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    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HARRY HOLLOWAY et al., Defendants-Appellants.
    First District (4th Division)
    Nos. 81—2055, 81—2195 cons.
    Opinion filed January 24, 1985.
    Rehearing denied April 10, 1985.

      Steven Clark and Richard J. Faust, both of State Appellate Defender’s Office, of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jeanette Sublett, and Timothy J. Frenzer, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendants, Harry Holloway (Holloway) and Judy Jackson (Judy), were found guilty, in a jury trial, of murder (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(a)), and each was sentenced to 40 years’ imprisonment. The victim, Alexander Jackson (Alexander), was Judy’s husband. Defendants raise the following issues for review: (1) whether the police possessed probable cause to arrest Holloway at 3 a.m. on July 12, 1979, and whether an inculpatory statement and a gun obtained as a result of that arrest should have been suppressed by the trial court; (2) whether exigent circumstances existed for the police to make a warrantless arrest of Holloway in his home; (3) whether Holloway freely and voluntarily made an inculpatory statement to the police; (4) whether Judy freely and voluntarily made an inculpatory statement to the police; (5) whether Holloway and Judy were proved guilty beyond a reasonable doubt of murder; (6) whether Holloway committed murder or voluntary manslaughter; (7) whether Judy was proved guilty beyond a reasonable doubt of any criminal conduct in regard to the death of Alexander; (8) whether the trial court erred when it refused to allow Holloway’s tendered jury instructions on self-defense and voluntary manslaughter; (9) whether the trial court erred when, without any indication that the jury was deadlocked, it gave the Prim instruction; (10) whether the trial court erred in refusing to give Judy’s tendered instruction concerning “mere presence”; (11) whether the trial court abused its discretion in sentencing Holloway to 40 years; and (12) whether the trial court abused its discretion in sentencing Judy to 40 years.

We affirm.

On July 11, 1979, June Hampton was employed as a desk clerk at the Ranch Motel, located at 9201 South Stony Island Avenue, in Chicago. Hampton testified that around 11 p.m., a Yellow Cab approached the motel. The passenger, a man (Alexander), registered as Mr. and Mrs. Jackson of 8014 South Champlain, Chicago, and rented room No. 41. He did not seem intoxicated. The man returned to the cab. Hampton and Verzel Squair, a friend who had been sitting in the lobby, noticed another man who was in the driver’s seat of the cab and a red-headed woman seated in back. The cab drove toward room No. 41. Ten minutes later, Hampton saw the cab pass the office. Around that time she and Squair heard a man screaming for help. She asked Squair to investigate. Squair saw Alexander, bloody and nude, in the doorway of the room. Squair went back to the lobby to advise Hampton to call the police, which she did. Then Hampton and Squair saw the cab again as it traveled north with the man and the woman who had been observed earlier; the man was driving and the woman was now sitting in the front seat. Squair noticed the cab number on the license plate and the side of the vehicle and informed Hampton. She wrote the number on the back of the registration slip she had prepared for Alexander.

Officers Willie Clay and Jerry Chapman were the first policemen to arrive. Later they were joined by police officers Daniel Swick and JoAnn Ryan. Alexander had three head injuries and two gunshot wounds. Blood was spattered throughout the room, on the walls, in the doorway and on the bed. An open liquor bottle was on the nightstand, a claw hammer was inside the closet, a pair of women’s eyeglasses was on the dressing table, and a man’s clothing was in the bathroom. The victim’s identification was in a wallet in his trousers.

Officer Swick was given the registration card for the room. He telephoned Judy around 2 a.m. on July 12, 1979, informing her that her husband was dead. Swick also telephoned the Yellow Cab Company, which informed him that cab No. 1558 was leased to Harry Hoiloway, who lived at an address on East 99th Street in Chicago.

Officer Swick arrived at Holloway’s residence at about 3 a.m. with Officer Ryan and Officer John Yucaitis. Although police had time to obtain a warrant, none was issued. Swick knocked on the door, identified himself, and asked Holloway whether cab number 1558 belonged to him. Holloway answered in the affirmative. Swick informed Holloway that his cab might have been used in the commission of a crime. No Miranda warnings were given. Holloway allowed the police to enter his home, and later he agreed to come to police headquarters. He was not handcuffed.

When Officer Swick observed the cab parked in front of Holloway’s residence, he noticed a blood smear on the door handle on the driver’s door. Swick asked Holloway’s permission to drive the cab to the police station. Holloway consented and gave Swick the keys.

At the police station, around 3:15 a.m., Officer Swick advised Holloway of his Miranda rights prior to speaking with him. He and Holloway talked for 30 to 45 minutes. Holloway was not handcuffed. Swick did not strike or threaten Holloway nor did he see anyone strike or threaten him. Holloway never indicated that he did not wish to answer questions. He never said he desired to have a lawyer present, and he did not ask to make a telephone call. Swick did not notice any bruises on Holloway. The latter did not complain of mistreatment, and he never asked to be allowed to take medicine or said he had diabetes. Holloway did not have anything to eat or drink and took no medication. No one lied to Holloway about evidence inculpating him.

Officer Swick asked Holloway his whereabouts on the previous evening. Holloway stated that he started driving about 7 p.m. and described his “fares.” He drove his last fare to a motel at 94th and Stony Island, then drove around for about 20 minutes and then went home. When asked, Holloway denied that he had been to the Ranch Motel. Swick showed Holloway the front of the registration card with the Jacksons’ name and address. Holloway stated that Alexander was his friend but denied taking him to the motel. Then Swick showed him the back of the card on which his cab number was noted. Holloway admitted that he picked up Alexander at 80th and Cottage Grove and drove him to a motel at 94th and Stony Island. Alexander went into the motel but returned to the cab, stating that no air-conditioned rooms were available. Alexander asked Holloway to drive him to the Ranch Motel. Holloway dropped him off in front of the motel and drove away. Holloway denied that he drove into the motel grounds and stated that only two people were in the cab. Swick told Holloway that he had been seen at the motel; Holloway denied that he was there. During this interview, Swick noticed what appeared to be bloodstains on Holloway’s shirt. The latter explained that he had been eating barbecue but agreed to remove his clothes so that the nature of the stains could be determined. Swick confiscated Holloway’s shirt, T-shirt, pants, shoes and a ring. Swick found currency which appeared to be bloodstained in Holloway’s pockets.

Holloway agreed to let Swick search the cab and gave him the keys. Swick recovered from the cab a bag with 22 bullets in it and a pouch containing insurance papers. Swick did not ask Holloway’s permission to open either the bag or the pouch and no consent form was signed for the search of the cab. On July 12, 1979, Swick never saw Holloway handcuffed. •

Around 6 a.m. on July 12, 1979, Judy was brought to the police station by an officer. Swick interviewed her in the presence of Officer Ryan. Swick offered Judy a drink but she refused. She was not handcuffed and did not say she felt ill. Swick again informed Judy of her husband’s death and asked her his whereabouts on the previous evening. Judy said her husband was with her until 7 or 7:30 p.m., when he left to visit his sister on the West Side. Swick asked Judy whether she knew Harry Holloway. She said she had known him for five years. Earlier, on that evening, he had been at her home for dinner and drinks with her and her husband. Swick showed Judy the eyeglasses that had been recovered from the motel. She acknowledged them as her own. He asked her how they came to be in the motel room. Judy said that while she and her husband were jogging the glasses fell off her face; her husband had picked them up and put them in his pocket.

Dennis McGuire, a Chicago police officer, was assigned to the homicide when he reported for work at 8 a.m. on July 12, 1979. He was working with his partner, John Yucaitis. He discussed the case with Officer Swick and he was informed of the results of preliminary interviews. No arrest or search warrants were issued in connection with the case. McGuire had conversations with Holloway around 9:45 a.m., 11:30 a.m., and in the afternoon. At the first interview, Holloway was advised of his Miranda rights. McGuire presented a consent-to-search form to Holloway and explained it. Holloway signed the form. McGuire never saw anyone strike or threaten Holloway, and he had no bruises. Holloway did not say he had diabetes and needed medication or that he wanted to see a physician. He never said he wanted a lawyer. Holloway was not sweating, trembling or exhibiting abnormal physical conditions. McGuire never saw Holloway eat or sleep.

McGuire interviewed Judy three times — at about 9:50 a.m., 11:30 a.m., and 12:25 p.m. McGuire introduced himself before their first interview and advised Judy of her Miranda rights, which she said she understood. During their conversations, Judy was not handcuffed. She neither requested an attorney nor asked to use the telephone. She did not say that she felt hungry, thirsty or ill and did not appear to be ill. McGuire was certain that Judy had water but did not recall giving her food. Judy did not say that police officers promised to take her home and she did not say she had been “tricked.” No one made misrepresentations to her.

McGuire showed Judy a consent-to-search form and explained it to her. He filled in the empty spaces. After reading the form, Judy signed it at around 10 a.m. McGuire and Yucaitis searched Judy’s home at about 10:15 a.m. When they entered the apartment, they observed a crinkled piece of paper on the living room floor. It was a key receipt, dated July 11,1979, for room No. 41 of the Ranch Motel.

The police officers returned to the station to interview Judy. McGuire asked her whether she had ever been at the Ranch Motel. She said no. McGuire told her about the receipt and she responded, “Then you know about it.” Judy said she had a fight with her husband which bloodied her clothing. She put the clothes in a suitcase near her bedroom. She said she was never at the motel; Holloway apparently placed the receipt in her apartment since he had a key.

Later, Judy said she was at the motel with her husband and that Holloway drove them there. Her husband became abusive. When she screamed, Holloway came to the motel room. As she ran out the door, she heard two shots. Holloway drove her home.

Officers McGuire and Yucaitis interviewed Holloway, who was advised of his Miranda rights and who said he understood them. McGuire then told Holloway the story Judy had told them. Holloway said that when he entered the motel room, Alexander attacked him with a hammer. They struggled and Holloway managed to take away the hammer. Then, Alexander produced a gun. After a struggle, it discharged twice. Holloway left and drove Judy home. At noon, McGuire and Yucaitis placed Holloway under arrest and handcuffed him.

At about 12:20 p.m., Officers McGuire and Yucaitis interviewed Judy and presented her with a consent-to-search form, which all three signed. McGuire filled in the form. The officers returned to the Jackson residence to recover the bloody clothing. Inside the suitcase was a bloodstained dress and undergarments and a hand towel. McGuire and Yucaitis proceeded to the Ranch Motel to look for a weapon because Holloway had said he discarded the gun on the motel grounds. The police officers failed to find the gun, and McGuire so informed Chicago police investigator Joseph Griffin.

Investigator Griffin and Investigator Frank Laverty were assigned to the homicide case on July 12, 1979. After speaking to Officers Yucaitis and McGuire, Griffin had a conversation with Holloway at about 2 p.m. During this and later conversations, no one struck or threatened Holloway. There were no bruises on him; he did not appear to be tired; he did not complain of mistreatment; he did not state that he did not wish to answer questions; and he did not say that he wanted to consult a lawyer. Holloway never requested medical treatment or said he had diabetes. He was handcuffed while Griffin was at police headquarters.

After Miranda warnings, Investigator Griffin informed Holloway that no gun was found at the motel. About 10 minutes after police began interviewing him, Holloway volunteered to take police to his home. He signed a consent-to-search form. Holloway told police that he would show them where he had hidden the gun at his residence. The gun was hidden in the rafters of his kitchen. It was a .22-caliber weapon with three spent and three live rounds.

Another interview occurred at 3 p.m. Holloway stated that he picked up the Jacksons. Alexander wanted to go to a motel and Holloway drove them to the Dunes Motel. The couple argued over whether or not they should get a motel room. Alexander went into the Dunes Motel and returned shortly thereafter, stating that the motel had no air-conditioned rooms available. Holloway drove a few blocks north to the Ranch Motel. Alexander entered the office to rent a room. Holloway then drove the Jacksons to room 41. Their argument continued. Holloway remained outside listening to the argument. The motel door opened suddenly and Alexander grabbed Judy to prevent her from leaving. Because Holloway and Judy had been friends for a long time, Holloway tried to defend her. When he entered the motel room, Alexander attacked him with a hammer. Holloway disarmed Alexander but the latter drew a revolver. During the ensuing struggle, Alexander had his finger on the trigger of the gun, which discharged three times. Alexander fell and Holloway fled. He drove Judy home. Thereafter, he drove around for a while and then drove home.

At 3:30 p.m., Investigator Griffin interviewed Judy; she may have been handcuffed. Shortly thereafter, he was informed that assistant State’s Attorney Paul Szigetvari was in the police station. Szigetvari was assigned to felony review. Griffin, Lavert, McGuire and Yucaitis spoke briefly with Szigetvari. Szigetvari then joined Griffin in interviewing Judy.

Szigetvari introduced himself as an assistant State’s Attorney; he never said he was a public defender. He advised Judy of her Miranda rights before conversing with her. Judy appeared normal; she never indicated that she was hungry, thirsty, ill, needed medication or wanted a physician. She never said she was denied use of the telephone.

Judy stated that she and Holloway were lovers. Three days before Alexander’s murder, they decided to kill Alexander by throwing a radio into the tub while he was showering. But when the time came for Judy to do the act, Alexander asked her why she was wearing a glove. She did not proceed with the electrical shock attempt. Another plan was for Judy to scream while she and her husband were engaged in sex, at which point Holloway would come in and hit Alexander with a hammer.

On July 12, 1979, Szigetvari spoke with Judy and then with Holloway on four occasions. Investigator Griffin was also present. Szigetvari advised Holloway of his Miranda rights. After the last of these interviews, Szigetvari asked Holloway whether he was willing to make a written statement, and he answered affirmatively. Szigetvari also took a written statement from Judy. Szigetvari noticed nothing unusual about Holloway’s physical condition. Holloway never complained that he required medical attention; he never said he wished to see a doctor or wanted medication; and he never said he asked police for medicine and they refused him. Holloway was not perspiring; he was calm and his speech was articulate. He was not handcuffed; neither was Judy handcuffed, and she made no requests or complaints. She did not appear to be tired.

Janet Lupa, a court reporter, recorded the statements of Holloway and Judy on the evening of July 12, 1979. In her presence, Holloway did not complain of a diabetic condition; he did not mention medical or physical problems. He was not perspiring, shaking or holding his head, and his answers to questions were responsive. Neither he nor Judy was handcuffed, and Judy made no complaints.

James Linn, an assistant State’s Attorney assigned to felony review, relieved Szigetvari on July 12, 1979. Linn received from court reporter Lupa the typewritten statements of both defendants. Linn read the statement with Holloway and asked him to sign it. Then Lupa photographed Holloway. The same procedure was followed with Judy.

Holloway’s statement was taken at 7:45 p.m. on July 12, 1979, in the presence of Szigetvari, Griffin and Lupa. Holloway and Judy had known each other for three years and were lovers. In March 1979, Judy first began to suggest to Holloway that he kill Alexander. Three days before the murder, Judy and Holloway discussed killing Alexander by dropping a radio in the bathtub while the latter was bathing. Defendants bought extension cords to carry out their plan. The incident was to occur on the evening of July 11, 1979. While Alexander was in the tub, he asked Judy why she wore rubber gloves. Judy decided not to proceed. In a telephone conversation, Judy told Holloway that she had another plan. She asked Holloway to pick her up and also her husband and drive them to a motel, which he did. Judy planned that she would get Alexander to take a shower and that Holloway would enter the room after she screamed, under the pretense that she was being assaulted.

After transporting the Jacksons to their motel room, Holloway parked the cab on the street and walked back to the motel. He had a claw hammer. When he heard screaming, he entered the room. Judy and Alexander were engaged in an act of cunnilingus. Twice Holloway hit Alexander on the head with the hammer. Alexander turned and grabbed Holloway’s legs. Alexander had a gun in his hand. A struggle over the gun ensued. Holloway squeezed Alexander’s hand and the gun fired. Later, the gun fired another time. Defendants fled. Holloway took the gun with him although it did not belong to him. Defendants went to Judy’s apartment, where they engaged in sexual intercourse.

Judy’s statement was taken at 8:20 p.m., on July 12, 1979, in the presence of Szigetvari, Griffin and Lupa. Judy and Holloway had been lovers for about a year. Judy disliked her husband. Three days prior to the murder, Judy and Holloway discussed a plan to electrocute her husband but it was not carried out. They decided to have Alexander killed by battery. Holloway drove Judy and her husband to the motel room. After the Jacksons showered, they “tussled.” Alexander had a hammer in his hand. Then Judy and Alexander engaged in oral sex. Holloway entered the room and twice hit Alexander with the hammer. Holloway drew a gun from his pocket and told Alexander he would kill him. Judy believed the gun belonged to Holloway. Alexander said, “Don’t do this to me.” After Judy and Holloway fled the motel, the latter said that Alexander “just won’t die.” When they arrived at Judy’s apartment, they made love. In Holloway’s cab there was a yellow case containing Alexander’s $10,000 insurance policy.

Lawrence Pajowski, a Chicago policeman, transported Holloway from one police station to another. Holloway did not complain of illness or mention that he had a diabetic condition.

Fawzi Suliamen, a physician on duty at the hospital for Cook County jail, saw Holloway on July 15, 1979. Holloway complained of dizziness and told him he was a diabetic. He said he had not taken his medicine for 30 days. He was not in an emergency situation.

At Holloway’s suppression hearing, police officers and other witnesses testified. Holloway stated that he was a cab driver and that he suffered from hypertension and diabetes. When he was taken to the police station in the early morning hours of July 12, 1979, he had not slept since the night of July 10. On July 11, he awoke about 5 a.m. The last time he had food or liquids was at 2 p.m. on July 11, and the last time he had medications was at 7 a.m. on July 11. He did not sleep or eat or take any medication on July 12. He drank water when he was taken to the men’s room at the police station, but he drank nothing when he was taken to his place of residence on July 12. When Holloway was taken to a second lockup, he slept and was given food and drink. He received no medication until July 15, when he was taken to the hospital. He told medical personnel there that he had received no medication for three days.

When the police first visited Holloway at his home, they asked whether they could look at his cab. He cooperated because he felt intimidated. This is why he agreed to go to the police station. He was advised of his constitutional rights when he arrived at the station. He was handcuffed there, but he could not remember exactly when that occurred. Holloway gave Officer Swick the keys to the cab because he (Holloway) felt he could not refuse.

About an hour after his arrival at the station, Holloway changed his clothes. He felt sleepy and dizzy. His condition worsened as the day progressed. He talked to many policemen on July 12, but he could not recall what he or they said. Holloway did not read well without his reading glasses. Despite this fact, he signed consent-to-search forms for his house and vehicle, and he signed a statement at times when he was not wearing those glasses.

When Holloway was at the police station, he asked for a drink but none was brought. He was allowed to go to the washroom, where he drank water. He told the police he was a diabetic and asked that someone get his medicine from his home. He did not ask for a doctor. During the day of July 12, Holloway was perspiring heavily; he was weak and his body was shaking. Holloway remembered telling police that the gun was hidden in his home and he remembered showing them where it was hidden.

During cross-examination, Holloway frequently could not recall or was vague with respect to what happened while he was at the police station.

After Holloway’s testimony, counsel stipulated that when police arrived at Holloway’s residence they were looking for an unidentified male wearing a white shirt and an unidentified female with sandy red hair.

Alexander Cardoso, a physician, reviewed Holloway’s files from a medical clinic. Holloway was treated and received medication for diabetes and hypertension. In Cardoso’s opinion, if Holloway had no food, water, sleep or medication from the evening of July 11 or the early hours of July 12 until the late hours of July 12, the effects would be headaches, dizzy spells, disorientation and confusion, and a lack of understanding of what was asked of him.

The trial court ruled that Holloway was seized by police at 3 a.m. on July 12, 1979, and that there was probable cause to arrest him because cab No. 1558 had delivered the victim and a female to the motel and was seen leaving the motel after screams were heard. Police had a right to search the cab, but they had no right to search containers found within the cab. The trial court found that Holloway knowingly and intelligently responded to questions asked of him and that he voluntarily answered those questions. The court denied the motion to suppress statements and to quash arrest, but it suppressed the bullets and insurance papers found in the containers which were inside the cab.

At Judy’s suppression hearing, police officers and other witnesses testified. Judy stated that on July 12, 1979, at 1:30 a.m., her landlord told her that her husband had been killed. At 6 a.m., a police officer took her to the police station. When she asked him the reason, he told her that it was for security reasons. He also told her that she would be able to retrieve her husband’s personal effects. She was not told that she was under arrest. At the station, she was handcuffed to a wall. Thereafter, other police officers questioned her and showed her certain objects, none of which was a note or a receipt. An officer told her that her husband was dead. He said that there seemed to have been a fight and asked whether she knew anything about it. Judy did not respond. Judy recalled, generally, that the police told her what Holloway had said, but she did not remember specific statements. The police did not hit her.

Judy was questioned for hours — from 6 a.m. on July 12 to 2 a.m. on July 13 — by seven to 10 police officers. She was allowed one telephone call. She ate no food and drank only a cup of coffee. She was on medication, which made her sleepy, and took four or five doses while at the police station. Judy remembered that between 11 a.m. and noon she signed a consent form to search her residence, but she did not read it prior to signing. She signed the form when she was sleepy and tired and feeling the effects of the medication. She was also hungry. She did not recall signing a second consent-to-search form at 12:30 p.m. In fact, Judy signed the first consent form at 10 a.m.

Judy talked to a man whom she thought to be a public defender, because a policeman had told her the man was from the “P.D.” Later the man introduced himself as an assistant State’s Attorney. She had a conversation with the attorney in the presence of a court reporter. She was not handcuffed during that conversation and she was not advised of her constitutional rights until the court reporter was present. Judy did not remember certain questions that had been asked of her nor the answers she gave in her written statement. Judy was informed at 2 a.m. on July 13 that she was being charged with murder.

The trial court ruled that Judy made a knowing, voluntary and intelligent waiver of her rights, and it denied her motion to suppress.

At the joint trial of defendants, Alexis Batts, the niece of Alexander, testified that Judy and Alexander were married on December 2, 1978. She identified his body on July 14, 1979. Dorothy Moore, Alexander’s sister, testified that he constantly used a cane and took daily medication of Valium, codeine, digitalis and insulin.

Robert Stein, chief medical examiner for Cook County, performed an autopsy upon Alexander. He observed two lacerations on the head, a bullet wound on the left side of the neck, and another bullet wound in which the bullet entered the lower part of the left chest and traveled downward. The cause of death was a combination of occlusive coronary atherosclerosis, blunt trauma of the head, and a bullet wound of the neck and abdomen.

Michael Schaffer, chief toxicologist for the county medical examiner, testified that Alexander’s blood contained 96 milligrams of ethanol, Valium and codeine.

Richard Chernow, a Chicago police officer and ballistics expert, testified that bullets found in the body of the deceased were fired from the gun found in Holloway’s home.

Police officers, assistant State’s Attorneys, a court reporter, and other witnesses described events before and after defendants were taken into custody.

Harry Holloway, 66 years old, testified that he had attended elementary school only to the third grade. He took medication for his diabetes and hypertension. When he does not take his medicine, he becomes dizzy and light-headed. When he was at the police station, police officers told him many times that if he cooperated his handcuffs would be removed, he would get his medicine, and he could go home.

Holloway met Judy in 1977. He considered her to be a goddaughter. He and Judy were never lovers. Holloway met Alexander shortly before the latter married Judy in late 1978. Alexander was a heavy drinker and smoked marijuana.

On July 4, 1979, Holloway observed an argument between the Jacksons in which Alexander threatened Judy with a hammer. On July 11, 1979, Holloway had dinner with the Jacksons. Holloway left their home and returned around 9:30 p.m. Alexander was drinking heavily and smoking marijuana. Alexander, but not Judy, wanted to go to a motel. They argued. Holloway drove the Jacksons first to the Dunes Motel, which had no air-conditioned rooms available, and then to the Ranch Motel. Alexander registered and Holloway drove to room No. 41. Holloway drove off to buy liquor for Alexander but was unsuccessful. He was gone for 15 to 18 minutes. When he returned to the motel he heard screaming. He heard Judy say, “Oh, please, Mr. Jackson, don’t.” He ran into the dark motel room. He carried a hammer in his hand to knock on the door so that Alexander would hear him. Holloway hit Alexander in the shoulder, saying, “You don’t want to do that.” Alexander grabbed Holloway’s knees. Holloway hit Alexander with the hammer — he did not know how many times. Holloway then felt a gun. The struggle continued, with Alexander trying to shoot Holloway. The gun fired twice. The gun did not belong to Holloway. Holloway never planned to kill Alexander.

Judy seemed injured. He helped her to the cab and drove her home. He returned to the motel, but when he saw policemen there he drove off and sat in his cab for a while. Then he drove home. When the police arrived, they asked whether the cab was his and he replied in the affirmative. One of the police officers said, “Let’s get it.” Holloway backed the cab out of the driveway and the police searched it. Thereafter, the police announced that he would have to go to the police station. A police officer told him that blood was on his clothes and said, “Let’s have those clothes.” Holloway was handcuffed from 3:30 a.m. on July 12 to 12:30 a.m. on July 13. The interview room was hot and stuffy. Police officers entered the room, two at a time. Holloway was threatened. He heard someone screaming. He saw a prisoner who was bloodied and whose eyes were swollen. Holloway told police he needed his medication. He was never given food, drink, or allowed to sleep. The police threatened him in order to get him to sign the consent-to-search form.

When the assistant State’s Attorney appeared to take his statement, Holloway was dizzy, hungry and thirsty. He was frequently told that if he cooperated he would be released. Holloway could not read without his eyeglasses. The police seized his glasses. His signature on the statement was not his normal signature. He could not see to read the statement or the consent form. He did not recall giving the answers that appeared in the written statement.

Judy Jackson, 30 years old, testified that she had known Holloway since 1977. She considered him her godfather. They never had sexual intercourse. Judy met Alexander early in 1978 and married him on December 2, 1978. Holloway met Alexander through Judy.

In mid-1979, Alexander began to drink heavily and became abusive toward Judy. On July 11, 1979, Holloway had dinner with the Jacksons. Alexander drank heavily that day. Judy first learned that they were going to a motel after she was in the cab. She thought they were just going for a ride. An argument ensued because Judy did not want to spend money for a motel room.

Judy entered the motel room with Alexander following her. The argument became physical. Alexander pulled off her dress. The couple “tussled” from the bathroom to the bedroom. When Judy opened the outside door, Alexander pulled her back. Holloway was outside. While the men struggled, Judy heard a noise that sounded like a firecracker. When Judy and Holloway fled from the room, her nose was bleeding and her side and legs hurt. Holloway drove her home. She claimed that the statement made on July 12, 1979, in the presence of a court reporter was untrue. She was scared and confused when she made those statements. She did not recall signing the consent-to-search form.

The jury found defendants guilty of murder, and the trial court sentenced each defendant to 40 years’ imprisonment. Defendants appeal.

Defendant Holloway argues that there was no probable cause to arrest him at the time he was seized (3 a.m. on July 12, 1979); therefore, the inculpatory statement and the gun given by him to the police should have been suppressed as fruits of an illegal arrest. Holloway makes a lengthy argument, the gist of which is that at the time he was seized the police had only a slight suspicion that he was involved in the crime; therefore, the arrest was tainted ab initio, so that no later actions by the police, such as Miranda warnings, could erase the taint.

It is well established that a warrantless arrest is invalid unless there is probable cause to believe that the person is committing or has committed an offense. (People v. Jones (1983), 114 Ill. App. 3d 576, 581, 449 N.E.2d 547, 552.) The test is whether, when viewed objectively, the situation confronting the arresting officer (People v. Thomas (1980), 80 Ill. App. 3d 1121, 1125, 400 N.E.2d 1019, 1021), as well as facts known to him, are such as would cause a person of reasonable caution to believe that the individual to be arrested had committed a crime (People v. Lippert (1982), 89 Ill. 2d 171, 178, 432 N.E.2d 605, 608), bearing in mind that we are dealing with probabilities (People v. Spencer (1982), 107 Ill. App. 3d 835, 838, 438 N.E.2d 603, 606), not proof beyond a reasonable doubt (People v. Blitz (1977), 68 Ill. 2d 287, 292, 369 N.E.2d 1238, 1240), and whether the police officers’ conduct is reasonable must be judged on the basis of the responsibility to prevent crime and apprehend criminals (People v. Jones (1983), 114 Ill. App. 3d 576, 581, 449 N.E.2d 547, 552).

A valid arrest occurs when the police informs the defendant of a violation, the defendant submits to the control of the police, it is clear that the police intended to arrest the defendant, and the defendant understood that he was being arrested. People v. Wipfler (1977), 68 Ill. 2d 158, 165, 368 N.E.2d 870, 872.

In the instant case, the police officers arrived at Holloway’s home after learning that the cab seen at the crime scene was leased to Holloway. Holloway testified that when the police arrived at his home he was not told that he was suspected of a crime. The police officers did not force their way into his home — he invited them in. No guns were displayed by the police officers. Holloway was not handcuffed or in any way physically restrained. The officers asked him to accompany them, and he agreed to do so, although he testified that he did not feel free to refuse. Chicago police detective Swick testified that when he arrived at Holloway’s home, he (Swick) had only the limited information that the cab was leased to Holloway and that a man and a woman had been seen leaving the scene of the crime in the cab. The police did not give Holloway Miranda warnings, tell him he was under arrest, place him in handcuffs, or force him to accompany them. After telling him that his cab may have been used in the commission of a crime, they asked him to accompany them to the station to answer questions. Holloway was cooperative and agreed to accompany the officers.

The absence of a threatening presence of several police officers, display of weapons, physical touching, use of language or tone of voice which indicates that compliance with the officers’ request might be compelled, permits the conclusion that no seizure of the person has occurred. (People v. Sanders (1981), 103 Ill. App. 3d 700, 709, 431 N.E.2d 1145, 1153, citing United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870.) Shortly after arriving at the station, Holloway gave several conflicting and inconsistent statements to the police. He even denied that his cab was at the motel (the scene of the crime). When confronted with the motel registration ticket, on which the motel clerk had written the number of his cab, Holloway recanted. Additionally, Officer Swick, an experienced police officer, noticed what appeared to be blood on Holloway’s clothing as well as on the door of the cab. We believe the sequence of events that occurred after Holloway’s arrival at the police station were sufficient to establish probable cause.

Holloway’s own testimony makes it clear that no seizure had occurred when he accompanied the police officers from his home at 3 a.m. on July 12, 1979. Although Holloway states he “thought [he] couldn’t refuse,” the facts show that he voluntarily accompanied the police officers.

At the suppression hearing, the trial court found that Holloway was seized at his home at 3 a.m. on July 12, 1979, for questioning and that, based on the information garnered from witnesses at the crime scene, there was probable cause for such seizure.

Since it is the judgment, and not what else may have been said by the trial court, that is on appeal to the reviewing court, we are not bound to accept the trial court’s reasons for its judgment, and the judgment may be sustained upon any ground warranted, regardless of whether it was relied on by the trial court and regardless of whether the reason given by the trial court was correct. Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9, 12.

Accordingly, although we find there was no probable cause to arrest Holloway when the police first arrived at his home at 3 a.m. on July 12, 1979, we do find that probable cause existed later after Holloway had voluntarily gone to the police station. We hold that the trial court did not err in refusing to suppress Holloway’s confession and the gun, since probable cause to arrest existed after his arrival at the station but prior to his confession and surrendering of the gun.

Since we hold that defendant Holloway was not arrested in his home but was arrested later after probable cause had been established, we need not address the issue of whether exigent circumstances existed to justify a warrantless arrest of defendant in his home.

Holloway next complains that his inculpatory statement was not voluntary. He contends that the trial court’s finding of voluntariness was against the manifest weight of the evidence. Holloway argues that the deprivation of medication, food and sleep, combined with his low level of education, overcame his free will.

In determining whether the trial court properly denied Holloway’s motion to suppress his statement, the key inquiry is whether the statement was voluntary. The State has a heavy burden to show that a defendant has waived his constitutional rights in a knowing, intelligent, and voluntary manner. (Miranda v. Arizona (1966), 384 U.S. 436, 475, 16 L. Ed. 2d 694, 724, 86 S. Ct. 1602, 1628.) The procedural safeguards outlined in Miranda recognize that during custodial interrogation coercion can be mental as well as physical. (People v. Martin (1984), 102 Ill. 2d 412, 426, 466 N.E.2d 228, 234.) The court looks to the totality of circumstances in determining whether a statement was voluntarily given. (People v. Martin (1984), 102 Ill. 2d 412, 426-27, 466 N.E.2d 228.) The test for voluntariness is whether the statement was made freely and without compulsion or inducement of any sort or whether the defendant’s will was overcome at the time he confessed. (People v. Martin (1984), 102 Ill. 2d 412, 427, 446 N.E.2d 228, citing People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601.) Other factors to be considered are the age, education and intelligence of the accused, the duration of questioning, and whether the accused was given his constitutional rights or subjected to physical punishment. People v. Martin (1984), 102 Ill. 2d 412, 427, 446 N.E.2d 228.

In the instant case, Holloway was advised of his Miranda rights prior to any questioning. He was not handcuffed for several hours after arriving at the police station. The State’s witnesses testified in rebuttal that Holloway was not perspiring heavily, did not appear confused, answered questions responsively, and did not complain of illness, ask for medical attention or ask to be allowed to take medication. Holloway testified that during a visit to his home, while in custody, he did not take his medication or mention to the accompanying police officers that he needed to take his medication. Holloway claims that he did not have food or drink for many hours before making the statement. He claims to have heard someone screaming in a nearby room while at the police station, but he makes no claim that he was himself physically abused. Although his education is limited, Holloway is literate. It can be inferred that he understood the questions asked since his answers were responsive.

Although dizziness, confusion and disorientation can result if defendant failed to take his medication, that mere possibility is insufficient proof that defendant’s will was overcome and that he was not aware of his actions when he gave the statement. Notwithstanding that it would have been more comfortable for Holloway if he had been permitted to sleep for several hours, take his medication and eat a good meal prior to his inculpatory statement, we cannot say that the physical discomfort which he may have felt was such as would overcome his free will.

The record shows that Holloway gave more than one version of the events surrounding the killing in an effort to limit the incriminating effects of his final written statement. It is unlikely that one who had lost his free will would be unable to resist confessing, yet, at the same time, attempt to mitigate the effect of a confession. See People v. Kincaid (1981), 87 Ill. 2d 107, 429 N.E.2d 508.

All of the State’s witnesses who had observed Holloway while in custody denied that he exhibited any of the physical signs of distress which he claims to have had. Although Holloway’s medical expert testified as to what the possibilities were if defendant remained without food, sleep or his medication for several hours, his opinion was only one of the factors to be considered by the trial court in making a determination.

In viewing, as we must, all of the evidence surrounding the making of the confession (People v. Kincaid (1981), 87 Ill. 2d 107, 120, 429 N.E.2d 508, 513), and recognizing that the finding of the trial court as to whether a confession is voluntary will not be disturbed unless it is contrary to the manifest weight of the evidence (People v. Brownell (1980), 79 Ill. 2d 508, 521, 404 N.E.2d 181, 188), we conclude that the record clearly supports the trial court’s finding of the voluntariness of the confession. We hold that the trial court’s denial of Holloway’s motion to suppress was not against the manifest weight of the evidence.

Similarly, we reject Judy’s contention that it was error for the trial court to have allowed her inculpatory statement into evidence. In accordance with the discussion above, we do not find the circumstances surrounding Judy’s statement to have been such that as a matter of law her statement should have been suppressed as involuntary. On the contrary, the record shows no evidence of physical abuse, coercion, or threats. Judy, like Holloway, gave more than one version of the events surrounding the killing before she made a final written statement. She claims to have been dizzy and sleepy because of medication which she took during the hours before her statement. Nevertheless, as with Holloway, although Judy may have been physically uncomfortable, there was no evidence of any apparent manifestations, physical or otherwise, which would indicate that her will had been overcome. We hold that the record clearly supports the trial court’s finding that Judy’s statement was voluntarily made.

We next address the contention by both defendants that they were not proved guilty beyond a reasonable doubt of murder. Their contention is based on the theory that Alexander was killed as a result of a struggle when Holloway attempted to prevent Alexander from attacking Judy. They argue that since the prosecution’s case was based on the fact that Alexander’s body was found in the motel and on their inculpatory statements, which were later repudiated, there was no proof of guilt beyond a reasonable doubt. Defendants conclude that the facts show Alexander’s death to have resulted from acts that were reasonable under the circumstances.

Resolution of factual issues and the assessment of the credibility of witnesses is for the jury to determine (People v. Williams (1982), 93 Ill. 2d 309, 315, 444 N.E.2d 136, 138), and we will not reverse that judgment unless the evidence is so unsatisfactory or improbable that a reasonable doubt as to guilt remains (People v. Berland (1978), 74 Ill. 2d 286, 306, 385 N.E.2d 649, 658).

The evidence established that Alexander was bludgeoned and shot in the motel room where his body was found. He was completely nude and had only been in the room for a short time before he was killed. Both defendants hastily left the scene after the shooting. Judy later attempted to conceal her bloody clothes and denied being in the motel. Holloway also initially denied being at the crime scene and hid the murder weapon in the ceiling of his home. Later, both defendants confessed, giving explicit details of the crime. We have already determined that the trial court did not err in refusing to suppress the confessions. Accordingly, the jury was free to consider all the evidence, including the confessions, in reaching a verdict. Even if the evidence is largely circumstantial, it does tend toward a satisfactory conclusion and produces a reasonable and moral certainty that defendants committed the crime. (People v. Williams (1982), 93 Ill. 2d 309, 322, 444 N.E.2d 136.) It is sufficient that if all the evidence taken together satisfies the jury beyond a reasonable doubt, then each link in the chain of events need not be proved separately beyond a reasonable doubt. (People v. Williams (1982), 93 Ill. 2d 309, 323, 444 N.E.2d 136.) We hold that the record supports the jury’s verdict of guilty of murder as to both defendants.

Both defendants argue that the trial court erred in refusing to give certain jury instructions. Holloway claims that the jury should have been given instructions on the justifiable use of force and voluntary manslaughter, since his defense was predicated on the theories that he acted in self-defense and in defense of Judy. Judy argues that the jury should have been given the non-Illinois pattern jury instruction that mere presence at the scene of a crime is insufficient to establish accountability.

The Criminal Code of 1961 defines voluntary manslaughter as follows:

“(a) A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:

(1) The individual killed, or

(2) Another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed.

Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.

(b) A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.” (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 2.)

The jury instructions that defendant Holloway attempted to tender are:

“(1) I.P.I. 24.06, Use of Force in Defense of a Person;

(2) I.P.I. 25.05, Issues in Defense of Justifiable Use of Force;

(3) I.P.I. 7.03, Voluntary Manslaughter — Provocation;

(4) I.P.I. 7.04, Issues in Voluntary Manslaughter — Provocation;

(5) I.P.I. 7.05, Voluntary Manslaughter — Intentional—Belief of Justification; and

(6) I.P.I. 7.06, Issues in Voluntary Manslaughter — Intentional-Belief of Justification.”

It is well settled that if there is evidence in the record which, if believed by a jury, would reduce the crime to manslaughter, a manslaughter instruction tendered by the defendant must be given. (People v. Simpson (1978), 74 Ill. 2d 497, 500, 384 N.E.2d 373, 374.) However, such an instruction should not be given if the evidence clearly demonstrates that the crime was murder and there is no evidence to support a conviction for manslaughter. People v. Simpson (1978), 74 Ill. 2d 497, 384 N.E.2d 373.

Additionally, if there is some evidence in the record which, if believed by a jury, would support a claim of self-defense, then an instruction on justifiable use of force should be given. (People v. Lockett (1980), 82 Ill. 2d 546, 551, 413 N.E.2d 378, 381.) The jury would then have the opportunity to consider whether the defendant subjectively believed that use of force was necessary, but that defendant’s subjective belief was unreasonable under the circumstances. This conclusion would give rise to a verdict of voluntary manslaughter. Accordingly, instructions on justifiable use of force and voluntary manslaughter should be given when any evidence is presented showing defendant’s subjective belief that use of force was necessary. (See People v. Lockett (1980), 82 Ill. 2d 546, 413 N.E.2d 378.) In determining whether Holloway was entitled to the voluntary manslaughter instructions, the record must be carefully reviewed in its entirety.

In the instant case, Holloway’s entire defense was premised upon the theory that Alexander was killed when the gun discharged during a struggle — an accident. Holloway claimed not to have intended to kill Alexander. Further, the incident, which Holloway claims gave rise to the struggle (Alexander’s attack upon Judy), was not such as would evoke the sudden and intense passion that follows serious provocation as defined by the voluntary manslaughter statute. (See Ill. Rev. Stat. 1977, ch. 38, par. 9 — 2(a). See also People v. Neal (1983), 112 Ill. App. 3d 964, 446 N.E.2d 270; People v. Purrazzo (1981), 95 Ill. App. 3d 886, 420 N.E.2d 461.) Thus, it seems clear that Holloway’s defense was totally inconsistent with the jury instructions he sought to give.

We also note that defendant Holloway’s own testimony established that it was he who attacked Alexander. (See People v. Gutierrez (1979), 77 Ill. App. 3d 772, 396 N.E.2d 853.) Additionally, since none of the evidence suggested that Holloway knowingly used excessive force, it was not necessary to consider whether his subjective belief was unreasonable for purposes of the voluntary manslaughter instruction. (See People v. Lockett (1980), 82 Ill. 2d 596, 413 N.E.2d 378.) A detailed review of the evidence established that Alexander met his death either as a result of a plan to kill him, which the jury found, or inadvertently during a struggle with Holloway, which the jury rejected when it found defendants guilty of murder. Under these circumstances there was no justification for giving the instructions on justifiable use of force and voluntary manslaughter. We conclude that the trial court did not err in refusing to give the jury the instructions in question. People v. Gutierrez (1979), 77 Ill. App. 3d 772, 774, 396 N.E.2d 853.

Judy complains that it was error for the trial judge to have refused her non-Illinois pattern jury instruction concerning mere presence at the scene of the crime. She relies on People v. Fryman (1954), 4 Ill. 2d 224, 122 N.E.2d 573, People v. Kucala (1972), 7 Ill. App. 3d 1029, 288 N.E.2d 622, and People v. Nugara (1968), 39 Ill. 2d 482, 236 N.E.2d 693, in support of her argument that even if there is only slight evidence relating to her theory she was entitled to the instruction on mere presence. While she correctly states the rule, our review of the record makes it clear that the minimum standard for giving the mere-presence instruction was not supported by the evidence. On the contrary, the evidence shows the trial judge correctly gave the Illinois pattern jury instructions concerning accountability.

Judy concedes that the accountability instruction was proper but asserts that in any event it should have been given in concert with the mere-presence instruction. Liability under the theory of accountability requires that the defendant, before or during the commission of an offense by another, aids or abets that other person. (Ill. Rev. Stat. 1977, ch. 38, par. 5 — 2; People v. Fuller (1980), 91 Ill. App. 3d 922, 929, 415 N.E.2d 502, 507.) While mere presence at the scene of a crime does not make a person a principal in the crime (People v. Hunter (1976), 42 Ill. App. 3d 947, 950, 356 N.E.2d 822, 824), the defendant’s assistance during the crime can be inferred from his acts performed with the other party after the commission of the crime (People v. Fuller (1980), 91 Ill. App. 3d 922, 929, 415 N.E.2d 502). Thus, the fact finder need not rely on the defendant’s overt act of assistance in order to reach a verdict of guilty. (People v. Fuller (1980), 91 Ill. App. 3d 922, 929, 415 N.E.2d 502.) Further, proof of a common purpose in finding defendant guilty on a theory of accountability need not be supported by words or action at the time of the crime but can be drawn from the surrounding circumstances. (People v. Moon (1976), 38 Ill. App. 3d 854, 862, 350 N.E.2d 179, 185.) The trier of fact may consider the defendant’s conduct in connection with other circumstances in concluding that the defendant was not merely a bystander but aided and abetted the crime. People v. McConnell (1977), 48 Ill. App. 3d 355, 361, 362 N.E.2d 1280,1286.

In this case, Judy’s conduct before the killing, during the struggle, and afterward clearly established accountability. There was evidence that she and Holloway plotted to kill Alexander on more than one occasion. The eventual killing grew out of a plot between the two. Judy concealed her bloodstained clothing after fleeing the murder scene with Holloway. By their own confessions, Judy and Holloway engaged in sexual intercourse after the killing.

The requirements for accountability in this case were clearly satisfied, while the minimum standard under which a mere-presence instruction should be given was not. We find no error in the trial court’s refusal to give Judy’s non-Illinois pattern jury instruction concerning mere presence at the scene of the crime.

Defendant Holloway urges this court to reverse his conviction because of what he contends was the trial court’s premature issuance of the Prim instruction.1 The State correctly points out that no specific amount of time is prescribed for a jury to deliberate before the Prim instruction can be given. It is within the function of the trial court to make that determination. (People v. Preston (1979), 76 Ill. 2d 274, 283, 391 N.E.2d 359, 363.) Further, the evidence was overwhelming, and we do not accept defendant Holloway’s argument that their convictions resulted from the premature giving of the Prim instruction and not from the evidence.

We find no support in the record for defendant Holloway’s contention, and his arguments do not explain how the jury was influenced or in any way pressured into reaching a verdict. We hold that there was no reversible error in the issuance of the Prim instruction.

Both defendants argue that the trial court abused its discretion in sentencing each defendant to a term of 40 years’ imprisonment. Holloway points out that he had no prior felony convictions; he held a steady job and was a productive member of his community. He concludes that, all things considered, including his advanced age, his sentence should be reduced to 20 years.

Judy makes the argument that this court should view her sentence as excessive since she had no prior criminal record. She points out that she was an exemplary citizen before this incident and that she has strong rehabilitative potential. She asks that her sentence be reduced to 20 years.

We reject these arguments. It is well settled that sentencing is within the discretion of the trial court, and it will not be altered on review absent an abuse of that discretion. (People v. Gutierrez (1979), 77 Ill. App. 3d 772, 774, 396 N.E.2d 853, 855, citing People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) The sentence imposed upon these defendants was within statutory limits and, considering the nature of the crime and all other circumstances (People v. Gutierrez (1979), 77 Ill. App. 3d 772, 774-75, 396 N.E.2d 882), we find no abuse of discretion.

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

Affirmed.

JIGANTI, P.J., and ROMITI, J., concur.

        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.

        Prim outlined the standards under which the trial court, in exercising its discretion, may give supplemental instructions to a deadlocked jury. The court in Prim, following the American Bar Association Minimum Standards Relating to Jury Trials, outlined points on which the jury may be supplementarily instructed, while avoiding coercion of a guilty verdict.


source: Caselaw Access Project

author: PRESIDING JUSTICE STAMOS

license: Public Domain

text:
    MICHAEL LeHEW, Petitioner-Appellant, v. ERIN MELLYN, a/k/a Erin Barnett, et al., Respondents-Appellees (Bruce Barnett, Defendant-Appellee).
    First District (2nd Division)
    No. 83—3007
    Opinion filed January 16, 1985.
    Rehearing denied February 11, 1985.
    Leroy E. Stevens, Jr., of Chicago, for appellant.
    Walter Soroka, of Chicago, for appellees.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

This action was initiated by the filing of a petition for visitation with minor child by petitioner Michael LeHew, who claims to be the father of Andrea Mellyn. Andrea was born on December 21, 1981, to respondent Erin Mellyn, who was unmarried at the time of the birth; Erin Mellyn is now married to defendant Bruce Barnett. Petitioner’s pleading was amended several times, resulting in the stated cause of action being asserted in the second amended petition to determine paternity and for visitation with minor child. The trial judge granted respondent’s motion to strike and dismiss the petition, and petitioner appeals.

Andrea Mellyn was born out of wedlock to Erin Mellyn on December 21, 1981. Prior to the birth of the child, Erin had been involved in relationships with petitioner Michael LeHew and with respondent Bruce Barnett. Erin was married in 1982 to Bruce Barnett, who claimed to be Andrea’s father. On May 10, 1982, petitioner instituted this action, claiming to be the father of Andrea and seeking to assert parental rights and responsibilities. Specifically, petitioner sought visitation rights and a determination of his responsibilities in supporting Andrea.

Petitioner filed a motion for discovery on April 27, 1983, to compel all the parties to submit to blood tests. On November 14, 1983, the trial court granted respondent’s motion to dismiss the petition without ruling on petitioner’s discovery motion.

On appeal, petitioner contends that the trial court erroneously dismissed his petition to determine paternity and for visitation. Petitioner argues that he should not be barred from asserting parental rights as to Andrea.

The United States Supreme Court has established that a natural father, absent a finding that he is unfit, has a due process right to maintain a parental relationship with his children. (Quilloin v. Walcott (1978), 434 U.S. 246, 255, 54 L. Ed. 2d 511, 519-20, 98 S. Ct. 549, 554-55; Stanley v. Illinois (1972), 405 U.S. 645, 649, 31 L. Ed. 2d 551, 557, 92 S. Ct. 1208, 1211-12.) This right has been recognized by the Illinois courts. (People ex rel. Slawek v. Covenant Children’s Home (1972), 52 Ill. 2d 20, 284 N.E.2d 291; Pritz v. Chesnul (1982), 106 Ill. App. 3d 969, 436 N.E.2d 631.) In Covenant Children’s Home, our supreme court observed that “[t]he interests of the father of an illegitimate child are no different from those of other parents.” People ex rel. Slawek v. Covenant Children’s Home (1972), 52 Ill. 2d 20, 22.

In People ex rel. Vallera v. Rivera (1976), 39 Ill. App. 3d 775, 351 N.E.2d 391, this court stated:

“We believe the public policy of Illinois, as indicated by the Supreme Court and the legislature, requires recognition of the right of a putative father to visit his child upon a showing that his visits will not be detrimental to the best interests of the child.” (39 Ill. App. 3d 775, 777.)

In Rivera, the identity of the biological father was known. In the instant case, however, no finding has been made as to the identity of the child’s natural father. We believe that such a determination should be made at the outset of the proceedings in this case. The child’s interests will undoubtedly be furthered by the knowledge of the identity of her biological father, if for no other reason than the avoidance of future inheritance disputes. In addition, a determination that petitioner is not the child’s natural father would precipitate the termination of this litigation. We note that section 7 of the Parentage Act of 1984 (1984 Ill. Legis. Serv. Pub. Act 83 — 1372, effective July 1, 1985), although inapplicable to the case at bar, evidences an intent on the part of the General Assembly to permit a man “alleging himself to be the father” of a child to bring an action for determination of the existence of a father-and-child relationship.

If petitioner is found to be the child’s biological father, he will be entitled to visitation rights if the court determines that visitation is in the best interests of the child. This determination should be made in accordance with the guidelines set forth by this court in Rivera, in which it was held that what is in the best interests of the child must be determined by analyzing the particular facts of each case:

“One important consideration for the trial court is whether visits by the putative father will have a disruptive influence on the child, particularly when the mother has married and visitation would interfere with the adjustment of the child to a new family relationship. [Citation.]
However, where the needs of the child for a father’s affection and guidance are urgent and immediate, and the putative father is the only person available to meet these needs, visitation may be granted subject to such conditions as the court may find necessary to minimize the potential for conflict or disruption. [Citation.] Of particular significance would be the existence of an established family relationship between the father and child, such as where the father had been living with the mother and child, or where the father has previously had custody of the child. [Citations.]” (39 Ill. App. 3d 775, 777-78.)

The court in Rivera also stated that visitation should be conditioned upon the father’s contributing to the support and maintenance of the child. 39 Ill. App. 3d 775, 778.

The order of the trial court is reversed and the cause is remanded, initially for pleadings and proof on the issue of the identity of the child’s biological father, and then, if petitioner is found to be the father, for a hearing on the issue of whether visitation by petitioner is in the best interests of the child. The court is also directed to order the appointment of a guardian ad litem to represent the child’s interests in these proceedings.

Reversed and remanded with directions to proceed not inconsistent with this opinion.

PERLIN and HARTMAN, JJ., concur.


author: JUSTICE O’CONNOR

text:
    PATRICIA CLARKE, Plaintiff-Appellee, v. THE BOARD OF REVIEW, ILLINOIS DEPARTMENT OF LABOR, Defendant-Appellant.
    First District (1st Division)
    No. 84—0768
    Opinion filed February 25, 1985.

      Neil F. Hartigan, Attorney General, of Springfield (Kathryn A. Spalding, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Patricia Clarke, of Hillside, for appellee, pro se.

   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant, the Board of Review for the Illinois Department of Labor, appeals the order of the circuit court of Cook County reversing its decision that plaintiff Patricia Clarke was ineligible to receive unemployment compensation benefits. Defendant contends plaintiff voluntarily left her employment without good cause and, accordingly, her claim for unemployment benefits must be denied.

The undisputed facts are that plaintiff was employed as an accounts payable clerk at Gottlieb Memorial Hospital. She resigned on October 22, 1982, after approximately 16 months of service, and promptly filed for unemployment compensation benefits the same day. Plaintiff asserted during the initial administrative interview that she was compelled to resign for health reasons because harassment from her supervisor had caused her to become ill. Her employer contested the claim, contending that plaintiff voluntarily left her position due to job dissatisfaction. On December 16, 1982, the claims adjudicator determined plaintiff was eligible for benefits.

When plaintiff’s employer filed a notice of appeal, administrative hearings were held on January 25, 1983, and February 4, 1983. At the first hearing, Denise DeHesus testified as a representative of Gottlieb Memorial Hospital. She explained that the hospital had recently installed a computerized system and that plaintiff was given instruction to learn to operate the new equipment. Ms. DeHesus further stated that plaintiff’s performance was not up to par, and, consequently, her June 1982 review was delayed until October 15, 1982, to give her a chance to improve. She indicated that plaintiff was then given her review and a merit increase, but resigned several days later because she was unhappy over the comments and suggestions for improvement made in the review. Ms. DeHesus further stated that plaintiff was placed on a 90-day probation at the time of her review but was not forced or harassed into quitting.

At the second hearing Frank McHugh testified. He indicated he had been plaintiff’s supervisor for approximately 10 months. He stated that the hospital had switched to a new computer system and his employees were trained to use it. Mr. McHugh explained that plaintiff was uncomfortable using the new system but became indignant when he tried to discuss it with her. He stated that the delay in plaintiff’s review occurred because plaintiff had taken sick leave time and vacation time and that there was a delay getting the necessary papers from the personnel department. The supervisor reported that at the time of plaintiff’s review he had explained to plaintiff in what areas she needed to improve. He further suggested to plaintiff that he would set up a 90-day work plan, at the end of which she would discuss her progress with her immediate supervisor. He added that plaintiff was not discharged.

John Lewandowski testified as a personnel specialist at the hospital. He stated that plaintiff’s file contained no mention of a health problem. Anne O’Malley, assistant director of personnel, testified that there was nothing in plaintiff’s records about a health problem nor had plaintiff ever spoken to Ms. O’Malley about any illness. She indicated she was aware that plaintiff was unhappy with her review.

Plaintiff testified that she was performing her job in a proper manner and did not leave willingly. She indicated she felt there was a personality conflict between her and her supervisor and that she could do nothing to please him. After plaintiff received her review, she went to speak to the personnel director, who discussed the possibility that she resign. Plaintiff introduced a letter by John Hylton, former assistant director of personnel, which stated he had discussed several alternatives with plaintiff, including resignation.

Plaintiff submitted a copy of her resignation in which she stated she was subjected to mental harassment by her supervisor, causing her to become physically ill. She further indicated that because of her health, resignation was necessary. Plaintiff also submitted a hospital report dated October 8, 1982, at which time she suffered an anxiety reaction. The report stated the cause of plaintiff’s anxiety was tension at home and on the job and suggested plaintiff rest at home.

Plaintiff also submitted a statement from Louise Chaiken, her immediate supervisor, who indicated plaintiff was very conscientious and accurate in her work. Ms. Chaiken reported that she also had resigned from her position due to her working relationship with Mr. McHugh. Plaintiff’s son testified that he received a call from the emergency unit at Gottlieb indicating plaintiff was hyperventilating due to. nerves and stress associated with difficulties she was having with her supervisor. He opined that plaintiff’s working relationship with Mr. McHugh definitely affected her health.

At the close of the hearing, the referee reversed the decision of the claims adjudicator. He found plaintiff had voluntarily left work without good cause. Plaintiff appealed to defendant, which, after reviewing the record, affirmed the decision of the referee. Plaintiff subsequently filed a complaint for administrative review in the circuit court of Cook County. The court reversed defendant’s decision and awarded plaintiff unemployment compensation benefits.

Under the Illinois Unemployment Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 300 et seq.), an individual seeking unemployment benefits must meet several requirements. An unemployed individual will be eligible to receive benefits only if: (a) he has registered for work and continued to report to an employment office as prescribed; (b) he has made a claim for benefits; and (c) he is able to work and is available for work. Ill. Rev. Stat. 1983, ch. 48, pars. 420(A), (B) and (C).

However, a claimant meeting these requirements may still be ineligible for benefits if it is found that he voluntarily left his job without good cause. (Ill. Rev. Stat. 1983, ch. 48, par. 431.) Exceptions are enumerated to this rule within the statute. Section 601(B)(1) provides:

“The provisions of this Section shall not apply to an individual who has left work voluntarily:
1. Because he is deemed physically unable to perform his work by a licensed and practicing physician ***.” Ill. Rev. Stat. 1983, ch. 48, par. 431(B)(1).

To meet the exception stated in section 601(B)(1), plaintiff must produce sufficient medical evidence to allow the hearing referee to find that she is physically unable to perform her work. This determination cannot be made by plaintiff herself, but must be made by a medical expert. We find such evidence as is required by statute to be wholly lacking here.

In support of her contention that she was forced to resign her position at Gottlieb due to health reasons, plaintiff presented only one emergency room report indicating she suffered an anxiety reaction; the report stated that plaintiff was experiencing tension at work and home. She was advised to go home and rest. Without additional medical evidence in the form of a physician’s written report or evidence that would link a specific act of mental harassment to an immediate episode of anxiety or hyperventilation, we cannot find that plaintiff has met her burden of proving that she was rendered physically unable to perform her work.

The function of the reviewing court is to ascertain whether the findings and decisions of the administrative agency are against the weight of the evidence. (Eastman Kodak Co. v. Fair Employment Practices Com. (1981), 86 Ill. 2d 60, 426 N.E.2d 877; Davern v. Civil Service Com. (1970), 47 Ill. 2d 469, 269 N.E.2d 713, cert, denied (1971), 403 U.S. 918, 29 L. Ed. 2d 695, 91 S. Ct. 2229.) On administrative review, neither this court nor the circuit court is to reweigh the evidence or the determination of the credibility of the witnesses, which is to be made by the agency. (Dotson v. Bowling (1981), 102 Ill. App. 3d 340, 430 N.E.2d 44.) An examination of the evidence shows that the decision of the hearing referee and defendant here was not contrary to the manifest weight of the evidence. Not only did plaintiff wholly fail to provide medical evidence to support her contention, plaintiff’s employer presented overwhelming evidence to show that plaintiff’s resignation was more than likely for nonheaith reasons.

For the reasons set forth above, the judgment of the circuit court of Cook County is reversed.

CAMPBELL and BUCKLEY, JJ., concur.


author: PRESIDING JUSTICE WHITE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARL WILLIAMSON, Defendant-Appellant.
    First District (3rd Division)
    No. 83—2547
    Opinion filed February 20, 1985.
    Rehearing denied April 8, 1985.

      James J. Doherty, Public Defender, of Chicago (Alison Edwards, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE WHITE

delivered the opinion of the court:

Defendant, Carl Williamson, was charged by indictment with murder and armed violence for the shooting death of Derwin Tines. Defendant was 16 years old at the time of the offense. Pursuant to section 2 — 7(6) of the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 702 — 7(6)), defendant was prosecuted as an adult in a criminal proceeding. After a bench trial, defendant was found guilty of voluntary manslaughter and sentenced to four years’ imprisonment. No questions are raised as to the sufficiency of the indictment.

On appeal, defendant contends that section 2 — 7(6) permits unequal treatment of persons similarly situated, in that a youth charged with manslaughter may not be denied juvenile treatment unless a hearing is first held resulting in a finding by a juvenile court judge that it is not in the best interest of the minor or the public to proceed under the Juvenile Court Act. He contends, on the other hand, that under section 2 — 7(6), a youth charged with murder may be tried under the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 1 — 1 et seq.) and, if convicted only of manslaughter, may be sentenced as an adult with no such presumption of treatability as a juvenile and no hearing to determine whether he is amenable to rehabilitative juvenile treatment. Defendant asserts that section 2 — 7(6), in providing disparate sentencing of similarly situated juveniles, is violative of the equal protection clause of the United States Constitution. Section 2 — 7(6) (Ill. Rev. Stat. 1983, ch. 37, par. 702 — 7), in pertinent parts, provides:

“(a) The definition of delinquent minor under Section 2 — 2 of this Act shall not apply to any minor who at the time of an offense was at least 15 years of age and who is charged with murder, rape, deviate sexual assault or armed robbery when the armed robbery was committed with a firearm. These charges and all other charges arising out of the same incident shall be prosecuted pursuant to the Criminal Code of 1961, as amended.
* * *
(c) If after trial or plea the minor is convicted of an offense not covered by paragraph (a) of subsection (6) of this Section, such conviction shall not invalidate the verdict or the prosecution of the minor under the criminal laws of this State. In sentencing the court shall have available any or all dispositions prescribed for that offense pursuant to Chapter V of the Unified Code of Corrections and Article 5 of the Juvenile Court Act.”

The Illinois Supreme Court upheld the constitutionality of section 2-7(6) in People v. J.S. (1984), 103 Ill. 2d 395, 469 N.E.2d 1090, and found that the distinction drawn by the section between offenders based on age and the type of offense charged was not arbitrary and discriminatory and did not deprive defendants of procedural and substantive due process and equal protection of the laws. The court, citing People v. Pardo (1970), 47 Ill. 2d 420, 265 N.E.2d 656, noted that “[classification by age is not a new concept and has been held to be a permissible distinction.” (People v. J.S. (1984), 103 Ill. 2d 395, 403, 469 N.E.2d 1090.) The court further determined that the inclusion of murder, rape, deviate sexual assault and armed robbery with a firearm under the purview of the section to the exclusion of other Class X felonies is rationally based upon the violent nature of those crimes and the frequency of their commission. The court also held that section 2 — 7(6) does not deny offenders procedural due process, in that the section does not leave room for disparity in treatment between individuals within its proscription. All 15- and 16-year-olds who have committed the enumerated offenses are to be prosecuted in the adult criminal system.

The holding in People v. J.S. is not dispositive of all issues in the present case. In People v. J.S. the trial court dismissed the indictments against the defendants before trial because it found section 2— 7(6) unconstitutional. Consequently, the issue of the constitutionality of the sentencing provision of section 2 — 7(6) was neither raised by the defendants nor addressed by our supreme court. In the case at bar, defendant was tried on charges of murder and armed violence, convicted of voluntary manslaughter and sentenced to four years’ imprisonment pursuant to the Illinois Criminal Code of 1961 and Unified Code of Corrections. Citing Kent v. United States (1966), 383 U.S. 541, 16 L. Ed. 2d 84, 86 S. Ct. 1045, defendant contends that section 2 — 7(6) is unconstitutional because it provides no procedural guidelines by which the court may determine whether to sentence the offender as an adult or as a juvenile.

In Kent, a District of Columbia statute provided that a juvenile 16 years of age or older charged with a felony or an offense which, if committed by an adult, is punishable by death or life imprisonment, could be tried as an adult if, after a full investigation, the juvenile court judge determined that juvenile court jurisdiction should be waived. The supreme court noted that the statute does not state standards to govern the juvenile court’s decision as to waiver. However, the court opined that this did not confer upon the juvenile court a license for arbitrary procedure. The court concluded that the juvenile subject to transfer to criminal court jurisdiction is entitled to a hearing and to a statement of reasons for the juvenile court’s decision.

Section 2 — 7(6) provides that in sentencing a minor charged with murder, rape, deviate sexual assault, or armed robbery when committed with a firearm, but convicted of a lesser included offense, the “court shall have available any or all dispositions prescribed for that offense pursuant to Chapter V of the Unified Code of Corrections and Article 5 of the Juvenile Court Act.” The statute thus gives the judge discretion to sentence the minor as a juvenile under the Juvenile Court Act or as an adult under Illinois criminal law. We agree with defendant that such an important decision should not be left to the unfettered discretion of the judge. The judge must follow certain standards and guidelines in determining whether to sentence the minor as a juvenile or as an adult.

We find such standards in section 2 — 7(3)(a) of the Juvenile Court Act. (Ill. Rev. Stat. 1983, ch. 37, par. 702 — 7(3)(a).) The section pertains to waiver of juvenile court jurisdiction in the case of minors 13 years of age and older who commit acts which constitute crimes under the laws of Illinois. The section provides:

“(a) In making its determination on a motion to permit prosecution under the criminal laws, the court shall consider among other matters: (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.”

We believe that the enumerated standards apply also to section 2— 7(6), limiting the trial court’s discretion in sentencing juvenile offenders under that section.

We next determine whether the trial court abused its discretion in sentencing defendant as an adult. In doing so, we note that not all the factors in section 2 — 7(3)(a) need be present in an individual case, nor need all the relevant factors be resolved against the juvenile to justify sentencing the juvenile as an adult. (See People v. Taylor (1979), 76 Ill. 2d 289, 305, 391 N.E.2d 366.) Three of the matters which the statute requires the trial court to consider are clearly established by the record.

The first, whether there was sufficient evidence upon which a grand jury might be expected to return an indictment, is shown by the fact that defendant was actually convicted of voluntary manslaughter following trial.

The second factor is whether there was evidence that the offense was committed in an aggressive and premeditated manner. Although the offense did not involve premeditation, it was committed in an aggressive manner. The evidence shows that defendant shot Derwin Tines in the back as Derwin was running away from defendant.

The third factor is defendant’s age at the time of the shooting. Defendant was 161/2 years of age when he committed the offense, a scant six months from the upper age limit of juvenile court jurisdiction.

The fourth factor is the previous history of the minor. The presentence investigation report shows that defendant has no juvenile record, adult probation record or prison record.

As to the fifth factor to be considered, whether there are facilities particularly available to the juvenile court for the treatment and rehabilitation of the minor, the record is silent.

The sixth factor is whether the best interest of the minor and the security of the public required that the minor continue in custody or under supervision for a period extending beyond his minority. We note that defendant was 17 years of age when sentenced to four years’ imprisonment.

Upon review of the record, we are of the opinion that the trial judge did not abuse his discretion in sentencing defendant as an adult. However, in future cases involving section 2 — 7(6), the trial judge should make an express evaluation of the child in terms of the enumerated factors and “preserve a record sufficiently explicit so that his exercise of discretion may be reviewed meaningfully.” People v. Taylor (1979), 76 Ill. 2d 289, 301, 391 N.E.2d 366.

Lastly, defendant maintains that the trial judge’s remarks at the sentencing hearing that he had not heard from defendant at trial or at sentencing suggest “disapproval that defendant had chosen to remain silent.” Defendant concludes that he received a greater sentence because he exercised his right to remain silent.

At the sentencing hearing the trial judge made the following remarks:

“THE COURT: He did not testify at the trial, did he, your client?
MR. ALLEN [defense counsel]: No, he did not.
THE COURT: Proceed.
* * *
THE COURT: Mr. Williamson, you have heard what the lawyers have said to me. Is there anything you would like to say to the Court?
THE DEFENDANT: No, sir.
THE COURT: Well, as you know, I have not heard from you at the trial, I have never heard from you. This is an offense involving the use of a gun, a man was shot down — a very young man was shot down on the street. One of the options the Court has is probation but I don’t think it is appropriate. It would certainly deprecate the seriousness:of this killing.”

It is presumed that a trial judge who knows the law will not penalize a defendant because of his refusal to testify. (People v. Cheung (1980), 83 Ill. App. 3d 1048, 1055, 404 N.E.2d 558.) That presumption was not overcome by the judge’s remarks at sentencing. The judge’s remarks did not suggest “disapproval that defendant had chosen to remain silent.” Rather, the remarks evidenced efforts by the trial judge to ascertain what evidence had been adduced at trial and to afford defendant the opportunity to present mitigating evidence. We conclude that defendant was not penalized for exercising his right to remain silent.

For the aforementioned reasons, the judgment of the circuit court is affirmed.

Affirmed.

McNAMARA and RIZZI, JJ., concur.