author: JUSTICE HOPF

text:
    THE WESTERN CASUALTY & SURETY COMPANY, Plaintiff-Appellant, v. RICHARD BROCHU et al., Defendants-Appellees.
    Second District
    No. 82—941
    Opinion filed February 22, 1984.

      Nunzio C. Radogno, C. Barry Montgomery, and Barry L. Kroll, all of Jacobs, Williams & Montgomery, Ltd., of Chicago, for appellant.
    Herbert I. Rothbart, of Chicago, and Michael F. Bonamarte III and James J. DeSanto, both of Waukegan, for appellees.
   JUSTICE HOPF

delivered the opinion of the court:

The Western Casualty & Surety Company (Western) brought this action for declaratory judgment (Ill. Rev. Stat. 1981, ch. 110, par. 57.1, recodified as section 2 — 701 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 701)) before the circuit court of Lake County. Western sought a judicial declaration that a policy of insurance it had issued did not apply to a property damage claim brought against its insured, Mark III Development Company, a corporation (Mark III), and Sig L. Bjerga, its president. The codefendants, Richard and Marita Brochu (the Brochus), who brought the property damage claim against Mark III, filed a motion for summary judgment, arguing Western’s policy applied to the occurrence complained of by the Brochus. Mark III joined in this motion. The trial court granted summary judgment, finding that Western was obliged to defend and, upon a finding of liability, indemnify under the policy. Western appeals.

Western raises two issues on appeal. First, it contends the policy issued to Mark III contained certain terms which excluded coverage for occurrences such as that claimed by Mark III; specifically it contends that the policy excluded coverage for both damage to the named insured’s products, and to property damage arising out of the work performed by the insured. Western’s second contention is that the trial court erred in finding that Western had waived its opportunity to assert a policy defense. It argues that where a policy does not cover a particular claim, coverage cannot be imposed by virtue of waiver. Western contends that whether a waiver occurred is a factual question not properly a subject of a summary judgment proceeding.

The facts of this case reveal that Sig Bjerga (Bjerga), one of the defendants in this cause, purchased insurance for Ms carpentry business from Western in May 1976. At that time Bjerga was operating as an individual and he purchased a “general comprehensive liability policy” for wMch he paid a premium of $643 per year.

In September of 1976, Bjerga, who had begun operating as Mark III Development Company, entered into a home purchase agreement with codefendants, the Brochus. Mark III agreed to construct a home for the Brochus in a “good and workmanlike manner” for the purchase price of $100,300.

Bjerga then modified his insurance coverage with Western by listing Mark III as the insured and increasing his coverage to include, inter alia, independent contractors and “completed operations” coverage. The cost of the insurance premium increased to $2,080 in that year. Some of the specific language of the contract, exclusions and coverage, will be set forth with the discussion of the issues below.

On January 5, 1977, the Brochus “closed” on the contract and took possession of the house built by Mark III.

Three years later, in August of 1980, the Brochus filed a two-count complaint against Mark III alleging that the purchase agreement had been breached by Mark Ill’s failure to test the soil to verify its suitability for building on, that the soil was unsuitable and the home had been sinking since the Brochus took possession, causing damage to the home and a reduction in its value. In count I the Brochus urged that Mark III had breached its contract to construct the improvements in a good and workmanlike fashion. Count II alleged the Brochus had relied on the contractual representations relative to the soil tests Mark III would perform, and they purchased the property in reliance on these representations. They contended they suffered damages as a result of the false representations of defendant, and only became aware of their loss due to the “rapid settlement of the building on unstable soils.” Mark III contacted its attorney, Herbert I. Rothbart, and sent the complaint to its insurance carrier, Western.

By letter dated October 28, 1980, Western initially agreed to accept defense of the claim and told its attorney that there was coverage under the products and completed operations schedules. A copy of the letter was sent to Bjerga. Western’s attorney, Sullivan, then advised Bjerga in a letter sent about two weeks later, that the defense of the claim against Bjerga was undertaken with a full reservation of Western’s rights. The reservations, he stated, were based on exclusions (n) and (o) of the policy, which are discussed below. Western’s attorney then assumed control of the defense of the case until October 20, 1981, when Western filed its complaint for declaratory judgment requesting that the court declare the policy issued to Bjerga did not apply to the claim brought by the Brochus.

The Brochus filed a motion for summary judgment, which was joined in by Mark III. They alleged that Western had failed to establish a genuine issue of material fact. Among other matters in the motion they alleged the exclusions (n) and (o) were unintelligible and inapplicable for reasons set forth in an accompanying memorandum of law. The trial court granted the motions. The trial court agreed with the Brochus’ analysis and determined that the insurance contract should be read so as to include coverage of the instant occurrence. It found Western had waived its opportunity to assert a policy defense. Thus, it held Western was required to defend Mark III and upon a finding of liability it would be required to indemnify Mark III for damages established by the Brochus.

The “Comprehensive General Liability Insurance Policy” in issue contains 24 pages of insuring agreements, amendments, endorsements, schedules and definitions. It is a complex document. While the policy is far from a model of clear English prose, it is not ambiguous. Our review of the policy issued by Western, together with consideration of the case law which has construed similar policies, leads us to conclude that the type of property damage sustained in the instant case was excluded from coverage. The type of insurance Mark III purchased covered damage or injury to property or person of third parties injured by Mark Ill’s product. The policy does not cover damage to Mark Ill’s product.

Western asserts that an analysis of the policy it sold to Mark III shows that the exclusions (n) and (o) are clearly applicable to the “occurrence” Mark III seeks to defend against, and be indemnified for, if liability is found. The coverage portion of the policy provided:

“I. COVERAGE A - BODILY INJURY LIABILITY COVERAGE B - PROPERTY DAMAGE LIABILITY
The Western will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
A. bodily injury or
B. property damage
to which this insurance applies, caused by an occurrence, and The Western shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but The Western shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of The Western’s liability has been exhausted by payment of judgments or settlements.”

The exclusion section states the policy does not apply:

“(n) to property damage to the named insured’s products or any part of such products;
(o) to property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith; ***.”

Western asserts that the policy does not extend to every claim for damages which may be asserted against Mark III, and that it is not enough the claim is within the general terms of the agreement. The claim must also not be excluded from coverage by the policy. (Hartford Accident & Indemnity Co. v. Case Foundation Co. (1973), 10 Ill. App. 3d 115, 124, 294 N.E.2d 7.) On appeal, Western assumes arguendo that the property damages suffered by the Brochus were caused by an occurrence so as to be encompassed within the protection of the policy, unless specifically excluded. However, because the damage was excluded under exclusions (n) and (o) quoted above, Western urges the policy provides no coverage for the claim brought by the Brochus.

The Brochus’ complaint seeks damages from Mark III for its breach of an express warranty that the home be built in a good and workmanlike condition. They allege that Mark III failed to verify soil bearing pressure as required by the contract. As a result, they contend, the house is sinking; and this has caused the foundation to crack and has created a situation where doors, frames, interior fixtures, plumbing, gas leaks and beams all need repair.

Clearly the Brochus’ complaint seeks damages for property damage to the house built by Mark III. If the house is considered a product of Mark III, then exclusion (n) applies. “Product” is defined in the policy as “goods or products manufactured, sold, handled or distributed by the named insured ***.” If the damage was to work performed by Mark III, then exclusion (o) applies. We believe the exclusions apply to the Brochus’ claim.

Virtually identical provisions for coverage and exclusion were discussed by this court in Consumers Construction Co. v. American Motorists Insurance Co. (1969), 118 Ill. App. 2d 441, 254 N.E.2d 265, where a general contractor filed a declaratory judgment action against the insurer which had issued a general liability insurance policy to him. The contractor, who had constructed an elementary school and had been charged with failing to follow plans and failing to construct the school in a workmanlike manner, argued the policy of insurance should be construed to cover the type of claims brought against him. The trial court found that the insurance policy provided neither property damage coverage under the facts alleged in the complaint nor that a defense be provided for the contractor.

The trial court was affirmed on appeal. The coverage provision of the policy in that case provided:

“ ‘Coverage B - Property Damage Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident. ‘Exclusions - This policy does not apply: ***
(h) Under Coverage B, to injury to or destruction of *** (4) any goods, products or containers thereof manufactured, sold, handled or distributed or premises alienated by the named insured, or work completed by or for the named insured, out of which the accident arises; ***.’ ” (Emphasis added.) (Consumers Construction Co. v. American Motorists Insurance Co. (1969), 118 Ill. App. 2d 441, 444-45, 254 N.E.2d 265, 267.)

Thus the court in Consumers was presented, as we are in the case at bar, with the question of whether the named insured’s product, or the work completed or performed by the insured, is excluded from coverage under the policy. Both the policy language and factual basis for the Consumers case are quite similar to those presented in the case at bar. The Consumers court held that the claims presented arose out of the work completed by the insured for the damage caused by the insured’s work. Because no claim was made for damage to the property of another, coverage was excluded under the policy. (118 Ill. App. 2d 441, 447, 254 N.E.2d 265, 268.) The Consumers court noted that the exact question presented had not previously been addressed by an Illinois court. Thus it found the reasoning of cases from other jurisdictions was persuasive.

In one such case, Liberty Building Co. v. Royal Indemnity Co. (1959), 177 Cal. App. 2d 583, 346 P.2d 444, 2 Cal Rptr. 329, a building contractor had constructed a number of stucco houses which developed defects after they were sold. The defects were caused by an improper mixture which allowed water to absorb into the stucco. The contractor’s insurance company refused coverage, and the contractor sued the insurer to recover the amount he had paid in settlement. The trial court dismissed the suit and the dismissal was affirmed on review. The policy provisions in Liberty were almost word for word the same as those in Consumers Construction Co. v. American Motorists Insurance Co. (1969), 118 Ill. App. 2d 441, 254 N.E.2d 265, and the case at bar. In discussing the exclusions and coverage afforded by the policy the Consumers court quoted from the California case, noting that damage sustained by any “goods or products *** or premises alienated *** or work completed *** out of which the accident arises” was not recoverable under the policy. (118 Ill. App. 2d 441, 446, 254 N.E.2d 265, 268.) However, the court clarified the coverage question when it stated that “if the accident also caused damage to some other property or caused personal injury, the insured’s liability for such damage or injury becomes a liability of the insurer under the policy, and is not excluded.” (118 Ill. App. 2d 441, 446, 254 N.E.2d 265, 268.) An example given was that if because of an improper mix of stucco and water, water became absorbed into the stucco and a piece fell off and injured a child, then the injury to the child would not be excluded, but the replacement cost of the stucco could be excluded. From this it becomes clear that a policy such as that in issue in the case at bar will not cover repairs or replacements to the insured’s work or product which proved defective and caused an accident. However, damage to other property or personal injury is not excluded.

Similar exclusions from coverage of a liability insurance policy were discussed in Hartford Accident & Indemnity Co. v. Case Foundation Co. (1973), 10 Ill. App. 3d 115, 294 N.E.2d 7, where claims were brought against contractors and subcontractors who had built the John Hancock Center. Hartford, who had issued a liability insurance policy, brought a declaratory judgment action, alleging, inter alia, that exclusionary clauses, which are substantially the same as those presented in the case at bar, should be given effect so as to deny coverage. The court noted that the exclusions, when read with the insuring agreement, precluded coverage for injury to the John Hancock Center, but provided coverage for injury to or destruction of some other property. (10 Ill. App. 3d 115, 126, 294 N.E.2d 7, 15.) The court stated that the policy issued was a liability policy, not one that insured the property or work of the insured, and cited Consumers Construction Co. v. American Motorists Insurance Co. (1969), 118 Ill. App. 2d 441, 254 N.E.2d 265, with approval.

More recently, an insurance policy with identical exclusions (n) and (o) was viewed as clearly excluding damages to the insured’s product when the damages were caused by deficiencies within that product. (Sentry Insurance Co. v. S & L Home Heating Co. (1980), 91 Ill. App. 3d 687, 691, 414 N.E.2d 1218, 1221.) The Sentry court noted that despite the principle that ambiguities in a contract should be construed in favor of the insured (Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 424, 401 N.E.2d 539), the application of exclusions (n) and (o) was bereft of ambiguity. Therefore, it held, when the terms of the policy are clear, the insurance contract will be enforced as written. Thus Sentry had no liability to cover the claimed loss and no duty to defend its policy holder. The Sentry case, and the other cases previously discussed here, have construed policies such as that written by Western so as to exclude the claims for damages to the insured’s product.

The Brochus also claim that the policy provided for “completed operations” and “products hazard” coverage. Bjerga paid an additional premium for that coverage after he entered into the contract to complete the home. This additional coverage, they contend, should cover a claim such as theirs. We do not agree with this contention. The Brochus contend that exclusions (n) and (o) are in conflict with the supplemental hazards Bjerga insured against, and that this conflict creates an ambiguity in the contract. (Maretti v. Midland National Insurance Co. (1963), 42 Ill. App. 2d 17, 24, 190 N.E.2d 597.) However, both the “completed operations hazard” and the “products hazard” are defined in the policy to cover property damage which occurs “away from premises owned by or rented to the named insured.” Thus, we believe when this definition is read together with the other relevant policy provisions the contract unambiguously excludes damages to the insured’s premises.

Virtually the same contention was made in the Consumers case, where the insured, a contractor, argued his purchase of an additional schedule of products-hazard insurance afforded coverage of the final product, the school he had constructed. In that case, the contractor had purchased “ ‘products - General Contracting - building construction (not prefabricated); Building - N.O.C.’ ” (Consumers Construction Co. v. American Motorists Insurance Co. (1969), 118 Ill. App. 2d 441, 447, 254 N.E .2d 265, 268.) The contractor argued that this additional schedule was in conflict with exclusion (n)(4), quoted previously herein, which excluded “work completed by or for the named insured.” The contractor in Consumers, as well as the contractor in the case at bar, made the contention that the conflict between the product-hazard coverage and the exclusion of work completed created an ambiguity that required the policy be construed in favor of the insured. The Consumers court rejected this contention. It reasoned that where the claim arises out of work completed by the insured, for damages caused by its work, the policy will not protect the insured. Quoting from a case decided by the Supreme Court of Appeals of West Virginia (McGann v. Hobbs Lumber Co. (1965), 150 W. Va. 364, 368, 145 S.E.2d 476, 479), the court observed that the coverage provided by the policy was subject to the exclusions. The court stated:

'*** As noted above, Exclusion (j)(4) clearly provides that this policy does not apply to premises alienated by the insured or to work completed by the insured out of which the accident arises. It is undisputed that the damaged premises here involved was that alienated by the insured and was work completed by the insured out of which the accident arose.’ ” (Consumers Construction Co. v. American Motorists Insurance Co. (1969), 118 Ill. App. 2d 441, 449, 254N.E.2d 265, 269.)

Because the coverage and exclusions of Consumers and McGann are so similar to the policy issued by Western, we believe the same result must be reached in the case at bar; the damages which arose from the insured’s product are not covered under the Western policy.

The final issue presented by Western concerns the question of whether Western, by assuming control of the case on behalf of the insured, Mark III, waived the right to assert a policy defense. The trial court ruled that Western had stated by letter dated October 28, 1980, that there was coverage and a defense would be given Mark III. Two weeks later on November 12, 1980, Western’s attorney advised Mark III that the defense provided for him was subject to Western’s reservation of rights. The trial court held that this assertion of coverage by Western, together with the undertaking of the defense over the course of the next year, provided the basis for its ruling that Western had waived its opportunity to assert a policy defense. The court also ruled that the policy was ambiguous and should be construed in favor of the insured. We disagree.

As previously discussed, the motion for summary judgment in the case at bar was initially brought by the Brochus. It was subsequently joined in by Mark III. The motion alleged the details of the Brochus’ claim against Mark III and the existence of Mark Ill’s insurance with Western. They urged that the exclusion provisions of the policy were unintelligible and inapplicable because Mark III had purchased additional coverage for carpentry and independent contractor coverage. Brochus’ memorandum in support of their motion alleged that the parties intended the policy would cover Mark Ill’s construction business. Mark III also filed a memorandum in support of their motion. It alleged that the claims manager for Western had stated coverage and a defense would be provided; that Western undertook acts to affirm and ratify the coverage and that Western should have tendered the defense to Mark III before it undertook ratifying conduct. Because Western offered coverage and a defense, Mark III contended Western had waived its right to deny coverage. In support of this contention the memo referred to letters from Western’s attorney which reflected his activities as attorney on the case. Mark III contended that the existence of this correspondence manifested a showing that Western ratified coverage and their undertaking of the defense waived their right to deny coverage.

We believe the trial court erred in ruling that Western had waived its opportunity to assert a policy defense. Although in the letter dated October 28, 1980, Western’s claims manager stated that there did not seem to be any question concerning coverage, this statement was retracted by Western’s attorney, Sullivan. The letter of November 12, 1980, to Mark Ill’s attorney explained in some detail that Western was assuming the defense of the claim only, that the defense was based on a reservation of rights and without any admission of liability. The reservations were based on exclusions (n) and (o) of the policy, which, the letter pointed out, excluded coverage under the policy. In light of this we do not believe there is any dispute as to whether Western waived its right to assert a policy defense. Further, we see no conflict of interest arising from the fact that Sullivan sent Bjerga the reservation of rights letter.

By contrast, we do believe that a factual dispute remains as to whether Western may be estopped from asserting a defense of non-coverage. The estoppel question, we believe, is separate from the waiver question, though the two issues are frequently intertwined and confused. We believe the parties in the instant case were urging that Western's conduct in assuming control of the defense resulted in prejudice or detriment to Mark III. While this has not been shown to have occurred, it does remain a factual dispute between the parties. Therefore, it should not have been resolved by a motion for summary judgment.

The leading case in this area is Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24. This case held that an insurer may be estopped from asserting a defense of noncoverage if it undertakes the defense of an action against the insured, inducing the insured to surrender control, and if the undertaking results in some prejudice to the insured. (64 Ill. 2d 187, 195, 355 N.E.2d 24, 29; Gibraltar Insurance Co. v. Varkalis (1970), 46 Ill. 2d 481, 263 N.E.2d 823.) However, prejudice will not be presumed from the mere entry of an appearance and assumption of the defense. Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 196, 355 N.E.2d 24, 29.

Further, mere delay in disclaiming liability is not enough, unless the delay results in prejudice. (Old Mutual Casualty Co. v. Clark (1977), 53 Ill. App. 3d 274, 279, 368 N.E.2d 702, 705.) There is no presumption of prejudice to the insured, and the prejudice or detriment to the insured is a matter of fact (Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 196, 355 N.E.2d 24, 29) that must be alleged and proven by “clear, concise, and unequivocal evidence.” Royal Globe Insurance Co. v. Tutt (1982), 108 Ill. App. 3d 69, 72, 438 N.E.2d 943, 946.

It is clear that Western undertook, for the period of approximately one year, the defense of the claim against Mark III. However, it is equally clear that prejudice will not be presumed by the insurer merely assuming a defense on behalf of an insured. (Old Mutual Casualty Co. v. Clark (1977), 53 Ill. App. 3d 274, 279, 368 N.E.2d 702, 705.) The record shows that Western initially accepted coverage on October 28, 1980, and subsequently advised Mark III on November 12, 1980, that it was defending under a reservation of rights. What the record fails to show is how Mark III was prejudiced. Although Western delayed, for a period of a year, its assertion of a defense of noncoverage, the existence of delay is not sufficient to show an estoppel unless the delay results in prejudice. (Old Mutual Casualty Co. v. Clark (1977), 53 Ill. App. 3d 274, 279, 368 N.E.2d 702, 705.) In the case at bar there has been no opportunity for Mark III to show how, or if, it was prejudiced by Western having assumed the defense. Thus, we conclude that the parties have not yet shown the clear, concise and unequivocal evidence necessary to show actual prejudice. A factual dispute does remain. (Royal Globe Insurance Co. v. Tutt (1982), 108 Ill. App. 3d 69, 72, 438 N.E.2d 943.) Absent a showing of prejudice Western cannot be said to be estopped from raising its defense of noncoverage. (King v. Aetna Insurance Co. (1961), 31 Ill. App. 2d 462, 176 N.E.2d 689.) The question of estoppel, and more particularly whether there was prejudice to the defendants, was a genuine issue of fact, which precludes the entry of summary judgment. (Econo Lease, Inc. v. Noffsinger (1976), 63 Ill. 2d 390, 391, 349 N.E.2d 1, 2; Ciaccio v. North River Insurance Co. (1974), 17 Ill. App. 3d 940, 942-43, 308 N.E.2d 860.) Therefore, this cause must be remanded for determination of this issue.

Western urges that the trial court erred in ruling that it had waived its lack of coverage. Western contends that where there is no coverage under the provisions of a policy, none may be imposed by virtue of waiver. This particular point has not been directly ruled on by the courts in Illinois. In the case at bar we do not address this contention because we have found that the policy does not provide coverage and Western did not waive its right to assert a policy defense. However, questions of estoppel remain to be considered by the trial court. From the record it appears there is a factual dispute concerning the estoppel issue. It is possible that, regardless of Western’s assertion of its reservation of rights, its conduct in representing Mark III resulted in prejudice or detriment to the insured which would estop Western from denying coverage. (Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 196, 355 N.E.2d 24, 29; Royal Globe Insurance Co. v. Tutt (1982), 108 Ill. App. 3d 69, 72, 438 N.E.2d 943.) Such a showing of prejudice would also require Western to furnish Mark III a defense or reimburse it for the reasonable cost of defending the action. Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 199, 355 N.E.2d 24, 31.

For the reasons stated, the trial court’s decision that Western had waived its opportunity to assert a policy defense and that there was no policy coverage is in error. The trial court’s finding that Western was obliged to defend Mark III and indemnify for damages, if any are found, is error. Because questions of fact remain and the estoppel issue is yet to be resolved, the order granting summary judgment is reversed.

Reversed in part and remanded.

REINHARD and VAN DEUSEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LINDBERG

license: Public Domain

text:
    BAIRD & WARNER, INC., Plaintiff-Appellee, v. GARY-WHEATON BANK, Trustee, et al., Defendants-Appellees (Shorewood Condominium Association, Defendant-Appellant).
    Second District
    Nos. 83—385 through 83—387, 83—435 through 83—442 cons.
    Opinion filed February 22, 1984.

      Catherine Valenti, of Marshall N. Dickler, Ltd., of Arlington Heights, for appellant.
    Arnstein & Zeller, of Skokie, and Thomas M. Breen, of Breen, Lucas & Boris, of Addison, for appellees.
   JUSTICE LINDBERG

delivered the opinion of the court:

A condominium association takes this consolidated appeal from 11 foreclosure suits in the circuit court of Du Page County, asserting that its right to possession of the mortgaged premises during the pendency of the suits was superior to that of the mortgagee. Because we lack jurisdiction, however, we must dismiss the appeal.

This case involves 11 units of the Shorewood Condominiums in Glendale Heights. Each of the units was owned by defendant GaryWheaton Bank as the trustee and defendant IRE Properties, Inc., as the beneficiary of the trusts. The units were mortgaged to plaintiff, Baird & Warner, Inc. (Baird & Warner). The owners defaulted both on the notes secured by the mortgages and on the monthly assessments due to defendant Shorewood Condominium Association (Shorewood). Shorewood began initiating forcible entry and detainer suits to obtain possession of the units and had obtained possession orders for some of the units when, on July 27, 1982, Baird & Warner filed the present 11 actions to foreclose the mortgages. On August 20, 1982, the trial court appointed a receiver to collect rents and payments on the units.

On February 4, 1983, in response to motions by both Baird & Warner and Shorewood for summary judgment, the trial court issued orders which, inter alia, declared that the mortgage lien of Baird & Warner was superior to the rights and interests of all of the defendants, including Shorewood, and which placed Baird & Warner as mortgagee in sole possession of the units during the pendency of the foreclosure action. On March 7, 1983, Shorewood filed a petition for rehearing in eight of the suits requesting the court to vacate its February 4 possession order. The trial court denied the petitions on March 28, 1983, and, on April 4, 1983, Shorewood filed notices of interlocutory appeal to this court challenging the February 4 and March 28 orders (Nos. 83 — 295 through 83 — 302). However, this court dismissed those appeals as untimely upon motion by Baird & Warner pointing out that a motion to reconsider or for rehearing does not toll the 30-day deadline for filing notice of appeal following an appealable interlocutory order. See Trophytime, Inc. v. Graham (1979), 73 Ill. App. 3d 335, 391 N.E.2d 1074; Lake Shore Oil Co. v. Sovereign Oil Co. (1981), 98 Ill. App. 3d 553, 424 N.E.2d 856.

Final decrees of foreclosure were entered by the trial court on March 28, 1983, in the three suits not originally appealed and on April 4, 1983, in the remaining eight suits. New notices of appeal were filed by Shorewood on the following April 27 for the three suits not originally appealed and on May 4 for the remaining eight suits. This court subsequently consolidated the 11 appeals.

Baird & Warner raises the issue of this court’s jurisdiction to consider this appeal. It argues that, because the issue raised by Shore-wood on this appeal was the subject of the earlier appeals which were dismissed, that issue may not be raised on a second appeal.

Shorewood’s earlier appeals from the orders of February 4, 1983, putting Baird & Warner in possession during the pendency of the foreclosure action, though dismissed by this court as untimely, were interlocutory appeals pursuant to subsection (a)(4) of Supreme Court Rule 307 (87 Ill. 2d R. 307(a)(4)). Although generally only final judgments or orders are appealable, Rule 307 creates some very specific exceptions for certain interlocutory orders appealable as a matter of right, including orders placing or refusing to place a mortgagee in possession of mortgaged premises. (87 Ill. 2d R. 307; Olympic Federal v. Witney Development Co. (1983), 113 Ill. App. 3d 981, 447 N.E.2d 1371.) It has been held that a party’s failure to timely appeal a trial court’s order denying a motion to dissolve a temporary restraining order pursuant to Rule 307(a)(1) renders that order the law of the case from which a later appeal cannot be taken. (Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1983), 94 Ill. 2d 535; Debowski v. Shred Pax Corp. (1977), 45 Ill. App. 3d 891, 359 N.E.2d 204.) Similar rulings have been made with regard to an order vacating a default judgment appealable under Rule 304(b)(3) (Johnson v. Coleman (1977), 47 Ill. App. 3d 671, 365 N.E.2d 102) and an order suppressing evidence in a criminal case appealable under Rule 604(a)(1) (People v. Taylor (1971), 50 Ill. 2d 136). Debowski noted that the authorities support the general rule that a judgment is res judicata where an appeal has not been perfected. Debowski v. Shred Pax Corp. (1977), 45 Ill. App. 3d 891, 897, 359 N.E.2d 204, 209.) The Johnson court stated that a judgment, order or decree from which an appeal might have been taken may not be reviewed on appeal from a subsequent order entered in the same cause. (Johnson v. Coleman (1977), 47 Ill. App. 3d 671, 673-74, 365 N.E.2d 102, 104.) We see no reason why these statements of the general rule should not be applicable to an interlocutory order appealable under Rule 307(a)(4). Thus, the trial court’s appealable orders of February 4 are not reviewable on this appeal.

Shorewood does not contradict this rule, but asserts that this appeal is from the final judgments rather than from the February 4 “interlocutory, preliminary determination of the mortgagee’s right to possession.” It points out that the trial court’s February 4 possession orders merely reflect a determination that there is a reasonable probability that the mortgagee will prevail in the final hearing of the foreclosure action (Ill. Rev. Stat. 1981, ch. 110, par. 15 — 305; Olympic Federal v. Witney Development Co. (1983), 113 Ill. App. 3d 981, 447 N.E.2d 1371) while the final foreclosure decrees were a final determination of the rights and interests of the parties. However, an examination of Shorewood’s notices of appeal and brief belies its assertion.

Each of Shorewood’s notices of appeal in this consolidated appeal read as follows:

“NOTICE IS HEREBY GIVEN that, pursuant to Illinois Supreme Court Rule 303, 111. Rev. Stat. ch. 110A, Section 303, SHOREWOOD CONDOMINIUM ASSOCIATION, Defendant, by and through its attorneys, MARSHALL N. DICKLER, LTD., hereby appeals to the Appellate Court of Illinois for the Second Judicial District, from the judgment of the Circuit Court for the Eighteenth Judicial District, DuPage County, Illinois entered on April 4, 1983, [“March 28, 1983” in the three causes for which that was the date of entry for the final foreclosure decree] in favor of Plaintiff, BAIRD & WARNER, INC. Specifically, this Defendant-Appellant assigns as error that portion of the Court’s Order of February 4, 1983 which placed Plaintiff, BAIRD & WARNER, INC., in possession of the subject premises as mortgagee in possession. This Defendant-Appellant prays that the reviewing court reverse that portion of said Order placing Plaintiff, BAIRD & WARNER, INC., in possession and order that Defendant, SHOREWOOD CONDOMINIUM ASSOCIATION, be placed in possession of the subject premises.”

The scope of this court’s jurisdiction is fixed by the notice of appeal. (87 Ill. 2d R. 303(c)(2); International Industrial Leasing, Ltd. v. H.J. Coleman & Co. (1978), 66 Ill. App. 3d 884, 384 N.E.2d 1.) Here, that notice specifically assigned error only in the February 4 possession orders, and it prayed for relief only in the reversal of those orders.

Still, it is generally accepted that a notice of appeal is to be liberally construed; briefs, and not the notice of appeal itself, specify the precise points to be relied upon for reversal. (Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427.) Shorewood’s brief defines the “only issue on appeal” as “whether or not the trial court erred in granting that portion of Baird & Warner, Inc’s. Motion For Summary Judgment placing it in possession during the pendency of the foreclosure actions as mortgagee in possession.” Shorewood’s statement of facts concludes that “[i]t is from these rulings [on February 4, 1983] that these appeals are taken.” The argument section of Shorewood’s brief is addressed entirely to the question of which party had the right to possession during the pendency of the foreclosure actions. The final decrees rendered on March 28 and April 4, 1983, from which this consolidated appeal is ostensibly taken, terminated that pendency by foreclosing the mortgages and gave possession to the grantees of the sheriff’s deed executed to the purchasers upon judicial sale of the premises. The final decrees awarded only prospective, permanent possession while Shorewood’s goal is to recover from Baird & Warner only the rentals accruing during the pendency of the proceedings. In sum, Shorewood’s brief confirms the recitation contained in the notice of appeal that this appeal is taken solely from the February 4 possession orders.

Since we do not now have jurisdiction to review the interlocutory possession orders of February 4, 1983, and review of those orders is all that is sought by the appellant, we dismiss this appeal without reaching the merits.

Dismissed.

SEIDENFELD, P.J., and VAN DEUSEN, J., concur.


author: PRESIDING JUSTICE MEJDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNY DIXON, Defendant-Appellant.
    First District (5th Division)
    No. 81—700
    Opinion filed February 24, 1984.

      George P. Lynch, of Chicago, for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lawrence R. Stasica, and Timothy J. Joyce, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Defendant Johnny Dixon appeals from his conviction, following a bench trial, for the offenses of murder, burglary and home invasion. Sentence was imposed only for murder. He raises four issues on appeal: (1) whether the court erred in failing to obtain a waiver of jury for the sentencing hearing; (2) whether defendant was improperly convicted for the offenses of burglary and home invasion; (3) whether defendant was illegally sentenced; and (4) whether defendant was proved guilty beyond a reasonable doubt of the offenses of murder, burglary and home invasion. We affirm and remand for sentencing as to burglary and home invasion.

The following testimony was presented at trial.

Robert Thomas testified that on February 4, 1979, he was in the living room of a residence located at 5532 South La Salle Street with his niece, Lauretta Hullett, Sandra Thomas, and the owner of the property, Joan Hullett. About 10 p.m. there was a knock at the front door. He and Lauretta looked through the window in the door and saw a man standing on the porch. The porch was illuminated by two nearby streetlights and by light from inside the house. Neither he nor Lauretta recognized the man. The man wore wire frame glasses, a dark blue knit cap and a pea coat and carried a police radio. He announced that he was from the “State’s Attorney’s police” and displayed a black wallet containing a star-shaped badge and identification card. Robert viewed the man for about 30 seconds, then with Joan Hullett’s permission, opened the door. The man on the porch raised a handgun, placed one foot inside the door and fired the gun. Robert succeeded in closing the door after a brief struggle. Lauretta was taken to the hospital and pronounced dead. Robert identified the defendant in court as the man who had been on the porch.

Robert further testified that on February 10, 1979, he viewed photographs at the police station. In court he selected a photograph of the defendant and stated that it was the same photograph he had chosen on February 10 as depicting the man who shot Lauretta. On November 27, 1979, Thomas viewed a lineup and identified the defendant as the man who shot Lauretta.

Robert stated that the radio carried by the man was a hand-held scanner type with a flexible antenna. Before opening the front door he heard transmissions emitting from the radio of the same type as would be heard from a police scanner. The glasses worn by the man on the porch had grayish frames. In court Thomas identified glasses, a badge, a knit hat and a radio as similar to those possessed by the man who shot Lauretta.

Sandra Thomas next testified that she was in the living room on the evening of February 4, 1979. She heard a man on the front porch say that he was from the “State’s Attorney’s police” and heard a sound like police radio transmissions. When Robert opened the door she saw a man wearing a hat and silver wire-rimmed glasses holding a handgun. Sandra viewed the man through the open door for two to three seconds as he stepped into the house with one foot and fired the gun. On November 27, 1979, Sandra viewed a lineup and identified defendant as the man who shot Lauretta. In court she identified a hat and a pair of glasses as similar to those worn by the man on the porch and identified defendant as the man who fired the gun.

Joan Hullett concurred in the testimony of Robert and Sandra regarding the events of the evening of February 4, 1979. She did not see the man who fired the shot. She also testified that on January 19, 1979, two men came into her house at 5532 South La Salle and shot her husband, Joseph Hullett; he died the next day. Her daughter Lauretta witnessed the killing and was scheduled to testify on February 6, 1979, against the man she had identified in connection with that killing.

John Byrne, a Chicago police officer, testified that on the morning of February 5, 1979, Robert Thomas viewed two photograph displays, each consisting of five or six pictures. Neither display contained pictures of either the defendant or Roy Dixon, his brother. Robert identified no one in either display in connection with the killing of Lauretta Hullett. On February 10, 1979, Robert was shown a third display which contained pictures of both the defendant and Roy Dixon. From this display he selected a photograph of the defendant and identified him as the person who had shot Lauretta Hullett.

David O’Callaghan, also a police officer, testified that a pair of glasses, a black wallet containing a star-shaped badge, and a Motorola “beeper” were found in a hall closet at 5147 South Aberdeen and seized upon execution of a search warrant. A knit cap found in an upstairs bedroom was also seized.

The defense presented the following witnesses. Thomas Harris, the owner and manager of the restaurant where defendant was employed on February 4, 1979, testified that, to the best of his recollection, defendant worked his regular shift from 10 p.m. to 7 a.m. on that date. The payroll records indicated that the defendant had not taken a day off during the pay period which included February 4, 1979. The records, however, showed only the total number of hours worked in a given week and did not show the number of hours worked each day. The total number of hours worked during the week in question was three hours less than it would have been if defendant had worked six eight-hour shifts as was the norm.

The defendant testified on his own behalf. He stated that he worked at the restaurant from 10 p.m. on February 4, 1979, until 7 the next morning, and that it takes approximately lMz hours to travel from his residence at 5147 South Aberdeen to the restaurant. He expressly denied going to the Hullett home on the evening in question, identifying himself as a State’s Attorney’s police officer, and shooting anyone. He stated that he kept all of his belongings in an upstairs bedroom of the Aberdeen residence and denied ever having seen the beeper radio, the wallet containing the star-shaped badge or the glasses recovered from 5147 South Aberdeen. He admitted owning several knit caps of the type recovered from that address.

The trial judge found defendant guilty of the murder of Lauretta Hullett, of burglary, and of home invasion. Defendant was sentenced to life imprisonment for murder. No sentence was imposed on the burglary or home invasion convictions.

Opinion

The first issue raided is whether reversible error resulted from the court’s failure to obtain defendant’s jury waiver for his sentencing hearing. Defendant contends that such failure deprived him of his constitutional right to a jury trial and asserts that he was, therefore, illegally sentenced. The State maintains that defendant suffered no prejudice as a result of the court’s omission and argues that the error, if any, was harmless.

Initially, it is important to note that no issue is raised regarding defendant’s waiver of his right to trial by jury. Defendant complains only that he did not waive his right to jury consideration in the separate sentencing hearing held to determine whether the death penalty should be imposed against him. The cases cited by defendant deal exclusively with waiver of the right to trial by jury and are, therefore, inapposite.

The statute governing the imposition of the death penalty provides that, where requested by the State, the court shall conduct a separate sentencing proceeding (1) to determine the existence of circumstances under which imposition of a death sentence would be proper, and (2) to consider any factors in aggravation and in mitigation. The proceeding shall be conducted before a jury or, if the defendant waives a jury, before the court alone. (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(d)(3).) If the hearing is before a jury, the jury must first determine whether, on the circumstances before it, sufficient aggravating factors exist to warrant imposition of the death penalty. If this finding is negative then the court shall sentence the defendant to a term of imprisonment. If the jury finds that the death sentence may be imposed, it must then consider factors in aggravation and in mitigation. If the jury unanimously finds that there are no mitigating factors sufficient to preclude the imposition of the death sentence, the court shall impose such sentence. Otherwise, the court shall sentence the defendant to a term of imprisonment. (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(g).) If the hearing is before the court alone, the court completes the same analysis in determining the sentence to be imposed.

In the instant case if a jury had been impaneled, the result would have been a sentence of death.or a sentence to a term of imprisonment. If the jury found sufficient aggravating factors to warrant imposition of the death penalty and insufficient factors to preclude imposition, the trial judge would have been required to sentence defendant to death. If the jury found insufficient aggravating factors to warrant imposition of the death penalty or mitigating factors sufficient to preclude it, in either such event, the trial judge would have been required to sentence defendant to a term of imprisonment. The latter determination was made in the instant case, albeit by the trial court alone, clearly with the result most favorable for defendant. Thus, given that the record evidences sufficient aggravating factors to warrant imposition of the death penalty, the only determination a jury could have made in the instant case which would have resulted in other than a sentence of imprisonment would have been a finding that there were no mitigating factors to preclude the imposition of the death sentence. In that case the court would have been required to sentence defendant to death.

While the trial court in the instant case did not obtain a waiver of jury for the sentencing hearing, such omission is not an error requiring vacation of the sentence where, as here, defendant has demonstrated no prejudice. See People v. Stephens (1973), 13 Ill. App. 3d 642, 649, 301 N.E.2d 89.

The next issue raised is whether defendant was improperly convicted for the offenses of burglary and home invasion. We recognize that a judgment of guilty in a criminal case is not final without a sentence (People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180; Peo ple v. Rose (1969), 43 Ill. 2d 273, 253 N.E.2d 456) and thus is not appealable until a sentence is imposed (People ex rel. Filkin v. Flessner (1971), 48 Ill. 2d 54, 268 N.E.2d 376). However, “where a case is properly on appeal from a final judgment on another offense, a reviewing court is empowered under Supreme Court Rule 366 (Ill. Rev. Stat. 1979, ch. 110A, par. 366(a)) to review the conviction of an offense for which no sentence was imposed and, upon affirming, to remand for sentencing.” (People v. Zuniga (1981), 99 Ill. App. 3d 396, 400, 425 N.E.2d 1094; People v. Scott (1977), 69 Ill. 2d 85, 370 N.E.2d 540; see People v. Dixon.) This court, therefore, has jurisdiction to consider defendant’s claim.

Defendant asserts that his conviction for the offenses of burglary and home invasion were based upon the same acts as the murder conviction. He argues that the convictions for the “lesser offenses” were, therefore, precluded by the murder conviction and must be vacated. The State maintains that burglary and home invasion are neither lesser-included offenses of murder, nor are they lesser-included offenses of each other. The State argues that although each offense stemmed from the series of acts engaged in to accomplish the murder, separate acts support each conviction and urges that this cause be remanded for sentencing on the burglary and home invasion convictions.

Following are the pertinent statutory provisions concerning each offense for which defendant was convicted:

“Sec. 19 — 1. Burglary, (a) A person commits burglary when without authority he knowingly enters *** a building *** with intent to commit therein a felony or theft.” Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1.
“Sec. 12 — 11. Home Invasion, (a) A person *** commits home invasion when without authority he or she knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present and
* * *
(2) Intentionally causes any injury to any person or persons within such dwelling place.” Ill. Rev. Stat. 1981, ch. 38, par. 12-11.
“Sec. 9 — 1. Murder *** (a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; ***.” Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(a).

In People v. King (1977), 66 Ill. 2d 551, 363 N.E .2d 838, cert, denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273, our supreme court abandoned the requirement that offenses be independently motivated in order to sustain multiple convictions and concurrent sentences (see People v. Scott (1977), 69 Ill. 2d 85, 370 N.E.2d 540) and held that “when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.” (People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838.) An “act,” as defined in King, is “any overt or outward manifestation which will support a different offense.” (66 Ill. 2d 551, 566, 363 N.E .2d 838.) Therefore, as long as there are multiple acts, their interrelationship does not preclude multiple convictions and the imposition of concurrent sentences. People v. Myers (1981), 85 Ill. 2d 281, 288, 426 N.E.2d 535.

This court recently stated that for an offense to be a “lesser included offense, the greater offense must include every element in the lesser offense plus one or more elements; the lesser offense does not have any element that is not included in the greater one. In other words, it is impossible to commit the greater offense without necessarily committing the lesser also.” (People v. Pavic (1982), 104 Ill. App. 3d 436, 448, 432 N.E .2d 1074.) In Pavic we held that burglary requires a different mental element than does home invasion and therefore is not an included offense. (104 Ill. App. 3d 436, 448, 432 N.E.2d 1074.) Examination of the requisite elements of each offense for which defendant was convicted reveals that no one of the offenses includes every element of any other of the offenses and, therefore, none are lesser-included offenses. Thus, defendant’s interrelated acts adequately support multiple convictions and concurrent sentences.

The third issue is whether defendant was sentenced in accordance with the provisions of the applicable statute. “The Unified Code of Corrections vests a wide discretion in sentencing judges in order to permit reasoned judgments as to the penalty appropriate to the particular circumstances of each case.” (People v. La Pointe (1981), 88 Ill. 2d 482, 492, 431 N.E.2d 344.) The trial court is normally the proper forum in which a suitable sentence is to be determined. The trial judge’s decisions in regard to sentencing are entitled to great deference and weight (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882; People v. Willingham (1982), 89 Ill. 2d 352, 364, 432 N.E.2d 861) and will not be disturbed absent an abuse of discretion. People v. Gallardo (1983), 112 Ill. App. 3d 764, 775, 445 N.E.2d 1213.

The statute provides that the sentence of imprisonment for the offense of murder shall be “(a) a term *** not less than 20 years and not more than 40 years, or (b) if the court finds that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty or that any of the aggravating factors listed in subsection (b) of Section 9 — 1 of the Criminal Code of 1961 are present, the court may sentence the defendant to a term of natural life imprisonment ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—1(a)(1).) One of the factors listed in subsection (b) of section 9 — 1 of the Criminal Code of 1961 is that the murdered individual was killed in the course of certain other felonies, one of which is burglary. (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(b)(6).) The court here made an express finding that the instant murder was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty and that the murdered individual was killed in the course of a burglary and sentenced defendant to a term of natural life imprisonment.

Defendant contends that he was illegally sentenced because (1) the burglary merged in the murder conviction and the killing, therefore, did not take place in the course of a separate and independent felony, and (2) the killing was not accompanied by brutal or heinous behavior. We will address the latter contention first. Defendant argues that since the killing was committed by firing a single shot his conduct therefore lacks characteristics necessary to categorize it as “exceptionally brutal or heinous behavior, indicative of wanton cruelty.” Our supreme court has defined “heinous” as “ ‘hatefully or shockingly evil: grossly bad: enormously and flagrantly criminal’ “brutal” includes that which is “ ‘grossly ruthless,’ ‘devoid of mercy or compassion: cruel and cold-blooded.’ ” People v. La Pointe (1981), 88 Ill. 2d 482, 501, 431 N.E.2d 344.

Under the terms of the statute, in imposing sentence the court may consider the conduct which led up to the killing, not merely the single, discrete act which caused the death. (See La Pointe.) The record here shows that defendant, in a calculated and cold-blooded manner, planned and carried out the murder of an 18-year-old woman in her own home. He inspired trust and confidence in the occupants of the residence by deceptively holding himself out as a law enforcement officer and thereby gained entrance to the victim’s home. When the door was opened to him he found his target and fired one shot which killed Lauretta Hullett. We do not believe that such behavior can be said to fall outside our supreme court’s definition of “brutal” and-“heinous” simply because only one shot was fired. We agree with the trial court’s characterization as a “hideous deception” defendant’s misrepresentation of himself as a police officer in order to gain entrance to a private home for the purpose of killing a resident thereof. We are unable to say that the trial court abused its discretion in sentencing defendant to natural life imprisonment and, therefore, we will not disturb that sentence. Our determination on this matter renders unnecessary consideration of defendant’s assertion that the burglary merged in the murder conviction. The sentence imposed was not improper regardless of whether the murder occurred in the course of another felony.

The final issue for review is whether defendant was proved guilty beyond a reasonable doubt. In contending that he was not proved guilty beyond a reasonable doubt, defendant basically questions the credibility of the witnesses. In a trial without a jury it is the function of the trial court to determine the credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence (People v. Akis (1976), 63 Ill. 2d 296, 298, 347 N.E.2d 733), and where the evidence is merely conflicting a reviewing court may not substitute its judgment for that of the trier of fact (People v. Clark (1964), 30 Ill. 2d 216, 219, 195 N.E.2d 631). A criminal conviction will not be reversed unless the evidence is so improbable as to raise a reasonable doubt of guilt. People v. Stringer (1972), 52 Ill. 2d 564, 568, 289 N.E.2d 631.

Defendant first argues that the identification made by Robert Thomas was questionable in that the viewing took place on a darkened porch and lasted only 30 seconds. It is undisputed that the testimony of one eyewitness is sufficient to convict, provided the witness is credible and the viewing of the accused was under such circumstances as would permit a positive identification (People v. Martin (1970), 47 Ill. 2d 331, 334-35, 265 N.E.2d 685, cert, denied (1971), 403 U.S. 921, 29 L. Ed. 2d 700, 91 S. Ct. 2240; People v. Clarke (1971), 50 Ill. 2d 104, 110, 277 N.E.2d 866), even where that testimony is contradicted by the accused (People v. Stringer; People v. Yarbrough (1977), 67 Ill. 2d 222, 367 N.E.2d 666). In the instant case Robert’s identification of defendant was based upon his viewing of defendant as he stood on the porch of the Hullett home. The porch was illuminated by two street lights located nearby and by the light from inside the house. The light on the porch was sufficient to enable Robert to inspect the badge and identification card displayed to him, to determine that the picture on the card depicted the man on the porch and to read the words “state’s attorney” on the card. Robert was able to identify defendant in police photographs and in a lineup. The length of time a "witness observes a defendant is only one factor to be considered and is not in itself determinative of whether there has been a positive identification. (See People v. Yarbrough.) Although Robert observed defendant for a period of only 30 seconds, his was not a casual viewing but rather an examination made with a heightened degree of attention as it was made for the specific purpose of trying to identify a man unknown to him seeking nighttime entrance to a private home where, only two weeks earlier, one of the residents had been murdered. On the witness stand Robert was asked to identify pictures of the defendant from among several other photographs he was shown. The trial judge noted that Robert, without looking toward the defendant, unhesitatingly selected the pictures of the defendant. It is our opinion that the record here presented supports a finding that the circumstances surrounding the viewing of the accused were such as to permit a positive identification.

Defendant next argues in support of his reasonable doubt contention that the testimony of Sandra Thomas was not credible due, principally, to the fact that she had only a short period of time within which to observe defendant. The fact that the period of observation was very short does not render the identification insufficient as a matter of law. (People v. Milam (1980), 80 Ill. App. 3d 245, 251, 399 N.E.2d 703.) Rather, whether or not a witness had a good opportunity to observe the defendant goes to the weight to be given such identification and is a question for the trier of fact whose determination will not be overturned by a reviewing court unless so contrary to the evidence as to be unjustified. (Milam.) We need not engage in an extensive analysis of Sandra Thomas’ testimony since the trial court heard the testimony of Robert Thomas, which testimony alone is sufficient to sustain a conviction. See People v. Yarbrough (1977), 67 Ill. 2d 222, 226, 367 N.E.2d 666; People v. Martin (1970), 47 Ill. 2d 331, 334-35, 265 N.E.2d 685.

Defendant further argues in support of his reasonable doubt contention that the identifications made by both Robert and Sandra were incredible, citing a minor difference in their descriptions of defendant’s facial hair. In assessing the credibility of an identification the central concern is not whether there are discrepancies in witnesses' descriptions of a defendant but rather whether there existed an adequate opportunity for a witness to definitely identify the accused. (People v. Watkins (1981), 98 Ill. App. 3d 889, 896, 424 N.E.2d 701; People v. Sanders (1976), 38 Ill. App. 3d 473, 348 N.E.2d 229.) If so, the discrepancies do not destroy the validity of the identification but go instead to the weight of the testimony (People v. Sanders) and are to be evaluated by the finder of fact (People v. Yarbrough). In the instant case we are unable to say that the trial court’s determination as to defendant’s guilt is so contrary to the evidence as to be unjustified and it, therefore, will not be disturbed.

Defendant’s remaining contentions question the trial court’s determination regarding testimony relating to his alibi defense and to the introduction of physical evidence. These contentions turn on the credibility of the witnesses. As stated above, we may not substitute our judgment for that of the trier of fact on questions concerning credibility of witnesses unless the evidence is so improbable as to raise a reasonable doubt of defendant’s guilt. (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, cert, denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) Upon careful examination of the entire record in this cause, we do not find this to be the case and must, therefore, resolve the remaining contentions against defendant.

Finally, defendant asserts that he received incompetent assistance of counsel. Our supreme court in a recent opinion held that the standard for effective assistance of counsel announced in People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203, should be applied in all cases involving either retained or appointed counsel. (People v. Royse (1983), 99 Ill. 2d 163, 169-70, 457 N.E.2d 1217.) The Greer court stated that the inadequacy of a defendant’s trial counsel entitles him to a new trial if the incompetence produced substantial prejudice to the defendant without which the result would probably have been different. (People v. Greer (1980), 79 Ill. 2d 103, 120-21, 402 N.E.2d 203.) Effective assistance means competent, not perfect, representation. (People v. Berland (1978), 74 Ill. 2d 286, 311, 385 N.E.2d 649, cert, denied (1979), 444 U.S. 833, 62 L. Ed. 2d 42, 100 S. Ct. 63.) Defendant here contends that defense counsel engaged in questionable trial tactics by presenting to the trial court evidence regarding various aspects of the investigation of the murder of Joseph Hullett, and defendant’s prior conviction for a misdemeanor. He argues that the introduction of such testimony made a fair evaluation of the evidence “difficult if not altogether impossible.” By defendant’s own admission the conduct complained of involved tactical decisions which will not be reviewed by this court. (People v. Gallardo (1983), 112 Ill. App. 3d 764, 445 N.E.2d 1213; see People v. Greer.) Furthermore, a defendant who charges that his counsel was incompetent must establish both the actual incompetency and the resultant prejudice; charges of incompetency cannot be based solely upon assertions. (People v. Ashley (1966), 34 Ill. 2d 402, 411, 216 N.E.2d 126.) Defendant here merely asserts incompetence and fails to show that he was prejudiced in any way, certainly not to the extent that the outcome of his trial would have been different. See People v. Moore (1981), 102 Ill. App. 3d 651, 658-59, 429 N.E.2d 1312.

For the foregoing reasons, the conviction and sentence imposed for murder are affirmed; the convictions for burglary and home invasion are affirmed and remanded for sentencing thereon.

Affirmed and remanded in part for sentencing.

LORENZ and O’CONNOR, JJ., concur.


author: JUSTICE LINDBERG JUSTICE NASH,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ALBERT VENA et al., Defendants-Appellees.
    Second District
    Nos. 81—737, 81—738 cons.
    Opinion filed February 29, 1984.
    Rehearing denied March 28, 1984.

      NASH, J., dissenting.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Marshall Stevens, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.

      William M. Doty, Jr., of Russo, Doty & Associates, and Robert DeMeo, both of Chicago, for appellees.
   JUSTICE LINDBERG

delivered the opinion of the court:

The State appeals (87 Ill. 2d R. 604(a)(1)) from an order of the circuit court of Lake County which granted the post-trial motion of defendant, Albert Vena, to quash his arrest and suppress the evidence seized from his person subsequent to the arrest. The State’s sole contention on appeal is that the trial court incorrectly granted the motion to quash and suppress because the arrest was based upon probable cause.

Albert Vena was charged by information with attempted burglary, burglary, and theft over $150. After a jury trial he was convicted of felony theft (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(a)(1)) and found not guilty of burglary. Mario Rainone, a codefendant who was tried separately, was charged by information with attempted burglary.

Each defendant filed a pretrial motion to quash his arrest and suppress evidence seized subsequent to the arrest. After holding an evidentiary hearing the trial court denied the motion. Defendants filed a motion for reconsideration of the denial of their motions to quash and suppress; the court below denied the motion to reconsider. Vena filed another motion to suppress. Subsequent to holding a hearing at which additional evidence in support of the motion was presented, the court again denied the motion to suppress. Thereafter the court granted Vena’s motion to sever his trial from that of the codefendant.

During Vena’s trial and prior to presenting defendant’s case, defense counsel renewed his motion to suppress evidence; the trial court denied the motion. The jury found Vena guilty of theft over $150 and not guilty of burglary. Subsequently, the court entered a judgment of conviction on the theft verdict. Thereafter, Vena again filed motions to quash his arrest and to suppress evidence as well as a post-trial motion for a new trial, which was based on the ground, among others, that the trial court erred in refusing to grant his prior motions to quash his arrest and to suppress the evidence seized as a result of the arrest.

After hearing argument on the matter, the court reversed its earlier ruling and determined that the evidence which the police seized from Vena was the result of an arrest that was not based on probable cause or reasonable grounds. Accordingly, the court below suppressed the evidence which was seized from Vena, vacated the judgment of conviction and the jury’s verdict, and granted Vena’s request for a new trial. Pursuant to the State’s request, the trial court extended its ruling affecting the admissibility of evidence in Vena’s case to the case of the codefendant Rainone as well.

The State filed a motion for reconsideration, which the trial court denied. Thereafter, the State filed a timely notice of appeal in both cases, which have been consolidated for purposes of this appeal. The State also filed in the trial court the requisite certificate of impairment relative to each defendant. See People v. Young (1980), 82 Ill. 2d 234.

The incident in question took place on February 10, 1981, in the village of Lincolnshire. At approximately 3:13 p.m. on that day, Officer Born responded to a call from the Dedrich home that three “suspicious” men were walking through the backyard at 39 Canterbury Drive. Mr. Dedrich did not tell the officer that he observed the three individuals committing any criminal offense. Dedrich briefly described the men as persons who were wearing dark jackets, pants and hats; Born related that brief description over his police radio to other squad cars.

The weather that day consisted of very heavy snow and blizzard-like conditions; six to eight inches of snow were on the ground. Officer Born followed two sets of footprints from the Dedrich’s backyard leading to, then crossing, Queen’s Way. He followed the unbroken footprints for one-half hour and for a distance of approximately a mile and one-half to two miles. The footprints led across Queens Way Road and to a location called Dawson Farm, where the officers saw the two defendants. There was no break in the footprints from the time Born commenced following them until he found Vena and Rainone.

Born stated that the clothing defendants were wearing was similar to that which Mr. Dedrich had described to him. According to Born, at the time he observed defendants they were not violating the law, and he had no reason to arrest them. When Born, who was in uniform, saw defendants, he announced that he was a police officer and told them to “freeze.” At that moment, defendants turned around, looked at him, stopped climbing a fence, came down and started running. Bom began to pursue them and radioed for assistance. The officer chased the two individuals, and with the help of Officer Bracatto, Born apprehended Vena. In effecting the apprehension, Bracatto’s mouth was injured. Both officers had their weapons drawn at the time they apprehended Vena; Officer Bom then placed handcuffs on Vena. Bom stated on two separate occasions during his testimony that he placed Vena under arrest at this time, although he later testified that he never advised Vena that he was under arrest when Vena was taken into custody at Dawson Farm. Born also assisted with the arrest of Rainone. At that time, neither subject was charged with a crime because Born was not then aware that any crimes had been committed in the area.

Officer Tavernier, who helped Officer Born follow the footprints, testified as follows:

“Q. Officer, did you have reason to believe there had been a crime committed in the area?
A. Yes, sir, I did.
Q. What was that belief based upon?
* * *
A. We had been experiencing numerous burglaries in the area of Wood Creek Courts. We received a telephone call from a concerned citizen reporting three male subjects, adult male subjects, in their backyard.
Q. Officer, that was Mrs. Dedrich, is that correct?
A. Mrs. Dedrich made the initial call to our department.
Q. Subsequent to that call, within the next half-hour, had your department received another phone call?
A. Yes, shortly thereafter we received a second phone call.
Q. Do you know who that phone call was from?
A. From a lady. I don’t know the name. Who was taking care of a house at 6 Tidewater. A citizen called and reported also there were men in the backyard of 6 Tidewater.
Q. Proceed. Tell us what your belief is based upon.
A. Like I say, the area on Tidewater we had at least two burglaries on Tidewater.
MR. STAVROS: Objection.
THE COURT: Wait. When?
THE WITNESS: The previous week.”

When Tavernier observed defendants at Dawson Farm, they were not committing a crime, and he was not aware that a crime had been committed in the area at the time defendants were stopped. According to the witness, the police stopped defendants because of the two complaints regarding suspicious persons in the residential area and in order to investigate their identity. Defendants were taken into custody because they ran from the police, failed to stop, and refused to identify themselves.

Tavernier apprehended Rainone and placed him in custody, and Officer Andrews advised Rainone of his Miranda rights. When Officer Tavernier asked Rainone who he was and what he was doing there, defendant did not respond to the inquiries other than to comment that he knew the officer had a job to do. The officer then conducted a pat-down search of Rainone and found nothing. Officer Roulo assisted two other policemen place Rainone in the rear seat of Roulo’s squad car; he also helped take Vena, who was handcuffed, into custody. Prior to putting Vena into the squad car, Roulo conducted a pat-down search of the subjects and felt two large objects in Vena’s back pocket. The items were a yellow plastic flashlight and a large folding knife. Then officers Roulo and Tavernier transported defendants to the Lincolnshire police department.

Approximately 15 to 20 minutes after Vena had been placed in custody and taken to the police station, Corporal Richter radioed a report to the station regarding an attempted burglary at 3 Queens Way in Lincolnshire. After hearing that report, Officer Roulo then searched Vena at the police station and removed additional items from Vena’s person, including a large set of keys, a wallet containing identification and miscellaneous papers, yellow metal cufflinks, a yellow-colored toothpick in a leather sheath and an earring.

The police department received a report of a burglary at 1810 Saunders Road in Riverwoods, which adjoins Lincolnshire and is patroled under contract by the Lincolnshire police department, at least one day after defendants were taken into custody. Several days later the victim of the Riverwoods burglary identified items found in the search of defendant Vena as property taken in the burglary. Defendant Vena’s conviction of theft of property exceeding $150 in value was based upon the Riverwoods burglary and theft.

The State advances a two-fold argument on appeal in support of its position that the trial court improperly granted the motion to quash and suppress. The State contends first that the police were justified in conducting an investigatory stop and pat-down search (Ill. Rev. Stat. 1979, ch. 38, pars. 107 — 14, 108 — 1.01) of defendants at the Dawson Farm. Continuing, the State maintains that, once defendants fled at the approach of the police and refused to identify themselves upon being apprehended and after police discovered a flashlight and a long knife on the person of Vena, the officers had probable cause to arrest defendants.

In the alternative, the State asserts that, even if probable cause to arrest was lacking at the Dawson Farm, the officers nonetheless were justified, under the Illinois temporary detention statute (Ill. Rev. Stat. 1979, ch. 38, par. 107 — 14), in transporting defendants to the police station, to ascertain their identities after they had earlier refused to identify themselves and explain their activities. According to the State shortly after defendants were taken to the police station, probable cause to arrest them arose when the police were informed that an attempted burglary had occurred in the vicinity where defendants had been walking.

Defendants argue that the police did not have (1) the authority under the temporary detention statute to stop them or (2) probable cause to arrest them at the farm. Moreover, defendants remonstrate that law enforcement officials acted beyond the reasonable scope of an investigatory stop when they transported defendants to the police station and detained them there. Consequently, according to defendants, any arrest at the police station based on probable cause that developed after they were conveyed to the stationhouse was invalid.

The principles governing the employment of an investigatory stop are well-settled. A police officer, in appropriate circumstances and in an appropriate manner may approach an individual for purposes of investigating possible criminal behavior even though there is no probable cause to arrest, provided however, that the officer’s decision to stop is based on specific and articulable facts which, when combined with rational inferences from those facts, reasonably warrant the investigative intrusion. (Terry v. Ohio (1968), 392 U.S. 1, 20-21, 20 L. Ed. 2d 889, 905-06, 88 S. Ct. 1868, 1879-80; People v. Beil (1982), 110 Ill. App. 3d 291, 293, 442 N.E.2d 291, 292-93; People v. Tribett (1981), 98 Ill. App. 3d 663, 671, 424 N.E.2d 688, 694; People v. Grice (1980), 87 Ill. App. 3d 718, 722, 410 N.E.2d 209, 214, cert, denied (1981), 450 U.S. 1003, 68 L. Ed. 2d 207, 101 S. Ct. 1714; People v. Scarpelli (1980), 82 Ill. App. 3d 689, 694-95, 402 N.E.2d 915, 921, cert, denied (1981), 450 U.S. 915, 67 L. Ed. 2d 340, 101 S. Ct. 1357.) In determining whether a stop is reasonable, an objective standard is to be used, namely, whether the facts available to the officer warrant a person of reasonable caution to believe that the action taken was appropriate. (Terry v. Ohio (1968), 392 U.S. 1, 21-22, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880; People v. Holdman (1978), 73 Ill. 2d 213, 221, cert, denied (1979), 440 U.S. 938, 59 L. Ed. 2d 496, 99 S. Ct. 1285; People v. Tribett (1981), 98 Ill. App. 3d 663, 671, 424 N.E.2d 688, 694; People v. Grice (1980), 87 Ill. App. 3d 718, 723, 410 N.E.2d 209, 214.) A mere suspicion or hunch, however, is not sufficient. (People v. Tribett (1981), 98 Ill. App. 3d 663, 671, 424 N.E.2d 688, 694; People v. Grice (1980), 87 Ill. App. 3d 718, 723, 410 N.E.2d 209, 214.) Because there are no conclusive rules for determining whether an investigatory stop is justified, each case must be adjudicated on its particular facts. People v. Mills (1983), 115 Ill. App. 3d 809, 812, 450 N.E.2d 935, 937; People v. DeLisle (1982), 104 Ill. App. 3d 297, 299, 432 N.E.2d 954, 956.

Sections 107 — 14 and 108 — 1.01 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, pars. 107-14, 108-1.01) have codified the Terry rules regarding the permissible use of an investigatory stop and attendant frisk for the presence of weapons. (People v. McGowan (1977), 69 Ill. 2d 73; People v. Ellis (1983), 113 Ill. App. 3d 314, 317, 446 N.E.2d 1282, 1284; People v. Pritchett (1979), 75 Ill. App. 3d 127, 129-30, 393 N.E.2d 1157, 1160.) The Illinois codification controlling the use of an investigatory stop (Ill. Rev. Stat. 1979, ch. 38, par. 107 — 14) provides that a police officer, after having identified himself as such, may lawfully stop any person in a public place for a reasonable period of time when he reasonably infers from all the circumstances that the individual is about to commit or has committed an offense. (People v. Grice (1980), 87 Ill. App. 3d 718, 723, 410 N.E.2d 209, 214, cert, denied (1981), 450 U.S. 1003, 68 L. Ed. 2d 207, 101 S. Ct. 1714.) In addition, under section 108 — 1.01, an officer conducting an investigatory stop may search the person for weapons if the policeman reasonably suspects he is in danger of attack. Accord, Terry v. Ohio (1968), 392 U.S. 1, 30-31, 20 L. Ed. 2d 889, 911, 88 S. Ct. 1868, 1884-85.

In the case now before the court, at the time the police officers saw defendants at Dawson Farm, the officers had just received information from two independent sources that suspicious persons had been seen walking through the backyards of a residential area during a time when six to eight inches of snow covered the ground. The officers also were aware that a number of residential burglaries had recently been committed in that immediate locality. The footprints in the snow led from the Dedrich residence across Queens Way to the place where defendants were observed. We conclude the officers had knowledge of sufficient specific and articulable facts to justify the stop of defendants in order to maintain the status quo while they investigated for criminal activity and identification. (See, e.g., People v. McGowan (1977), 69 Ill. 2d 73, 78-79; People v. Ellis (1983), 113 Ill. App. 3d 314, 318, 446 N.E.2d 1282, 1285; People v. Tribett (1981), 98 Ill. App. 3d 663, 672, 424 N.E.2d 688, 694.) Similarly, the officers were justified, under Terry v. Ohio and its Illinois statutory counterpart, in searching defendants for the presence of weapons in view of their flight and Vena’s physical resistance. See People v. McGowan (1977), 69 Ill. 2d 73, 79; People v. Pritchett (1979), 75 Ill. App. 3d 127, 130, 393 N.E.2d 1157, 1160; 3 W. LaFave, Search & Seizure sec. 9.4(a), at 116 (1978).

In his treatise on the fourth amendment, Professor LaFave lists several investigative techniques which may be utilized in the court of a Terry-type stop: interrogation, including a request for identification and inquiry concerning the suspicious conduct of the person detained; communication with others in an effort to verify the explanation tendered, to confirm the identification or determine whether a person of that identity is otherwise wanted; detention of the subject while a determination is made whether an offense actually occurred in the area; and the viewing of the subject by witnesses to a crime in the area. None of the investigative methods listed above is inherently objectionable, although they might cast doubt upon the reasonableness of the detention if their use unduly prolongs the period of detention or involves moving the suspect to another locale. 3 W. LaFave, Search & Seizure sec. 9.2(f), at 36-37 (1978); accord, Michigan v. Summers (1981), 452 U.S. 692, 69 L. Ed. 2d 340, 101 S. Ct. 2587; People v. Ellis (1983), 113 Ill. App. 3d 314, 319, 446 N.E.2d 1282, 1285-86.

We can infer from the record that the police needed to detain defendants to determine if a more immediate crime had been committed in the area from which defendants had just emerged. Certainly defendants’ attempted flight upon seeing uniformed police is sufficiently suggestive of a consciousness of guilt on the part of defendants to warrant a brief detention to determine if a more immediate crime has been committed. See Peters v. New York (1968), 392 U.S. 40, 20 L. Ed. 2d 917, 88 S. Ct. 1889.

The record suggests that not more than a brief detention would be required to determine whether a more immediate crime had been committed. We conclude that this short period of time was only minimally intrusive when compared to the benefit of immediate investigation. See People v. Lippert (1982), 89 Ill. 2d 171, 183, cert, denied (1982) , 459 U.S. 841, 74 L. Ed. 2d 85, 103 S. Ct. 92.

Nor do we believe such a detention was unreasonably intrusive where the defendants were placed in a squad car. Their freedom was completely restrained whether they were inside or outside of the squad car. The defendants fail to suggest any intrusive purpose of the police in placing defendants in the squad car. No effort was made to interrogate or identify defendants or impose any intrusive investigation upon them. Nor does it appear that any public stigma attached to their being placed in the squad car as there was no evidence that the scene was viewed by the public. See People v. Bloyd (1982), 416 Mich. 538, 331 N.W.2d 447.

Further, our supreme court has sanctioned the limited transportation of a suspect for an immediate crime-scene showup, thereby rejecting the argument that such a procedure was prohibited under Terry v. Ohio and its Illinois statutory counterpart. (People v. Lippert (1982), 89 Ill. 2d 171, 178, cert, denied (1982), 459 U.S. 841, 74 L. Ed. 2d 85, 103 S. Ct. 92; accord, People v. Kincy (1982), 106 Ill. App. 3d 250, 256, 435 N.E.2d 831, 835-36; see People v. Canity (1981), 100 Ill. App. 3d 135, 149-50, 426 N.E.2d 591, 602.) Similarly, a warrant check pursuant to a Terry stop does not convert the stop into a full-fledged arrest. People v. Ellis (1983), 113 Ill. App. 3d 314, 320, 446 N.E.2d 1282, 1286.

Unquestionably the police conduct in transporting the suspect to the crime scene in Lippert was supported in part by the fact the armed robberies of the two elderly couples had just occurred. In the case at bar the crimes partially forming the basis of the investigative detention and transportation of defendants were two burglaries occurring during the previous week. Nonetheless, the conduct of defendants in traversing the same area where the burglaries occurred, in attempting to flee the uniformed police and in refusing to identify themselves justified the investigation of whether an offense had just occurred. See 3 W. LaFave, Search & Seizure sec. 9.2(f), at 36-37 (1978).

Further, Lippert involved substantially more intrusive albeit entirely reasonable conduct by the officer in detaining the suspect and transporting him for both questioning and viewing by the victims at the scene of the armed robberies. Neither the record here nor defendants on appeal speak of any intrusive police conduct during their detention in the squad car and police station.

We do not view the removal of defendants to the police station as more intrusive per se than detaining them in the open field or in the squad car. In fact both the squad car and the stationhouse protected the defendants and police officers from the blizzard-like weather conditions. It does not appear that transportation of defendants to the stationhouse was for interrogation or any other intrusive actions beyond awaiting completion of the investigation of the area just traversed by defendants.

Professor LaFave has commented:

“Another issue which has arisen is whether an otherwise legitimate Terry-type stop may involve transportation of the suspect to the police station. As a general proposition, it would seem that a negative answer is called for, as in Terry the Court approved the intrusions made there by noting that they did not involve an actual arrest, which ‘is inevitably accompanied by future interference with the individual’s freedom of movement.’ Certainly when a taking to the station is accompanied by ‘burdens substantially like those of arrest,’ such as ‘fingerprinting, photographing and completion of a lengthy arrest form,’ such procedures should not be upheld absent a showing of grounds for arrest. [United States v. Jennings (9th Cir. 1972), 468 F.2d 111.] It cannot be said, however, that transportation of a detainee to the station is never permissible, for in extraordinary circumstances that may be the safest course of action. An excellent illustration is provided by People v. Courtney [(1970), 11 Cal. App. 3d 1185, 90 Cal. Rptr. 370], where, after an angry crowd gathered at the scene where officers had stopped a suspect, the police decided to transfer the suspect to the station. The court concluded that ‘there was no Fourth Amendment compulsion on the police to choose between an on-the-spot continuation of their investigation at the probable cost of their own safety, or abandoning the investigation.’ [Quoted with approval in People v. Harris (1975), 15 Cal. 3d 384, 540 P.2d 632, 124 Cal. Rptr. 536.]” 3 W. LaFave, Search & Seizure sec. 9.2, at 45 (1978).
“It may also be asked whether, at least absent such extraordinary circumstances, Dunaway [Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248] means that taking the suspect to any police facility, no matter how close, itself transforms a Terry stop into an arrest. In Florida v. Royer [(1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319], the suspect was transported a mere 40 feet to an airport police office, which the plurality concluded transformed the situation into one of arrest for which probable cause was lacking, thus invalidating the suspect’s consent to search of his luggage. Some of the reasons given for this result by the Royer plurality are not in all respects convincing, which makes more plausible the assumption that Dunaway had considerable impact on the outcome. But the notion seems to be not that every entry onto police ‘turf’ makes any seizure into an arrest, but rather that the circumstances of one’s presence there may be sufficiently coercive that no distinction can rightly be drawn between that seizure and an arrest.” 3 W. LaFave, Search & Seizure sec. 9.2, at 21-22 (1984 Supp.).

As noted earlier the elapsed time from the original sighting of defendants on the private property of the Lincolnshire residents to their ultimate arrest and search incident to arrest upon the detection of the attempted burglary of 3 Queens Way was less than one hour. This demonstrates exceptionally efficient police work. It also emphasizes that the intrusion upon the freedom of defendants based upon reasonable suspicion prior to the establishment of probable cause for their arrest was only 15 or 20 minutes. Under these exceptional circumstances we do not feel there was an unreasonable intrusion sufficient to trigger the proscriptions of Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248. The arrest and search of defendants in the stationhouse was pursuant to probable cause based upon the detection by Officer Richter at 4 p.m. of the attempted burglary. Consequently it was error to suppress the items seized in both the initial Terry search and the subsequent stationhouse search incident to a legal arrest.

In concluding we note that the State did not develop nor argue the facts in the trial court regarding Vena’s physical resistance to police restraint by his striking Officer Bracato in the mouth. Further, the State did not argue below the theory that defendants’ flight and Vena’s resistance and obstruction of the police violated Illinois’ resistance and obstruction of police statute. (Ill. Rev. Stat. 1981, ch. 38, par. 31 — 1; see People v. Holdman (1978), 73 Ill. 2d 213.) Therefore we do not consider here the significance of a violation of that statute in establishing probable cause for the arrest and search of defendants and the seizure of evidence from defendant Vena.

The judgment of the circuit court of Lake County quashing defendants’ arrests and suppressing evidence seized from defendant Vena and vacating Vena’s conviction are reversed. The causes are remanded for further proceedings as to both defendants Vena and Rainone.

Reversed and remanded.

REINHARD, J., concurs.

JUSTICE NASH,

dissenting:

I respectfully dissent. While I agree with the majority that defendants were properly detained when initially seized by the officers, and could have been reasonably detained longer at that place while an investigation continued, I do not agree the requirements of the fourth amendment were met when defendants were transported to the police station and there held in custody.

The facts of this case fall between those in Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248, and Florida v. Royer (1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319, in both of which the court found defendants were illegally detained as the limits of a Terry-stop had been exceeded. While it is true limited transportation of a suspect has been sanctioned, as noted by the majority, in each case it was for a short distance to a crime scene for identification purposes by the victims. In the present case, transportation was to the police station while officers investigated whether any crime had occurred. It seems apparent defendants had been arrested when they were handcuffed, placed in the police car and taken to the station. It is equally apparent the officers then lacked probable cause to believe defendants had committed an offense.

Had the officers merely detained defendants at or near the place where they were found for a short period of time while other officers backtracked them, the scope of the intrusion would be considered reasonable under these circumstances. It was not reasonable, in my view, to arrest defendants and confine them in a police station while further investigation was undertaken. The majority appear to hold that transportation to and confinement in a police station is a generally acceptable procedure which may be carried out where the circumstances justify a Terry stop, and do so in a case where the only evidence that any crime had been committed by anyone related to a week earlier.

I would affirm the judgment of the trial court suppressing the evidence in this case.