text:
    CARDINAL GLASS COMPANY, Plaintiff-Appellant, v. BOARD OF EDUCATION OF MENDOTA COMMUNITY CONSOLIDATED SCHOOL DISTRICT NO. 289, Defendant-Appellee.
    Third District
    Nos. 82—427, 82—406 cons.
    Opinion filed March 22, 1983.

      Robert E. Roman, Jr., of DeBruyne & Roman, EC., of Rockford, for appellant.
    Bennet Rodick and Jerome N. Robbins, both of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Chicago, for appellee.
   JUSTICE ALLOY

delivered, the opinion of the court:

Plaintiff Cardinal Glass Company (hereinafter Cardinal) appeals from the order of the circuit court of La Salle County, granting defendant Board of Education of Mendota Community Consolidated School District No. 289 (hereinafter Board) judgment on the pleadings in Cardinal’s mandamus action against the Board. Plaintiff Cardinal, through the mandamus action, sought to compel the Board to award it the window replacement contract on a school district building, as the lowest responsible bidder on the project pursuant to section 10— 20.21 of the Illinois School Code (111. Rev. Stat. 1981, ch. 122, par. 10 — 20.21). The trial court entered judgment on the pleadings in favor of the Board. Prior to that action, it had denied Cardinal’s motion for a preliminary injunction to prevent the Board’s awarding the contract to another bidder. From the denial of the motion for preliminary injunctive relief and from entry of judgment against it on the pleadings, Cardinal appeals.

A motion for judgment on the pleadings (Ill. Rev. Stat. 1981, ch. 110, par. 45(5), now Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615(e)) attacks, as a matter of law, the sufficiency of plaintiff’s complaint to state a cause of action. Abrams v. Illinois College of Podiatric Medicine (1979), 77 Ill. App. 3d 471, 475, 395 N.E.2d 1061.

“The motion is not concerned with whether there is evidence to support the allegations in the complaint [citation], and it does not envision a review of material beyond the face of the pleadings themselves [citation]. Rather, the sole issue raised by the motion for judgment on the pleadings is whether plaintiff’s complaint, when read in light of the defendant’s answer [citation], raises a material question of fact as to the existence of a cause of action. For purposes of resolving this issue, we must accept as true the well-pleaded facts in the complaint [citation], together with all reasonable inferences to be drawn therefrom [citation].” (77 Ill. App. 3d 471, 475-76.)

The pertinent facts, as pleaded in Cardinal’s complaint, indicate that Cardinal and another contractor, Dick’s Contracting, had submitted sealed bids for a window replacement contract as advertised by the Board. Cardinal’s bid was lower than Dick’s, and both were in excess of the $5,000 statutory minimum. The complaint also contained an allegation that Cardinal was a responsible bidder and had complied with all the requirements set forth by the Board concerning the submission of a bid on the project. Cardinal also set forth in its complaint the Board’s statutory duty, under section 10 — 20.21 of the School Code (111. Rev. Stat. 1981, ch. 122, par. 10 — 20.21), to award the contract for the window work to the “lowest responsible bidder.” It is alleged that the Board refused to award Cardinal the contract, and instead awarded it to Dick’s Contracting, which had submitted a higher bid. By way of amendment to the complaint, Cardinal alleged that the Board had indicated to it, at the meeting to award the contract, that the only reason for awarding the contract to Dick’s was that Dick’s was a local contractor, and the Board wished to keep the money in the community. Cardinal alleges that this decision is an arbitrary and capricious exercise of the Board’s discretion, and contrary to the law. Cardinal alleged injury, from a loss of profits, and prayed for a writ of mandamus commanding the Board to award the contract to it.

Cardinal also moved for preliminary injunctive relief, to prevent the Board from awarding the contract to Dick’s, until further court action in the instant case. A hearing on that motion was held, during which evidence was taken. Testimony at the hearing by members of the Board who had acted on the contract award indicated that the Board preferred Dick’s to Cardinal because Dick’s was a local contractor, and thus the money could be kept in the community, and because a local contractor for the job would facilitate better service and maintenance on the windows after installation. Another member of the Board testified that he preferred the type of window Dick’s would use over that used by Cardinal, believing the former to be a better window. For the plaintiff, Cardinal’s vice-president testified that he was informed at the Board meeting that the only reason for the Board’s action was that it wanted to keep the money in the local community. The court, after considering the evidence, found that there was an absence of irreparable injury and a lack of probability of success on the merits, and accordingly denied the motion for preliminary relief. Notice of appeal was filed in connection with the denial of the motion.

Thereafter, the court granted the Board’s motion for judgment on the pleadings, stating as the basis for such judgment that Cardinal lacked standing to complain of the Board’s action. A notice of appeal from that judgment was also timely filed. The appeals were consolidated.

The threshold issue is whether Cardinal, as an unsuccessful bidder for the contract, has standing to complain of the Board’s alleged violation of the statutory provision requiring contracts to be awarded to the lowest responsible bidder. (111. Rev. Stat. 1981, ch. 122, par. 10 — 20.21.) The trial court, agreeing with the Board, found that Cardinal had no standing. It relied, in substantial part, upon the decision in Beaver Glass & Mirror Co. v. Board of Education (1978), 59 Ill. App. 3d 880, 376 N.E.2d 377. There, the court found that the statutory provision was enacted solely for the protection of taxpayers residing within a school district, and not for the benefit of contractors who are unsuccessful bidders. (59 Ill. App. 3d 880, 884.) The general rule of standing pertinent hereto was stated in Lynch v. Devine (1977), 45 Ill. App. 3d 743, 748, 359 N.E.2d 1137:

“Where the suit alleges injury due to violation of a statute, the doctrine of standing requires that the plaintiff be one of the class designed to be protected by the statute, or for whose benefit the statute was enacted, and to whom a duty of compliance is owed. [Citations.] The object of the statute, the nature of the duty imposed by it, and the benefits resulting from its performance dictate what persons are entitled to sue thereunder. [Citation.]”

The pertinent statutory provision here (111. Rev. Stat. 1981, ch. 122, par. 10 — 20.21) states:

“Contracts. To let all contracts for supplies, materials or work or contracts with private carriers for transportation of pupils involving an expenditure in excess of $5000 to the lowest responsible bidder after due advertisement, except contracts which by their nature are not adapted to award by competitive bidding, such as contracts for the services of individuals possessing a high degree of professional skill where the ability or fitness of the individual plays an important part, contracts for the printing of finance committee reports and departmental reports, contracts for the printing or engraving of bonds, tax warrants and other evidences of indebtedness, contracts for utility services such as water, light, heat, telephone or telegraph, contracts for materials and work which have been awarded to the lowest responsible bidder after due advertisement, but due to unforeseen revisions, not the fault of the contractor for materials and work, must be revised causing expenditures not in excess of 10% of the contract price and contracts for the purchase of magazines, books, periodicals, pamphlets and reports, and except where funds are expended in an emergency and such emergency expenditure is approved by 3k of the members of the board. All competitive bids for contracts involving an expenditure in excess of $5000 must be sealed by the bidder and must be opened by a member or employee of the school board at a public bid opening at which the contents of the bids must be announced. Each bidder must receive at least 3 days’ notice of the time and place of such bid opening. For purposes of this Section due advertisement includes, but is not limited to, at least one public notice at least 10 days before the bid date in a newspaper published in the district, or if no newspaper is published in the district, in a newspaper of general circulation in the area of the district.”

It must be accepted, as noted in Beaver Glass, that a principal purpose of this provision is the protection of taxpayers residing within the school district. Nevertheless, the statute does establish procedures benefiting the bidders as well. Boards are required to advertise bid contracts with advance public notice, and such bids must be sealed. A bidder is to receive notice of the time and place for opening of the bids and may be present at the public bid opening where their contents must be announced. These measures, while inuring indirectly to the benefit of the taxpayers by providing for competitive bidding, also directly benefit and protect the bidders themselves. The duty to award the contract to the lowest responsible bidder is owed both to the taxpaying public and to the bidders, who are made an integral part of the statutory scheme. As a practical matter, securing compliance with the statute, and thereby the benefits to taxpayers, will be more effectively handled by unsuccessful bidders, who for the most part have a greater stake in such matters, and greater resources, than an individual taxpayer. In the long run, permitting such suits by bidders will work to advance the public interest behind the statute by securing the goal of tax savings. In an individual case, it may have the effect of causing additional expenditure by a board which has violated the statute (see Beaver Glass & Mirror Co. v. Board of Education (1978), 59 Ill. App. 3d 880, 884), but in a broader picture, giving standing to the bidders where the statute has been violated will advance the object of the statute. We find that unsuccessful lowest responsible bidders are within the zone of protection afforded by section 10 — 20.21, and where the Board violates the section by awarding a contract to another bidder, the unsuccessful lowest responsible bidder has standing to challenge that action. We note that other Illinois courts have permitted such challenges under similar bidding statutes (S. N. Neilsen Co. v. Public Building Com. (1980), 81 Ill. 2d 290, 410 N.E.2d 40; Brunsfeld v. Board of Education (1977), 54 Ill. App. 3d 119, 369 N.E.2d 283), although in those cases the standing issue was not addressed. We respectfully disagree with the decision in Beaver Glass. Cardinal has standing, as the alleged unsuccessful lower responsible bidder, to challenge a violation of the statute by the Board.

We turn next to the issue of whether Cardinal’s complaint stated a cause of action sufficient to afford mandamus relief. The Board argues that Cardinal’s complaint was insufficient, in that a discretionary decision is involved and there is no allegation of fraud or lack of jurisdiction. The Board cites People v. Omen (1919), 290 Ill. 59, 124 N.E. 860, Oscar George Electric Co. v. Metropolitan Fair & Exposition Authority (1982), 104 Ill. App. 3d 957, 433 N.E.2d 958, and Arthur Weil & Co. v. Board of Education (1977), 49 Ill. App. 3d 649, 364 N.E.2d 542. While Omen itself stated that broad rule with respect to discretionary actions by boards of education, it did not address the statutory provision herein at issue. However, it was cited in Oscar George and Arthur Weil, which were cases based upon this or a similar statutory provision. There is no question that the award of a contract to a bidder involves the exercise of discretion on the part of the Board, which discretion will not normally be interfered with by the courts. However, the Board’s suggestion that the courts will only interfere where fraud or lack of jurisdiction is shown, is mistaken. This court stated in Kermeen v. City of Peoria (1978), 65 Ill. App. 3d 969, 972, 382 N.E.2d 1374:

“That, however, is not the end of the matter. If a discretionary power is exercised with manifest injustice or if a palpable abuse of discretion is clearly shown, mandamus will issue. [Citations to Illinois State Board of Dental Examiners v. People ex rel. Cooper (1887), 123 Ill. 227, 241, 13 N.E. 201; People ex rel. Collins v. Young (1967), 83 Ill. App. 2d 312, 227 N.E.2d 524; and People ex rel. Shell Oil Co. v. City of Chicago (1972), 9 Ill. App. 3d 242, 292 N.E.2d 84.]”

The rule was also applied, although in an entirely different context, in Tedder v. Fairman (1981), 93 Ill. App. 3d 948, 956-57, 418 N.E.2d 91. (But see Arthur Weil & Co. v. Board of Education (1977), 49 Ill. App. 3d 649, 364 N.E.2d 542.) In addition, the Illinois Supreme Court, in S. N. Neilsen Co. v. Public Building Com. (1980), 81 Ill. 2d 290, 299, 410 N.E.2d 40, quoted with approval from 10 E. McQuillin, Municipal Corporations sec. 29.73a, at 429-30 (3d ed. 1966):

“ ‘In proper circumstances a contract may be awarded to one who is not the lowest bidder, where this is done in the public interest, in the exercise of discretionary power granted under the laws, without fraud, unfair dealing, or favoritism, and where there is a sound and reasonable basis for the award as made.’ ” (81 Ill. 2d 290, 299.)

While it is clear that under the statute the Board has discretion to determine who is the lowest responsible bidder, and that it need not be the lowest bidder in terms of contract price, nevertheless, under the statute, the Board has the duty to award the contract to the lowest responsible bidder and that bidder, having so established himself, has a right to be awarded the contract.

In the instant case, the facts, taken as true from plaintiffs complaint, indicate that Cardinal was the lowest responsible bidder and that the sole reason for favoring Dick’s Contracting, a higher bidder, was because the Board wished to keep the money in the community. If, as the pleadings indicate, the sole reason for not awarding the contract to Cardinal, when it was the lowest responsible bidder, was the Board’s desire to keep the contract moneys in the community, such action would indicate clear favoritism, without adequate and sufficient justification, and would constitute arbitrary and capricious action, and a clear violation of the statutory mandate.

We also believe the trial court erred in denying temporary injunctive relief. This is a separate but related issue. As noted earlier, the trial court denied such temporary injunctive relief because the plaintiff lacked standing and would not probably succeed in proving entitlement to the principal relief sought. Obviously once the trial court concluded the plaintiff had no standing to bring the action, the probability of success was not only unlikely but impossible in the view of the trial court. The trial court could not have concluded once it resolved the standing issue against the plaintiff there was any likelihood of success and consequently there was no reason for awarding the temporary injunctive relief. Since we have found the trial court erred in its basic conclusion regarding the plaintiff’s standing, the conclusion based thereon that the temporary injunctive relief was improper is also in error.

For the foregoing reasons, the judgments of the circuit court of La Salle County are reversed and this cause is remanded for further proceedings in accordance with the views expressed herein.

Reversed and remanded with directions.

STOUDER, P.J., and SCOTT, J., concur.


source: Caselaw Access Project

author: JUSTICE LINDBERG

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL F. BORN III, Defendant-Appellant.
    Second District
    No. 82—158
    Opinion filed March 15, 1983.

      Williard B. Widerberg, of Elgin, and Robert E. Haeger, of West Dundee, for appellant.
    Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

After a jury trial in the circuit court of Kane County, defendant Paul E Born III was convicted of two counts of unlawful use of weapons (111. Rev. Stat. 1979, ch. 38, par. 24 — 1) and one count of unlawful possession with intent to deliver cannabis (111. Rev. Stat. 1979, ch. 56V2, par. 705(e)). Although sentenced on all three counts, defendant appeals only from the cannabis conviction, for which he was sentenced to four years incarceration and fined $3,000.

Defendant seeks reversal of his conviction for unlawful possession with intent to deliver cannabis and remandment for an evidentiary hearing to determine whether the search warrant, under which the cannabis was found in his residence, was issued pursuant to probable cause. He requests the evidentiary hearing in order to refute the veracity of the John Doe affidavit which served as the basis for the issuance of the search warrant. Defendant contends that the trial court erred in denying his motion for such an evidentiary hearing.

The facts relevant to this appeal are not in dispute. On February 23, 1981, an individual using the alias of John H. Doe went before the circuit court of Kane County and signed an affidavit in support of the State’s complaint for a search warrant for the residence of defendant at 916 Douglas Avenue in Elgin. The anonymous affiant alleged that he had been a friend of defendant for 17 years, and that defendant resided at 916 Douglas Avenue in Elgin for about 15 years. He further alleged that he had visited defendant often at this address, including at about 9:30 a.m. on February 23, 1981, when he personally observed the following items: a number of bottles containing Valium and amphetamines; large amounts of marijuana contained in clear bags; an amount of cocaine in small plastic bags; two machine guns; and four stolen slot machines. The affiant further indicated the basis upon which he believed the items were what he purported them to be.

Based upon the State’s complaint, a search warrant was issued for defendant’s residence and executed at 5:30 p.m. on February 23, 1981. Among the items seized were several plastic bags containing cannabis. After being indicted with the offenses of which he was later convicted, defendant moved to quash the search warrant and to suppress the evidence seized pursuant to it. In a hearing on this motion, defendant contended that the John Doe affidavit in support of the search warrant lacked veracity. In regard to the seized cannabis, the trial court ruled that the search warrant was valid and that sufficient probable cause was shown to permit its issuance. In making this ruling, the trial court refused to look beyond the four corners of the complaint for the warrant. The court held that the United States Supreme Court case of Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, which mandates post-search hearings on veracity of séarch warrant affidavits under certain conditions, was inapplicable where, as here, the challenged affiant is not a governmental official. The court admitted the evidence of the seized cannabis at trial, and it was upon this basis that defendant was found guilty of unlawful possession with intent to deliver cannabis.

Defendant on appeal challenges the issuance of the search warrant under which the cannabis was found in his home. He contends that the trial court erred in denying his request for an evidentiary hearing for determining the veracity of the affidavit of John H. Doe, which provided the major support for the search warrant. It is defendant’s position that such a hearing should have been granted under the rule of Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674.

The trial court based its refusal to grant an evidentiary hearing for determining the veracity of the affidavit in support of the search warrant upon its finding that the affiant was a nongovernmental official and its conclusion that Franks did not mandate a hearing where the affiant is a nongovernmental official.

It was well established in Illinois before Franks that a defendant may not impeach the veracity of the sworn statement upon which a search warrant was issued (People v. Bak (1970), 45 Ill. 2d 140, cert. denied (1970), 400 U.S. 882, 27 L. Ed. 2d 121, 91 S. Ct. 117; People v. Stansberry (1971), 47 Ill. 2d 541, cert. denied (1971), 404 U.S. 873, 30 L. Ed. 2d 116, 92 S. Ct. 121). The United States Supreme Court in Franks held that an absolute ban upon post-search impeachment of veracity is not justified and that under certain circumstances such impeachment must be permitted. (Franks v. Delaware (1978), 438 U.S. 154, 155-56, 57 L. Ed. 2d 667, 672, 98 S. Ct. 2674, 2676.) The holding in Franks represents a limited exception to the general rule of Bak and Stansberry, a rule which otherwise remains good law. (People v. Laws (1981), 84 Ill. 2d 493; People v. Townsend (1980), 90 Ill. App. 3d 1089, 414 N.E.2d 483.) Thus, the first question here is whether the Franks exception encompasses a challenge to the veracity of a nongovernmental affiant.

The language of the Franks opinion itself does not appear to make any distinction between governmental and nongovernmental affiants. The court announced its rule as follows:

“[Wjhere the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.” Franks v. Delaware (1978), 438 U.S. 154, 155-56, 57 L. Ed. 2d 667, 672, 98 S. Ct. 2674, 2676.

The court further stated that “[t]he deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.” 438 U.S. 154, 171, 57 L. Ed. 2d 667, 682, 98 S. Ct. 2674, 2684.

The quoted passages refer to “the affiant” without any classification of affiants according to whose sworn statements may or may not be challenged. At no point does the court require a showing that the challenged affiant be a governmental employee. The second quoted sentence denies extension of Franks to challenges of statements of unsworn nongovernmental informants. As an affiant, the John H. Doe in the present case does not appear to be excluded from the rule of Franks whether or not he is nongovernmental.

Since Franks, the Supreme Court has not directly addressed the issue of whether that decision was intended to apply where the affiant is not a governmental employee. However, in Hall v. Illinois (1978), 438 U.S. 912, 57 L. Ed. 2d 1157, 98 S. Ct. 3138, the court summarily vacated the judgment of the Illinois Appellate Court in People v. Hall (1977), 45 Ill. App. 3d 469, 359 N.E.2d 1191, and remanded for further consideration in light of Franks. Unlike Franks, where the challenged affiants were police officers, but like the present case, the challenged affiant in Hall was an anonymous “John Doe.” Although not conclusive, the action of the Supreme Court in vacating and remanding Hall indicates its willingness to apply the Franks rule to challenges to anonymous affiants.

The Illinois courts also have not directly addressed the issue of whether Franks was intended to apply where the affiant is not a governmental employee. However, it should be noted that in at least two cases the Illinois Appellate Court has given consideration to a defendant’s request for a Franks evidentiary hearing where the challenged affiant was an anonymous informant. (People v. Anderson (1979), 74 Ill. App. 3d 363, 392 N.E.2d 938; People v. Hall (1979), 66 Ill. App. 3d 891, 384 N.E.2d 578, cert. denied (1980), 444 U.S. 1012, 62 L. Ed. 2d 641, 100 S. Ct. 660.) In each of those two cases, the court denied the request for an evidentiary hearing on some basis other than the fact that the affiant was not a governmental employee. Cf. Mason v. State (Fla. App. 1979), 375 So. 2d 1125, 1129 (where the court determined that the defendant’s motion challenging the veracity of a private citizen affiant fell short of a “substantial preliminary showing” of falsity under Franks while assuming without deciding that the Franks requirements would apply equally to private citizens as well as governmental officers who execute warrant affidavits).

The State argues that Franks should be construed as applicable only to governmental affiants because the exclusionary rule exists primarily to deter misconduct by the State, not misconduct by private parties. (See Franks v. Delaware (1978), 438 U.S. 154, 165-66, 57 L. Ed. 2d 667, 678-79, 98 S. Ct. 2674, 2681-82.) It also argues that permitting post-search challenges to private affiants disserves public policy by discouraging the police from placing their private citizen informants on the stand. Although these arguments might be persuasive if this court were initially devising the proper rule for permitting post-search challenges to warrant affidavits, they do not permit us to create an exception to Franks applicability which the language of the Franks opinion does not appear to permit. (See 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment sec. 4.4, at 64-65 (1978), wherein it is argued that falsity by a private person affiant should not be subject to post-warrant challenges while it is conceded that challenges to private person affiants come within the holding of Franks.) The court in Franks noted that the rule it announced “has a limited scope” (438 U.S. 154, 167, 57 L. Ed. 2d 667, 679, 98 S. Ct. 2674, 2682), and specified in detail the requirements a defendant must meet to mandate an evidentiary hearing. Under such circumstances, this court will not hold that when the Supreme Court said “affiant” it did not mean every affiant. Rather, we hold that the trial court’s conclusion that Franks did not encompass challenges to nongovernmental affiants was error.

Defendant would assign error not only in the trial court’s conclusion that Franks does not apply to nongovernmental affiants, but also in the trial court’s finding that John H. Doe in this case was nongovernmental. There is no evidence on record as to John H. Doe’s status as a governmental employee. The challenged affidavit is silent on this point. The assistant State’s Attorney maintained before the trial court that the affiant was not a governmental official. It has been held that sufficient supporting facts beyond conclusory statements by the State must be presented to establish an informant as a private citizen informant. (People v. Carton (1981), 95 Ill. App. 3d 937, 420 N.E.2d 753; People v. Tatman (1980), 85 Ill. App. 3d 274, 406 N.E.2d 619.) Although Carton and Tatman were decided in the context of the distinction between the reliability of unsworn private citizen informants and unsworn paid police informants, the same principle is applicable here. With no facts whatsoever on record to establish that John H. Doe here was not a governmental official, the trial court’s finding that he was not was error.

A ruling by this court that the trial court erred in its holding that Franks did not apply because the challenged affiant was not a governmental official does not alone warrant a remand for the requested evidentiary hearing. Franks held that an evidentiary hearing is mandated by the fourth amendment only when a defendant had made a “substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and [that] the allegedly false statement is necessary to the finding of probable cause.” (Franks v. Delaware (1978), 438 U.S. 154, 155-56, 57 L. Ed. 2d 667, 672, 98 S. Ct. 2674, 2676.) Thus, the second question here is whether defendant has met his burden under Franks for qualifying for the requested evidentiary hearing.

In its Franks opinion, the Supreme Court elaborated upon the nature of a defendant’s burden when challenging the veracity of a warrant affidavit:

“There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence of innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing. Whether he will prevail at that hearing is, of course, another issue.” 438 U.S. 154, 171-72, 57 L. Ed. 2d 667, 682, 98 S. Ct. 2674, 2684-85.

Moreover, mere denials by the defendant of the facts alleged by the affiant cannot meet the defendant’s burden. (People v. Coleman (1980), 91 Ill. App. 3d 646, 415 N.E.2d 553; People v. Anderson (1979) , 74 Ill. App. 3d 363, 392 N.E.2d 938.) “To require a full evidentiary hearing in which the supporting affidavit for a warrant would be challenged solely on the basis of an unsupported denial by a defendant of crucial facts in that affidavit would effectively permit a challenge in every case. That was not the intent of Franks.” People v. Coleman (1980) , 91 Ill. App. 3d 646, 650-51, 415 N.E.2d 553, 557.

In the affidavit in support of the State’s complaint for a search warrant, John H. Doe alleged various facts to the effect that he knew defendant well, had been at defendant’s home on the morning of February 23, 1981, and had then observed there items which he knew to be Valium, amphetamines, marijuana, cocaine, two machine guns, and four stolen slot machines. The State’s complaint also included an affidavit of an Elgin policeman that he knew that defendant lived at the address John H. Doe alleged the defendant lived. Defendant’s “Amended Motion to Quash Warrant, For Evidentiary Hearing on the Issuance of the Search Warrant and to Suppress Evidence Obtained Therefrom” contained various allegations of the defendant and two affidavits in support of his request for an evidentiary hearing.

The major thrust of defendant’s challenge to the veracity of John H. Doe’s affidavit is that the affiant was not at defendant’s home on the morning of February 23, 1981, as alleged and therefore could not have seen the items and used the drugs he claims to have seen and used at that time and place. Defendant supports his challenge with the affidavit of his minor son, Vincent Born, that alleges that Vincent was awake at defendant’s home from about 7 a.m. to about 11 a.m. and that during that time no one other than himself and his parents were present in the home. Defendant also denies in his verified motion the presence and activities of John H. Doe in his home during the day in question.

Defendant disputes Doe’s allegation of the presence of cocaine, amphetamines, and Valium by the lack of evidence of these drugs presented at trial and by his denial of the presence of cocaine and amphetamines. Since Franks places the burden on defendant to demonstrate the falsity of the affiant’s statements, we see no significance in the failure of the State to produce evidence of drugs the possession of which defendant was not charged with at trial.

Defendant also disputes Doe’s allegation that the slot machines present in defendant’s home were stolen because defendant told affiant they were stolen. The only support defendant provides for this challenge is his denial of the allegation and reference to the parties from whom he asserts he purchased the machines.

Defendant contests Doe’s allegation that the affiant had at some time within the last three months sold Valium and amphetamines taken from defendant’s basement refrigerator solely by denying the presence of cocaine and amphetamines on the searched premises on February 23, 1981. Clearly, this denial does not address the particular allegation it is supposed to refute.

Defendant argues that he had contradicted Doe's assertion that defendant had lived at the search residence for about 15 years by means of the presentence report’s entry of six years as length of residence and defense counsel’s oral denial of 15-year residency by defendant. This argued contradiction must be disregarded because it was not specifically pointed out in defendant’s motion and because it is not supported by sworn or otherwise reliable statements, as required by Franks.

Finally, defendant relies heavily upon the supposition that a certain named individual is the affiant who used the alias John H. Doe. Defendant attacks the credibility of the affiant based upon this supposition and the credibility of that individual generally by means of the sworn statements of Vincent Born, Georgia Berro, and defendant himself which refer specifically to the person defendant believes to be the affiant. Since defendant offers no evidence whatsoever that the anonymous affiant is that person, his allegations pertaining to that person are immaterial and are not considered as support for request for an evidentiary hearing under Franks.

Disregarding the challenges defendant supports merely by his own denials (see People v. Coleman (1980), 91 Ill. App. 3d 646, 415 N.E.2d 553, and People v. Anderson (1979), 74 Ill. App. 3d 363, 392 N.E.2d 938), defendant’s support for his attack upon the veracity of the John H. Doe affidavit is reduced to the sworn statement of defendant’s minor son that no one besides himself and his parents were present in the searched residence at the time Doe asserted he saw the contraband there. Without Doe’s statements concerning his presence and observations at defendant’s home on February 23, 1981, the remaining content of the State’s complaint would fail to establish probable cause for a search. However, we conclude that Vincent Born’s affidavit alone does not comprise a “substantial preliminary showing” of falsity by the affiant; nor has defendant overcome the “presumption of validity with respect to the affidavit supporting the search warrant” that Franks recognized. We reach this conclusion without reference to the status of the challenged affiant as governmental agent or private citizen. (Cf. State v. Moves Camp (S.D. 1979), 286 N.W.2d 333, which suggests that a private citizen affiant’s statements be subjected to a less rigorous standard regarding veracity than statements of governmental agents.) In sum, we hold that defendant has not met the burden enunciated by Franks as a requisite for the requested evidentiary hearing.

Accordingly, we affirm the judgment and sentence of the circuit court of Kane County.

Affirmed.

SEIDENFELD, P.J., and NASH, J., concur.


author: JUSTICE UNYERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT JOHN BAJT, Defendant-Appellee.
    Second District
    No. 82—394
    Opinion filed March 15, 1983.

      Dallas Ingemunson, State’s Attorney, of Yorkville (Jean M. Fletcher, Assistant State’s Attorney, and Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Raymond T. Brasel, of Batavia, for appellee.
   JUSTICE UNYERZAGT

delivered the opinion of the court:

The State appeals from an order of the circuit court of Kendall County which granted the motion of the defendant, Robert Bajt, to dismiss the charges against him. The trial court’s ruling was based on its conclusion that the police officer did not have probable cause to stop the defendant’s vehicle.

The defendant was charged with the offenses of driving under the influence of alcohol (111. Rev. Stat. 1981, ch. 95^2, par. 11 — 501(a)) and failure to yield to an emergency vehicle (111. Rev. Stat. 1981, ch. 951/2, par. 11 — 907(a)) after being stopped by a Yorkville police officer in relation to an apparent violation of a municipal ordinance prohibiting the making of a U-turn.

The defendant filed a “motion to dismiss” the two charges on the ground that the police officer did not have probable cause to arrest him. The motion to dismiss alleged, in essence, that a U-turn was not prohibited at the point where the incident in question occurred because no sign was posted north of that area warning the defendant that a U-turn was proscribed in the zone where he turned his vehicle. The motion also stated that although a sign prohibiting the making of a U-turn was posted south of the location where the defendant executed a turn, that sign did not apply to or control traffic at the point of the incident. Lastly, the defendant’s motion alleged that the sign mentioned above was not visible at night from the point of the incident due to darkness.

Section VI of the village of Yorkville’s traffic ordinance prohibits the making of a U-turn on Bridge Street (also known as Route 47) between a point 50 feet south of the intersection of Route 47 and Van Emmon Street and a point 50 feet north of the intersection of Route 47 and Main Street. Section VII of the same ordinance states that the municipality shall erect and maintain proper signs prohibiting the making of U-turns in those places where U-turns are proscribed and shall place the “No U-turn” signs in locations where motorists and bicyclists can easily view them.

As the defendant correctly points out, a driver who is traveling south on Route 47 and approaching the downtown area of Yorkville from the north crosses Main Street, River Street, and then the Fox River. The first vehicular artery which the motorist encounters south of the river is Hydraulic Street, which contains a railroad track. One block further south of Hydraulic Street is Van Emmon Street. The ordinance prohibits U-turns on Route 47 between Main and Van Emmon Streets.

At the hearing held on the defendant’s motion, Glen Calvert, a police officer, testified that he was proceeding northbound on Route 47 and was located at the intersection of Van Emmon Street and Route 47 at approximately 10 p.m. on January 24, 1982. At that time he observed a car execute a U-turn maneuver on Route 47 in front of Whiskers Tap and proceed north on Route 47. The officer accelerated, activated his overhead red lights, and caught up with the automobile, which the defendant was driving. Officer Calvert stopped the vehicle to warn the driver “about U-turns downtown.”

The officer further related that a sign prohibiting the making of U-turns was located at the southwest corner of the intersection of Hydraulic Street and Route 47, that is, just south of the railroad track. He estimated that the sign was 40 to 50 feet south of the place he first observed the defendant’s vehicle. Officer Calvert stated that the sign in question was the only sign he was aware of that was posted on Route 47 for southbound traffic. The officer also identified People’s Exhibits Nos. 1-8 as photographs he took from a position in front of Whiskers Tap. Those photographs reveal that Whiskers Tap is located on the west side of Route 47, a short distance north of Hydraulic Street and the railroad track.

The trial court granted the defendant’s motion to dismiss. In reaching its decision, the trial court noted that the village’s ordinance required that “No U-turn” signs be posted at both entrances to the area in which U-turns were prohibited. The court stated that Officer Calvert knew that only one sign was posted for southbound traffic (but not at the entrance to the prohibited zone) and that the officer, therefore, was aware that the village had not properly posted the signs required by the ordinance, thereby distinguishing this case from Michigan v. DeFillippo (1979), 443 U.S. 31, 61 L. Ed. 2d 343, 99 S. Ct. 2627. Then the court noted that the defendant was charged with the instant offenses as a result of being stopped for the U-turn matter. Concluding that the officer did not have probable cause to make the initial stop, the court below granted the defendant’s motion to dismiss.

The question the State poses for review is whether the trial court erred in granting the defendant’s motion to dismiss, the practical effects of which were to quash his arrests for the instant charges and suppress any evidence which may have been seized as a result of those arrests.

The State notes that the defendant improperly styled his motion as one to dismiss the cause when he sought to challenge the officer’s basis for stopping his vehicle and arresting him. Because the propriety of an arrest is not specified as a proper ground for dismissing a prosecution (see Ill. Rev. Stat. 1981, ch. 38, par. 114 — 1), the motion should have been denominated as one to quash the arrest and to suppress any evidence seized as a result thereof (see Ill. Rev. Stat. 1981, ch. 38, par. 114 — 12).

Rather than arguing that- this misnomer in the form of the motion mandates reversal, the State has elected to proceed as if the trial court had, in fact, entered an order quashing the arrests and suppressing any evidence derived therefrom. Therefore we, too, will disregard the pleading defect and treat (1) the defendant’s motion as one seeking to quash and suppress and (2) the trial court’s order as quashing the arrest and suppressing any evidence which was illegally obtained.

It is axiomatic that probable cause to arrest exists in cases where the facts and circumstances known to the arresting officer are sufficient to warrant a person of reasonable caution to believe that an offense has been committed and that the person arrested was the offender. (People v. Creach (1980), 79 Ill. 2d 96, 101, cert. denied (1980), 449 U.S. 1010, 66 L. Ed. 2d 467, 101 S. Ct. 564; People v. Amft (1982), 109 Ill. App. 3d 619, 626; see Ill. Rev. Stat. 1979, ch. 38, par. 107 — 2(c).) Whether probable cause for an arrest exists in a specific instance depends upon the totality of the facts and circumstances known to the officer when the arrest was made. (People v. Creach (1980), 79 Ill. 2d 96, 102; People v. Amft (1982), 109 Ill. App. 3d 619, 626.) In deciding the question of probable cause, the courts are not disposed to be unduly technical but rather deal with probabilities; the determination of probable cause must be based on the factual and practical considerations of everyday life in which reasonable men, not legal technicians, act. (People v. Creach (1980), 79 Ill. 2d 96, 102.) Of course, a lesser standard is required to support a finding of probable cause than would be necessary for a conviction. (People v. McNair (1981), 102 Ill. App. 3d 322, 328.) In other words, the validity of the arrest does not depend on whether the suspect actually committed a crime. (Michigan v. DeFillippo (1979), 443 U.S. 31, 36, 61 L. Ed. 2d 343, 349, 99 S. Ct. 2627, 2631.) With respect to a motion to quash an arrest for the alleged lack of probable cause, the burden of proof rests upon the defendant (People v. Jodie (1979), 79 Ill. App. 3d 348, 357; People v. Logan (1979), 78 Ill. App. 3d 646, 649), and the court’s finding relative to the question of probable cause will not be disturbed on appeal unless manifestly erroneous. People v. Amft (1982), 109 Ill. App. 3d 619, 626.

In the present case, the uncontradicted evidence established that the defendant executed a U-turn on Route 47 in front of Whiskers Tap in an area in which the village, by municipal ordinance, had prohibited the making of such turns. Officer Calvert saw the defendant make the proscribed turn and gave chase in order to warn the defendant that U-turns were not permitted downtown. We conclude that the totality of the facts and circumstances known to the arresting officer were sufficient to cause a person of reasonable caution to believe that an offense had been committed and that the defendant was the offender.

The trial judge, apparently believing that the ordinance mandated the placement of the proscriptive signs at both entrances to the no-U-turn area, noted that the village had not located the mandated signs at the required places. He also stated that Officer Calvert was aware that the only sign posted for southbound traffic on Route 47 was not located at the entrance to the area in which U-turns were banned. In attempting to distinguish the present case from Michigan v. DeFillippo (1979), 443 U.S. 31, 61 L. Ed. 2d 343, 99 S. Ct. 2627, the court below emphasized that “the officer knew that the [required] postings had not been made,” thereby, by implication, indicating the court’s belief that Officer Calvert was aware that the municipal ordinance was invalid as a result of the village’s failure to comply with the posting requirements.

We note initially that the ordinance in question only requires that the signs prohibiting the making of U-turns be located in such a manner that motorists can see them easily. Even assuming for the sake of argument, however, that the trial court correctly determined that the signs were not posted properly, that fact alone does not support the quashing of the defendant’s arrest for the instant charges or the suppression of any evidence. We believe that the trial court’s attempt to distinguish Michigan v. DeFillippo (1979), 443 U.S. 31, 61 L. Ed. 2d 343, 99 S. Ct. 2627, from the facts of the present case must fail. We are of the opinion that the officer did not lack probable cause to believe that the conduct he observed constituted a violation, of law simply because he should have known that the ordinance in question was invalid and would be declared defective by a court of law.

In Michigan v. DeFillippo (1979), 443 U.S. 31, 61 L. Ed. 2d 343, 99 S. Ct. 2627, the defendant was arrested for refusing to identify himself to a police officer, a misdemeanor offense under a Detroit ordinance. The arresting officer conducted a search of the accused’s person incident to the arrest and discovered a controlled substance; the defendant was charged with a drug offense but not with a violation of the municipal ordinance. In DeFillippo,. the United States Supreme Court addressed the question whether an arrest made in good-faith reliance on an ordinance, which at the time had not been declared unconstitutional, was valid regardless of a subsequent judicial determination of the ordinance’s unconstitutionality.

The DeFillippo court concluded that the fact that the Detroit ordinance was determined to be invalid after the arrest had taken place did not undermine the validity of the arrest made for violation of that ordinance and, further, that the evidence discovered in the subsequent search of the defendant should not have been suppressed. (443 U.S. 31, 40, 61 L. Ed. 2d 343, 351, 99 S. Ct. 2627, 2633.) In reaching its decision, the court stressed that since there was no controlling precedent indicating that the ordinance was unconstitutional, the ordinance was presumptively valid at the time the officer observed the conduct in question. Continuing, the court made the following comments, which apply with equal force to the case now before this court:

“A prudent officer, in the course of determining whether respondent had committed an offense under all the circumstances shown by this record, should not have been required to anticipate that a court would later hold the ordinance unconstitutional.
Police are charged to enforce laws until and unless they are declared unconstitutional. The enactment of a law forecloses speculation by enforcement officers concerning its constitutionality — with the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws. Society would be ill-served if its police officers took it upon themselves to determine which laws are and which are not constitutionally entitled to enforcement.” 443 U.S. 31, 37-38, 61 L. Ed. 2d 343, 350, 99 S. Ct. 2627, 2632.

The high court in Michigan v. DeFillippo (1979), 443 U.S. 31, 39, 61 L. Ed. 2d 343, 351, 99 S. Ct. 2627, 2633, emphasized that the statute in question there was not of a type which purported to authorize arrests and searches without probable cause and without a valid warrant (see, e.g., Ybarra v. Illinois (1979), 444 U.S. 85, 96 n.11, 62 L. Ed. 2d 238, 248-49 n.11, 100 S. Ct. 338, 345 n.11). Other recent Federal cases have followed the rationale employed and the result reached in Michigan v. DeFillippo. See, e.g., Holifield v. Davis (11th Cir. 1981), 662 F.2d 710, 711, cert. denied (1982), 455 U.S. 1026, 72 L. Ed. 2d 147, 102 S. Ct. 1730; United States v. Pappas (1st Cir. 1979), 613 F.2d 324, 330-31.

The decisions of this State have also recognized in a somewhat analogous situation that the subsequent invalidation of an ordinance which was the basis of the arrest will not render unreasonable the initial arrest and accompanying search. (People v. Sobol (1975), 26 Ill. App. 3d 303, 304-05.) That statement of the law was reaffirmed more recently in People v. Decuir (1980), 84 Ill. App. 3d 531, 532. Professor LaFave’s exhaustive treatise on the fourth amendment also discusses this issue in considerable detail. 1 W. LaFave, Search and Seizure §3.2(f), at 493 (1978); at 79 (1982 Supp.).

The trial court, in distinguishing Michigan v. DeFillippo, remarked that, unlike that case, here the officer was aware that the ordinance prohibiting the making of U-turns was invalid or unenforceable because he knew the signs proscribing the turns were not posted in the proper locations. There is no testimony or other evidence in the record which establishes or even suggests that the officer knew or suspected that the ordinance in question was invalid. To the contrary, his testimony was that he stopped the defendant to warn him about the prohibition of U-turns in the downtown area is some indication that Officer Calvert believed he was enforcing a valid ordinance. Furthermore, the ordinance in issue should be accorded a presumption of validity because there is no evidence that it had been invalidated prior to the time Officer Calvert stopped the defendant’s automobile. Secondly the trial court’s logic flies in the face of the Supreme Court’s analysis in DeFillippo, where the court stressed that, given the fact it is a police officer’s duty to enforce a law until it is declared unconstitutional or otherwise invalidated, it was incongruous to require a law enforcement officer to speculate or predict that a presumptively valid statute would be found invalid and to expect an officer to forego stopping or arresting a suspect for that reason.

In sum, the fact that the court below may have determined, at least by implication, that the ordinance in question was defective or invalid did not render unconstitutional Officer Calvert’s action in stopping the defendant’s vehicle to warn him of the prohibition against executing U-turns. (See Michigan v. DeFillippo (1979), 443 U.S. 31, 40, 61 L. Ed. 2d 343, 351, 99 S. Ct. 2627, 2633; Holifield v. Davis (11th Cir. 1981), 662 F.2d 710, 711, cert. denied (1982), 455 U.S. 1026, 72 L. Ed. 2d 147, 102 S. Ct. 1730; United States v. Pappas (1st Cir. 1979), 613 F.2d 324, 330-31; People v. Sobol (1975), 26 Ill. App. 3d 303, 304-05.) There is no doubt that, based on the officer’s observations, Calvert had probable cause to arrest the defendant for violation of the ordinance proscribing U-turns. It naturally follows that even though the officer did not arrest the defendant for mating a U-turn, he had sufficient grounds to stop the automobile. (See People v. Grice (1980), 87 Ill. App. 3d 718, 722, cert. denied (1981), 450 U.S. 1003, 68 L. Ed. 2d 207, 101 S. Ct. 1714.) Since the initial investigatory stop was proper, it is clear that, based on the limited evidentiary record before it, the trial court erred in quashing the arrests for the offenses of driving while under the influence of alcohol and for failure to yield to an emergency vehicle.

For the reasons expressed, the judgment of the circuit court of Kendall County is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

LINDBERG and NASH, JJ., concur.


author: JUSTICE SCOTT JUSTICE HEIPLE;

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALAN R. TAYLOR, Defendant-Appellant.
    Third District
    No. 81—353
    Opinion filed March 21, 1983.

      HEIPLE, J., dissenting.
    Robert Agostinelli and Frank W. Ralph, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

During the Christmas season of 1980, Lisa Conn, a young lady, presumably with a long life awaiting her, was slain in a brutal manner. The slaying occurred on December 6, 1980, in the back room of the Zip-Tone Cleaners in Peoria where Lisa was employed. Lisa’s throat was slashed and the cash register of the business was looted.

Initially the police were without suspects. The police worked tirelessly in their efforts to solve the crime and ultimately conducted over 3,000 interviews. The citizens of Peoria and surrounding environs were justifiably outraged and a reward fund was established which eventually totalled over $20,000. Newspapers, television stations and one radio station gave unabated coverage of this case from the time of Lisa’s death up to and throughout the trial of the defendant, Alan R. Taylor, who was charged with and tried for the commission of the crime. The news media coverage may well have been the most extensive of any crime ever committed in the city of Peoria.

One of the suspects interviewed by the police was the defendant, who at the time was 13 years of age. The police conducted several interrogations of him. In his final statement, Taylor confessed that he had cut Lisa’s throat with a knife, looted the cash register and left the premises. Somewhat exculpatory in tone, however, he indicated that the throat cutting occurred because Lisa was struggling against the knife as he held it to her throat. Taylor also said that he was aided in the crime by a friend of his, John Gaskins. He said that Gaskins also had a knife. He said that the stab wound in the area of Lisa’s heart occurred when Lisa kicked Gaskins in the leg, causing Gaskins to lose his balance and fall into Lisa with his knife.

Charged and tried as an adult, Taylor was convicted by a jury of murder and armed robbery. He was sentenced to a 35-year term of imprisonment for the murder and a 30-year term for the armed robbery, with both terms to run concurrently.

The foregoing is a brief statement of the facts concerning the murder of Lisa Conn and the trial of the defendant for that crime. Further facts and procedural matters will be set forth as they become pertinent to the determination of this appeal.

A number of issues are raised in this appeal and our attention is first directed to the defendant’s claim that reversible error was committed because the trial court abused its discretion in denying his motion for change of venue because of prejudicial publicity, which was extensive and which continued up to and during the trial.

Placing this issue in its proper perspective, it must be noted that on April 9 and 10 of 1981, some four months after the murder, a public opinion survey was conducted at a large shopping mall in the city of Peoria. The uncontroverted result of the poll was that 98% of 382 people polled had heard of the case; 89% stated they had heard of it many times; 61% were able to state the defendant’s age; 72% believed that the police had arrested the right person; and 53% thought that the defendant was guilty.

In considering the results of the poll it can only be logically observed that such percentages of knowledge concerning a crime could be expected in a small or modest-sized community; however, in a large metropolitan area such percentages illustrate the pervasive effect of saturation news coverage.

The general rule of law applicable to motions for change of venue is that the decision as to whether a change of venue should or should not be granted rests in the sound discretion of the trial court, and refusal to grant a change of venue is not error if later events indicate that the defendant received a fair and impartial trial. (People v. Yonder (1969), 44 Ill. 2d 376, 256 N.E.2d 321.) However, an old supreme court case from which our State establishes some law, still viable, which sets some guidelines to be followed by a trial judge in granting or denying a motion for change of venue. (See People v. Pfanschmidt (1914), 262 Ill. 411, 304 N.E. 804.) In Pfanschmidt the court indicated that if affidavits before the court created a reasonable apprehension that an accused could not receive a fair trial, then a change of venue should be granted.

Relying, however, upon the law set forth in the case of Yonder we will examine the record to ascertain whether the defendant did receive a fair trial. Both pretrial and during-trial news coverage disclosed that a companion of the defendant was also a suspect in the murder. The companion, John Gaskins, according to pretrial news coverage, was released from custody after he had passed a lie detector test. Similarly it was reported that the defendant had taken a lie detector test and one article reported that he had failed it while another stated that it was inconclusive.

The “little black box” or lie testing equipment, while apparently not infallible, has been used in criminal investigations for many years and has been adopted by some employers for use in screening applicants for employment. In the minds of laymen it has achieved the status of being the “last word” in determining the truthfulness or untruthfulness of an examinee.

Such publicity is highly prejudicial and in fact prevented a fair trial. Counsel for defendant was compelled to use all peremptory challenges and many challenges for cause were denied. All prospective jurors questioned by the court admitted to having heard of the case and some of those selected knew details concerning the offense and the defendant’s alleged involvement. In selecting the jury the magic words were the statement by a prospective juror that he or she had no opinion about the case and could be fair to both sides. Is this statement a magic one? We believe not and neither does the United States Supreme Court, which stated:

“No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but the psychological impact requiring such a declaration before one’s fellows is often its father.” Irvin v. Dowd (1961), 366 U.S. 717, 728, 6 L. Ed. 2d 751, 759, 81 S. Ct. 1639, 1645.

A case of some similarity to the one now before us is Goins v. McKeen (6th Cir. 1979), 605 F.2d 947. In Goins four jurors read an article during trial which revealed information which was both inadmissible and strongly probative of guilt. All four assured the court that they could decide the case solely on the evidence presented. The Sixth Circuit court found the trial court’s reliance on these assurances to be insufficient and of inherent prejudice to the defendant.

In the instant case two jurors had knowledge about the case which was prejudicial and inadmissible. Two jurors during examination stated that the codefendant (Gaskins) had been released after he passed a lie detector test. One stated that he had therefore concluded that Gaskins was innocent. Three other jurors were aware of Gaskins’ release but attributed it to lack of evidence. Not all knowledge of a case would per se disqualify a prospective juror; however, in the instant case some of the jurors were too knowledgeable about matters too volatile.

In regard to the five jurors referred to, they were seated after the defendant had exhausted his 10 peremptory challenges and the court had denied a request for additional peremptory challenges. The defendant challenged the seating of the jurors for cause; however, these challenges were denied.

The record in this case amply supports the conclusion that the motion for change of venue should have been granted. The record does show that the trial judge made a strenuous and dedicated effort to obtain for the defendant an impartial jury; however, as the result of the news media coverage of the crime and case which saturated Peoria and an area of some miles in all directions from the city, the trial judge was faced with a “no-win” situation.

The change of venue problem which we address is not an isolated one, but on the contrary is one which has pervaded our nation. Justice Frankfurter in a concurring opinion in the case of Irvin made the following observation:

“More than one student of society has expressed the view that not the least significant test of the quality of a civilization is its treatment of those charged with crime, particularly with offenses which arouse the passions of a community. One of the rightful boasts of Western civilization is that the State has the burden of establishing guilt solely on the basis of evidence produced in court and under circumstances assuring an accused all the safeguards of a fair procedure. These rudimentary conditions for determining guilt are inevitably wanting if the jury which is to sit in judgment on a fellow human being comes to its task with its mind ineradicably poisoned against him. How can fallible men and women reach a disinterested verdict based exclusively on what they heard in court when, before they entered the jury box, their minds were saturated by press and radio for months preceding by matter designed to establish the guilt of the accused. A conviction so secured obviously constitutes a denial of due process of law in its most rudimentary conception.
Not a Term passes without this Court being importuned to review convictions, had in States throughout the country, in which substantial claims are made that a jury trial has been distorted because of inflammatory newspaper accounts — too often, as in this case, with the prosecutor’s collaboration — exerting pressures upon potential jurors before trial and even during the course of trial, thereby making it extremely difficult, if not impossible, to secure a jury capable of taking in, free of prepossessions, evidence submitted in open court. Indeed such extraneons influences, in violation of the decencies guaranteed by our Constitution, are sometimes so powerful that an accused is forced, as a practical matter, to forego trial by jury. [Citation.] For one reason or another this Court does not undertake to review all such envenomed state prosecutions. But, again and again, such disregard of fundamental fairness is so flagrant that the Court is compelled, as it was only a week ago, to reverse a conviction in which prejudicial newspaper intrusion has poisoned the outcome. [Citations.] This Court has not yet decided that the fair administration of criminal justice must be subordinated to another safeguard of our constitutional system-freedom of the press, properly conceived. The Court has not yet decided that, while convictions must be reversed and miscarriages of justice result because the minds of jurors or potential jurors were poisoned, the poisoner is constitutionally protected in plying his trade.” Irvin v. Dowd (1961), 366 U.S. 717, 729-30, 6 L. Ed. 2d 751, 760-61, 81 S. Ct. 1639, 1646-47.

We hasten to add that in the instant case the record is barren of any collaboration or misconduct on the part of the office of the prosecutor. Until such time that there is a solution to the problem of such magnitude as presented in this case the trial courts will be compelled to grant , motions for change of venue and along with such ruling the attendant added expense and inconvenience. We are aware of and subscribe to the old adage that a defendant cannot expect a perfect trial, a trial free from all errors; however, he can expect from the judicial system that every effort will be made to provide him with a fair trial.

The denial of trial by an impartial jury is not a technical defect but is the denial of a right imbedded in both our Federal and State constitutions. Such a right comprises a great portion of the foundation of our judicial system.

The right to an impartial trial was not granted to the defendant in this case and hence we must reverse his conviction and remand this case with directions to grant a motion for a change of venue to a county outside the scope and orbit of the news media, which covered pretrial and during-trial activities of this case.

Though this case will be retried, it is necessary that we consider some of the other errors raised by the defendant. He challenges his prosecution as an adult rather than as a juvenile. The statutory provisions relating to this question are set forth in the Juvenile Court Act (111. Rev. Stat. 1979, ch. 37, par. 702-7).

The defendant claims that the trial court lacked jurisdiction to consider the State’s motion to transfer the prosecution to adult court since his natural father was admittedly given no notice of the proceedings. Taylor lived with his natural mother and his' stepfather, his mother having divorced his natural father in 1973 and married again. The whereabouts of his natural father were unknown. Mrs. Taylor had no idea where he could be found.

Our supreme court has laid this objection to rest. (In re J.W. (1981), 87 Ill. 2d 56, 429 N.E.2d 501.) Since the mother as custodial parent was properly served and had notice of the proceedings, the juvenile court had jurisdiction despite lack of service or notice upon the noncustodial father.

Defendant further argues that the trial court abused its discretion in applying the transfer standards of the Juvenile Court Act but that, in any event, the Juvenile Court Act is unconstitutional because it fails to provide adequate due process safeguards such as an articulated burden of proof, and that it fails to furnish guidelines for the relative weight to be given the six statutory factors the trial court must consider before ordering transfer to adult court.

In sum, section 2 — 7(3)(a) of the Juvenile Court Act authorizes prosecution of a juvenile as an adult when the court finds, after hearing, that it is not in the best interest of the minor or of the public to proceed under the Juvenile Court Act. The statute requires the court to consider the following factors in arriving at its determination:

“(1) whether there is sufficient evidence upon which a grand jury may be expected to return an indictment; (2) whether there is evidence that the alleged offense was committed in an aggressive and premeditated manner; (3) the age of the minor; (4) the previous history of the minor; (5) whether there are facilities particularly available to the Juvenile Court for the treatment and rehabilitation of the minor; and (6) whether the best interest of the minor and the security of the public may require that the minor continue in custody or under supervision for a period extending beyond his minority.” Ill. Rev. Stat. 1981, ch. 37, par. 702-7(3Xa).

From our examination of the record, it is clear that the trial court conducted a proper hearing in compliance with the statute. Extensive evidence was presented pertaining to the six criteria detailed in the statute.

At the transfer hearing, the prosecution and the defense stipulated to a number of agreed facts. Additionally, testamentary evidence was presented. A summation of the evidence discloses that the defendant was 13 years of age and had neither a criminal nor a juvenile delinquency record; that Lisa Conn, age 17, was slashed and stabbed at the Zip-Tone Cleaners in Peoria on December 6, 1980; that the probable cause of Lisa’s death was a six-inch slicing laceration of the neck which went through muscle and cut an internal carotid artery; that the defendant had admitted cutting Lisa’s throat with his knife but claimed that the cut came because Lisa was struggling. Defendant's statement further admitted robbing the Zip-Tone Cleaners after Lisa was slashed and stabbed. As indicated earlier, the defendant’s statement was somewhat exculpatory in tone as regards the throat slashing, and, also, as it attempted to shift the blame for the stabbing. His statement indicated that Lisa was stabbed as she kicked at an accomplice, John Gaskins, whereby her kick caused Gaskins to lose his balance and fall into the victim’s chest with his knife. Defendant offered a considerable amount of evidence to the effect that he was of good character. A psychologist, Theodore Mathews, testified that the defendant was not suffering from any serious psychopathology and was not dangerous. The psychologist further stated that the defendant would have no difficulty in conforming his behavior to social standards. He admitted, however, that his underlying assumption in evaluating the defendant was that the defendant was innocent of killing Lisa Conn. He further conceded that if the defendant had committed the crime, it would be difficult to reconcile the results of his psychological evaluation with such fact. Based upon his steadfast opinion, however, it was his opinion that the defendant was not a threat to society.

In announcing its decision on the transfer motion, the trial court stated as follows:

“*** The court would announce to those here that it has considered all the relevant factors, particularly those contained in Section 702 — 7 of the Juvenile Court Act.
Without attempting to state all the reasons for my decision, it is appropriate to point out some important factors therefor.
The clinical psychologist’s (Mr. Mathews) evaluation seems to suggest that there is nothing in the mental make-up of the minor which would make him difficult to treat or a future danger. Going a step further, the psychological information presented would also seem to indicate that Alan Taylor could not have committed the offense charged. It seemed from the testimony that Mr. Mathews was required by his findings to conclude that Alan Taylor was innocent.
If, however, the minor did commit the offense, then the conclusions of Mr. Mathews would be inaccurate. The minor then would be a person devoid of empathy and for whom the period of rehabilitation would be long, the prognosis guarded and the likelihood of future violent acts great.
The depth of the problem, if Alan Taylor was involved in Lisa Conn’s death, is corroborated by the incredulous reaction of those who apparently know him well regarding his alleged involvement.
Clearly, if this minor is the perpetrator of the offense alleged, then his treatment and [the] best interest and the security of the public may and almost surely will require that he be continued in custody or under supervision for a period beyond his minority.
It is not a function of this proceeding to address the question of guilt or innocence, but rather only to determine the appropriate forum in which that determination will be made.
Prosecution under the criminal laws of this state offer the primary parties hereto the more appropriate forum for determining guilt or innocence. The minor will be protected by the full complement of rights available to adults to insure, whatever the outcome, it is the one based on the facts and the applicable law. The public will be served by the availability of an extended period for rehabilitation should guilt beyond a reasonable doubt be established.
The motion of the State’s Attorney to permit prosecution under the criminal laws of Illinois is well taken and it is granted.”

The trial judge’s pronouncement and his ruling to transfer the juvenile for prosecution as adult are well supported by the record. In his statement, the judge indicated that he was not attempting to state all of the reasons for his decision. The law does not require that he do so. All that is required is preservation of the record which will allow a meaningful review of the judge’s exercise of discretion. (People v. Cater (1979), 78 Ill. App. 3d 983, 398 N.E.2d 28.) Transfer proceedings are not adjudicatory in nature, but rather represent an exercise of discretion. There was no abuse of discretion in this case.

Finally, as regards the transfer proceedings, defendant’s challenge to the constitutionality of the statute is without merit. The statute is constitutional. Defendant argues that the failure of the statute to articulate a burden of proof and to furnish guidelines for the relative weight to be given the six statutory factors deprives the defendant of the due process of law. This argument has previously been made and rejected. (People v. Taylor (1978), 61 Ill. App. 3d 37, 377 N.E.2d 838, aff’d (1979), 76 Ill. 2d 289, 391 N.E.2d 366.) Therein it was pointed out that it is not constitutionally required and would not be feasible for the statute to prescribe a mathematical formula to govern the judge’s discretion.

Defendant’s statements to the police were critical to his conviction. Had Alan R. Taylor not talked, the People would presumably have had a difficult time mounting a successful prosecution. Prior to the trial, the defendant moved to suppress his statements and written confession.

The suppression hearing included the testimony of the two interrogating officers, Robert Grady and Larry Layman, a police stenographer, Cilestene Penny, the defendant’s mother and stepfather, Rebecca Rushing and David Rushing, a psychologist, Theodore Mathews, and the defendant himself.

At the conclusion of the hearing, the trial judge rendered a detailed five-page order containing findings of fact and conclusions of law. In sum, he found that the defendant’s statements were given after he had been fully advised of his constitutional rights per Miranda and that the defendant had knowingly and understandingly waived those rights. The court found no evidence of coercion, duress, compulsion or mistreatment. Although the court noted that there were several interrogations, it further observed that there was no continual coercive type of investigation. The court further noted that the defendant never exercised or expressed a desire to exercise his right to remain silent, but at all times freely and voluntarily discussed the subject of the interrogation with the police.

After a careful scrutiny of the record, we agree with the trial court. Indeed, we find that the attitude of the defendant could be described as one of wholehearted and willing cooperation.

The circumstances surrounding the interrogations of the defendant, however, were not absolutely flawless. One of the officers was profane and demanding. The other was friendly and supportive. This type of verbal whip-saw was used to good effect to keep the defendant talking and to get at the truth. This technique of interrogation is commonplace both in and out of the courtroom. Standing alone, it does not constitute coercion or duress. During the interrogation of February 7, 1981, one of the officers apparently told the defendant that they were going to keep talking to him as long as he continued to lie. One interpretation that could be put on this statement would be that the defendant had no right to stop talking, thus undermining the protections of Miranda. While we regard such statement as improper, we cannot view it out of context and in isolation. The defendant’s several and separate interviews ranged over several days. Each time the defendant was given his Miranda warnings. The defendant never indicated that he was unwilling to meet and talk with the police. While talking with the police, he never indicated that he wanted to stop. He was never told that he could not go home. He was not arrested until his confession of February 14, 1981. His stepfather was present during the February 7 interrogation and during the taking of the written statement on February 14.

We well recognize that it is the burden of the State to show that a person knowingly and voluntarily waived his rights to remain silent before his statement can be admitted into evidence. We also recognize the fact that this defendant was a 13-year-old seventh grader without prior police involvement. We have, accordingly, given extra care and attention to the record. In that connection we have considered the totality of the circumstances according to the test promulgated by our supreme court. Having done so, we conclude that the defendant’s statements were made freely, voluntarily, and without compulsion or inducement of any sort and that the defendant’s will was not overcome. People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601, cert. denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731.

Having concluded that the defendant should have a new trial, it is not necessary that we consider the other issues raised by the defendant in this appeal.

For the reasons stated the conviction of the defendant by the circuit court of Peoria County is reversed and this case is remanded with directions as set forth in this opinion.

Reversed and remanded with directions.

BARRY, P.J., concurs.

JUSTICE HEIPLE;

dissenting:

Despite the pretrial publicity surrounding this case, I believe that the defendant received a fair trial by an impartial jury and I would affirm the conviction. People v. Strange (1980), 81 Ill. App. 3d 81.

I agree that the sheer quantity of media coverage generated by the grim circumstances of this case would have made a change of venué desirable in order to prevent venue from becoming an issue. But this does not automatically point to the conclusion that refusal to transfer venue was an abuse of discretion. The main consideration is not the correctness of the trial court’s ruling on the motion for change of venue or the quantity and quality of the publicity involved, but whether upon the record the defendant received a trial before a fair and impartial jury. That is to say, was the defendant prejudiced in any way by the court’s ruling? If the defendant was not prejudiced, then the error was harmless. (People v. Yonder (1969), 44 Ill. 2d 376, 388.) Considering the record as a whole, it is apparent that the trial court went to great lengths to select a fair jury and to insure that the trial proceeded free from media influence. As hereinbelow indicated, the record discloses that defendant received a fair trial. To grant him a new trial for what is at worst a harmless error is most probable a useless gesture and is most certainly an affront to the judicial process.

The conclusion that defendant is entitled to a new trial can only be arrived at by means of speculation and conjecture as to the effect of pretrial publicity upon the minds of the prospective jurors. This is the flaw in the majority opinion. One need not guess as to whether media coverage prevented the defendant from receiving a fair trial. The trial record clearly discloses that defendant received a fair trial before an impartial jury.

Defendant argues that due to extensive media coverage, it was impossible for him to receive a fair trial. Yet the defendant’s own statistics refute his contention. Of the 382 registered voters surveyed, 98% had heard of the case and 89% had heard of it often. Fifty-three percent thought the defendant was guilty, but 43% had formed no opinion regarding defendant’s guilty or innocence. Although indicative of extensive media coverage, these statistics also show that a significant group of those surveyed was unbiased. It was certainly not impossible to select an impartial jury based on those figures, and the court’s detailed and extensive voir dire examination guarded against selection of prejudiced jurors.

During voir dire examination, the court employed a more rigorous selection standard than required by excusing for cause any prospective jurors who had formed an opinion regarding the guilt or innocence of the defendant even when they stated that they could set aside their opinion and judge the defendant based solely on the evidence presented. In choosing the jury, 47 out of 71 prospective jurors were questioned over a three-day period. Three days is not an inordinate amount of time to devote to jury selection under the circumstances of this case and there was no indication of any unusual difficulty in obtaining an acceptable jury. Of the 12 jurors finally selected, only five were objected to for cause by the defendant and those objections were properly overruled by the court.

The juror Lingenfelter, who was objected to for cause, knew that a young girl was found knifed to death in the Zip-Tone Cleaners; that defendant and Gaskins were arrested and that Gaskins was eventually released after he passed a lie detector test. Lingenfelter had not read anything about the court proceedings that occurred prior to the trial, however, and had in fact been away from the Peoria area for the entire month of January. Although Gaskins was released after passing the lie detector test, Lingenfelter did not make any assumptions with respect to the guilt or innocence of the defendant from the release of Gaskins. Neither did he question or relate the release of Gaskins to the defendant. He had not formed any opinion at all with respect to the defendant. He stated without hesitation or equivocation that he would put aside whatever knowledge he had of the case and decide defendant’s guilt or innocence based on the evidence presented.

Juror Thorpe, also objected to for cause, stated that he had read articles about the matter around the time of the occurrence but could not recall any specifics. Although he recalled the defendant’s name, he had not read anything about the defendant in the newspaper. Prior to being called as a juror, he had not read or heard anything about the court proceedings. He did remember that another youth had been accused who was later released after passing a lie detector test. Although this made him believe that the other youth was innocent, he did not draw any inferences with respect to the defendant nor did he form any opinion about the guilt or innocence of the defendant. Since being called as a juror, he had avoided all newspaper and television accounts of the matter. He assured the court that he could set aside those things that he had already heard and decide the case based on the evidence presented at trial.

Juror Jacobson, challenged for cause, was seated by the court. Although defendant had peremptory challenges remaining, he chose not to exercise a peremptory challenge on juror Jacobson. Jacobson had read some news accounts of the killing and investigation. He remembered the names Taylor and Gaskins and that charges were dropped against Gaskins. However, he had formed no opinion of the case nor any opinion as to the guilt or innocence of the defendant. In great detail, the court interrogated him about presumption of innocence, reasonable doubt, burden of proof and the necessity that only evidence presented in the courtroom be considered. Jacobson indicated that he could and would follow the court’s instructions and that he knew of no reason why he could not be fair and impartial to both sides. Apart from the fact that juror Jacobson was established to be impartial, the defendant is in no position to claim prejudice where he declined to exercise an available peremptory challenge on this juror when his challenge for cause had been denied. His failure to utilize an available peremptory challenge amounts to a waiver of his challenge for cause.

The same waiver may be said to apply to defendant’s challenge for cause to the juror, Betty Schlick. He failed to exercise an available peremptory challenge to juror Schlick when his challenge for cause was denied. In any event, juror Schlick was fully examined and correctly accepted by the trial curt. The typewritten transcript of juror Schlick’s voir dire examination consumes 15 pages. She knew of the case from newspaper and television accounts. She was familiar with the Zip-Tone Cleaners, having dones business there six or seven years previously. She stated she would have no difficulty setting aside anything she may have heard of the case. She would decide the case solely on the basis of the evidence presented in the courtroom. She had no opinion about the guilt or innocence of the defendant. She accepted the proposition that the defendant was presumed innocent and that the burden was on the State to prove his guilt beyond a reasonable doubt.

The same waiver may be said to apply to defendant’s challenge for cause to the juror, Betsy Janssen. He again failed to exercise an available peremptory challenge when his challenge for cause was denied. But once again, juror Janssen was fully examined and correctly accepted by the trial court. Although she had read and seen accounts of the killing in the paper and on television, and she remembered the names of Alan Taylor and John Gaskins, she had formed no opinions about the case. She had done business at the Zip-Tone Cleaners a couple of years previously. She indicated that she would be able to set aside anything that she had heard or read of the case and could decide it solely on the basis of the evidence presented in the court room. She further indicated that she would follow the law as to presumption of innocence and proof of guilt beyond a reasonable doubt.

I certainly do not think that the statement by a prospective juror that he or she has no opinion about the case is some kind of magic talisman insuring impartiality. But when the record of a detailed and thorough voir dire examination supports a juror’s assertion that he or she has in fact formed no opinion, such statement should be given credence. Due process does not require that a jury be totally ignorant of the facts or issues of a particular case. (Irvin v. Dowd, (1961), 366 U.S. 17, 6 L. Ed. 2d 751, 81 S. Ct. 1639.) If a high degree of public awareness raises the possibility of local prejudice, the trial court should take steps to prevent such a result. Should the court, in its discretion decide that less extreme measures than a change of venue can be employed to avoid such prejudice, a reviewing court should carefully examine those measures to determine their effectiveness. In this case, I believe that the trial court successfully prevented any potential prejudice among the jurors. A new trial would change nothing.

Defendant has raised a number of additional issues not discussed by the majority since they have reversed for other reasons. The defendant, having exhausted his peremptory challenges during voir dire, claims that it was error for the court to refuse to give him extra challenges. This argument is without merit. Although starting with 10 peremptory challenges, in six instances defendant used peremptory challenges without first challenging for cause. It is possible that the trial judge may have excused such jurors for cause if defendant had asked. The fact that defendant exercised peremptory challenges without first challenging for cause, and thus possibly wasting his peremptory challenges, does not require the trial judge to extend extra challenges as a matter of right.

As for defendant’s contention that the court abused its discretion in refusing to sequester the jury, the defendant has failed to demonstrate any prejudice as a result of the court’s ruling. If the jury is adequately admonished by the court and there is no showing that defendant was prejudiced, a refusal to sequester the jury is not reversible error. (People v. Yonder (1969), 44 Ill. 2d 376.) Defendant has simply alleged the possibility of prejudice and questioned whether the court’s repeated admonitions to the jury had any real effect. Thus, defendant has failed to demonstrate any abuse of the court’s discretion.

Defendant next argues that his conviction and concurrent sentence for armed robbery must be vacated because it is an included offense of felony murder.

Convictions and concurrent sentences may not be entered when more than one offense arises from the same physical act, or one of the offenses is, by statutory definition, an included offense of the other. (People v. King (1977), 66 Ill. 2d 551.) Although the offenses in the present case arose from a series of separate and distinct physical acts, armed robbery is, by definition, included in the offense of felony murder. People v. Devine (1981), 98 Ill. App. 3d 914.

In Devine, this court relied upon the definition of an included offense set out in section 2 — 9 of the Criminal Code of 1961 (111. Rev. Stat. 1981, ch. 38, par. 2 — 9). An included offense is established by proof of the same or less than all of the facts required to establish the offense charged. Felony murder is defined as a killing which occurs during the commission of a forcible felony other than voluntary manslaughter. (111. Rev. Stat. 1981, ch. 38, par. 9-l(a)(3).) When the forcible felony of armed robbery is the basis for felony murder, the same facts required to prove felony murder also establish the underlying offense. Proof of a forcible felony is an essential element included within the offense of felony murder. Therefore, I would vacate defendant’s armed robbery conviction. But, contrary to defendant’s argument, remandment for a new sentencing hearing is not required.

Defendant relies on People v. Filker (1981), 101 Ill. App. 3d 228, in which this court held that a remand is necessary where the trial court could have improperly considered a second conviction based on the same act as supports the conviction for which the defendant was sentenced. The decision in Filker involved convictions for attempted murder and aggravated battery. Both offenses were established by the very same physical act. Filker is thus distinguishable since the present case involves offenses which are established by different physical acts.

Next, the defendant argues that this case should be remanded for resentencing because the trial court improperly considered as a statutory aggravating factor that defendant’s conduct caused death to another person. According to the defendant, the fact that his conduct caused death may not be considered as an aggravating factor since it is an implicit element of felony murder. (People v. Brownell (1980), 79 Ill. 2d 508.) Although I agree that death is implicit in the offense of murder, the record in this case reveals that the judge was considering not just the fact of death, but was actually concentrating on the brutal and heinous manner in which the defendant killed Lisa Conn. As a general proposition, in passing sentence, a judge may consider the circumstances under which the crime was committed. (People v. Heflin (1978), 71 Ill. 2d 525, 546.) While this is not per se a statutory factor in aggravation, the fact that the judge in the present case referred to it as such, is simply a misnomer and of no consequence. The court acted properly in considering the brutal and heinous nature of defendant’s conduct before imposing sentence.

The defendant’s final argument is that the court abused its discretion in sentencing him to concurrent 30- and 35-year terms of imprisonment. Sentencing is the function of the trial court, and a reviewing court should not substitute its judgment absent an abuse of the trial court’s discretion. (People v. Lykins (1979), 77 Ill. 2d 35.) The record establishes that the trial judge reviewed all of the evidence received at trial, the presentence report and evidence and information offered in aggravation and mitigation. He likewise considered the arguments and sentencing alternatives as expressed by respective counsel. In so doing, the trial judge observed in mitigation that defendant had no history of prior delinquency or criminal activity In aggravation, the trial judge properly considered the fact that defendant’s conduct not only caused the death of another person, but was exceptionally brutal and heinous. Based upon the nature and circumstances of the offenses and the history and character of defendant, the trial judge determined that it was necessary for the protection of the public that defendant be incarcerated. He also found that a sentence other than incarceration would deprecate the seriousness of the instant offenses. In accordance with his findings, the trial judge determined that a higher than minimum term of imprisonment should be set.

In light of these findings, the mere fact that defendant is only 14 years old, possesses rehabilitative potential, and has no prior criminal record does not militate in favor of a more lenient sentence. In view of the seriousness of the defendant’s acts, the court acted within its discretion in imposing a 35-year term of imprisonment.

To summarize, the only relief that this defendant is entitled to is reversal of his armed robbery conviction. In all other respects, the record shows that defendant has received a fair trial free from prejudice! error. Justice would best be served by affirming the murder conviction and sentence. For these reasons, I cannot concur in the majority’s decision to give defendant a new trial. Therefore, I respectfully dissent.