 842 (adding subsection (f)), and Public Act 79 — 1237 (changing the cutoff date specified in the new subsection), the speedy-trial act now provides that when a “delay is occasioned” by a defendant who is accused of having committed an offense on or after March 1, 1977, the clock merely stops running for the period of the delay. Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(f); People v. Donalson (1976), 64 Ill. 2d 536, 540.

In the present case, defendant contends that he was entitled to the benefit of the “new rule” established by Public Acts 79 — 842 and 79 — 1237 even though this provision expressly provides that it is not applicable to persons who, like the defendant here, are accused of having committed crimes which allegedly occurred before March 1, 1977. See Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(f).

Defendant concedes that he was tried within 120 days from when jurisdiction revested in the circuit court (see People v. Adams (1967), 36 Ill. 2d 492, 496), as calculated under the “old rule,” but he argues that (a) he was not tried within 120 days as calculated under the “new rule” and (b) it is unconstitutional to deprive him of the benefit of the new method of calculating the running of the speedy-trial period.

Initially, the prosecution contends that we need not reach the constitutional issue on the grounds that defendant was, in fact, brought to trial within 120 days under the new law. This argument boils down to the claim (raised for the first time on appeal) that the trial court erred when it ruled that the State should be held responsible for causing a delay on May 6, 1980. It is not disputed that if the trial court abused its discretion when it attributed this delay to the prosecution, then defendant actually was brought to trial within 120 days under both the old and new rules.

On review, “The decision of the trial court as to accountability for delay in bringing defendant to trial should be sustained, absent clear showing of abuse of discretion.” People v. Wilkins (1979), 77 Ill. App. 3d 179, 182.

We find that it was not an abuse of discretion to attribute the May 6 delay to the prosecution because (1) the prosecutors who tried this case expressly asked the trial court for a continuance on May 6, 1980; (2) they never asked the trial court to attribute this delay to the defense; and (3) they never objected to the trial court’s ruling that the delay should be attributed to the State. We hold that under these circumstances, the trial court did not abuse its discretion.

Defendant argues that the failure to give him the benefit of the new method of calculating the running of the speedy-trial period deprived him of equal protection of the laws. (U.S. Const., amend. XIV, sec. 1.) He agrees that the appropriate equal protection test to be used in determining the validity of the classification created by the March 1, 1977, cutoff date is the traditional rationality standard. Under this test, the key question “is whether the challenged state action rationally furthers a legitimate state purpose or interest.” (San Antonio Independent School District v. Rodriguez (1973), 411 U.S. 1, 55, 36 L. Ed. 2d 16, 56, 93 S. Ct. 1278, 1308.) To be valid under the equal protection clause, the classification created by the statute must be rationally related to a legitimate governmental objective. McDonald v. Board of Election Commissioners (1969), 394 U.S. 802, 809, 22 L. Ed. 2d 739, 745-46, 89 S. Ct. 1404, 1408.

Defendant contends that, as applied to him, the statutory classification created by the March 1, 1977, cutoff date is not rationally related to what he identifies as “the” purpose of picking that particular date as a boundary line. Based on his analysis of the legislative debates on the bill which became Public Act 79 — 1237, he asserts that “the” purpose of establishing the March 1, 1977, cutoff date was to enable the criminal justice system to gear up for the big crunch of cases that was expected when the new method of calculating the speedy-trial term became effective.

Focusing exclusively on what he identifies as “the” purpose of establishing March 1, 1977, as a cutoff date, defendant argues that by 1979, when his case was remanded to the circuit court for retrial, the criminal justice system had more than enough time to prepare for application of the new speedy-trial rule. Thus he concludes that in this case the statutory classification is not rationally related to “the” purpose of picking March 1,1977, as a cutoff date.

Defendant implicitly recognizes that what he identifies as “the” purpose of the challenged classification was, at most, merely the primary purpose of the legislature. In his reply brief, defendant acknowledges that a subordinate legislative purpose was the need for drawing a bright line between application of the old and new rules, and he states that he “has no quarrel with the purpose of the effective date of the ‘new’ rule, nor does he quarrel with the date itself.” Nevertheless, defendant continues to insist that the validity of the classification must be determined based on what he identifies as the primary objective of the legislature.

The decisions of the United States Supreme Court, however, “do not authorize courts to pick and choose among legitimate legislative aims to determine which is primary and which is subordinate.” (McGinnis v. Royster (1973), 410 U.S. 263, 276, 35 L. Ed. 2d 282, 292, 93 S. Ct. 1055, 1062.) As the court explained in McGinnis:

“So long as the state purpose upholding a statutory class is legitimate and nonillusory, its lack of primacy is not disqualifying.
When classifications do not call for strict judicial scrutiny, this is the only approach consistent with proper judicial regard for the judgments of the Legislative Branch. The search for legislative purpose is often elusive enough, Palmer v. Thompson, 403 U.S. 217 (1971), without a requirement that primacy be ascertained. Legislation is frequently multipurposed: the removal of even a ‘subordinate’ purpose may shift altogether the consensus of legislative judgment supporting the statute. Permitting nullification of statutory classifications based rationally on a nonprimary legislative purpose would allow courts to peruse legislative proceedings for subtle emphases supporting subjective impressions and preferences. The Equal Protection Clause does not countenance such speculative probing into the purposes of a coordinate branch.” 410 U.S. 263, 276-77, 35 L. Ed. 2d 282, 292, 93 S. Ct. 1055, 1063.

The supposedly “subordinate” legislative purpose in the present case is the need for providing a bright line which will clearly identify which method of calculating the speedy-trial term should be used in a particular case. No matter how strong proof of guilt might be, failure to comply with the speedy-trial requirements of section 103 — 5 will result in the discharge of even the worst mass murderer. The State clearly has a legitimate and nonillusory interest in acting to prevent guilty defendants from being discharged as the result of inadvertent use of the wrong speedy-trial rule. And we find that it was rational for the legislature to conclude that this legitimate governmental interest would be substantially furthered by specifying March 1, 1977, as a bright-line boundary between application of the old and new speedy-trial rules.

Ironically, the basis for the equal protection attack in the present case is (as it was in McDonald v. Board of Election Commissioners (1969), 394 U.S. 802, 22 L. Ed. 2d 739, 89 S. Ct. 1404, and Schilb v. Kuebel (1971), 404 U.S. 357, 30 L. Ed. 2d 502, 92 S. Ct. 479) the argument that the statutory reform implemented by the Illinois General Assembly should be held invalid because it doesn’t go “far enough” in eliminating a particular evil or mischief. But, as the Supreme Court explained in McDonald, “That Illinois has not gone still further, as perhaps it might, should not render void its remedial legislation, which need not, as we have stated before, ‘strike at all evils at the same time.’ ” 394 U.S. 802, 811, 22 L. Ed. 2d 739, 748, 89 S. Ct. 1404, 1412; cf. Williams v. Walsh (1912), 222 U.S. 415, 421, 56 L. Ed. 253, 255, 32 S. Ct. 137, 138 (holding that the equal protection clause “does not forbid statutes and statutory changes to have a beginning, and thus discriminate between the rights of an earlier and later time”).

The remaining constitutional issue raised by defendant is that failure to give him the benefit of the new method of calculating the speedy-trial term deprived him of life, liberty or property without due process of law under section 2 of article I of the 1970 Illinois Constitution.

The threshold question in a due process analysis is whether a litigant has been deprived of life, liberty or property by operation of the challenged law or governmental action. This is where defendant’s due process attack fails.

Defendant was initially deprived of his liberty because there was a judicial determination, after a preliminary hearing, that there was probable cause to believe he had murdered his wife. And defendant is now being deprived of his liberty because a jury was convinced, beyond a reasonable doubt, that he is guilty of murder and arson. Therefore, defendant has not been deprived of liberty by operation of the speedy-trial laws. Furthermore, the provisions of Public Acts 79— 842 and 79 — 1237 clearly specify that the legislature’s reform would not be applicable to defendant’s case. Consequently defendant did not have a legitimate or justifiable claim of entitlement (i.e., a property interest) in obtaining benefit of the new speedy-trial rule.

Defendant has not been deprived of life, liberty or property by operation of Public Acts 79 — 842 and 79 — 1237, and we conclude that he has not been deprived, as a result of these amendatory laws, of any interest protected by the due process clause.

Defendant next argues that the trial court erred when it admitted into evidence testimony about hearsay statements allegedly made by his wife concerning the cause of the fire which eventually killed her. Specifically, defendant contends that the evidence was not sufficient for the trial court to conclude, beyond a reasonable doubt, that (a) the statements were made in contemplation of imminent death; and (b) that the declarant was competent when the declarations were made. We disagree.

By definition, the dying declaration exception to the rule against admitting hearsay evidence concerns a situation in which the defendant is unable to confront his accuser “face to face.” Furthermore, the defendant

“is deprived of the security of an oath attended with consequences of temporal punishment for perjury. He is deprived of the great safeguard against misrepresentation and misapprehension — the power of cross-examination. The evidence is hearsay in its character; the statements are liable to be misunderstood and to be misrepeated upon the trial, and the evidence goes to the jury with surroundings tending to produce upon the mind emotions of deep sympathy for the deceased, and of involuntary resentment against the accused.” Starkey v. People (1855), 17 Ill. 17, 20.

But, despite serious reservations about “the infirmities and imperfections of the human mind, and its susceptibility to false impressions, under circumstances touching the heart and exciting the sympathies” (17 Ill. 17, 20-21) courts have held that hearsay statements relating to the cause of the injuries from which a declarant subsequently died are admissible as substantive evidence if they were made while the declarant believed that death was imminent and certain. (See 17 Ill. 17, 21.) It is thought that if such declarations are made in contemplation of imminent and certain death, they will be as reliable as statements made under oath in court. Collins v. People (1902), 194 Ill. 506, 519; Mattox v. United, States (1892), 146 U.S. 140, 152, 36 L. Ed. 917, 922, 13 S. Ct. 50, 54; 5 Wigmore, Evidence sec. 1438, at 289 (Chadbourne rev. ed. 1974).

“The principle upon which such declarations are admitted is that they are made in a condition so solemn and awful as to exclude the supposition that the party making them could have been influenced by malice, revenge or any conceivable motive to misrepresent, and when every inducement, emotion and motive is to speak the truth.” Starkey v. People (1855), 17 Ill. 17, 21.

Various formulations have been used to express the appropriate state of mind (e.g., Barnett v. People (1870), 54 Ill. 325, 329 (“belief that his dissolution is near at hand, and without hope of recovery”); People v. Borella (1924), 312 Ill. 34, 44 (“whether or not the declarant has abandoned hope of living and looked on death as certainly impending”); People v. Hubbs (1948), 401 Ill. 613, 621 (“under the firm belief and conviction that death was imminent and near at hand”); Shepard v. United States (1933), 290 U.S. 96, 99, 78 L. Ed. 196, 199, 54 S. Ct. 22, 23 (“spoken without hope of recovery and in the shadow of impending death”), but the essential inquiry is whether the declarant is so convinced of the likelihood of impending death that motives for falsification will be obviated. Thus it has been held that,

“It is not necessary that the deceased actually be at the point of death or that the statement be made at the time deceased is breathing his last.” People v. Corder (1922), 306 Ill. 264, 275.

An additional requirement of the dying declaration exception — a requirement which follows from the general rule that witnesses must be competent — is that “The declarant must be in possession of his mental faculties sufficiently to understand what he is doing and to be able to give a true and correct account of the facts to which the statement relates.” People v. Tilley (1950), 406 Ill. 398, 403.

Similarly, in light of the dangers referred to in Starkey, the Illinois rule is that before hearsay can be admitted in a jury trial as a dying declaration, the trial court must hold a preliminary hearing outside the presence of the jury, and must be convinced beyond a reasonable doubt that the requirements of the exception have been proven by the profferor. People v. Tilley (1950), 406 Ill. 398, 403-04.

The declarant’s belief that death was certain and impending “may be made to appear from what the injured person said; or from the nature and extent of the wounds inflicted, being obviously such that he must have felt or known that he could not survive.” (Mattox v. United States (1892), 146 U.S. 140, 151, 36 L. Ed. 917, 921, 13 S. Ct. 50, 54.) This principle is illustrated by State v. Brown (1967), 271 N.C. 250, 261, 156 S.E.2d 272, 280, where the declarant died 25 hours after suffering severe burns over 70% of her body. The North Carolina Supreme Court held that because the declarant suffered such severe injuries, she must have known death was imminent and certain. Therefore, it was proper to admit evidence of her statements that the defendant had poured gasoline on her and set her on fire. See also United States v. Barnes (D.C. Cir. 1972), 464 F.2d 828 (hearsay statements held admissible where (1) the declarant suffered second and third degree bums over 80% of her body; (2) she said she was going to die, and (3) she died the next day).

The decedent in the present case (1) suffered second and third degree burns over 60% of her body, plus first degree burns over 20% of her body; (2) she said she thought she was going to die from her injuries; and (3) she died 19V2 hours after the fire, as a result of her burns. Furthermore, all the medical personnel who were called at trial testified that she was able to answer all their questions, and that she was alert and lucid at all times.

Nothing contradicts this proof of Vickie’s competence except defendant’s assertion that Vickie took L.S.D. the day of the fire, and his speculation that, at some unspecified dosage, the drugs she received as part of her emergency treatment could cause psychic derangement.

In Illinois, a reviewing court will not substitute its own judgment for the trier of fact’s findings unless those findings are “palpably contrary to the manifest weight of the evidence.” (People v. Nicholls (1969), 42 Ill. 2d 91, 95.) We are convinced that it was not palpably against the manifest weight of the evidence for the trial court to find that (1) Vickie’s hearsay statements concerning the circumstances of her injuries were made in contemplation of imminent and certain death, and (2) she was competent when the statements were made.

Defendant further argues that the trial court erred when it denied his motion to preclude Vickie’s mother from testifying as a rebuttal witness. The basis for this motion in limine was the contention that Vickie’s mother could not provide any proper rebuttal testimony.

The trial court observed that motions in limine can' be abused, and the court denied defendant’s motion on the grounds that the relevance of the proffered rebuttal testimony could not be determined before the court heard the prosecutor’s questions. In denying the motion to exclude, however, the court expressly contemplated that the defense attorneys would object if the prosecutor asked improper questions, or if improper responses were made.

Nevertheless, the defense did not object, during the examination of the witness or at any time before verdict, to the testimony which defendant now claims was improper. This constituted a waiver of the right to assert that this was error.

“[A] party who fails to object to claimed error committed during trial waives the right to urge the claim on appeal.” (People v. Dukett (1974), 56 Ill. 2d 432, 442.) “The failure to present proper and timely objection generally constitutes a waiver of error, if any.” (People v. Adams (1968), 41 Ill. 2d 98, 101.) This waiver rule is applicable whenever there was no objection prior to verdict and the purported error could have been corrected or cured during the trial. People v. McCurrie (1929), 337 Ill. 290, 296.

“The failure of counsel to object at trial waives those errors which the court can correct by sustaining an objection and admonishing the jury. Otherwise, counsel, by not giving the court the opportunity to prevent or correct error at trial, -will gain the advantage of obtaining a reversal through his own failure to act, either intentionally or inadvertently.” People v. Carlson (1980), 79 Ill. 2d 564, 577.

Defendant contends on appeal that the trial court erroneously admitted irrelevant rebuttal testimony. However, the record shows that there were no objections made when the purportedly improper testimony was given, even though the alleged errors could have been corrected or cured upon timely objections. “The failure of defendant to object to [purportedly improper rebuttal testimony] clearly precludes him from alleging an abuse of discretion before this court.” People v. Miller (1964), 30 Ill. 2d 110, 114.

We recognize that Supreme Court Rule 615(a) authorizes us to consider purported errors “although they were not brought to the attention of the trial court.” (73 Ill. 2d R. 615(a).) But Rule 615(a) is “a limited exception to the waiver doctrine” (People v. Carlson (1980), 79 Ill. 2d 564, 577-78), which is invoked “as a matter of grace” (People v. Burson (1957), 11 Ill. 2d 360, 370), not as a matter of right.

The waiver principle may occasionally lead to harsh results, but we do not find that the present case calls for the invocation of empower to grant indulgences from the effects of the waiver rule.

Another defense argument is that closing prosecution arguments were improper and unfairly prejudicial. The only example cited in defendant’s motion for a new trial to support this conclusion, however, concerns a misstatement made by a prosecutor about defendant’s efforts to rescue his wife from the bmning house. The significance of this contention requires some explanation.

The evidence of Vickie’s dying declarations was that she said she had been tied “to” or “into” a chair. And, even though she was not tied to a chair when she was rescued from the burning house by a neighbor, there was evidence that a pair of pantyhose was tied to her hair. Also, there was evidence that defendant ran back into the bmning building and remained inside alone with Vickie for an unspecified period of time. So the prosecution theory was that defendant had tied her to a chair with the pantyhose, and that he untied her when he ran back into the house.

During closing argument, a prosecutor misstated the evidence by declaring that defendant had spent “a minute” with Vickie when he ran back into the burning house.

The defense promptly objected to this misstatement, and this timely objection was sustained.

Another instance of improper closing argument by a prosecutor was brought to the trial court’s attention during the hearing on the motion for a new trial. This other comment concerned an attempt to explain the difference between “intent” and “knowledge.” The prosecutor told the jury that intent to kill could be inferred circumstantially, such as when someone aims and fires a gun at a person against whom they have a grudge. Then the prosecutor went on to say that someone would be considered as having acted with “knowledge” if he aimed a gun at a ceiling, pulled the trigger, and some unintended victim died when the bullet ricocheted.

The defense promptly objected to this misstatement of law (see Ill. Rev. Stat. 1979, ch. 38, par. 4 — 5(b)), and the trial court both sustained the objection and admonished the prosecutor.

The appropriate question in reviewing the effect of improper prosecutorial closing argument is whether the trial court erred in concluding that it had effectively eliminated the prejudicial impact of the improper statements.

“[Although the prejudicial effect of an improper argument cannot always be erased from the minds of the jurors by an admonishment from the court (People v. Garreau (1963), 27 Ill. 2d 388, 391), the act of promptly sustaining the objection and instructing the jury to disregard such argument has usually been viewed as sufficient to cure any prejudice.” People v. Baptist (1979), 76 Ill. 2d 19, 30.

Prosecutorial argument is improper and unfairly prejudicial if there is a reasonable likelihood that it will induce the jurors to reach a verdict based on factors other than the law and the properly admitted evidence. In the present case, however, the court promptly sustained objections to the improper comments, and in one instance, sua sponte admonished the prosecutor, even though the defense did not ask that the jury be instructed to disregard either one of the comments in question. We find that these improper statements, as cured by the trial court, were not so inflammatory as to cause a reasonable likelihood of unfair prejudice to defendant. We therefore conclude that the trial court did not err in deciding that its remedial actions removed the taint of the improper comments.

Various other instances of allegedly improper closing argument are raised on appeal although these particular points were not referred to in defendant’s motion for a new trial. However, points not raised in defendant’s motion for a new trial are waived and generally will not be considered on appeal. People v. Pickett (1973), 54 Ill. 2d 280, 282; People v. Armes (1963), 28 Ill. 2d 83, 87; People v. Zielinski (1957), 10 Ill. 2d 473, 478.

“The purpose of this rule is apparent. Requiring defendant’s written motion for a new trial to specify the errors allegedly entitling him to a new trial may save the delay and expense inherent in an appeal in those instances where the motion is meritorious. Additionally, it focuses the attention of the trial judge upon those aspects of the proceedings of which the defendant complains, and gives to the reviewing court the benefit of the judgment and observations of the trial court with reference thereto. In short, we believe this waiver rule a salutary one serving a legitimate State interest in that it tends to eliminate unnecessary reviews and reversals.” People v. Irwin (1965), 32 Ill. 2d 441, 443-44. .

The remaining instances of allegedly improper closing argument asserted on appeal were waived because they were not adequately brought to the trial court’s attention in the motion for a new trial. Moreover, the points which were waived generally concern the typical disagreements over the evidence which invariably occur during closing arguments, and we do not find that this case calls for the exercise of our power, under Supreme Court Rule 615(a), to consider issues which have been waived.

The remaining issue is whether the evidence was sufficient to convince the jury beyond a reasonable doubt that defendant is guilty of murder and arson.

The prosecution is required to prove guilt in criminal cases beyond a reasonable doubt. (Ill. Rev. Stat. 1979, ch. 38, par. 3 — 1.) But, “We recognize that the conduct and demeanor of a witness on the stand and his action under cross-examination have a strong bearing upon the weight to be accorded his testimony.” (People v. Stoneking (1919), 289 Ill. 308, 312.) So, in deciding whether evidence is sufficient to support a conviction, reviewing courts are acutely aware that it is usually impossible to evaluate the veracity of witnesses without having had an opportunity to observe and hear the actual testimony.

As a result of the difficulty of evaluating testimonial credibility when review is based upon nothing more than the reading of a lifeless transcript, appellate courts are deferential in their review of a jury’s findings of fact. (See People v. Bond (1917), 281 Ill. 490, 499.) The jury’s fact findings, therefore, will not be set aside merely because the prosecution and defense witnesses contradict each other. People v. Friedman (1940), 374 Ill. 212, 219; People v. Bond (1917), 281 Ill. 490, 499.

The Illinois rule is that a reviewing court “will not disturb the finding of the jury unless it can be said that there is not sufficient credible evidence to establish the guilt of an accused beyond a reasonable doubt, or unless the evidence is deemed so improbable or unsatisfactory as not to be worthy of belief.” (People v. Long (1950), 407 Ill. 210, 212.) “The verdict of the jury on questions of fact will not be disturbed unless palpably contrary to the weight of the evidence.” People v. Kelley (1928), 330 Ill. 562, 563; accord, People v. Kandian (1935), 360 Ill. 217, 225; People v. Glasser (1929), 335 Ill. 263, 269; People v. Anderson (1934), 355 Ill. 289, 306.

The evidence in the present case shows that, while defendant was stoned on L.S.D., he tied up his wife, soaked her with gasoline, and started the fire that killed her. In dying declarations — statements which were admissible as substantive evidence — Vickie Rhoads stated that defendant tried to kill her by setting her on fire.

This incriminating evidence was contradicted by defendant’s claim that the fire was just an accident, an accident caused when he absentmindedly decided to smoke a cigarette while standing next to someone he had just hogtied and soaked with gasoline.

Not only was defendant’s story improbable, but his testimonial credibility was impeached with evidence that he made inconsistent statements at the scene of the fire, including his claim that the fire started when Vickie, whose hands were tied behind her back, lit a cigarette. Defendant also incriminated himself by writing a letter in which he acknowledged that “it would be incriminating” if he revealed the truth about the fire. And, still further, according to Captain DePue, defendant admitted that before lighting the match that started the fatal fire, he told Vickie “this is it.”

Although one witness testified that Vickie said “it was an accident” soon after being rescued from the burning building, it was not manifestly erroneous for the jury to find that this witness was mistaken.

Accepting as true the jury’s findings on the credibility of the witnesses (see People v. Long (1950), 407 Ill. 210, 212), we find that there is sufficient credible evidence to prove defendant guilty beyond a reasonable doubt. The verdict finding defendant guilty of murder and arson is not palpably contrary to the weight of the evidence, and we would not be justified in reversing the jury’s findings of fact.

Based on all of the preceding reasons, the judgment of the circuit court is affirmed.

Affirmed.

SULLIVAN, P.J., and MEJDA, J., concur.


source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNIE BROWN, Defendant-Appellant.
    First District (4th Division)
    No. 81—2501
    Opinion filed December 9, 1982.

      Thomas E Geraghty and Corlis Chang, both of Northwestern University Legal Clinic, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Raymond Brogan, and Rhoda W. Davis, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, defendant, Johnnie Brown, was convicted of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2) and sentenced to six years in the Illinois Department of Corrections. On appeal, defendant claims that (1) the State failed to prove him guilty beyond a reasonable doubt, (2) the trial court erred in admitting the identification testimony of two witnesses to a subsequent crime, and (3) the trial court erred in denying defendant’s motion to suppress identification. We affirm defendant’s conviction.

On February 21, 1980, at about 11:20 p.m., Major Barrow, the complaining witness, was struck on the head from behind as he was entering his parked car. Two men threatened him with guns, took his wallet and money, and then drove off in his car. Barrow immediately called the police and gave them a description.

Approximately 40 minutes later, two men in a car, later identified as the car stolen from Barrow, collided with the back of another car occupied by two women, Maxine and Diane Griffin. The two men, both of whom were wearing ski masks, left the stolen car and entered the women’s car; subsequently, both men removed their masks. Two days later, defendant was arrested, placed in a lineup, and positively identified by both Barrow and the Griffins.

On July 28, 1981, defendant’s motion to suppress his identification on grounds of unreliability was heard and denied, and trial began immediately thereafter. The State presented its case in chief through the testimony of Major Barrow, the complaining witness. Maxine and Diane Griffin then testified to the corroborating identification of defendant as the driver of the stolen car, and a police department investigator outlined the procedures followed at the challenged lineup.

In response, defendant presented his alibi defense through his own testimony and that of his girlfriend, his sister, and his sister’s common law husband. Last, the defense presented the testimony of the professional psychologist who had testified at the suppression hearing as an expert on memory and alleged that the lineup procedures were improperly suggestive. Following all the testimony and final arguments, the trial court found defendant guilty of armed robbery. Defendant’s motion for a new trial was denied, and he was sentenced to a term of six years in the Illinois Department of Corrections.

Opinion

I

On appeal, defendant first argues that the State failed to prove him guilty beyond a reasonable doubt because Barrow’s identification testimony, the primary evidence of defendant’s guilt, was too unreliable to support a conviction. Defendant claims that the inaccuracy of the description Barrow gave the police immediately after the robbery is proof that Barrow did not have an adequate opportunity to observe any identifying characteristics of his assailant. Upon examining Barrow’s testimony concerning the robbery and the subsequent lineup, we find his identification to be sufficiently reliable to support defendant’s conviction.

Defendant agrees that where the identity of the accused is at issue, the testimony of a single witness is sufficient to convict, even if the identification testimony is contradicted by the accused, as long as the witness is credible and the accused is viewed under circumstances which would permit a positive identification to be made. (People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) However, while neither perfect conditions nor a prolonged period to observe are necessary (People v. Porter (1975), 29 Ill. App. 3d 456, 330 N.E.2d 599), the witness must have had an adequate opportunity to view the alleged offender at the time of the occurrence. (People v. Mays (1976), 38 Ill. App. 3d 182, 347 N.E.2d 235.) Defendant maintains that Barrow had no such opportunity.

The test of a positive identification is whether the witness was close enough to the accused for a sufficient length of time under conditions adequate for observation. (People v. Thomas (1979), 72 Ill. App. 3d 186, 389 N.E.2d 1330.) If the identification is reliable in light of the totality of the circumstances (Stovall v. Denno (1967), 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967), its admission will be upheld. In Neil v. Biggers (1972), 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375, the Supreme Court further refined the test for a reliable identification by isolating five separate factors: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of the witness’ prior description of the criminal, (4) the level of certainty demonstrated by the witness at the identification confrontation, and (5) the length of time between the crime and the confrontation.

Applying those factors to the present case, we note that Barrow consistently maintained that even though he had been hit on the head and told not to look at his assailants, he looked directly into defendant’s face during the robbery, which took place under a street light. He clearly remembered the two assailants’ faces and clothing, what they said, the quality of their voices, where each was positioned, the subsequent movements each made, and where each of the two guns was pointed, all of which indicate that Barrow “had viewed [the scene] with the close attention accorded unusual occurrences.” (People v. McTush (1980), 81 Ill. 2d 513, 522, 410 N.E.2d 861, 866.) Further, Barrow testified that he had picked out defendant the moment he saw the lineup and never wavered in his identification. Finally, the lapse of time between the crime and the confrontation was only 36 hours.

The only factor in defendant’s favor is the 7-inch, 30-pound discrepancy between Barrow’s estimation of his assailant’s height and weight and defendant’s actual height and weight. Even though Barrow described the robber as 5 feet 3 inches tall and weighing 120 pounds while in fact defendant is 5 feet 10 inches tall and weighs 150 pounds, we do not regard that discrepancy as proof of a “substantial likelihood of misidentification.” (Neil v. Biggers (1972), 409 U.S. 188, 201, 34 L. Ed. 2d 401, 412, 93 S. Ct. 375, 383.) Looking down from his own height of nearly 6 feet 6 inches, Barrow might well have overestimated the difference in height and weight between the robber and himself. “[I]t is contrary to human experience to make an identification by noticing first the separate features *** and then *** running off a total to determine recognition or non-recognition. Ordinarily all features are viewed at once and the recognition made instantaneously or not at all. This is one of the reasons why minor discrepancies in identification do not require reversal.” People v. Ervine (1965), 64 Ill. App. 2d 82, 87, 212 N.E.2d 346, 349.

On balance, the majority of the factors indicate a reliable identification, and Illinois courts have consistently held that height and weight errors in a complainant’s description affect only the credibility of the witness and the weight to be given the testimony. (People v. Crawford (1980), 90 Ill. App. 3d 888, 414 N.E.2d 25; People v. Nichols (1975), 32 Ill. App. 3d 265, 336 N.E.2d 194.) In a bench trial, the determination of the credibility of witnesses and the weight to be given their testimony is a matter for the trier of fact and will not be disturbed unless palpably erroneous. (People v. Arndt (1972), 50 Ill. 2d 390, 280 N.E.2d 230.) After measuring the discrepancies against the remaining evidence, we conclude that the trial court’s decision is not contrary to the weight of the evidence, nor the identification so unbelievable that any serious doubt of defendant’s guilt has been raised. (People v. Crawford (1980), 90 Ill. App. 3d 888, 414 N.E.2d 25.) “Where the witness makes a positive identification, precise accuracy in the preliminary description is not necessary.” People v. Mendoza (1978), 62 Ill. App. 3d 609, 616, 378 N.E.2d 1318, 1324.

II

Defendant attempted to inflate the importance of Barrow’s errors in describing his attacker by introducing the testimony of an expert witness who asserted that the observations and memory of people in stressful situations are very unreliable. Noting that the State made no attempt to impeach the expert or rebut his testimony, defendant maintains that the trial judge erred by arbitrarily rejecting the opinions offered by the expert. People v. Harvey (1919), 286 Ill. 593, 122 N.E. 138.

Our examination of the record indicates that the trial judge considered the expert testimony but found that when all the evidence was properly weighed, the State had proved defendant guilty beyond a reasonable doubt. It is axiomatic that it is within the discretion of the trier of fact to accept or reject the conclusions of experts. (People v. Rockamann (1979), 79 Ill. App. 3d 575, 399 N.E.2d 162.) “The ultimate issue was for the trial court, not the experts, to decide.” (People v. Bilyew (1978), 73 Ill. 2d 294, 302, 383 N.E.2d 212, 215.) Accordingly, we find no error in the trial court’s conclusion that Barrow’s identification was sufficiently reliable to support defendant’s conviction of armed robbery.

Ill

Defendant’s second argument centers around the corroborating identification testimony of Maxine and Diane Griffin, the two occupants of the automobile struck by the car stolen from Barrow approximately 40 minutes earlier. Defendant attempts to disqualify the Griffins’ identification on the ground that it concerned a subsequent crime and therefore, even if admitted to establish the identity of the criminal, is subject to the severe limitations governing admission of evidence of other crimes: the probative value must outweigh the prejudicial effect, and the evidence “should be confined to such details as show the opportunity for identification and not the details of the crime.” (People v. Butler (1975), 31 Ill. App. 3d 78, 80, 334 N.E.2d 448, 450.) Defendant claims that no description of the Griffins’ opportunity for observation was ever presented by the State.

Our review of the Griffin testimony at trial leads us to conclude that any shortcomings in the witnesses’ description of their opportunity to observe and identify the two men resulted from defense attorney’s continued objections to nearly every question asked by the State. Through its motion in limine to prevent the introduction of any evidence that the two men from the stolen car had raped and robbed the two women, the defense effectively foreclosed the State’s opportunity to elicit any specifics of what had happened in the car after the men removed their masks. We therefore can not countenance defendant’s complaint that as a result of his own motion he could not effectively cross-examine Diane Griffin without going into detail about the other crimes.

In People v. Tranowski (1960), 20 Ill. 2d 11, 16, 169 N.E.2d 347, 349, cert. denied (1960), 364 U.S. 923, 5 L. Ed. 2d 262, 81 S. Ct. 290, identification evidence “was properly admitted even though when seen by some of the witnesses [defendant] was engaged in the commission of other crimes.” In Tranowski, the witness’ evidence placed the defendant in the area at the correct time. In the instant case, the witnesses’ testimony placed defendant in the driver’s seat of the victim’s stolen car within an hour of the robbery. Further, the fundamental reliability of the Griffins’ identification testimony is based on the fact that the two women were “no casual observers], but rather the victimfs] of one of the most personally humiliating of all crimes.” (Neil v. Biggers (1972), 409 U.S. 188, 200, 34 L. Ed. 2d 401, 412, 93 S. Ct. 375, 382.) Much will depend on whether the witness was motivated to make a careful observation of the perpetrator, a victim having the greatest desire to seek out and retain the image. (See United States ex rel. Phipps v. Follette (2d Cir. 1970), 428 F.2d 912, 915, citing P. Wall, Eye-Witness Identification in Criminal Cases 125-27 (1965).) “Quick and sure identification at the first exposure *** affords some *** evidence of the definiteness of the earlier image.” {United States ex rel. Phipps v. Follette (2d Cir. 1970), 428 F.2d 912, 915.) Where, as here, both women promptly picked out defendant at a lineup conducted soon after the crime, we conclude that the identification testimony was sufficiently probative to withstand any contention that the prejudicial effect was overwhelming. We therefore find no error in the trial court’s admission of “evidence of other crimes *** so closely connected with the main issue that it tends to prove the accused guilty of the crime for which he is being tried.” People v. Tranowski (1960), 20 Ill. 2d 11, 16, 169 N.E.2d 347, 349, cert. denied (1960), 364 U.S. 923, 5 L. Ed. 2d 262, 81 S. Ct. 290.

IV

Last, defendant argues that the motion to suppress his identification should have been sustained because the lineup was so suggestive that his due process rights were denied. Defendant maintains that Barrow selected him out of a five-man lineup because of improperly suggestive lineup procedures, not a genuine recognition of defendant as his assailant. We disagree.

Defendant again points to the faulty description Barrow gave to the police as evidence that he never had a good look at the robber. Barrow described his assailant as “a medium-complected male Negro, 17-22 years old, 5’3”, 120 pounds, with brown eyes, black hair, and wearing a gray jacket and dark pants.” Defendant contends that the physical description was so inaccurate that Barrow’s subsequent lineup identification” of defendant had to be based on some other factor, namely, defendant’s clothing. Therefore, because defendant was the only man in the lineup wearing a gray jacket, Barrow’s identification was based solely on the similiarity of clothing worn by the assailant and by defendant.

The standard for judging whether or not a lineup was unduly suggestive was set forth generally in Stovall v. Denno (1967), 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967, applied in Manson v. Braithwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243, and adopted by the Illinois Supreme Court in People v. Manion (1977), 67 Ill. 2d 564, 571, 367 N.E.2d 1313, 1316-17:

“In Manson, the Supreme Court unequivocally adopted the Stovall *** approach of ‘totality of the circumstances’ and rejected a per se approach to determine the admission of suggestive out-of-court identification evidence. The per se test would exclude identification or confrontation evidence ‘without regard to reliability, whenever it has been obtained through unnecessarily suggested confrontation procedures.’ [Citation.]
The Stovall test of totality of the circumstances, on the other hand, ‘permits the admission of the confrontation evidence if, despite the suggestive aspect, the out-of-court identification possesses certain features of reliability.’ [Citation.] In other words, evidence of an unnecessarily suggestive identification may nevertheless be admitted at trial if reliability of the identification, under the totality of circumstances, is shown.”

Manion concluded its analysis by stating that the same five factors from Neil v. Biggers (1972), 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375, discussed earlier are to be used in assessing the reliability of an allegedly tainted lineup identification. As we decided in response to defendant’s first argument, the application of the five factors to Barrow’s identification of defendant indicates sufficient reliability to support defendant’s conviction. During his testimony, Barrow repeatedly asserted that he recognized defendant’s face. Moreover, any suggestiveness arose not because the suspect was forced to wear particular clothing, but because the defendant had selected as the clothing he wore on the evening he was arrested, clothing which fit defendant’s description. He made his own selection, and we find that “[u]nder these circumstances, the procedure used would tend to aid the accuracy of the identification.” People v. Hamilton (1977), 54 Ill. App. 3d 215, 218, 369 N.E.2d 377, 379.

From our consideration of the evidence, we are of the opinion that no reasonable doubt of defendant’s guilt exists, and the trial court’s decisions concerning challenged testimony and finding defendant guilty of armed robbery were not contrary to the weight of the evidence. The judgment of the trial court is therefore affirmed.

Affirmed.

JIGANTI and ROMITI, JJ., concur.


author: PRESIDING JUSTICE WEBBER

text:
      In re ESTATE OF FRANCES A. HEARS, Deceased.—(Ruth Koontz Cordis, Petitioner-Appellant, v. Gordon Brady et al., Respondents-Appellees.)
    Fourth District
    No. 4—82—0230
    Opinion filed December 13, 1982.
    Rehearing denied January 19, 1983.
    Jack C. Vieley, of Peoria, for appellant.
    Dunn, Brady, Goebel, Ulbrich, Morel, Kombrink & Hundman, of Bloomington (William Goebel, of counsel), for appellee Illinois Wesleyan University.
    James C. Wollrab, of Costigan & Wollrab, of Bloomington, for appellees Hubert Ellis heirs.
    Robert M. Travers, of Fellheimer, Fellheimer, O’Dell & Travers, Ltd., of Pontiac, for appellees Mary Arthur heirs.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

Frances A. Hears died testate and her will was admitted to probate in the circuit court of Livingston County. The principal beneficiary of that will is Illinois Wesleyan University of Bloomington, which receives all of the residue of the substantial estate after the payment of a number of specific monetary legacies. The testator was widowed and childless and her heirs were 53 known nieces and nephews of the whole and half blood and descendants of other such nieces and nephews as predeceased her. Other heirs, if any, were unknown.

Within the time limited by law (Ill. Rev. Stat. 1979, ch. lUPA, par. 8 — 1(a)) the petitioner, an heir and legatee of the testator, filed a petition to contest the validity of the will and named therein as respondents all the heirs and legatees, but did not name as a respondent the executor to whom letters had issued. In the body of the petition it was alleged that the executor had been nominated in the will and that letters had issued to him.

The executor filed a special and limited appearance for the purpose of contesting the jurisdiction of the circuit court. It alleged the failure to name him as a party respondent and that the time for filing a proper petition had expired. Illinois Wesleyan University, joined by several of the heirs, filed a motion to dismiss on the same grounds.

The circuit court of Livingston County held a hearing on the appearance and the motion and dismissed the petition with prejudice, holding that the failure to join the executor deprived it of jurisdiction. The petitioner appeals and we reverse.

The trial court placed great emphasis on a portion of section 8— 1(a) of the Probate Act of 1975. That section, after limiting the period for filing a petition to contest the validity of a will, provides: “The representative, if any, and all heirs and legatees of the testator must be made parties to the proceeding ***.” (Ill. Rev. Stat. 1979, ch. 11()1k, par. 8 — 1(a).) The court stressed the word “must” and held that its jurisdiction derived from the statute. Undoubtedly the statute mandates the joinder of the representative, but the court was in error in determining that its jurisdiction flowed from the statute.

Jurisdiction is the life-spirit of the judiciary and is just as difficult of description as is the life-force of homo sapiens. However, while the origin of the life-force of humans remains a divine mystery, the origin of jurisdiction is secular and may be traced. A brief sketch of its origin and subsequent career in this State may be helpful in illuminating the question presented in the case at bar.

Let us accept for purposes of discussion a simplistic definition of jurisdiction as being the power to adjudicate. In the history of this State that power has found itself engaged in a tug-and-pull imbroglio between the courts and the legislature.

The Illinois Constitution of 1818 represented a legislative dominance of the matter. Article IV, section 4, of that document provided in part: “[T]he said justices [of the supreme court], respectively, shall hold circuit courts in the several counties, in such manner and at such times, and shall have and exercise such jurisdiction as the general assembly shall by law prescribe.”

The legislature moved at an early date to implement this provision. Section 26 of “An Act regulating and defining the duties of the justices of the supreme court,” approved March 31, 1819, provided:

“And be it further enacted, That the said circuit courts shall be holden at the respective court-houses of said counties; and the said justices respectively, in their respective circuits, shall have jurisdiction over all causes, matters, and things at common law and in chancery, arising in each of the counties in their respective circuits, where the debt or demand shall exceed the sum of twenty dollars.” 1819 Ill. Laws 380.

Article IV, section 4, of the Illinois Constitution of 1818 provided for the appointment of the justices of the supreme court and judges of the inferior courts by the legislature. After the appointment of circuit judges, the same strictures on jurisdiction were placed on them by the legislature. Section 18 of “An Act regulating the Supreme and Circuit Courts. In force July 1,1829” provided:

“The said circuit courts shall be holden at the respective court houses of said counties, and the said judges respectively, in their respective circuits shall have jurisdiction over all matters and suits at common law and in chancery, arising in each of the counties in their respective circuits, where the debt or demand shall exceed twenty dollars.” Rev. Laws Ill. 1833, at 151-52.

The supreme court took an exceedingly expansive view of this grant of jurisdiction and stated:

“The Circuit Courts are the only superior courts in the State, that possess original and unlimited jurisdiction. They exercise, within their respective counties, all the powers and jurisdiction of the courts of King’s Bench and Common Pleas in England.” Beaubien v. Brinckerhoff (1840), 3 Ill. (2 Scam.) 269, 273.

Here was the nativity of the concept that jurisdiction flowed from the legislature through its statutory enactments. This was preserved in the Constitution of 1848 which to a large extent curbed Judge Lockwood’s “original and unlimited” idea of jurisdiction set forth in Beaubien. Article V, section 5, of the Constitution of 1848 granted the supreme court original jurisdiction in a limited number of cases and appellate jurisdiction in all others. Section 8 was restrictive as to the circuit courts and incorporated the “law and equity” concept found in the early statutes:

“[S]aid courts shall have jurisdiction in all cases at law and equity, and in all cases of appeals from all inferior courts.” Ill. Const. 1848, art. V, sec. 8.

So matters stood until the Constitution of 1870. That document took a cautious step forward by conferring “original” jurisdiction in law and equity on the circuit courts, but declined Beaubien’s “unlimited.” It stated:

“The circuit courts shall have original jurisdiction of all causes in law and equity, and such appellate jurisdiction as is or may be provided by law.” Ill. Const. 1870, art. VI, sec. 12.

As happened in 1840 with Beaubien, the supreme court took an equally expansive view of “original” jurisdiction and asserted in Myers v. People (1873), 67 Ill. 503, 509, “The legislature, therefore, has no power to abridge the original jurisdiction of the circuit court.” The appellate court stated the concept more poetically in Ide v. Sayer (1888), 30 Ill. App. 210, 216-17:

“The jurisdiction of the County Court does not resemble that of the Circuit Court, which is original ‘of all cases in law and equity’ (Sec. 12, Art. 6, Const.), undefined, general, like space, ending nowhere, and embracing all that is.”

The law became well settled that the legislature could not infringe on the “law and equity” jurisdiction of the circuit courts. However, power was retained in the legislature to regulate proceedings which did not have their ancestry in the traditional forms. A concise statement is found in People v. Graw (1936), 363 Ill. 205, 208, 2 N.E.2d 71, 72-73:

“By the constitution circuit courts have jurisdiction of all causes in law and equity. The term ‘all causes in law and equity’ includes every claim or demand in a court of justice which was known at the adoption of the constitution as an action at law or a suit in chancery, and also all actions since provided for which involve personal or property rights of the same nature as those previously enforced by actions at law or in equity. It does not apply to special statutory proceedings involving rights and providing remedies not of a kind previously existing at law or in equity.”

After the adoption of the Constitution of 1870, the legislature exercised its retained power in a variety of ways. It provided jurisdiction over matters which had no roots in traditional law and equity, e.g., probate, and even at times legislated without objection on matters which were traditionally part of inherent chancery jurisdiction; e.g., sectionT of “An Act to revise the law in relation to injunction” (Ill. Rev. Stat. 1874, ch. 69, par. 1), which conferred on the circuit courts and the circuit judges the power to grant writs of injunction. The bench and bar fell into the habit of looking to the statutes as a source of jurisdiction and largely ignoring the other sources.

A revolution was wrought, almost without a murmur, by the Judicial Article of 1962, effective January 1,1964. That provided:

“The Circuit Court shall have unlimited original jurisdiction of all justiciable matters, and such powers of review of administrative action as may be provided by law.” (Ill. Const. 1870, art. VI, sec. 9.)

It is noteworthy that this is the exact language employed by the supreme court in Beaubien 122 years before. Now for the first time in the history of the State jurisdiction was out of the hands of the legislature except for administrative review and instead of looking for a statutory fiat, the bench and bar were required to determine the nature of a “justiciable matter.” Grappling with this problem is still going on and its very amorphous characteristics indicate that an unequivocal answer will not soon be found. It may be similar to the court’s statement in Ide concerning law and equity jurisdiction: “undefined, general, like space, ending nowhere, and embracing all that is.” For a general discussion of the revolution see Fins, Re-Examination of “Jurisdiction” in Light of New Illinois Judicial Article, 53 Ill. B.J. 8 (1964).

Our research has revealed no cases decided on the question of jurisdiction under the amendment dealing with the “unlimited” language. However, the word had only a short tenure since it was eliminated by the Constitution of 1970. That document provided:

“Circuit courts shall have original jurisdiction of all justiciable matters except when the Supreme Court has original and exclusive jurisdiction relating to redistricting of the General Assembly and to the ability of the Governor to serve or resume office. Circuit Courts shall have such power to review administrative action as provided by law.” (Ill. Const. 1970, art. VI, sec. 9.)

We believe that no substantive change was intended from the 1962 version. A review of the proceedings of the 1969 Constitutional Convention reveals that as originally submitted, the draft conferred “unlimited original” jurisdiction, but that the word “unlimited” was eliminated by the Committee on Style and Drafting. The Committee’s version was adopted by the Convention without comment or debate. Doubtless the exceptions set forth in the same section mandated the elimination of “unlimited.”

So a full progression has been made from the purely legislative concept of jurisdiction embodied in the 1818 Constitution to the plenary concept now in force under the 1970 Constitution. The supreme court has held on several occasions that the circuit court derives its jurisdiction directly from the constitution and not from any statute or pleading. (People v. Valdez (1980), 79 Ill. 2d 74, 402 N.E.2d 187; People v. Gilmore (1976), 63 Ill. 2d 23, 344 N.E.2d 456.) However, as pointed out in the Fins article, the legislature may still impose substantive conditions precedent to the exercise of jurisdiction. While this may sometimes erroneously be called a lack of jurisdiction, it is in reality an inability to exercise jurisdiction because the court cannot waive the condition.

This too-lengthy excursus into history has been made only to indicate that the bench and bar are by nature traditionalists and that with them old notions die hard. No longer do we seek statutory justification for the exercise of jurisdiction; rather the inquiry must be whether there exists a justiciable controversy, and if so, are there any statutory conditions precedent to judicial intervention.

As applied to the instant case, the inquiry yields a ready answer. Prior to 1964 a will contest was a creature of statute in this State and hence jurisdiction was dependent upon strict compliance with the statute. (Selden v. Illinois Trust & Savings Bank (1909), 239 Ill. 67, 87 N.E. 860.) After 1964 it became a justiciable matter, and the only condition precedent to the exercise of jurisdiction is that it be filed within the time limited by statute after the admission of the will to probate. (Ill. Rev. Stat. 1979, ch. llOVa, par. 8 — 1(a).) It is uncontroverted that the petition was filed within the statutory period in the instant case. The circuit court then had jurisdiction. The cases cited by the parties which antedate the Constitution of 1970 are of no assistance here, although they were valid law for their time and place.

Rather, we are. of the opinion that the instant case is controlled by Watt v. Farmers State Bank & Trust Co. (1979), 71 Ill. App. 3d 455, 389 N.E.2d 947. In that case a petition was timely filed attacking the validity of a will executed May 20, 1966. No mention was made of a codicil executed February 15, 1969. Motions to dismiss were allowed for various reasons, and nearly one year after the expiration of the six-month limitation period set forth in section 8 — 1(a) of the Probate Act of 1975, a second amended complaint was filed which for the first time mentioned the codicil and asked that both the will and the codicil be set aside. The codicil nominated a different executor but otherwise republished and reaffirmed the will. The trial court dismissed the second amended complaint with prejudice, holding that the codicil was not attacked within the limitations period, and since the codicil reaffirmed the will, any impropriety in the execution of the will was not then subject to attack. The appellate court reversed, holding that the circuit court acquired jurisdiction upon the timely filing of the original complaint and that the matter of the codicil could be raised by amendment under section 46(2) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 46(2)).

In like manner in the case at bar, since jurisdiction had attached upon the timely filing of the petition, section 46 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 46), now section 2— 616 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 616) controls. Section 1 — 6 of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. llOVa, par, 1 — 6) with certain exceptions not pertinent here, makes the Civil Practice Act applicable to proceedings in probate.

Subparagraph (1) of section 46 permits the joinder of necessary parties at any time before final judgment. It cannot be seriously contended that under the language of. section 8 — 1(a) of the Probate Act of 1975 the executor is not a necessary party. Subparagraph (2) of section 46 provides that an amended pleading will relate back, if the original pleading were timely filed and the same transaction is involved. Obviously both sections are satisfied in the instant case.

Respondents contend that Watt, decided under subparagraph 46(2), has no application here, and if section 46 is to have any application, it must be under subparagraph (4) and petitioner has not complied with the conditions therein set forth. The pertinent part of sub-paragraph (4) states: “A cause of action against a person not originally named a defendant is not barred by lapse of time ***.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 110, par. 46(4).) A will contest is not an action against any person to secure a personal judgment but is a quasi in rem proceeding simply to set aside the will. (Nupnau v. Hink (1965), 33 Ill. 2d 285, 211 N.E.2d 379.) Subparagraph (4) therefore has no application. It is interesting to note in passing that although Nupnau was decided under the 1870 Constitution and the prior provisions of the Probate Act (Ill. Rev. Stat. 1961, ch. 3, pars. 90, 91), nevertheless, the supreme court held that the failure to join all of the heirs as parties defendant did not defeat the jurisdiction of the court.

Respondents also rely heavily on Shriners Hospitals v. First National Bank (1981), 101 Ill. App. 3d 626, 428 N.E.2d 751. We find that authority inapposite. It was in effect an attempt by a respondent to assert a counterclaim as an original action when the petitioner had taken a voluntary nonsuit after the limitations period had expired. Furthermore, the court continued to view section 8 — 1 of the Probate Act as jurisdictional rather than as a condition precedent to the exercise of jurisdiction.

The order of dismissal entered by the circuit court of Livingston County is therefore reversed and the cause is remanded to that court with directions to allow the petitioner to amend her petition to include the executor as a party respondent and for such further proceedings as may then be appropriate and required.

Reversed and remanded with directions.

MILLS and TRAPP, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. REGINALD TAYLOR, Defendant-Appellant.
    First District (5th Division)
    No. 80—3261
    Opinion filed December 10, 1982.

      Steven Clark and Scott Graham, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Joel A. Stein, and Daniel E. Jordan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the.opinion of the court:

Following his entry of a guilty plea, defendant was found guilty of two counts of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2) and was sentenced to a term of eight years in the Illinois Department of Corrections.

He appeals, contending that (1) he was denied effective assistance of counsel where the public defender representing him failed to advise him that a plea of guilty waived the right to appeal the trial court’s denial of a motion to suppress; (2) he was denied his right to representation by counsel free from conflicting interests where the same attorney represented him on his motion to vacate his guilty plea; (3) he did not enter a knowing and voluntary plea of guilty; and (4) the trial court erred in denying his motion to vacate his plea of guilty where counsel failed to file a certificate pursuant to Supreme Court Rule 604(d) (73 Ill. 2d R. 604).

Material to our disposition are the following facts.

Defendant was charged by information with two counts of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2).

An assistant public defender was appointed to represent defendant. Defendant filed a motion to suppress the identification testimony, alleging that the pretrial identification procedures employed by the police were unduly suggestive.

On August 14, 1980, a hearing was held on defendant’s motion to suppress. The following pertinent evidence was adduced at the hearing on the motion.

Rev. and Mrs. Lawrence Harris were the victims of an armed robbery on February 12, 1980. Officer Patrick Foley testified that both he and his partner, Officer James Capesius, went to their home on February 16 for the purpose of interviewing them and showing them photos in regard to the robbery.

After showing the Harrises approximately 50 photos without any identification- resulting, the police officers contacted Robert Johnson, a witness to the robbery. Johnson had seen defendant in the area over a period of years and from time to time would “say hello to him.” The police officers showed Johnson a stack of 30 or 40 photos which differed from those originally viewed by the Harrises, and he made a positive identification of defendant. Returning to the Harris home later that afternoon, the officers showed them nine photos which included the defendant’s.

Officer Foley further testified that the Harrises were separated when viewing the photos, but were in the same room and could hear the conversation of each other. He stated that when Mrs. Harris came to defendant’s picture she said, “That’s the man.”

Octavia Harris testified that she was the victim of an armed robbery on February 12, 1980, at Ridgeway and Chicago Avenues in Chicago, Illinois. She stated that the police officers did not tell her that they thought the suspect might be in the second group of photo's; however, they did inform her that Johnson had picked out one of the men in the photos they were showing her.

She further testified that she later viewed a lineup of five suspects while alone in a room at the police station with one of the police officers with her. She identified defendant after two or three minutes without the investigators directing her to identify him. Prior to the lineup, she had neither seen nor confronted the defendant in the police station.

Lawrence Harris testified that on February 16, 1980, the police officers arrived at his home with nine or 10 photos which did not contain defendant’s photograph. They returned 21lz hours later with a “nice stack” of photos from which he made an identification of defendant. He identified a photograph of defendant from this group and did not know at the time which photograph had been previously identified by his wife. "He further stated that the police did not tell him that a suspect might be in the group of photos.

The police gave the Harrises a ride to the police station and told him they thought the suspect would be in the lineup. He was not with his wife when he made an identification of defendant after three or four minutes; the policeman with him did not say anything to him during that time.

Robert Johnson testified that he identified defendant’s photo in a stack of photos supplied by the police on February 16, 1980. He told the police that he recognized the defendant from seeing him over a period of years on the street and in the same area.

Following the hearing, the court denied defendant’s motion to suppress identification and motion for discharge.

Defendant requested a conference on his change of plea and a hearing was held on November 13,1980.

The trial court advised defendant of the possible consequences of the conference and defendant stated that he understood them. Following the conference, defendant informed his counsel and the court that he wanted to change his plea to guilty. The record reveals that the court admonished him pursuant to Supreme Court Rule 402(a) and defendant indicated that he understood each admonishment.

Defendant then stipulated that on February 12, 1980, while armed with a handgun, he committed the offense of armed robbery against Mr. and Mrs. Lawrence Harris at 711 North Ridgeway Avenue in Chicago, Illinois.

The trial court entered a finding of guilty on each count, and defendant was sentenced to two concurrent terms of eight years imprisonment pursuant to the plea negotiation conference. Defendant was thereupon notified of his right to appeal and the requirement for a motion to vacate the guilty plea prior to an appeal.

Subsequently, the assistant public defender prepared, filed and argued defendant’s motion to withdraw the guilty plea. An examination of the record indicates that this motion does not contain any allegation of ineffective representation of counsel. The trial court denied defendant’s motion to vacate his guilty plea and he appeals.

Opinion

We initially consider defendant’s argument that he was denied his sixth and fourteenth amendment rights to effective assistance of counsel where his appointed counsel failed to inform him that by pleading guilty, he waived his right to appeal the trial court’s denial of his motion to suppress identification. We do not agree.

At the outset, we note that failure to raise an issue in the motion to vacate a guilty plea waives its consideration on appeal (73 Ill. 2d R. 604(d); People v. Jones (1979), 74 Ill. App. 3d 243, 392 N.E.2d 973), and we find that defendant’s failure to raise any allegation of ineffective assistance of counsel at the hearing on his motion to vacate the guilty plea operates as a waiver of the issue on appeal.

Nonetheless, in view of the several Federal constitutional rights which are involved in the waiver that takes place when a plea of guilty is entered in a State criminal trial (Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709), we will address the merits of the defendant’s case on appeal.

The majority rule, adopted in the Federal courts and in almost every State including Illinois, is that a valid plea of guilty waives review of all errors not jurisdictional in nature. (People v. Dunn (1972), 52 Ill. 2d 400, 288 N.E.2d 463; People v. Sullivan (1979), 72 Ill. App. 3d 533, 391 N.E.2d 241.) It has often been stated that since a conviction after a guilty plea is not based on any evidence, but on the plea itself, no review of an essentially evidentiary ruling can affect the outcome of an appeal. Sachs, Appellate Review of Pre-Trial Motions Following Conviction on a Plea of Guilty, 69 Ill. B.J. 480 (1981).

Here, however, defendant has not attacked the evidentiary ruling but the validity of his plea of guilty itself, on the basis of inadequate representation by defense counsel. We acknowledge defendant’s right to effective assistance of counsel in his trial pursuant to the guidelines set forth in Gideon v. Wainwright (1963), 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, and Argersinger v. Hamlin (1972), 407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006, and we agree that a denial of that right would require that his conviction in this case be set aside. People v. Morris (1954), 3 Ill. 2d 437, 445, 121 N.E.2d 810.

In People v. Husar (1974), 22 Ill. App. 3d 758, 764, 318 N.E.2d 24, however, the appellate court held that a determination that a defendant was denied effective assistance of counsel can be made only if his court-appointed counsel was incompetent, and as a result, that defendant was substantially prejudiced, citing People v. Harper (1969), 43 Ill. 2d 368, 253 N.E.2d 451.

Thus, in Illinois, the test for determining competence of both appointed and retained counsel was enunciated by the court in People v. Brimmer (1978), 60 Ill. App. 3d 214, 218, 376 N.E.2d 337, wherein the court stated: “To establish a denial of one’s constitutional right to a fair trial because of incompetency of counsel, a defendant must clearly establish not only actual incompetence, but also that substantial prejudice resulted therefrom. (People v. Logue (1970), 45 Ill. 2d 170, 258 N.E.2d 323.) Further, the resulting prejudice must have been sufficient to affect the outcome of the trial. *** Moreover, the fact that defense counsel did not take action that he arguably might have, does not establish incompetency of counsel in the absence of a showing that such action would have produced evidence affecting the guilt or innocence of the accused. People v. Goines (1974), 20 Ill. App. 3d 1055, 314 N.E.2d 193.” (Emphasis added.)

In the present case, the record reveals that appointed counsel timely filed a motion to suppress identification prior to defendant’s entry of a plea of guilty, and subsequently filed a motion to vacate the guilty plea. While defendant’s motion to suppress identification could arguably have been preserved by virtue of a tactical decision to plead not guilty in a stipulated bench trial, we have consistently held that mistakes of strategy will not serve to render counsel’s representation of accused in violation of constitutional requirements. People v. Shestiuk (1978), 59 Ill. App. 3d 296, 376 N.E.2d 56.

Moreover, the record in the present case is devoid of any allegation that defendant’s guilty plea is based on ineffective assistance of counsel, and, in particular, does not reveal whether or not appointed counsel informed defendant that a plea of guilty waived all nonjurisdictional errors for purposes of appeal. A criminal conviction will not be reversed because of conjectural or speculative conflicts of interest which are envisioned for the first time on appeal. People v. McCasle (1966), 35 Ill. 2d 552, 556, 221 N.E.2d 227.

In the absence of a showing on appeal that any action on the part of appointed counsel would have affected the guilt or innocence of the accused, we accordingly find that defendant was afforded effective assistance of counsel.

We next address defendant’s contention that he was denied his right to representation by counsel free from conflicting interests because the trial court did not appoint different counsel to represent defendant at the hearing on his motion to vacate the guilty plea, allegedly in violation of Supreme Court Rule 604(d) (73 Ill. 2d R. 604(d)).

Rule 604(d) provides in pertinent part: “No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to withdraw his plea of guilty and vacate the judgment ***. The trial judge shall then determine whether the defendant is represented by counsel and if the defendant is indigent and desires counsel, the trial court shall appoint counsel.”

The appointment of counsel under Rule 604(d), while normally within the discretion of the trial court, should also assure representation of the defendant by counsel free from conflicting interests. People v. Chesnut (1977), 47 Ill. App. 3d 324, 361 N.E.2d 1185.

In Chesnut, as here, the defendant did not advise the court or anyone that he was dissatisfied with the representation afforded him, and made no substantial claim as to innocence of the offense charged. The Chesnut court found that the trial court did not err in appointing the same counsel to represent the defendant on his motion to withdraw his guilty plea as had represented him on the entry of the plea, where there were no grounds shown for withdrawal of the plea.

A similar decision was reached in People v. McClain (1977), 50 Ill. App. 3d 182, 184, 365 N.E.2d 1154, where the court noted that the defendant in pleadings before the court had alleged only a possibility of ineffective assistance of counsel. Finding that no grounds existed, either of record or dehors the record, which would support a finding of ineffective assistance of counsel, the court stated: “The defendant is requesting this court to engage in speculation or conjecture and that we will not do, because it is not the function or the duty of a court of review to determine abstract propositions.” People v. McClain (1977), 50 Ill. App. 3d 182, 365 N.E.2d 1154.

With these principles in mind, and absent any indication that defendant advised the court or anyone that he was dissatisfied with the representation afforded him, or of any substantial claim as to innocence, we conclude that defendant was not denied his right to representation by counsel free from conflicting interests.

Next, defendant argues that he did not enter a knowing and voluntary plea of guilty where, following the denial of his motion to suppress, the trial court failed to admonish him that by pleading guilty he waived his right to appeal denial of that motion.

Illinois Supreme Court Rule 402(a) provides: “In hearings on pleas of guilty, there must be substantial compliance with the following: (a) Admonitions to Defendant. The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following: (1) the nature of the charge; (2) the minimum and maximum sentence prescribed by law, ***; (3) that the defendant has the right to plead not guilty, *** or to plead guilty; and (4) that if he pleads guilty there will not be a trial of any kind, so that by pleading guilty he waives the right to a trial by jury and the right to be confronted with the witnesses against him.” 73 Ill. 2d R. 402.

The purpose of this rule is to make an affirmative showing, in the record, that a defendant voluntarily and understandingly enters his plea of guilty before it is accepted in accordance with the guidelines established by the Supreme Court in Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709, and to give visibility to the plea agreement process. People v. Miller (1972), 2 Ill. App. 3d 851, 277 N.E.2d 898.

Citing People v. Doyle (1960), 20 Ill. 2d 163, 167, 169 N.E.2d 250, the court in People v. Torres (1972), 7 Ill. App. 3d 395, 399, 287 N.E.2d 487, stated: “ ‘[T]he remarks and advice of the court must be read in a practical and realistic manner. The essentials have been complied with if an ordinary person in the circumstances of the accused would understand them as conveying the information required by the rule.’ ***. While the Doyle case referred to the predecessor of Supreme Court Rule 402 [i.e., Rule 401(b)], the same principle is applicable.”

Turning again to defendant’s argument on appeal, he reasons that since a plea of guilty was entered under a mistaken belief that he could appeal the ruling on the motion, the plea was neither knowingly nor voluntarily entered. We find that these contentions are not supported by statute or case law.

In the present case, a careful examination of the record demonstrates that the defendant was given the required admonishments by the trial court as to the nature of the charge, the minimum and maximum sentence, and the waiver of trial. Following each admonishment, the court inquired of him, “Do you understand?” and he responded “Yes.”

■ Illinois law is clear that Supreme Court Rule 402 requires only substantial, and not literal, compliance with its precepts (People v. Campbell (1973), 13 Ill. App. 3d 237, 300 N.E.2d 568), and every deviation from strict compliance with Rule 402 does not require reversal where the record shows that the plea of guilty was voluntarily and understandingly entered by a defendant who, as is the case here, was under no disability, is no stranger to criminal prosecution, and who has never claimed that the plea bargaining agreement was not honored. People v. Cresson (1975), 30 Ill. App. 3d 540, 332 N.E.2d 150.

We find it evident from the record that defendant was properly advised by the court in substantial compliance with Supreme Court Rule 402, and, further, that the court did not commit reversible error in failing to advise defendant of all the possible consequences from a plea of guilty.

Accordingly, we conclude that defendant entered a knowing and voluntary plea of guilty.

Lastly, we consider defendant’s argument that the trial court erred when it denied defendant’s motion to vacate his guilty plea where counsel had failed to file a formal certificate in strict compliance with Supreme Court Rule 604(d) (73 Ill. 2d R. 604).

Rule 604(d) provides in relevant part: “(d) Appeal by Defendant from a Judgment Entered upon a Plea of Guilty. *** The defendant’s attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain his contentions of error in the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings.”

Although we do not approve of counsel’s failure to file the certificate either in the trial court or on the appellate level, Illinois courts have held that strict compliance with the filing provision of Rule 604(d) is not necessary where the record reveals that counsel has performed all the functions required by the rule. (People v. Hopson (1981), 101 Ill. App. 3d 564, 428 N.E.2d 680.) In such a case, the failure to file the certificate will be viewed as harmless error. People v. Lange (1978), 59 Ill. App. 3d 603, 605, 375 N.E.2d 919; People v. Thompson (1978), 57 Ill. App. 3d 100, 101, 372 N.E.2d 1105.

■ We find an analogous situation to the case at bar exists in People v. Thompson (1977), 50 Ill. App. 3d 51, 365 N.E.2d 255, where the defendant argued that his attorney’s failure to file a certificate of compliance with Supreme Court Rule 604(d) (58 Ill. 2d R. 604(d)) required the court to remand his case for a new hearing. There, the record indicated, inter alia, that defendant had sufficient time to discuss his case with counsel, that he was not coerced into pleading guilty, and that he was given the opportunity to be heard in open court and did not indicate any dissatisfaction with counsel. Finding that the rule of strict compliance stated in People v. Samuels (1976), 42 Ill. App. 3d 642, 365 N.E.2d 563 (wherein the appellate court reversed a trial court’s denial of defendant’s motion to withdraw a guilty plea because of his attorney’s failure to file a Rule 604(d) certificate and the lack of any transcript from the hearing on this motion), would only operate where the record failed to disclose counsel’s substantial compliance with the requirements of Rule 604(d), the court held that defendant’s contention was without merit.

We find the reasoning employed in People v. Thompson (1977), 50 Ill. App. 3d 51, 365 N.E.2d 255, to be applicable to the case at bar.

Here, the record demonstrates that defendant was afforded representation by appointed counsel, who filed a motion for discovery and a motion to suppress identification, represented defendant at the plea negotiation conference and at the hearing of defendant’s plea of guilty, and filed a motion to withdraw the guilty plea. We find it evident from the record that there was substantial compliance with Rule 604(d) where, as here, “every function of trial counsel contemplated by the rule was performed.” (People v. Evans (1977), 46 Ill. App. 3d 689, 690, 361 N.E.2d 77.) Under these facts counsel’s failure to file the certificate as required by Supreme Court Rule 604(d) was harmless error.

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

Affirmed.

SULLIVAN, P.J., and WILSON, J., concur.

      l. We note, however, that New York and California have enacted statutes which preserve the defendant’s right to appeal the denial of certain pretrial motions even after a guilty plea. N.Y. Crim. Proc. Law sec. 710.70(2) (McKinney 1971); Cal. Penal Code see. 1538.5(m) (Deering 1982).