author: JUSTICE HEIPLE

text:
      In re S. D. S., a Minor.—(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. S. D. S., Respondent-Appellant.)
    Third District
    No. 81-164
    Opinion filed February 8, 1982.

      Robert Agostinelli and G. Joseph Weller, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    James T. Teros, State’s Attorney, of Rock Island (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

On February 20, 1981, in Rock Island County, the People filed a delinquency petition against S. D. S., age 15, who was already a delinquent and on probation for theft, charging him with solicitation and conspiracy to commit murder. The minor was further adjudicated delinquent. After a dispositional hearing, he was committed to the Department of Corrections.

Defendant raises three issues in his appeal. First, that his confession was not voluntary in that his Miranda rights were not waived. Second, that his confession was not corroborated. And third, that .the defendant cannot stand convicted of both solicitation to commit murder and conspiracy to commit murder since solicitation is a lesser-included offense of conspiracy.

When the alleged offenses occurred, S. D. S. was in the temporary custody of the Moline Group Boys Home. Previously, he was made a ward of the Court and placed on probation for stealing a motorcycle. On January 14, 1981, a petition to revoke probation was filed against S. D. S. for burglary. The burglary incident resulted in the defendant being placed in the temporary custody of the Moline Group Boys Home, which was his custodial home at the time of the instant offense. The burglary charge is not before this court.

However, at the adjudicatory hearing as to the revocation petition involving the offenses of solicitation and conspiracy to commit murder, the victim, Linda Young, testified that she was .the housemother at the Boys Home on February 19, 1981. On that day, while working in the kitchen, Michael Burch stabbed her in the back with a knife. Mrs. Young was hospitalized because of her wound. Burch and S. D. S. were roommates at the home. S. D. S. was not in the house at the time of the stabbing. The People moved into evidence the minor’s confession as to the solicitation and conspiracy and then rested. S. D. S. presented no witnesses. The trial court found S. D. S. guilty of both offenses.

Insasmuch as the defendant was not present at the stabbing, the cornerstone and, indeed, the only direct evidence of his guilt of solicitation and conspiracy was his confession. The defendant filed a pretrial motion to suppress this confession on the grounds that it was not voluntary. The pretrial suppression motion was denied and, as already indicated, the confession was received in evidence at trial. The hearing on the motion to suppress the confession proceeded as follows.

Officer Brockway was the first witness. Before S. D. S. appeared at the police station on February 19,1981, Officer Brockway spoke with the minor’s father, Ernest Smith, who was present at the station. S. D. S. then arrived in a police vehicle. He was read his rights under Miranda v. Arizona (1966), 384 U.S. 436,16 L. Ed. 2d 694, 86 S. Ct. 1602, from a form which he signed. His acknowledgment at the bottom of the Miranda form which was read to him was as follows:

* * I, [S. D. S.] have had 8 years of education, and I understand the above rights.
Signed, [S.D. S.]* *

No force or threats were used against the defendant. At this juncture, however, it should be noted that the above acknowledgment is something short of a waiver of rights. Waiver of one’s rights goes a step further than merely knowing one’s rights. Officer Brockway testified that S. D. S. seemed to understand his rights. Before questioning the minor, Brockway said, S. D. S. conferred with his father. However, Ernest Smith was not present in the room where Officer Brockway questioned S. D. S. The presence of an attorney or the father was not specifically requested by S. D. S. or his father.- Nor did S. D. S. expressly waive his Miranda rights, orally or in writing.

The next witness was the father, Mr. Smith. He stated that although he and his son sat next to each other in the police station, he did not talk with his son prior to any police questioning. He said he had no reason to say anything to his son.

The confession consists of three typewritten pages. It was taken at two different times over a period of roughly 40 minutes. In it, S. D. S. said he, Lonny Stark, and Michael Burch had a discussion about assaulting Mrs. Young. The purpose was to steal her car and money and flee the jurisdiction. The initial plan was to hit Mrs. Young on the head with a frying pan and tie her up. S. D. S. said it was his idea to stab the victim. This discussion took place on February 19,1981, at 7 a.m. The three boys had discussed the matter for about four days previous to the day of the stabbing.

At the conclusion of the suppression hearing the trial judge ruled the confession was voluntary. The minor contends this was error.

Since the police did not obtain an express written or oral waiver of the minor’s Miranda rights, S. D. S. contends, his confession was involuntary. Moreover, he submits, we should adopt a per se rule which excludes a juvenile’s confession, unless the minor was accorded the opportunity to consult with his parents, a guardian, or an adult friend before deciding to talk with police. Indiana adheres to this rule (Lewis v. State (1972), 259 Ind. 431, 439, 288 N.E.2d 138, 142.) The People respond that the issue of S. D. S.’s express waiver of his Miranda rights was not specifically raised in the trial court, and that our adoption of the minor’s per se rule as to consultation would contravene settled Illinois law. We cannot agree totally with either party’s position.

The minor claims his confession was involuntary because there was no express waiver of his Miranda rights. The real issue, however, is not express waiver but whether he, in fact, waived his rights at all. This determination is reached based on the totality of the circumstances when the confession was given. It is not necessary that there be an express waiver if the circumstances indicate that actual waiver occurred. These circumstances include the characteristics of the accused, whether he was advised of his Miranda rights, understood those rights, and acknowledged waiving such rights. Other considerations concern the manner of interrogation, whether the minor was denied physical comforts, coerced or threatened, or questioned repeatedly for a prolonged duration. (People v. Prim (1972), 53 Ill. 2d 62, 70, cert. denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731; In re Lamb (1975), 61 Ill. 2d 383, 388, cert. denied (1976), 425 U.S. 938, 48 L. Ed. 2d 180, 96 S. Ct. 1672.) The list is not exhaustive, nor could it be, since it depends on the facts a particular cause generates.

The People contend that the question of the express waiver of the defendant’s Miranda rights was not specifically raised as an issue before the trial court. Accordingly, the People claim that this issue has been waived for purposes of this appeal. While it is true that defendant did not specifically address the question of his lack of specific waiver of Miranda, he did raise the objection that his confession was not voluntary. The voluntary nature of his confession necessarily includes many elements. One of these elements is the factual matter of whether there was a specific waiver of rights. That is part of the totality of circumstances and, thus, merits consideration on appeal. It was not waived by the defendant for purposes of this appeal.

Another element of the voluntary nature of the confession is whether the juvenile’s parents are present when the minor confesses. Illinois does not follow the per se rule regarding a minor’s opportunity to consult with a parent or other person before being questioned. Our Supreme Court has stated, rather, and as noted above, that the voluntariness of a juvenile’s confession must be gleaned from the totality of the circumstances.

The police have a statutory duty to contact a minor’s parents once he is taken into custody. (Ill. Rev. Stat. 1979, ch. 37, par. 703—2(1).) A reasonable effort by the authorities is what the statute mandates.

The record reflects that S. D. S.’s parents were attempting to cooperate with the police. Mr. Smith was at the Moline police station when S. D. S. arrived. Communication between the police and Mrs. Smith had occurred. Officer Brockway testified that the father was permitted to talk with his son at the station before the questioning. He did not, however, invite the father into the interview room during the questioning. By the same token, the father never insisted on the right to accompany his son into the interrogation room. He took it for granted that he would not be allowed to accompany his son during the interrogation. Likewise, Officer Brockway testified that he did not believe that the father had a right to be present. Thus the record does not show that the father was barred or that he asserted any right to be present. Yet, given the officer’s state of mind concerning the matter, it appears that the father would not have been allowed to be present even if he had asked the privilege.

One of the reasons the police have a duty to call the minor’s parents is to permit the parents to be with their child. This does not mean that a parent has to be present every time the police want to question a minor. It does denote that, ordinarily, if parents have indicated an interest by their presence, then they should be allowed to confer with their children before any questioning begins, as well as be present when any questioning occurs. This is an element to be considered in evaluating the voluntary nature of the confession.

S. D. S., it should be noted, was not a stranger to our criminal justice system. He was a ward of the court, having been adjudicated guilty of theft and charged with burglary within recent months. He had been questioned by authorities in the past. Although not doing well academically in high school, no question was raised that his intelligence level was other than normal. It was undisputed that he was not threatened into confessing, or promised anything, or physically abused in any way by Officer Brockway.

A trial judge’s ruling on the question of a confession’s voluntariness will not be reviewed unless against the manifest weight of the evidence. See People v. Wipfler (1977), 68 Ill. 2d 158, 177.

Officer Brockway was in error in his belief that the father had no right to be present with his son during the questioning. There is nothing in the record, however, to indicate that either the son or the father requested that father’s presence during the interview. If a person does not request a cigarette, it can hardly be argued that he was refused cigarettes. Likewise, it can hardly be argued that defendant and his father were denied something that neither of them either wanted or requested, i.e., the presence of the father during the questioning. It is noteworthy that the father testified that he did not even attempt to speak to his son when he was seated next to him in the police station before the questioning began because the father felt that he had no reason to talk to him. This attitude prevailed notwithstanding the father’s knowledge that a stabbing had occurred at the home and that his son might be involved. Officer Brockway testified, however, that the father did talk to his son before the questioning. The fact that Mr. Smith was not present during the questioning is merely one factor along with all of the other factors in determining whether the confession of the minor was voluntary. From our view of the record, and considering all of the circumstances, we find that the trial judge’s ruling was not erroneous. It appears to us that the defendant’s statement was indeed voluntarily given.

The next issue is whether evidence corroborates S. D. S.’s confession to the crimes of solicitation and conspiracy to commit murder. Because Mrs. Young’s testimony evidenced a fact that a crime occurred, as well as tended to corroborate S. D. S.’s confession, the People contend, we should affirm both verdicts.

The parties agree that a confession which is not corroborated by other independent evidence of the corpus delicti of a crime cannot support a criminal conviction. They cannot agree on the nature of such corroborative proof. The form of such corroboration must show that a crime occurred (People v. Melquist (1962), 26 Ill. 2d 22, 28-29, cert. denied (1963), 372 U.S. 967, 10 L. Ed. 2d 130, 83 S. Ct. 1093), or has a tendency to inspire belief in the veracity of the confession of S. D. S. (People v. Brechon (1979), 72 Ill. App. 3d 178, 181-82). If there is corroborative evidence which tends to confirm the circumstances related in the confession, both the corroborative evidence and the confession may be considered in determining whether the corpus delicti of the crime(s) charged was adequately established by the prosecution. People v. Melquist.

We believe that the confession, considered with the fact of the stabbing, is sufficiently corroborated by circumstantial evidence. What is that circumstantial evidence? First of all, the confession or statement coincides with the facts of the stabbing. Further, both S. D. S. and Burch lived together at the same delinquent boys home. They ate together. Indeed, they were roommates. All conversations between S. D. S. and Burch occurred during such times. Coupled with the above is a lack of any reason to doubt the defendant’s statement. It is a plausible, rational statement. There is no evidence and no reason to indicate that it was made up out of thin air. All circumstances indicate otherwise. At this juncture, even, the truth of the statement has not been denied. Only its voluntariness has been disputed, and that issue has been resolved against the defendant.

The final issue is whether solicitation to commit murder is a lesser-included offense of conspiracy to commit murder. We agree that it is. Solicitation occurs when one commands, encourages or requests another to commit an offense. Conspiracy occurs when the other party agrees to the commission of that offense and performs an act in furtherance of that agreement. Ill. Rev. Stat. 1979, ch. 38, par. 8—1 et seq.

We recognize a divergence of opinion on this issue. People v. Latham (1979), 73 Ill. App. 3d 995, 997-98; People v. Harvey (1981), 95 Ill. App. 3d 992, 1002; and see People v. Mays (1981), 93 Ill. App. 3d 352, 355 (Justice Barry dissenting).

In Latham, the defendant was charged with conspiracy and solicitation to commit murder. Defendant and the victim’s wife engaged in a plot to kill the wife’s husband, collect the insurance money on the husband’s life, and split the proceeds. The defendant pleaded guilty to both offenses. The trial judge imposed a single sentence, believing solicitation was a lesser-included offense of conspiracy. The appellate court reversed, concluding without analysis that it was “* 0 * obvious that neither solicitation nor conspiracy is a lesser included offense of the other. 0 * *” Harvey, as well as Mays, merely recites this holding.

A lesser-included offense is one comprised of some, but not every element, of the greater- offense. The greater offense will include every element of the lesser offense plus some other elements so that it becomes impossible to perform the greater offense without committing the lesser one. This is not only a statutory precept (Ill. Rev. Stat. 1979, ch. 38, par. 2—9), but also a judge-made rule. Prindiville v. People (1866), 42 Ill. 217, 220.

To solicit means to ask. The statutory definition of solicitation adds to command and to order. To conspire means to agree. The statutory definition of conspiracy adds the performance of an act in furtherance of that agreement. The end sought, of course, must constitute an offense in order for either solicitation or conspiracy to be an offense.

A conspiracy or agreement would necessarily include a command, an encouragement or a request. One of these elements would have to precede the agreement. In contract terms, they would constitute the offer. The legal conspiracy would arise when two additional factors transpired. First would come the acceptance. Considered in these terms, it is clear that you could not have an acceptance without an offer. That is to say, there is nothing to accept or agree to if there is no offer in the first place. The crime of statutory conspiracy would not be complete, however, until the act in furtherance of that agreement took place. That is the second event, post-solicitation, that makes the crime of conspiracy complete. Thus it is seen that conspiracy is a crime consisting of three elements, they being request, agreement, and act. The first element constitutes the crime of solicitation. When the two additional elements are added, you have the crime of conspiracy.

Defendant asks for a new dispositional hearing since the sentencing judge considered that the defendant was guilty of two offenses rather than a single offense. Considering the nature of the transaction in the case at hand, it is difficult to conclude that the finding of dual guilt would be construed by the sentencing judge as anything inore than technical duality. And, it must be borne in mind that this is a juvenile case and not a criminal case. The commitment here is for an indefinite term. Finding of dual guilt would not and could not result in a longer sentence. The defendant here was already on probation as a juvenile delinquent. A finding of guilt on either the solicitation or the conspiracy charge standing alone well warranted his commitment to the Department of Corrections, Juvenile Division.

Accordingly, the finding of delinquency, the adjudication as a ward of the court and the commitment to the Department of Corrections, Juvenile Division, are affirmed.

Affirmed.

SCOTT, P. J., and STOUDER, J„ concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE COUNTY OF WILL, Plaintiff-Appellant, v. RONALD W. GEORGE et al., Defendants-Appellees.
    Third District
    No. 81-390
    Opinion filed February 10, 1982.
    Edward F. Petka, State’s Attorney, of Joliet (Steven J. Prodehl, Assistant State’s Attorney, of counsel), for appellant.

      James R. Buck, of Klein, Stoddard & Buck, of Sycamore, for appellees.
   JUSTICE HEIPLE

delivered the opinion of the court:

This is a land condemnation case. Plaintiff, Will County, is attempting to widen Weber Road from its existing 66-foot width to 100 feet. To accomplish this widening, the county needs 17 additional feet on each side. Defendants, Ronald and Carol George, own a 160-acre farm along the east side of the road. Pursuant to resolution of the County Board, condemnation proceedings were instituted to acquire this 17-foot strip from the Georges. This tract amounts to approximately one acre.

In the condemnation proceeding, the Georges asserted that they also owned the land under the existing road to the center of the road, that is to say, the west 33 feet of the existing road. They further claimed that the County could not merely buy the 17-foot strip lying east of the existing roadway but that the County must also buy the 33-foot strip under the existing roadway. This tract amounts to approximately two additional acres. The Georges claim this is necessary because an acquisition by the County of only the 17-foot strip would leave their 33-foot strip under the road as isolated and useless. They point out that they have always owned the land to the center of the road and have always paid taxes on it.

Negotiations ensued which proved unproductive in two ways. The County would not agree that the Georges owned the land to the center of the existing road. Neither could the price per acre be agreed upon.

In view of the dispute, the assistant State’s Attorney who was prosecuting the condemnation case entered into a stipulation with the attorney for the Georges. The stipulation was that the trial judge would be allowed to decide whether the Georges owned the land to the center of the existing road or merely to the edge of the road. If the judge decided that the Georges only owned to the edge of the road, the land would be taken and the County would pay $10,000. If, on the other hand, the judge decided that the Georges owned to the center of the road, then the County would take that land too, and the County would pay $22,400.

The parties filed briefs with the trial court and the matter was argued. The Georges won. The trial court decided that the Georges owned the land to the center of the road and that the County should take the entire tract of approximátely three acres and that the Georges were entitled to a money judgment of $22,400 as per the stipulation of the parties.

On appeal, Will County contends the State’s Attorney had no independent authority to purchase land for the County and thus the stipulation agreeing to such purchase is invalid. Such theory not having been raised in the trial court, defendants respond, the argument is waived. Alternatively, defendants urge, the State’s Attorney had statutory authority to represent the County in all actions, and this includes the authority to enter into stipulations. Ill. Rev. Stat. 1979, ch. 14, par. 5.

First and foremost, a State’s Attorney has no independent authority to purchase land for the County absent a County Board resolution authorizing him to do so. (Ill. Rev. Stat. 1979, ch. 34, par. 303; ch. 121, par. 6—804.) At oral argument, defendant’s counsel was specifically asked by this court whether the State’s Attorney was empowered by resolution of the County Board to purchase both strips of land. He responded that the State’s Attorney was authorized by resolution to purchase whatever land was necessary to complete the road widening. This response was false and misleading. The County Board’s resolution, dated October 26, 1978, plainly states that in widening Weber Road, Will County would provide an unspecified amount of compensation for defendant’s 17-foot strip. The County Board’s resolution does not, in any way, authorize the purchase of more acreage than that. Nor does it indicate the price of such acreage or a method of valuation.

Merely because a State’s Attorney has a statutory obligation to represent Will County in eminent domain proceedings does not imbue him with the power to buy land in the County’s behalf. This can only be accomplished by a resolution promulgated by the County Board acting through its supervisors. (Ill. Rev. Stat. 1979, ch. 34, par. 302.) Any person assuming to act as the official agent of a county must have the requisite authority for that purpose or the county will not be bound. This has been the rule in Illinois for almost 100 years. (Pauley v. County of Madison (1919), 288 Ill. 255, 260, quoting Scates v. King (1883), 110 Ill. 456.) The Will County Board did not authorize the State’s Attorney to buy three acres of land at any price. Therefore, the State’s Attorney could not bind the County to make such a purchase. The stipulation had no legal effect and was void ab initio. As such, it was not susceptible to waiver. It could not be waived. We cannot give any efficacy to that void portion of the stipulation.

Part of the stipulation was perfectly all right. That was the part that authorized the trial court to determine the ownership of the 33-foot strip under the existing roadway. The resolution of that question was well within the proper area of concern for both the County and the Georges and was jurisdictionally and procedurally before the court.

As to such strip under the existing roadway, the County claimed that the land was dedicated to the public as public highway in 1856 by a former owner. This was never proved. The land was titled in the Georges and they paid taxes on it. The trial court correctly ruled that they still owned it in fee, subject to its existing use as a road.

Under current law, a statutory dedication can occur when a landowner records a plat which indicates on it what land is being donated to the public. (Sunstrom v. Village of Oak Park (1940), 374 Ill. 632, 638.) A fee simple title then vests in the public. The compelling considerations are whether the statute relating to plats is fully complied with, and whether the grant of the land clearly appears on the plat.

Will County cited no statute to either the trial court or to us that was in effect in 1856, the year in which the dedication supposedly occurred. It could not find one. Instead, it argued, an 1857 plat statute controls. Apparently, since an 1857 statute exists, and one could not be found that was in effect in 1856, the former applied. Such an argument displays a lack of diligence. It is nothing more than guesswork, is illogical, and cannot be relied on by the court.

The plaintiff has failed to show that any plat was filed in Will County with a condition dedicating such land for public road purposes. The trial judge correctly found no evidence existed that any landowner of such property ever expressed the desire to grant such land to the public. Certainly, the Georges’ own farm boundaries, running to the middle of Weber Road, as well as their tax payments on such real property are ample evidence of the absence of their intent to grant the property to the public. The record is clear that Will County possesses only an easement for road purposes over that portion of the Georges’ land.

For the reasons stated, that portion of the judgment ordering the acquisition of the approximate three-acre tract at a price of $22,400 is reversed. That part of the judgment finding the Georges’ own fee simple title to the land up to the middle of Weber Road, as well as the declaration of easement in favor of Will County for road purposes thereon, is affirmed.

Affirmed in part; reversed in part.

ALLOY and SCOTT, JJ„ concur.


author: JUSTICE UNVERZAGT

text:
    LARRY WAYNE HEAVNER, Plaintiff-Appellee, v. THE ILLINOIS RACING BOARD et al., Defendants-Appellants.
    Second District
    No. 81-387
    Opinion filed February 16, 1982.
    Tyrone C. Fahner, Attorney General, of Chicago (Patricia Rosen, Assistant Attorney General, of counsel), for appellants.
    Richard H. Balog, of Shearer, Blood, Agrella, Boose and Balog, of St. Charles, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The Illinois Racing Board (hereinafter Board) appeals from the decision of the circuit court of Kane County in an administrative review proceeding in which the circuit court reversed the decision of the Board.

The plaintiff, Larry Wayne Heavner, is the owner of the horse, Brookes Pride, which was a three-year-old and eligible to race in a race known as the Cardinal Stakes. The race was sponsored by the Illinois Department of Agriculture and was to be run on May 28, 1980, at Sportsman Park. The Department of Agriculture sent out notices indicating that entries for the race would be taken on May 16,1980. However, the custom of the racing industry is to make the entry date 10 days—excluding Sundays—before the actual race. The Board’s rule, No. 9.10, provides that:

“In the event there are conflicting published conditions, the more favorable to the nominator [owner or trainer entering a horse] shall govern.”

Accordingly, in order to give the owner the more favorable date, the closing entry date for the Cardinal Stakes was set for May 17 at 6 p.m., instead of May 16. A horse could also have been entered on May 16.

When the entries for the race were closed at 6 p.m. on May 17, the entry box was opened and no entry appeared in the box for Brookes Pride. Sometime later that evening, after the entries were closed, Heavner complained to Phillip Langley, Director of Racing for Chicago Downs Association, that his horse, Brookes Pride, had not been listed as an entry. A horse is entered in a race by completing an entry blank showing the horse’s name, trainer or owner, and the race entered, and depositing the blank by shoving it through a slot in the entry box. Thus the names of the horses entered for any particular race are not known to anyone but the nominator until the entry box is opened. A decision to enter or not to enter a particular race might be influenced by advance knowledge of the competition this horse would face if that information was available to the owner. After discovering that Brookes Pride was not entered in the Cardinal Stakes Heavner did not claim that he himself had entered the horse, but claimed that his trainer, Jim Herman, had done so. Herman testified he placed the entry slip for Brookes Pride in the entry box on Saturday (which would have been May 17) about 2 or 2:30 p.m. (The appellants’ brief is in error in stating that Herman claimed to have entered the horse on May 16. He did not specify in his testimony the date he entered the horse but testified that he entered it on Saturday, about 2 or 2:30 p.m. Saturday was May 17.) Herman had entered another horse in another race at the same time. This entry was found. In a deposition, Herman testified that he, accompanied by two of his employees, Tom Herman and Keith (or Fred) Livingston, went to the racing office about 2 p.m. on Saturday and entered Brookes Pride in the Cardinal Stakes. A thorough search of the racing office and all wastebaskets failed to turn up an entry blank for Brookes Pride.

Since Heavner contended a mistake had been made by the racing officials, Langley referred the matter to the racing stewards who, since no entry for Brookes Pride could be found, declined to enter the horse in the Cardinal Stakes. Heavner then filed another entry blank for Brookes Pride on the theory that he had an alternative entry date, since the weekly bulletin of the Chicago Downs Association (of which Sportsman Park is a member) for the week of May 21 through May 29, showed the entries for the “Cardinal” would close on May 24 for that race. This bulletin was not an official published “condition” of the race, but the date of May 24 was printed in the schedule of events to be run off, if any elimination race was necessary. As explained in the official “conditions” for the race, the actual entry closing date was May 17, unless more than 12 horses entered the race. If more than 12 horses were entered an elimination heat would be required which would be run three days (not including Sundays) before the scheduled race date of May 28. The stewards again rejected the entry for Brookes Pride entered on May 24, holding that all information prior to the entry date of May 17 sent out by the Department of Agriculture had indicated that the closing date would be May 16 (or, as extended by the stewards, May 17) and that an elimination race, or heat, would be necessary only if there were more than 12 horses entered. Since only seven horses (or eight, if Brookes Pride was considered) were entered in the Cardinal Stakes, the alternate date of May 24 was irrelevant. In other words, the stewards held that if less than 12 horses were found to have been entered by May 17, the alternate date of May 24 was irrelevant, since that date was only applicable if an elimination race was required.

After the State stewards had ruled that Brookes Pride had not been properly entered and could not race in the Cardinal Stakes, Heavner sought a temporary restraining order enjoining the management at Sportsman Park from interfering with the running of Brookes Pride in the Cardinal Stakes. The temporary restraining order was granted and Brookes Pride ran in the race and finished second, which entitled his owner to 25% oí the purse, that being in excess of $60,000. Heavner then filed a petition with the Board to review the ruling of the stewards of Chicago Downs Association declining to allow the entry of Brookes Pride in the Cardinal Stakes and withholding the Heavner share of the purse earned by that horse.

At the hearing before the Board, Heavner contended that he should have been allowed to enter Brookes Pride on May 24, since that entry date was printed in the Chicago Downs Bulletin of racing events for the week of May 21 through May 29, which created a conflict of dates and in accordance with the Board’s Rule 9.10 he should have been allowed to use the more favorable date. He also contended, in accordance with Jim Herman’s testimony, that the horse had actually been entered on May 17 and that in any event the Board had waived strict compliance with the entry rules because the State stewards representing the Board and Chicago Downs had violated the Board’s own rules in conducting the race, and thereby lost the authority to enforce such rules. Heavner specified Rules 6.04, 9.10, 9.11 and 12.21 of the Board as having been violated by the stewards and officials at Sportsman Park in the running of the Cardinal Stakes.

Rule No. 6.04 states:

“No official, acting as a judge, shall serve as racing secretary or clerk of the course at such meeting. No race official shall be qualified to act as such at any meeting where he is the owner or otherwise interested in the ownership of any horse participating at such meeting.”

It was shown by the testimony at the administrative hearing that Eliot Narotsky, who was acting as assistant to the racing secretary, Langley, had acted as a patrol judge occasionally at Sportsman Park. The Board held there was no violation of the rule in that, since Narotsky was not “racing secretary.”

As to Rule No. 9.10, to the effect that where there is a conflict in published conditions, the date more favorable to the nominator (Heavner) shall govern, the Board held this rule was not violated since the weekly racing bulletin of the Chicago Downs Association did not constitute a published condition of the race. Moreover, the Board found that Heavner was very well aware of the correct closing date for entries in the Cardinal Stakes and had shown this by his testimony that his trainer, Jim Herman, claimed to have entered Brookes Pride in the race on May 17. Heavner admitted that he had been under the impression that Herman had entered the horse on May 17 and he had commented to other persons that perhaps Herman had “blown it,” thus implying that he had intended to enter the horse on May 17 but had inadvertently failed to do so.

Rule No. 9.11 provides that the “condition books,” that is, the official rules and conditions applying to the particular race, were required to be printed and available to the horse owners at least 24 hours prior to the closing date for entries. The “condition books” for Cardinal Stakes were not available in this case until about 11 p.m. on May 16, whereas these books should have been ready by 6 p.m. on that date to allow 24 hours before the closing date of 6 p.m. on May 17. Heavner testified that he would have entered the horse on May 16, around 6 p.m. when he was present at the racing office if the books had been available. The Board found that there had indeed been a lag of several hours in publishing the condition books but that this was an unavoidable accident due to a breakdown in the Xerox machine, which required several hours to repair. Moreover, the Board pointed out that Heavner had the information published in the condition books available to him in other forms at the racing office on May 16 and had made no inquiry there and did not attempt to enter the horse himself. There was testimony that the horse could have been entered by telephone on May 16, or prior to May 17.

Rule No. 12.21 states in part:

“The entry box shall be opened by the state steward, or his designated representative, at the advertised time. The state steward will be responsible to see that at least one horseman s * * is present.”

Heavner claimed that this rule was violated since it was admitted by Langley that no steward was present when the entry box was opened for the Cardinal Stakes. While Timothy Schmitz, a racing steward, testified that Langley was the “designated representative” of the stewards, Langley admitted that he was not present either, when the entry box was opened. Nor did any State steward testify that he was certain that any horseman had been present when the box was opened. Eliot Narotsky testified that he opened the box and that Langley came into the office soon afterward. Langley in his testimony said:

“I was not present when the box was opened, but I arrived in my office around 6:15, and at some time between 6:15 and 6:30, these entries were placed on my desk, along with the entries for all the other races that night.”

After a lengthy hearing, the Board upheld the decision of the stewards and Heavner filed a complaint for administrative review in the circuit court. In its administrative order upholding the decision of the stewards disqualifying Brookes Pride the Board made no findings as to any alleged violations of the Board’s rules by Chicago Downs Association in the running of the Cardinal Stakes. The Board merely recited the known facts and held that Heavner had not entered his horse by 6 p.m. on May 17, as required by the rules, and that the purse earned by Brookes Pride should be forfeited.

Upon a review of the evidence presented at the administrative hearing, the circuit court reversed the decision of the Board. The court held that the Board is an administrative body operating under specific rules promulgated by the Board in accordance with statutory authority; that among these rules were Rules No. 6.04, 9.10, 9.11 and 12.21; that these rules had been violated in specific ways by the Chicago Downs Association. The court held that Rule 6.04, forbidding a conflict of interest was violated by Eliot Narotsky acting as assistant secretary and a patrol judge; that Rule 9.10 was violated in not allowing Heavner the more favorable entry date of May 24, since that date had also been published; that Rule 9.11 was violated when the “condition books” were not published 24 hours before the entry closings for Cardinal Stakes, and that Rule 12.21 was violated, all to the prejudice of Heavner. The circuit court therefore ruled that the failure of the Board to make any specific findings concerning the violations of its own rules was arbitrary, capricious and unreasonable and an abuse of its discretion. The court ordered that the purse earned by Brookes Pride should be given to Heavner.

In this appeal the Board contends that the circuit court erred in reversing its decision because the Board had presented evidence clearly showing that Heavner had not entered his horse on the required entry date and that as to the violation of or failure to follow certain of its own rules, these rules had been followed according to its own reasonable interpretation thereof, consistent with the known custom and practices of the horse racing industry. Moreover, the Board contended, the alleged failure to follow specifically and exactly certain of the Board rules did not cause Brookes Pride’s disqualification and did not prejudice Heavner, but his own oversight was the cause of the purse being withheld and this was independent of any deficiencies of the Board in not enforcing its own rules.

We find that the Board’s decision was in accord with the manifest weight of the testimony as to whether an entry was found in the entry box for Brookes Pride when the box was opened at 6 p.m. on May 17. Narotsky, who opened the box, testified the entry was not there. No one was able to testify on this point for Heavner, since those contending that the entry was made were not present when the box was opened and Narotsky’s was thus the only testimony on that point.

This leaves for consideration Heavner’s contention that the Board has waived compliance with the racing rules by itself violating certain of these rules and therefore may not invoke the rules against him. While it is familiar law that administrative regulations enjoy a presumption of validity (Du-Mont Ventilating Co. v. Department of Revenue (1977), 52 Ill. App. 3d 59; Armstrong Chemcon, Inc. v. Pollution Control Board (1974), 18 Ill. App. 3d 753), it is equally well established that where an administrative agency adopts rules or regulations under its statutory authority for carrying out of its authorized duties, it is bound by those rules and cannot arbitrarily disregard them or apply them in a discriminate manner. (Service v. Dulles (1957), 354 U.S. 363, 1 L. Ed. 2d 1403, 77 S. Ct. 1152; Citizens to Preserve Overton Park, Inc. v. Volpe (1971), 401 U:S. 402, 28 L. Ed. 2d 136, 91 S. Ct. 814; Holland v. Quinn (1978), 67 Ill. App. 3d 571; Margolin v. Public Mutual Fire Insurance Co. (1972), 4 Ill. App. 3d 661.) In the latter case, the court said:

“Having once established rules and regulations pursuant to statutory authority, an administrative agency is bound by those rules and regulations and may not violate them.” 4 Ill. App. 3d 661, 667.

In the case before us the Board clearly disregarded several violations of its own rules in deciding that Brookes Pride was not properly entered in the Cardinal Stakes. We see no merit to Heavner’s complaint about Rule 6.04 (conflict of interest) since it did not prejudice him in this race. As to Rule 9.10 (regarding the proper entry date), we think the rule was properly interpreted by the Board and applied by the stewards. Rule 9.11 requiring the condition books to be available 24 hours before the closing of the entries was only violated due to an accident and was inadvertent. The breakdown of the Xerox machine was not deliberate or capricious; moreover, it was shown not to have prevented Heavner from entering his horse since the same information was readily available at the racing office. In any event, the horse could have been entered and was supposed to have been entered the next day, which would have been a correct entry date had the entry been made on that date. A violation of administrative rules which does not prejudice the plaintiff and has no effect on the issues involved may be disregarded. Forberg v. Board of Fire & Police Commissioners (1976), 40 Ill. App. 3d 410.

However, we find a serious and reversible error in the Board’s arbitrary application of Rule 12.21. While invoking a portion of that rule (the third paragraph) to justify a refusal to redraw the race as Heavner had requested, the Board completely disregarded that portion of the same rule (first paragraph) which provides as follows:

“The entry box shall be opened by the state steward, or his designated representative, at the advertised time. The state steward will be responsible to see that at least one horseman or an official respresentative of the horsemen is present. * *

The testimony clearly established that no steward was present when the entry box was opened and Langley—who had never been designated as such in writing but who, the steward Schmitz said, was a designated representative of the steward—was not present either. The box was opened by Langley’s assistant, Narotsky. Nor was there any evidence that the part of the rule requiring a horseman or an official representative of the horsemen to be present was complied with. Narotsky could not name any horseman who was “present” when the entry box was opened. Since Brookes Pride’s trainer, Jim Herman, testified that he did put the entry in the box, there was a direct conflict in the testimony as to whether the entry had been placed in the box. But the people designated under the rules to open the entry box and determine what entries were therein could not testify about that because they were not present when the box was opened. Narotsky’s testimony that the Brookes Pride entry was not in the box when opened cannot be used to establish that such was the fact when the rule clearly provides that a State steward or his designated representative—in this case Langley—shall open the box. The Board acted arbitrarily in invoking the third paragraph of Rule 12.21 in its order affirming the decision to withhold the Brookes Pride earnings, while entirely disregarding the first paragraph of that rule requiring a certain person to open the entry box. Whether the Brookes Pride entry was in the box when it was opened was the whole point in controversy. Obviously the rule is designed as a safeguard to make sure that only a responsible person will open the entry box, thus discouraging irregularity. This is a necessary rule to insure the integrity of the entry process, and it cannot be enforced by the Board as to that part which sustains its decision, and ignored as to that part which throws a cloud on its decision. Such action by the Board was arbitrary and unreasonable and since the question of entry was the whole question at issue, it was manifestly prejudicial to Heavner.

The decision of the circuit court of Kane County is therefore affirmed.

Judgment affirmed.

SEIDENFELD, P. J„ and REINHARD, J., concur.


author: JUSTICE ALLOY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT KIRK CARMACK, Defendant-Appellant.
    Third District
    No. 80-545
    Opinion filed February 8, 1982.
    Rehearing denied March 15 and modified opinion filed March 16, 1982.

      Robert Agostinelli and Frank W. Ralph, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Thomas J. Homer, State’s Attorney, of Lewistown (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE ALLOY

delivered the opinion of the court:

Defendant Robert Carmack appeals from his conviction, after a jury trial, for the offense of armed robbery. He was sentenced to a nine-year term of imprisonment for the armed robbery of the Graham Hospital Pharmacy, in Canton. On this appeal the defendant raises issues respecting the denial of his motion to suppress certain evidence seized at his residence, the effectiveness of his trial counsel, an evidentiary ruling by the trial court, and his sentencing.

The pertinent facts in the record indicate that on November 25,1979, the defendant Robert Carmack, wearing a red-quilted jacket and hat, entered the staff pharmacy at Graham Hospital. He was carrying a large dark revolver. He grabbed the staff pharmacist by the arm, stuck the gun in his back and then threatened to kill him unless the pharmacist gave him all of the morphine and dilaudid at the pharmacy. When the narcotics had been turned over to the robber, he told the pharmacist and three other persons there to go to a corner and stay there for two minutes. He told them that he and a friend would kill them if they came out of the pharmacy. Then he left.

On December 12, 1979, a little more than two weeks after the Graham Hospital robbery, a gunman fitting the same description of the hospital robber struck again. The armed robber, wearing a green-quilted nylon jacket, red ski mask and glasses, entered the Canham Pharmacy, on Farmington Road in Peoria County. He was carrying a sawed-off shotgun and he demanded all the morphine and dilaudid at the store. The owner informed him that he had no morphine or dilaudid, but only demerol. After taking that, the robber left.

Then, less than two weeks later, on December 21, 1979, there was a similar armed robbery at the Our X Pharmacy, in the city of Peoria. There a man, matching the description of the person involved in the two previously mentioned robberies, brandished a sawed-off shotgun to the manager of Our X and demanded all the store’s morphine and dilaudid. When the manager explained that he had only demerol, the robber took three bottles of demerol, and he left.

Peoria County sheriff’s deputy Kim Sylvester was investigating the Peoria County robberies. On December 26, 1979, around 4 p.m., he showed a series of photographs to two female employees of the Our X Pharmacy. Both employees picked the defendant Robert Carmack’s picture, stating that his photo looked much like the armed robber. Sylvester, that same afternoon, located and talked with Gene Nelson, manager of the Our X store. Nelson, upon viewing the photographs, made an immediate identification of the defendant’s picture, indicating that it was the robber. This positive identification by Nelson occurred around 6:30 p.m. Deputy Sylvester then returned to the sheriff’s office where he conferred by phone with an assistant state’s attorney about the existence of probable cause to arrest. After determining that he had probable cause to arrest, he then drove to Canton, Illinois, where the defendant was known to reside. Canton is in Fulton County.

Upon arriving in Canton, he met with Canton Police Chief Don Story. Thereafter, he, Story, and several other officers went to the defendant’s residence on Vine Street in Canton. The time was somewhere between 8:30 and 9 p.m. When they arrived, they observed the defendant’s auto parked in the driveway. Sylvester and Story, both in plain clothes, and another uniformed officer went to the front door, while the other officers covered the back door. The officers knocked on the door, and the defendant Carmack answered, opening the door about a foot. The officers showed Carmack their identification, told him they were police officers and that they were there to arrest him. Their guns were drawn. Carmack stepped back and the officers opened the door fully, entering the house. When inside, they informed Carmack they were arresting him for the Peoria County armed robberies. They conducted an immediate pat-down search of Carmack’s person. He was then handcuffed and read his Miranda rights. According to the defendant’s testimony, the police then asked him if he would consent to a search of his residence, to which he refused, asking that they obtain a warrant. The defendant’s wife was at home. Before returning to the station to obtain the warrant, the officers conducted a cursory examination of the other rooms in the residence, to locate any additional persons that might have been present. The officers, at the time, were aware that deadly weapons had been used in the robberies and Carmack, in one robbery, indicated he had an accomplice. The examination of the premises turned up no other person, but during it the officers did notice two ski jackets, similar to those described by the victims of the robberies, lying in plain view.

The defendant was permitted to dress fully and was then taken to the Canton police station, and then the county jail in Peoria. At the police station the officers contacted the State’s Attorney’s office in Canton to make arrangements to obtain a search warrant. Sylvester signed the warrant, giving the information he had received during his investigation and also referring to the nylon jackets observed during the initial search of the house. With the warrant, the officers returned to the Carmack residence and conducted a full search. They seized drug containers, a sawed-off shotgun, a red and white ski mask, the nylon jackets, and a pair of glasses. The articles were later used at the defendant’s trial for the armed robbery of the Graham Hospital.

At the trial for that robbery, numerous persons testified about the circumstances of the robbery. Several persons present, although unable to identify the defendant positively, nevertheless testified that the jacket and glasses seized at defendant’s house matched the apparel worn by the robber. One witness for the State, a pharmacist’s technician, did make an in-court identification of the defendant Carmack as the armed robber. The other State’s evidence came from employees of the Our X Drug Store that had been robbed within weeks after the Graham Hospital robbery. Three employees testified to the specifics of that robbery and then identified Carmack as the perpetrator. The manager of Our X further testified that the articles found in Carmack’s home were similar to those used by the Our X robber. He also identified several drug containers seized in the search as similar to those taken from Our X.

The defense presented no witnesses, and after instructions and argument, the jury returned its guilty verdict. The presentence report indicated that the defendant had three prior felony convictions. The court sentenced him to nine years in prison. From that conviction and sentence the defendant now appeals.

We would note that in the Peoria County cases, which are not before us on this appeal, the defendant eventually negotiated a plea, receiving a seven-year sentence on a guilty plea, with the charges in the other robbery being dropped. Any additional factual development of the Fulton County case will be contained in our treatment of the issues.

The first several issues raised by Carmack all center upon his motion to suppress the evidence seized in the search of defendant’s home, after his arrest. The first issue is whether the court should have suppressed the evidence based upon the police officers’ warrantless, nonconsensual entry into the defendant’s home and the subsequent warrantless arrest there. The defense correctly notes that the United States Supreme Court, in Payton v. New York (1980), 445 U.S. 573,63 L. Ed. 2d 639, 100 S. Ct. 1371, held that the fourth amendment prohibits warrantless entry into the home of a suspect, for the purpose of arrest, unless there is consent to the entry, or unless there exists exigent circumstances which justify proceeding without a warrant. The defense argues that the evidence in the instant case is insufficient to establish either consent or the requisite exigent circumstances. The State responds, arguing initially that the decision in Payton v. New York is to be applied prospectively only (People v. Devine (1981), 98 Ill. App. 3d 914, 424 N.E.2d 823), and that such application should except arrests made prior to the date of that decision. (See, e.g., Desist v. United States (1969), 394 U.S. 244, 22 L. Ed. 2d 248, 89 S. Ct. 1030.) It should be noted, in this regard, that prior to Payton and the decision in People v. Abney (1980), 81 Ill. 2d 159, 407 N.E.2d 543, a warrantless arrest in the home was arguably permissible in Illinois if probable cause for the arrest existed. (See People v. Devine (1981), 98 Ill. App. 3d 914, 918-19; People v. Denwiddie (1977), 50 Ill. App. 3d 184, 365 N.E.2d 978, relying upon People v. Johnson (1970), 45 Ill. 2d 283, 259 N.E.2d 57, cert, denied (1972), 407 U.S. 914, 32 L. Ed. 2d 689, 92 S. Ct. 2445; Ill. Rev.s Stat. 1977, ch. 38, pars. 107—2(c), 107—5(d).) The State, in seeking to affirm the denial of the suppression motion, also alternatively argues that the warrantless arrest of Carmack was justified under the exigent circumstances presented.

However attractive and well reasoned we find the State’s argument concerning the appropriate prospective scope to be given Payton (see Desist v. United States; United States v. Peltier (1975), 422 U.S. 531, 45 L. Ed. 2d 374, 95 S. Ct. 2313), a conclusion applying Payton only to those arrests made after it was decided would have little effect in this or other cases. The reason for that is that the Illinois Supreme Court in People v. Abney (1980), 81 Ill. 2d 159, 407 N.E.2d 543, concluded that under their prior decisions, warrantless arrests in the home were required to be justified by consent or exigent circumstances even before Payton was decided. (People v. Abney (1980), 81 Ill. 2d 159, 167-68. But see People v. Johnson; People v. Devine; People v. Denviddie.) The result is that even were we to conclude that Payton does not apply, because of its prospective application, nevertheless the rule of Payton, as expressly enunciated in Illinois in People v. Abney, would still control. We turn, therefore, to Abney and the question of exigent circumstances.

Abney involved the situation where the victim of a beating had told an investigating officer that he had been attacked by the defendant near the defendant’s home. The beating, administered with an iron bar and a .9-millimeter pistol, occurred only shortly before the officers obtained the information. The victim also told police the assailant’s name and address, informing them he had walked home after the beating. The officers went to the defendant’s residence, arriving about 13£ hours after the assault. They knocked on the door, announcing their office. The door swung open and they entered. A .9-millimeter bullet was in plain view on the couch. The trial court suppressed evidence seized, and the suppression was affirmed on appeal. The supreme court reversed, however, concluding that exigent circumstances were presented which justified proceeding without an arrest warrant. (81 Ill. 2d 159, 169-74.) In the majority opinion, the court set forth various relevant considerations on the question of the presence of exigent circumstances: (1) whether prompt action was needed, due to the nature and timing of the offense or the possibility of the suspect’s escape; (2) whether there was any deliberate or unjustified delay during which time a warrant could have been obtained; and (3) whether the officers reasonably believed the accused was armed and exhibited signs of violent behavior. In addition to these three factors, the court also noted others to be considered: (4) whether there was clear probable cause to arrest; (5) whether there was a clear identification of the accused; (6) whether the officers reasonably believed that the accused was in the premises; and (7) whether the entry was peaceable. The court made it clear that these factors, viewed with the totality of the circumstances, must be considered and balanced when determining whether a warrantless arrest in the home is reasonably justified. The court also emphasized:

“We caution that each case must be decided on the basis of the facts presented. [Citation.] The guiding principle is reasonableness under constitutional provisions governing searches and seizures. [Citations.] In determining whether law-enforcement officials acted reasonably in a given case, courts should be careful to judge the circumstances as known to the officials at the time they acted. [Citation.] Unknown and subsequent unanticipated events, such as the suspect’s peaceful surrender in this case, should not be considered in assessing the propriety of the official’s initial reaction. [Citations.] Finally, lest officials be given free rein, it should be remembered that warrantless police action ‘must be “strictly circumscribed by the exigencies which justify its initiation” [Citations.]” (81 Ill. 2d 159, 173-74.)

With the court’s guidance and admonitions in mind, we turn to the facts involved in the instant case.

Considering the need for prompt action, we first must acknowledge that there is nothing to indicate that the officers had reason to fear Carmack might escape in the time it would have taken to obtain a warrant. However, as to the question of timing, while the most recent robbery was five days previously, it is relevant that Deputy Sylvester had obtained the identification evidence only hours before the arrest. More significantly in this case, the officers were faced with a situation wherein they reasonably believed the defendant had committed a series of drug-related armed robberies in the area within a month. Furthermore, given the object of each robbery (morphine and dilaudid) and the frequency of the robberies, it would have been reasonable to conclude that they were committed to support a drug habit. Given all of these circumstances, the officers could reasonably have believed that the defendant was capable and likely to continue his robbery spree and that the safety of the communities in the area demanded the promptest police action.

As to the second factor, there was no showing of a deliberate or unjustified delay by the officers, during which time a warrant could have been obtained. Officer Sylvester moved promptly after receiving the identification information around 6:30 p.m. He conferred with the State’s Attorney’s office, to assure probable cause for the arrest, and then promptly drove to Canton, where he joined officers there. They arrived at the defendant’s house around 8:30 p.m. Thus, the arrest occurred within three hours after the police received the identification information conclusively establishing probable cause for the arrest. Additionally, we again emphasize that at the time of the arrest, being December 26, 1979, the State’s Attorney and the officer were justified in relying upon their ability to make an arrest of an accused without a warrant, even at his residence, when they had probable cause. Even the United States Supreme Court in Payton recognized that Illinois was one of 24 jurisdictions that permitted warrantless.entries and arrests. (445 U.S. 573, 598, 63 L. Ed. 2d 639, 658, 100 S. Ct. 1371, 1386.) In the instant case, the officers’ reasonable belief that at the time their actions conformed to the law is a circumstance to be taken into consideration in determining the reasonableness of their actions. In any event, we find no deliberate or unjustified delay.

The third factor, focusing upon the dangerousness of the suspect, is solidly supportive of prompt action, for the officers had ample reason to believe the suspect was armed and potentially dangerous. He had used a sawed-off shotgun in two robberies and a revolver in the other. He had threatened to kill more than one person during the commission of the robberies. His focus in all of the robberies was hard narcotics. The officers were justified in proceeding upon an assumption that they were dealing with a dangerous individual. Additionally, there was strong and clear probable cause for the arrest, based upon a positive identification of the defendant as the armed robber. The Canton police knew where his residence was located in the city, and when the officers arrived, Car-mack’s auto was in the driveway. Finally, while the entry was made with guns drawn, a precaution unquestionably justified under the circumstances, the officers did knock, announce their presence, and then entered only after the defendant had responded and opened the door. There was no unannounced forcible entry through the door, and except for the reasonable precaution of drawn guns, the entry was peaceful.

Giving due consideration to the above-mentioned factors, and to the overall circumstances of the situation at the time of the arrest, we conclude that the arrest, without a warrant, was reasonable and not violative of the fourth amendment.

After the arrest, the police conducted a room-by-room search of the house to secure it. There was testimony both that another person was known to stay at or visit the house frequently and that Carmack had boasted of a dangerous accomplice in his robbery of Graham Hospital. No items were seized during the search for other persons, although certain items in plain view were noticed. After determining that no other suspects were present on the premises, two officers stayed with the defendant’s wife, while several returned to get a search warrant. The warrant was later issued and various items of evidence seized. The defense contends that even if the arrest was legal, the evidence ought to have been suppressed because it was the fruit of the warrantless visual search for other persons at the time of the arrest. We agree, however, with the trial court and the State that the search was incident to Carmack’s arrest and reasonable under the circumstances. In People v. Williams (1974), 57 Ill. 2d 239, 246, 311 N.E.2d 681, the Illinois Supreme Court noted that such questions must be determined on the particular facts of each case, with consideration given the presence of weapons or other persons who might pose a threat to the officers in making the arrest. In the case at bar it was reasonable to conduct the house search, where the police reasonably believed a dangerous accomplice might have been staying at the house. The court, in Abney, cautioned against judging police actions based upon knowledge acquired after the fact. Here, given the situation presented to them, the search of the house was reasonable. It is relevant also, to the reasonableness of the search, that no items were seized during it and that it was strictly limited to the purpose of searching out other persons. Prior to a full search of the premises, the police obtained a warrant, the sufficiency of which is unchallenged.

The defendant’s next argument seeking a suppression of the evidence focuses upon the decision of the trial court in the related Peoria County cases, based upon the other two robberies. In the initial Peoria County prosecution, which began prior to pretrial matters in the Fulton County case before us, the trial court had denied the motion to suppress. The case proceeded then to a guilty verdict after jury trial. On post-trial motion, the defense argued that the Payton decision required that certain evidence be suppressed because of the warrantless arrest of the defendant in his Canton home. The trial court agreed, and on July 18 it reversed its earlier decision on the suppression motion, and it ordered a new trial without that evidence. In the case at bar, the Fulton County case, arguments on the suppression motion were heard on July 17, and on July 21 the trial court in Fulton County entered its order denying the motion to suppress. The defense now argues that the Peoria County decision collaterally estopped the Fulton County State’s Attorney, in the Fulton County case, from relitigating the fourth amendment issue of the reasonableness of the arrest. Though the issue was not raised in the trial court, the defense contends for application of the plain error doctrine (Ill. Rev. Stat. 1977, ch. 110A, par. 615). We disagree.

The doctrine of collateral estoppel, in the criminal context, was aptly stated by the Illinois Supreme Court in People v. Ward (1978), 72 Ill. 2d 379, 382, 381 N.E.2d 256:

“ * * “The doctrine of collateral estoppel, which bars relitigation of a decided question, applies to criminal as well as civil proceedings. [Citations.] This was noted in Ashe v. Swenson, 397 U.S. 436, 25 L. Ed. 2d 469, 475, 90 S. Ct. 1189, where, in the course of describing the doctrine, the court said:
‘ “ Collateral estoppel” is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. »*<*’* <**”« * »’ ”

As to the requirement of a valid and final judgment, the court noted in Relph v. Board of Education (1981), 84 Ill. 2d 436, 442-44, 420 N.E.2d 147, that finality, for purposes of applying res judicata (including therein collateral estoppel), required that the potential for appellate review had been exhausted. So long as the cases in question remained subject to appellate review, that is, so long as they were in the appellate process, the legal decisions therein were merely law of the case in the individual cases, and could not be the basis for application of res judicata. The primáry problem with the decision sought to be relied upon by the defendant, that being the decision in the Peoria County case, is that there had been no final judgment in that case. The time for appeal of the court’s decision had not run. At the time the Fulton County court heard arguments on the suppression motion, the Peoria County ruling had not been handed down. When the Fulton County decision was made, the Peoria County decision was not final, in that it was subject to possible review on the appellate level. Thus, the basic requirement for application of the doctrine of collateral estoppel was lacking.

Since collateral estoppel did not apply to the Fulton County case on the motion to suppress, we find no plain error in failing to apply it. Nor can we conclude that the failure of trial counsel to raise the inapplicable doctrine constituted ineffective assistance of counsel. Pertinent thereto as well is the fact that the hearing on the suppression question in Fulton County was held before any decision had been reached on the post-trial motion in the Peoria County case.

The next issue raised by the defense is whether the court erred in refusing to admit into evidence certain altered photographs, which the defense wished to use for impeachment purposes. The State had shown, in its case in chief, that certain witnesses had identified the defendant’s photograph from a photographic lineup. The defense wished to bring forth that several of those witnesses had been unable to identify the defendant’s photograph from a photo lineup, where the photographs had been altered by a police artist so as to depict the robber as wearing a cap, glasses, and. a “blotched” lower face. The trial court denied admission to the artist-altered photographs. Under the recent Illinois Supreme Court case of People v. Rogers (1980), 81 Ill. 2d 571, 411 N.E.2d 223, out-of-court identification evidence is admissible, if certain requirements are met so as to sidestep hearsay problems. (81 Ill. 2d 571, 579-81.) Rogers held that artists’ sketches would be admissible where they were adequately authenticated and where the declarant, upon whose statements the sketch was based, testified and was thereby subjected to cross-examination. Rogers itself dealt with such evidence being used by the State to corroborate a witness’ in-court and lineup identifications. However, its basic reasoning applies as well when such evidence (sketches or artist-altered photographs) is sought to be used for impeachment purposes. People v. Tyllas (1981), 96 Ill. App. 3d 1, 4, 420 N.E.2d 625; People v. Schmitt (1981), 99 Ill. App. 3d 184, 424 N.E.2d 1267.

In the instant case, photographs of the defendant had been altered to conform to the descriptions given by various witnesses to the robberies. The altered photographs had then been shown to the witnesses for identification. The witnesses were unable to identify the altered photographs as being of the perpetrator of the robberies. It is clear that this failure to identify the altered photographs of the defendant had substantial probative value and that the photos should have been admitted into evidence for impeachment purposes. Whatever the foundation requirements are with respect to police sketches (compare People v. Tyllas (1981), 96 Ill. App. 3d 1, 420 N.E.2d 625, with People v. Schmitt (1981), 99 Ill. App. 3d 184, 424 N.E.2d 1267), a proper foundation existed in the instant case. In the first place, these were altered photographs, not police sketches, and the original photographs had been identified by the witnesses. Secondly, the State had offered the original photographic lineup into evidence to support its presentation, and it had also asserted, in argument, that the altered photographs did indeed strongly resemble the defendant. Under the circumstances, the altered photographs should have been admitted into evidence for impeachment purposes. However, because the evidence of guilt is so overwhelmingly against the defendant, this error by the trial court in denying admission of the altered photographs was harmless.

The final issues raised concern the sentencing. The trial court, in sentencing the defendant to a nine-year term, found as aggravating factors that the defendant had received compensation for committing the offense and that his conduct had threatened serious harm to another. (Ill. Rev. Stat. 1979, ch. 38, par. 1005—5—3.2.) As to the finding with regard to compensation for the offense, under People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906, that finding was improper, since the only compensation was the proceeds from the armed robbery. While the finding was improper, we find no reversible error therein. As to the second aggravating factor, the threat of serious harm, we find no error in the court’s reliance thereon in sentencing. (People v. Robinson (1980), 89 Ill. App. 3d 211, 411 N.E.2d 589.) While armed robbery, by definition, involves the use of force or threat of its use (Ill. Rev. Stat. 1979, ch. 38, par. 18—2), it does not necessarily follow that a threat of serious harm is always involved. In the instant case, the presence of the revolver, stuck in the pharmacist’s back, provided the use of force and its threatened use. In addition, the defendant expressly threatened the victims of the robbery with death. That threat is not inherent in the offense of armed robbery, and it is cognizant under section 5—5—3.2, which permits a trial court to consider as an aggravating factor that the defendant threatened serious harm. We find no error in the court’s consideration of the defendant’s conduct in arriving at its sentencing decision. Moreover, even were we to find that this factor was improperly considered, the sentence by the trial court would still stand. Given the facts and circumstances of the armed robbery herein, plus the evidence that the defendant had three prior felony convictions, the nine-year sentence was clearly justified. We find no abuse of discretion and no reversible error.

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

Affirmed.

BARRY and STOUDER, JJ., concur.

Addendum to Opinion

Pursuant to petition for rehearing and upon a reconsideration we have determined that this cause is affirmed but it is remanded to the Circuit Court of Fulton County, solely for the purpose of resentencing.

Affirmed and remanded.