text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNEY LEE ORR, Defendant-Appellant.
    Fifth District
    No. 5—82—0236
    Opinion filed September 28, 1984.

      Randy E. Blue and Patricia McMeen, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Terry M. Green, State’s Attorney, of Benton (Stephen E. Norris and Karen L. Stallman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE JONES

delivered the opinion of the court:

The defendant, Johnney Lee Orr, pleaded guilty but mentally ill to the offense of attempted murder. The only issue on appeal is whether the trial court failed to follow statutory procedures in accepting the defendant’s plea. See Ill. Rev. Stat. 1981, ch. 38, pars. 113—4(d), 115—2(b).

The defendant was indicted on September 19, 1980, for the attempted murder of his ex-wife on August 11, 1980. He subsequently entered a plea of not guilty and was released on bond.

On November 21, 1980, upon motion by the defendant, the court ordered a psychiatric examination to determine the defendant’s sanity at the time of the alleged offense. It was later discovered, however, that the defendant had been examined regarding his competency to stand trial, and the court ordered a second examination, which was conducted on March 28, 1981.

On January 15, 1982, a hearing was held in which the defendant withdrew his previous plea of not guilty and entered a plea of guilty but mentally ill to the offense of attempted murder. The defendant was admonished pursuant to Rule 402 (87 Ill. 2d R. 402), and the State presented a summary of the evidence against the defendant.

The State then submitted psychiatric reports prepared by Dr. Clarence Boyd based upon his examinations of the defendant. In his first report, Dr. Boyd related a history of mental problems of the defendant dating back to 1972, when he received psychiatric counseling while in the Marine Corps. In 1974 the defendant was hospitalized in Anna State Hospital, where he was diagnosed as having a paranoid personality disorder and was given individual psychotherapy. The defendant told Dr. Boyd that in May 1980 he tried to kill himself by driving his car into a bridge abutment at 60 miles per hour. He stated that he did this in order to get his wife to feel sorry for him. The defendant and his wife were divorced in July 1980, and, at the time the divorce papers were signed, the defendant took an overdose of pills that resulted in his being hospitalized overnight. Dr. Boyd’s report further indicated that approximately two weeks before the offense involving his ex-wife on August 11, 1980, the defendant made two trips to a family counseling service in West Frankfort. The purpose of these visits, according to the defendant, was “[s]o I could try to get away from my wife. *** I wanted to be hypnotized so I would forget her.”

The defendant told Dr. Boyd that on the evening before the attack against his ex-wife, he drank a great deal of whiskey, went home, took six or seven 750-milligram Placidyl capsules and drank more whiskey. He then carved a suicide note on the wall with a hunting knife and cut his wrist “a little.” The next thing the defendant remembered was being at his ex-wife’s house the following day. He “was holding a knife and Debbie [his ex-wife] had blood all over her.” The defendant’s ex-wife had been stabbed several times in her abdomen, back and side.

From his first examination of the defendant, Dr. Boyd concluded that the defendant had “a personality disorder of mixed type with paranoid, histrionic, antisocial, borderline and passive-aggressive features.” Dr. Boyd further stated that the defendant was competent to stand trial but that “his mental competency at the time of the reported criminality is not known to this examiner.” In his report of the second examination of the defendant, conducted after discovery of the initial confusion as to the purpose of the exam, Dr. Boyd considered the defendant’s claim that he had consumed substantial amounts of alcohol and had taken six or seven 750-milligram Placidyl capsules on the evening before the attempted murder of his ex-wife. The report concluded:

“If one assumes that the patient ingested and retained all that he claims to have taken it would most likely resulted [sic] in the patient’s going into a deep prolonged state of sleep. Paradoxical reactions consisting of restlessness or excitement can occur with Placidyl or alcohol. Mild stimulation, marked excitement and states of hysteria have been reported. It could not be stated beyond a reasonable degree of medical certainty that at the time of the alleged criminal stabbing he was able to appreciate the criminality of his conduct if the above statement are [sic] true, but that possibility exists.”

After submitting these reports, the State’s Attorney added that the defendant had exhibited noticeable signs of emotional strain during previous court hearings. Considering these factors, the State asserted that there was sufficient evidence that the defendant suffered from mental problems that could be classified as mental illness, but that the defendant’s illness was not sufficiently severe to relieve him of responsibility for his conduct. The court then asked the defendant’s attorney if he had anything to add regarding either the factual basis or the psychiatric reports. The defendant’s attorney responded in the negative, adding that “[w]e agree in substance virtually with most of what the State’s Attorney has said.”

In further discussion, the defendant’s attorney reiterated that the defendant had been despondent and depressed on the evening before the offense and had consumed a great deal of alcohol, as well as the Placidyl capsules. The defendant’s attorney also stated that he had become quite familiar with the new statute providing for a plea of guilty but mentally ill and that he had recommended that the defendant make this plea because he felt it was in the defendant’s best interests to do so. The court then explained to the defendant that a verdict of guilty but mentally ill would require the Department of Corrections to inquire as to the defendant’s need for psychiatric treatment and provide treatment if needed. After questioning the defendant to make sure he understood the nature of the charge against him and that he was giving up his right to assert an intoxication defense, the court accepted the defendant’s plea of guilty but mentally ill as requested by the defendant. The court made no mention of Dr. Boyd’s reports nor did it make any findings as to the defendant’s mental state on August 11, 1980.

At his sentencing hearing on February 24, 1982, the defendant was sentenced to a term of 15 years’ imprisonment with the Department of Corrections. On February 25, 1982, the defendant filed a motion to withdraw his plea of guilty but mentally ill, which was denied following a hearing on the motion.

On appeal from this denial the defendant contends that the trial court erred in accepting the defendant’s plea of guilty but mentally ill in that it failed to hold a proper hearing on the issue of the defendant’s mental health and failed to make findings as to the defendant’s mental state at the time of the offense. The defendant asserts that the court thus failed to comply with statutory procedures for accepting such a plea and that he should, therefore, be allowed to withdraw his plea of guilty but mentally ill.

Section 113 — 4(d) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 113—4(d)) provides:

“If [a] defendant pleads guilty but mentally ill, the court shall not accept such a plea until the defendant has undergone examination by a clinical psychologist or psychiatrist and the judge has examined the psychiatric or psychological report or reports, held a hearing on the issue of the defendant’s mental condition and is satisfied that there is a factual basis that the defendant was mentally ill at the time of the offense to which the plea is entered.”

Similarly, under section 115 — 2(b) of the Code (Ill. Rev. Stat. 1981, ch. 38, par. 115—2(b)), a plea of guilty but mentally ill may be accepted by the court when:

“(1) the defendant has undergone an examination by a clinical psychologist or psychiatrist ***; and
(2) the judge has examined the psychiatric or psychological report or reports; and
(3) the judge has held a hearing, at which either party may present evidence, on the issue of the~defendant’s mental health and, at the conclusion of such hearing, is satisfied that there is factual basis that the defendant was mentally ill at the time of the offense to which the plea is entered.”

“Mental illness” or “mentally ill” is defined for purposes of the statute as

“a substantial disorder of thought, mood, or behavior which afflicted a person at the time of the commission of the offense and which impaired that person’s judgment, but not to the extent that he is unable to appreciate the wrongfulness of his behavior or is unable to conform his conduct to the requirements of law.” Ill. Rev. Stat. 1981, ch. 38, par. 6—2(d).

As a preliminary matter, we note that we are aware of no Illinois case that has addressed the issue of the sufficiency of compliance with the procedures for accepting a guilty but mentally ill plea. We may, however, look to other jurisdictions that have enacted comparable guilty but mentally ill statutes (cf., e.g., Mich. Comp. Laws sec. 768.36(2) (1975)) for persuasive, though not controlling, authority in construing the instant statute. 14 Ill. L. & Prac. Courts sec. 84 (1968).

While the defendant here contends initially that no proper hearing was held to determine the defendant’s mental state at the time of the offense, we believe the procedure followed by the court was sufficient to come within the mandates of the statute. In setting forth the factual basis for the plea, the State submitted the psychiatric reports prepared by Dr. Boyd, and the defendant agreed with the facts contained therein regarding the defendant’s mental condition. The defendant was given the opportunity to present additional evidence as to his mental health but, through his attorney, declined to do so. By agreeing with the psychiatric evidence presented by the State, the defendant thus stipulated to that evidence and to the submission of psychiatric reports in lieu of testimony. The use of such stipulations is proper at hearings generally (People v. Parrott (1982), 108 Ill. App. 3d 222, 438 N.E.2d 1313; People v. Hodges (1976), 36 Ill. App. 3d 422, 343 N.E.2d 565), and we find no basis upon which to preclude their use in the context of the present proceeding. Cf. People v. Booth (1982), 414 Mich. 343, 324 N.W.2d 741 (under comparable Michigan statute setting forth procedures for accepting guilty but mentally ill pleas, parties stipulated to trial court’s use of psychiatric reports in lieu of hearing on issue of mental illness).

The defendant, arguing by analogy to the requirements for a hearing to determine a defendant’s fitness to stand trial, asserts that a finding of mental illness cannot be based upon stipulations to unsworn psychiatric testimony. (See People v. Greene (1981), 102 Ill. App. 3d 639, 430 N.E.2d 219; People v. Williams (1980), 92 Ill. App. 3d 608, 415 N.E.2d 1192; but see People v. Gore (1983), 116 Ill. App. 3d 780, 452 N.E.2d 583; see also People v. Lewis (1984), 103 Ill. 2d 111 (stipulations regarding psychiatric testimony that would have been given formed proper basis for fitness finding).) This analogy to a fitness hearing, however, is misplaced, as the rationale for precluding a stipulation to the fact of fitness at such a hearing is that

“[i]f a defendant is insane and unable to answer for himself, he certainly is in no position to authorize his counsel to stipulate, nor is counsel warranted in stipulating, to his restoration, which is the very issue [to be tried].” (People v. Reeves (1952), 412 Ill. 555, 560-61, 107 N.E.2d 861, 864; see People v. Lewis (1984), 103 Ill. 2d 111.)

Whereas a fitness hearing is held to preserve a defendant’s constitutional right of due process not to be placed on trial while unfit (People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677), a hearing under the guilty but mentally ill statute is directed toward providing a means of treatment for a criminally responsible but mentally ill defendant. (People v. Booth (1982), 414 Mich. 343, 324 N.W.2d 721; see People v. Dolby (1983), 115 Ill. App. 3d 35, 450 N.E.2d 31.) The mere fact, moreover, that a defendant suffers from some mental disturbance or requires psychiatric treatment does not reflect upon the defendant’s ability to understand the proceedings against him or to assist in his defense. (People v. Bivins (1981), 97 Ill. App. 3d 386, 422 N.E.2d 1044.) Since, in the instant case, there was no question as to the defendant’s mental competency at the time of his plea proceeding, we cannot say that the use of stipulated psychiatric evidence was unwarranted under the rationale of the Greene and Reeves decisions.

The defendant further contends that the trial court failed to find that the defendant was mentally ill at the time of the offense as there was insufficient information before the court upon which to make such a finding. Although, as the defendant asserts, the court made no express finding of mental illness in accepting the defendant’s plea, we believe the information contained in Dr. Boyd’s reports, as well as the facts of the occurrence set forth by the State, were adequate to “satisfy” the court “that there [was] a factual basis that the defendant was mentally ill at the time of the offense” (Ill. Rev. Stat. 1981, ch. 38, pars. 113—4(d), 115—2(b)(3)) as required by statute.

While Dr. Boyd’s first report was mistakenly directed toward the defendant’s competency to stand trial, this report contained a diagnosis of a personality disorder suffered by the defendant, as well as a history of past mental problems by the defendant. The report further contained information regarding the defendant’s relationship to his wife, who was the victim of the attempted murder, in the months immediately prior to the offense. (Cf. People v. Greenfield (1975), 30 Ill. App. 3d 1044, 333 N.E.2d 36 (defendant’s history and relationship to his wife, who was victim of attempted murder for which defendant was charged, were relevant to his mental condition).) Finally, the report contained the defendant’s account of the occurrence itself, including information regarding the defendant’s intake of alcohol and drugs on the evening preceding the offense.

Dr. Boyd’s second report, though inconclusive on the ultimate issue of whether the defendant was able to appreciate the criminality of his conduct at the time of the offense, focused on the extent and the effect of the substances ingested by the defendant prior to his attack upon his ex-wife. From this information and the information contained in the first report, it could reasonably be concluded that the defendant suffered from “a substantial disorder of thought, mood, or behavior” at the time of the commission of the offense “which impaired [his] judgment” (Ill. Rev. Stat. 1981, ch. 38, par. 6—2(d)). Further, Dr. Boyd’s report left open the possibility, even assuming the defendant’s intake of alcohol and drugs, that the defendant was able to appreciate the criminality of his conduct. The court could have concluded from the circumstances of the offense set forth by the State, including the multiple stabbings and the defendant’s statements at the time of the attack, that the defendant’s judgment was not in fact impaired to the extent that he was unable to appreciate the wrongfulness of his behavior.

Because of the information before the court, it could properly find that the defendant was guilty but mentally ill despite the lack of a conclusive psychiatric opinion on this issue. In People v. Bazzi (1981), 113 Mich. App. 606, 318 N.W.2d 484, the trial court, under Michigan’s comparable statute, accepted a plea of guilty but mentally ill although none of the psychiatric reports before it contained a finding that the defendant was mentally ill. One of the examiners had concluded that, despite the defendant’s medical and personal problems resulting in several terms of hospitalization in a mental institution, the defendant was neither mentally ill nor insane at the time the offense was committed. The reports of two other examiners stated that the defendant was insane at the time he committed the criminal act. In reviewing the trial court’s conclusion that the defendant was mentally ill at the time of the offense, the Bazzi court noted that “a psychiatric evaluation which is admitted as evidence serves only as an aid to the court.” (113 Mich. App. 606, 609, 318 N.W.2d 484, 486.) While none of the examiners had found that the defendant was mentally ill but not insane, the court held that the trial court’s conclusion was sustained by the substance of the reports as well as by the defendant’s statements at the plea proceeding. Similarly, in the instant case, we believe there was a sufficient basis in the reports prepared by Dr. Boyd and stipulated to by the defendant for the court to accept the defendant’s plea of guilty but mentally ill.

We therefore find no error in the court’s acceptance of the defendant’s plea, and we affirm the judgment denying the defendant’s motion to withdraw his plea.

Affirmed.

HARRISON and KASSERMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
      In re MARRIAGE OF FRANCES A. BROWN, Petitioner-Appellant, and MICHAEL W. BROWN, Respondent-Appellee.
    Fifth District
    No. 5—83—0808
    Opinion filed August 16, 1984.
    Rehearing denied September 13, 1984.
    Conger & Elliott, P.C., of Carmi, for appellant.
    Endicott & Finch, of Carmi, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Frances Brown, petitioner, and Michael Brown, respondent, were married in 1964, and their marriage was dissolved by a judgment entered in the circuit court of White County on December 10, 1980. Following entry of the judgment of dissolution, petitioner appealed to this court, and respondent cross-appealed. (In re Marriage of Brown (1982), 110 Ill. App. 3d 782, 443 N.E.2d 11.) We reversed the judgment and remanded for a new hearing on the issues of property division, maintenance and child support, finding that the trial court had erred in classifying respondent’s one-half interest in Brown’s Feed and Chemical Store, a partnership between respondent and his father, as nonmarital property. (110 Ill. App. 3d 782, 784-87.) We also found that the court had undervalued respondent’s interest in the partnership by $57,071. (110 Ill. App. 3d 782, 787-88.) On remand, in a judgment entered on November 2, 1983, the trial court awarded petitioner an additional cash sum of $28,535.50, exactly one-half the amount by which the respondent’s interest in the feed store had been undervalued in the original judgment. The court also awarded petitioner an additional three years’ maintenance at $500 per month, and $5,000 as additional attorney fees. The remainder of the judgment was not changed. Petitioner now appeals from this second judgment.

Our evaluation of the judgment on remand must be preceded by a determination of whether the trial court was obligated to consider the effect of certain amendments made to section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 503) between the date of our original mandate and the date on which the second judgment was entered. In our original opinion, we held, citing In re Marriage of Smith (1981), 86 Ill. 2d 518, 427 N.E.2d 1239, and In re Marriage of Lee (1981), 87 Ill. 2d 64, 430 N.E.2d 1030, that respondent’s interest in Brown’s Feed and Chemical Store, while originally nonmarital, was transmuted into marital property by the partnership’s retention of earnings made by respondent during the marriage and classifiable as marital property. (In re Marriage of Brown (1982), 110 Ill. App. 3d 782, 785-86.) In so holding, we relied specifically on that portion of Smith in which our supreme court indicated that “where a spouse who holds nonmarital property causes it to be commingled with marital property, or with nonmarital property of the other, we hold that the commingled property is presumed to be marital property.” (In re Marriage of Smith (1981), 86 Ill. 2d 518, 529, 427 N.E.2d 1239.) Our opinion was filed on December 3, 1982, and our mandate issued on January 13,1983.

On August 19, 1983, between the issuance of our mandate and the entry of the trial court’s judgment on remand, the General Assembly enacted Public Act 83-129. The section of that act pertinent here amended Section 503(c) of the Illinois Marriage and Dissolution of Marriage Act. The amended section states:

“(c) Commingled marital and non-marital property shall be treated in the following manner, unless otherwise agreed by the spouses:
(1) When marital and non-marital property are commingled by contributing one estate of property into another resulting in a loss of identity of the contributed property, the classification of the contributed property is transmuted to the estate receiving the contribution, subject to the provisions of paragraph (2) of this subsection; provided that if marital and non-marital property are commingled into newly acquired property resulting in a loss of identity of the contributing estates, the commingled property shall be deemed transmuted to marital property, subject to the provisions of paragraph (2) of this subsection.
(2) When one estate of property makes a contribution to another estate of property, or when a spouse contributes personal effort to non-marital property, the contributing estate shall be reimbursed from the estate receiving the contribution notwithstanding any transmutation; provided, that no such reimbursement shall be made with respect to a contribution which is not retraceable by clear and convincing evidence, or was a gift, or, in the case of a contribution of personal effort of a spouse to non-marital property, unless the effort is significant and results in substantial appreciation of the non-marital property. Personal effort of a spouse shall be deemed a contribution by the marital estate. The court may provide for reimbursement out of the marital property to be divided or by imposing a lien against the non-marital property which received the contribution.” Ill. Rev. Stat. 1983, ch. 40, par. 503(c).

There can be little doubt but that Public Act 83—129 constitutes a legislative rejection of the rationale of In re Marriage of Smith (1981), 86 Ill. 2d 518, 427 N.E.2d 1239, and In re Marriage of Lee (1981), 87 Ill. 2d 64, 430 N.E.2d 1030, the cases relied on in our original opinion. (See generally Feldman & Fleck, Taming Transmutation: A Guide to Illinois’ New Rules on Property Classification and Division upon Dissolution of Marriage, 72 Ill. B.J. 336 (1984).) We believe, however, that Public Act 83—129 does not apply to the case at bar. In In re Marriage of Carney (1984), 122 Ill. App. 3d 705, 462 N.E.2d 596, the court, in reversing and remanding a judgment entered by the trial court prior to the effective date of Public Act 83—129, instructed the trial court to apply on remand the law as it existed at the time the original judgment was entered, notwithstanding that the appellate court opinion was filed and the new hearing would be held after August 19, 1983, the effective date of the amendments. (122 Ill. App. 3d 705, 714-15.) In support of its holding, the court in Carney relied on In re Marriage of Sweet (1983), 119 Ill. App. 3d 1033, 458 N.E.2d 14, in which the court used the guidelines set forth in section 801(d) of the Illinois Marriage and Dissolution of Marriage Act to determine whether an amendment to that act should be applied to the new hearings ordered by the court:

“Section 801(d) of the Act (Ill. Rev. Stat. 1981, ch. 40, par. 801(d)) provides that ’[i]n any action or proceeding in which an appeal was pending or a new trial was ordered prior to the effective date of this Act, the law in effect at the time of the order sustaining the appeal or the new trial governs the appeal, the new trial and any subsequent trial ***.’ Although Section 801(d) is addressed to the Act itself, in our judgment it should be applied to amendments as well. No case has been cited or found which has applied the foregoing statutory provision to amendments [;] however[,] an analysis of the policy underlying section 801(d) shows that the purpose of the provision, as suggested by the Commissioner’s Comments to the uniform law from which the provision was adopted, appears to be an effort to allow the correction on appeal or in a new trial of errors made in applying the law in effect at the time of the original hearing pursuant to that law and that changing the rules on appeal or at the new trial would be unfair to the party prejudiced by the error. 9A Uniform Laws Annotated sec. 502, at 219 (1979); see McArdle v. McArdle (1977), 55 Ill. App. 3d 829, 833, 370 N.E.2d 1309, cited with approval in West v. West (1979), 76 Ill. 2d 226, 233, 390 N.E.2d 880.
The mandate issued in the first appeal of the instant case required the circuit court to conduct necessary hearings in order to establish a proper basis for the custodial award under section 610(b) of the Act. In this instance, further hearings will be treated as equivalent to a new trial under section 801(d). [Citations.] Accordingly, the statute to be applied to the facts and circumstances herein presented is section 610(b) as it existed prior to the July 1, 1982, amendment.” 119 Ill. App. 3d 1033, 1040-41.

We note that the phrase “order sustaining the appeal,” as used in section 801(d), refers not to the judgment entered by the reviewing court upon the appeal, but rather the order of the trial court which forms the basis of the appeal. (Sommer v. Borovic (1977), 69 Ill. 2d 220, 238, 370 N.E.2d 1028.) Moreover, as noted in Carney, the Historical and Practice Notes to section 801(d) indicate that the purpose of that section is to “allow the correction on appeal or in a new trial of errors made in applying the law in effect at the time of the original hearing pursuant to that law.” (Emphasis added.) (Ill. Ann. Stat., ch. 40, par. 801(d), Historical and Practice Notes, at 166 (Smith-Hurd 1980).) Given that Public Act 83—129, like adoption of the Illinois Marriage and Dissolution of Marriage Act itself, operates to effect a significant change in Illinois marriage law, we believe that the application of section 801 to the amendment in question here is both reasonable and appropriate. Accordingly, we agree with the holding in Carney, and conclude that the trial judge acted properly here in not applying the amended statute on remand.

Next, we address petitioner’s contention that the judgment entered on remand constitutes an abuse of discretion. While we recognize that a trial court will be held to have abused its discretion regarding property distribution only where no reasonable person would take the view adopted by the trial court (In re Marriage of Schaufelberger (1983), 120 Ill. App. 3d 114, 116, 457 N.E.2d 993), we are compelled to conclude that such an abuse did occur here. While the effect of our initial opinion in this cause was to add over $255,000 to the amount of marital property available for distribution between the parties, the trial court awarded petitioner only an additional $28,535.50, an amount equal to exactly one-half of the amount by which respondent’s interest in the feed store had been found to be undervalued in our prior opinion (In re Marriage of Brown (1982), 110 Ill. App. 3d 782, 787-88). It appears that the trial judge may have been under a misapprehension as to his authority to award petitioner additional property following our prior opinion, given the court’s comment at the hearing on remand that the miscalculation of the value of respondent’s interest in the store, rather than the error in classifying that interest as nonmarital, was “the main error that the appellate court found.” In any event, we are compelled to conclude that the awarding of over 85% of the value of the partnership interest to respondent so drastically favors respondent as to render the property distribution an abuse of the court’s discretion, particularly given the length of the parties’ marriage and the fact that marital property, in the form of retained earnings, accounted for much of the increase in the value of respondent’s interest in the partnership. In reaching this conclusion, we are mindful that the court also ordered respondent to pay petitioner an additional three years’ maintenance at $500 per month. These additional payments, however, do not commence until September 1, 1986, and we cannot say that they operate to bring the overall distribution back into reasonable balance.

While we are reluctant to further prolong this litigation, the foregoing errors compel us to reverse the judgment of the trial court and remand for a new hearing. On remand, for the reasons earlier stated, the trial court shall again adhere to the mandate of our first opinion, and shall not consider the effect of Public Act 83 — 129 on section 503 of the Illinois Marriage and Dissolution of Marriage Act. Also, our reversal of the property distribution requires that the court again reexamine the maintenance, child support and attorney fee awards as well. In re Marriage of Brown (1982), 110 Ill. App. 3d 782, 788, 443 N.E.2d 11.

Reversed and remanded.

WELCH, P.J., and EARNS, J., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID WOLFBRANDT, Defendant-Appellant.
    Third District
    No. 3—83—0328
    Opinion filed September 17, 1984.

      Walter D. Brand, of Brand, Warner, Neppl & Westensee, Ltd., of Rock Island, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Sally L. Dilgart and Mark L. Rotert, Assistant Attorneys General, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Following a jury trial, defendant, David Wolfbrandt, was convicted of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9—1(a)), armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18—2(a)), armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A—2) and conspiracy (Ill. Rev. Stat. 1981, ch. 38, par. 8—2). He and James Quirin had been previously indicted for these offenses by the grand jury of Warren County. The circuit court of Warren County sentenced defendant to concurrent terms of 70 years, 30 years, 30 years, and 3 years imprisonment in the Illinois Department of Corrections. James Quirin’s conviction for conspiracy is not at issue in this appeal.

During the early morning hours of December 7, 1981, Warren County Deputy Sheriff George Darnell was dispatched to a bulk fuel storage plant near Monmouth, Illinois. A caller reported to the sheriffs department suspicious activity at the plant. Upon his arrival at the plant, Deputy Darnell radioed the dispatcher he would be out of his squad car because he observed a tanker either loading or unloading fuel. This was the last message received from the deputy.

Subsequently, a Monmouth city policeman was sent to the plant, where he saw a Warren County squad car with its lights on, the driver’s side door open, and the engine running. The officer found the deputy’s body lying face up in the grass about 8 to 10 feet from the squad car. The officer further observed that Darnell was dressed in a deputy sheriff’s uniform and had a gun in his holster. It was later determined that Darnell was shot twice in the head, once in the chest, and once in the abdomen.

In January 1982, agents of the Illinois Department of Law Enforcement, Division of Criminal Investigation (DCI), received information that defendant was involved in thefts of fuel and may have been responsible for the shooting death of Deputy Darnell. Surveillance of defendant’s home in Davenport, Iowa, and surveillance of his blue and white 1972 freightliner truck (vehicle) in Bettendorf, Iowa, was initiated by DCI agents with the knowledge of local law enforcement officials. On the evening of January 31, 1982, defendant was followed by two DCI agents and two Warren County deputy sheriffs. Subsequently, these officers witnessed defendant commit the theft of a grain trailer in Washington County, Iowa. Agent David Reed and Deputy Don Breuer remained in Washington County to notify that county’s sheriff, while Agent James Comrie and Deputy Gary Higbee pursued defendant. This pursuit led to Donnellson, Iowa, in Lee County. Reed and Breuer rejoined the pursuit and met Lee County Sheriff’s Deputy Henshaw, who joined the pursuit. In Donnellson, the Illinois officials met with Lee County Sheriff Arnold, Deputy Henshaw, and a Donnellson city police officer. These officers decided to attempt an arrest of defendant for the trailer theft; however, defendant left Donnellson before the arrest could be made.

It was subsequently determined that defendant had entered the State of Missouri. Acting under the instructions of Sheriff Arnold, the officers again began the pursuit. Agent Comrie and Deputy Higbee located defendant near Taylor, Missouri, in Marion County. After requesting assistance from Missouri officers by radio, Comrie and Higbee placed defendant under arrest and held him until Sheriff Arnold and Missouri officers arrived. Defendant was advised of his constitutional rights and gave his name as David Hunter. A Sergeant Schroeder of the Missouri State Highway Patrol and Marion County Deputy Sheriff David Lovelace presented defendant with a printed Missouri consent-to-search form, which he subsequently signed. Lovelace and Corporal Gordon of the Missouri State Highway Patrol performed the search of defendant’s vehicle. Two pairs of bolt cutters were seized from an unlocked toolbox attached to the rear of the truck. Defendant, at a subsequent suppression hearing, admitted ownership of these bolt cutters. Defendant was charged in Iowa with theft of the grain trailer, but these charges were later dismissed, and defendant was indicted in Warren County, Illinois, for the offenses of murder, armed robbery, armed violence and conspiracy. Trial commenced, and at its conclusion the jury returned a guilty verdict. Defendant has asked that we review numerous issues on appeal, and for the following reasons we affirm the decision of the circuit court.

The first issue on appeal is whether the trial court erred in denying defendant’s motion to suppress physical evidence discovered during the search of his vehicle. Defendant first contends that the validity of the search must be resolved under Illinois law, citing People v. Saiken (1971), 49 Ill. 2d 504, 275 N.E.2d 381, and People v. DeMorrow (1974), 59 Ill. 2d 352, 320 N.E.2d 1, as authority for this proposition. We are not persuaded that these cases are determinative of the issue in question. Neither case involves the validity of an extraterritorial arrest and subsequent search. Both Saiken and DeMorrow held that the issues presented in their respective cases were evidentiary and, therefore, procedural. As the court in Saiken stated, “[traditional conflict principles prescribe that issues of clearly procedural nature are governed by the internal laws of the forum, whereas substantive matters are controlled by the laws of the State where the transaction occurred.” 49 Ill. 2d 504, 509, 275 N.E.2d 381, 385.

The United States Supreme Court has held that the question of reasonableness of a State search and seizure is governed by Federal constitutional standards as expressed in the fourth amendment and the decisions of the court in applying that amendment. (Ker v. California (1963), 374 U.S. 23, 10 L. Ed. 2d 726, 83 S. Ct. 1623.) According to Miller v. United States (1958), 357 U.S. 301, 2 L. Ed. 2d 1332, 78 S. Ct. 1190, and United States v. Di Re (1948), 332 U.S. 581, 92 L. Ed. 210, 68 S. Ct. 222, the validity of an arrest without a warrant is determined by the law of the State where the arrest took place. In accord with this ruling is People v. Clark (1977), 46 Ill. App. 3d 240, 360 N.E.2d 1160, where the court stated that “*** the validity of an arrest without a warrant for State offenses is determined by the law of the State in which the arrest occurred. ***” (46 Ill. App. 3d 240, 243, 360 N.E.2d 1160, 1163.) In the present case it is undisputed the arrest occurred in Missouri. We hold the substantive law of Missouri must be applied to determine the validity of defendant’s arrest and the consequences of the arrest.

Defendant next contends that his arrest in Missouri was not justified under the doctrine or “fresh pursuit” or as a citizen’s arrest. Generally, a peace officer is not granted the authority to make warrantless arrests outside of the political entity in which the officer serves, unless the officer is engaged in “hot” of “fresh pursuit” of a suspect. (See People v. Clark (1977), 46 Ill. App. 3d 240, 360 N.E.2d 1160.) The doctrine of “fresh pursuit” in Missouri is governed by the Uniform Fresh Pursuit Law. The pertinent Missouri statute allows any member of a duly organized peace unit of another State of the United States who enters Missouri and continues within Missouri in fresh pursuit of a person believed to have committed a felony in another State the same authority to arrest as any law enforcement official of Missouri. The statute also states that “[f]resh pursuit *** shall not necessarily imply instant pursuit, but pursuit without unreasonable delay.” (Mo. Ann. Stat. sec. 544.155 (Vernon 1953).) Under Missouri law, therefore, the arrest of the defendant in the present case is valid if the arrest fits within the definition of “fresh pursuit” as determined by the circumstances of this particular case.

Here, the Illinois agents, while exercising surveillance over defendant in Iowa, witnessed him commit a felony. Clearly, the requirement of probable cause to effect an arrest was satisfied under these circumstances. (See Henry v. United States (1959), 361 U.S. 98, 4 L. Ed. 2d 134, 80 S. Ct. 168; Beck v. Ohio (1964), 379 U.S. 89, 13 L. Ed. 2d 142, 85 S. Ct. 223.) The felony was committed in Washington County, Iowa, and its sheriff’s department requested the Illinois agents to assist in maintaining surveillance of defendant. The defendant continued driving and entered Lee County, Iowa, where the Lee County sheriff asked the Illinois agents to assist in making the arrest. Defendant, however, left the area before an arrest could be accomplished, and he subsequently entered Missouri. The Lee County, Iowa, sheriff and the Illinois officers pursued defendant, who was subsequently arrested in Marion County.

This arrest was valid because the requirements of the Missouri Fresh Pursuit Law were satisfied. The Illinois agents were members of a duly organized peace unit of another State who entered Missouri in fresh pursuit of a person known to have committed a felony in another State. This pursuit was carried out without unreasonable delay. Defendant argues that there was no fresh pursuit because he was not fleeing from his pursuers, and in fact, he was never aware of the officers behind him. We are not persuaded by this argument. Defendant is attempting to rely on the Illinois statutory definition of “fresh pursuit,” which states, “ ‘Fresh pursuit’ means the immediate pursuit of a person who is endeavoring to avoid arrest.” (Ill. Rev. Stat. 1981, ch. 38, par. 107—4(a)(3).) While the Illinois fresh pursuit statute is not applicable to this case, qven if it were, we believe that the phrase “endeavoring to avoid arrest” does not mean that a person must be consciously aware of the pursuit, but rather than a person is fleeing the scene of the crime to avoid arrest. Since we hold the arrest valid under the doctrine of fresh pursuit, it is not necessary to dispose of defendant’s contention that the arrest was not justified as an arrest by a private citizen.

Defendant next contends the consent to search his vehicle was illegally obtained and was, therefore, invalid. According to Schneckloth v. Bustamonte (1973), 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041, a valid consent to search must be freely and voluntarily given, and not the result of duress or coercion. Defendant cites cases which describe various factors used by courts in considering all circumstances surrounding the consent to search. (See e.g., United States v. O’Looney (9th Cir. 1976), 544 F.2d 385; United States v. Cepulonis (1st Cir. 1976), 530 F.2d 238; United States v. Rothman (9th Cir. 1973), 492 F.2d 1260; United States v. Mapp (2nd Cir. 1973), 476 F.2d 67; People v. Shaver (1979), 77 Ill. App. 3d 709, 396 N.E.2d 643.) While these cases are illustrative of factors which may be considered by a trial court in determining the validity of a consent to search, none support the defendant’s claim his consent was involuntary as a matter of law.

A court of review will not disturb a trial court’s decision on a suppression motion unless the trial court’s finding was manifestly erroneous. (People v. Long (1983), 99 Ill. 2d 219, 457 N.E.2d 1252.) In the present case, defendant was given a printed Missouri consent-to-search form, which he signed. At the time he signed this consent he had already been advised of his constitutional rights. There were two officers present at the time of the signing, but neither had a weapon drawn. In fact, testimony of witnesses disclosed that no force, threats, or promises were made to defendant to obtain the consent. Based upon the circumstances of this case, the trial court’s finding that defendant’s consent to search his vehicle was freely given is supported by the evidence.

The second issue on appeal is whether the trial court erred in moving the place of trial. Pursuant to defendant’s motion for change of venue, the place of trial was moved from Warren County to Hancock County. Defendant contends that once a change of venue is granted and a new location is selected, it should not be to a county where the opportunity to select an impartial jury is even less likely than from the county from which the case is removed. Defendant argues he received no fairer a trial in Hancock County than he would have received had the trial remained in Warren County, because both counties were nearly identical in population; there was no jury commission in Hancock County to screen initial veniremen; one out of four prospective jurors was prejudiced by what he or she had heard or read; younger jurors were not available in Hancock County; and Hancock County was the nearest county to where the deceased had spent much of his life and where the prosecutor had spent his early years.

If a trial court determines there exists in the county where the prosecution is pending such prejudice against the defendant that he cannot receive a fair trial, it shall transfer the cause to the circuit court in any county where a fair trial may be had. (See Ill. Rev. Stat. 1981, ch. 38, par. 114-6(c).) In selecting this circuit court, the determination of the impartiality of potential jurors rests within the sound discretion of the trial court. People v. Strange (1980), 81 Ill. App. 3d 81, 400 N.E.2d 1066.

In the present case, the trial judge removed the trial to Hancock County because of the popularity of the deceased in Warren County and not because of any pretrial publicity. Our review of the facts fails to disclose any basis for reversing this decision. Furthermore, there is no evidence supporting defendant’s other contentions. Thus, as we previously stated in Strange, “[a]ll of the jurors actually selected in this case stated they could render a fair and impartial verdict in accordance with the evidence presented in court. The trial court was satisfied with the truth of the jurors’ statements, and we find no reason to differ with that judgment.” (81 Ill. App. 3d 81, 84, 400 N.E.2d 1066, 1069.) We believe defendant was tried by a fair and impartial jury and the trial court’s removal of the cause to Hancock County was within its discretion.

We next consider the issue of whether the trial court excused otherwise qualified jurors for cause without first establishing that they were so opposed to the death penalty that they would be unsuitable for jury duty. Defendant contends the majority of these juror discharges made for cause because of opposition to the death penalty were made by the court without consideration as to whether or not those prospective jurors could still follow the law and the court’s instructions.

The discharge of prospective jurors under these circumstances is controlled by Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770, where the Supreme Court held that prospective jurors could not be excused for cause simply because they had religious scruples against the infliction of the death penalty or' voiced general objections to capital punishment. In a companion case, the court limited this holding to those circumstances in which the death penalty is actually imposed by the jury. (Bumper v. North Carolina (1968), 391 U.S. 543, 20 L. Ed. 2d 797, 88 S. Ct. 1788.) The issue of improper exclusion of prospective jurors under Witherspoon and Bumper involves only the sentence, not the conviction, and, therefore, the issue will only be considered on appeal if the death penalty is imposed. See People v. Wright (1974), 56 Ill. 2d 523, 309 N.E.2d 537.

Defendant next raises the issue of whether the trial court erred in refusing to accept defendant’s waiver of a jury for the sentencing hearing tendered during voir dire examination of prospective jurors. This waiver applied only to sentence determination in the event defendant was found guilty. Defendant made no effort to waive a jury trial on the issue of his guilt or innocence. Defendant contends he tendered the waiver in order to secure jurors who could fairly decide the issue of his innocence or guilt when otherwise qualified and acceptable jurors were being excused solely because of their opposition to the death penalty.

Section 9 — 1(d) of the Criminal Code of 1961 states:

“(d) Separate sentencing hearing. Where requested by the State, the court shall conduct a separate sentencing proceeding to determine the existence of factors set forth in Subsection (b) and to consider any aggravating or mitigating factors as indicated in Subsection (c). The proceeding shall be conducted:
1. before the jury that determined the defendant’s guilt; or
2. before a jury impanelled for the purpose of the proceeding if:
A. the defendant was convicted upon a plea of guilty; or
B. the defendant was convicted after a trial before the court sitting without a jury; or
C. the court for good cause shown discharges the jury that determined the defendant’s guilt; or
3. before the court alone if the defendant waives a jury for the separate proceeding.” (Ill. Rev. Stat. 1981, ch. 38, par. 9—1(d).)

This section does not provide a specific time when a tender of the jury waiver is proper; however, the entire section speaks only in post-conviction terms. Under the language of this section, it would appear a waiver in advance of conviction in a jury trial is untimely made. While we are not unmindful of the strategic benefits which the defendant might think may arise from having his guilt or innocence decided by a jury not qualified to recommend the death penalty, it would appear this is not permitted by the statute.

The next issue is whether the prosecution concealed a composite drawing of the defendant to the prejudice of the defense. Barbara Al-lard reported to the sheriff of Warren County that she had seen “two strange men” who had frightened her on the night of Deputy Darnell’s death. This incident occurred in the restaurant where she was working. On December 8, 1981, a DCI investigator prepared composite sketches of these men from descriptions provided him by Al-lard. Subsequently, on July 31, 1982, Allard saw a television news program which included a videotape of defendant appearing before the grand jury. Allard immediately recognized defendant as one of the men who had frightened her in the restaurant. She notified the DCI of this and later positively identified defendant from a photo array prepared for her.

Defendant contends the prosecution concealed these composite drawings. He argues that because he did not have possession of the drawings, he was unable to impeach Allard’s testimony at the hearing to suppress her identification of him. This testimony placed defendant in the vicinity of the murder shortly before it occurred. Had defendant been able to sufficiently impeach Allard, he argues, the trial court could have ruled as a matter of law that this identification was tainted and should not have been presented to the jury.

Our review of the record reveals that a pretrial discovery order was entered on October 15, 1982. On October 28, 1982, the prosecution filed a response to discovery motion, which stated on page 19 therein, “Two (2) composite drawings, drawn by S/A James Ezell.” The hearing on defendant’s motion to suppress identification testimony took place in February 1983. While defendant has cited cases reciting abstract propositions of law concerning the failure to disclose evidence (see Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194; People v. Vargas (1983), 116 Ill. App. 3d 787, 452 N.E.2d 736; People v. Hovanec (1979), 76 Ill. App. 3d 401, 394 N.E.2d 1340; People v. Bivins (1981), 97 Ill. App. 3d 386, 422 N.E.2d 1044; People v. Middleton (1976), 38 Ill. App. 3d 984, 350 N.E.2d 223; People v. Stanbeary (1970), 126 Ill. App. 2d 244, 261 N.E.2d 765), they are not applicable to the present case. The composite drawing was revealed to defendant prior to the suppression hearing and, therefore, defendant’s argument is without merit.

We next consider whether the trial court erred in admitting evidence of other crimes. The prosecution during its case in chief presented evidence linking defendant to the thefts of fuel from various bulk storage plants. This evidence was admitted to show defendant’s involvement in a conspiracy to commit theft and armed robbery.

The fuel thefts began in early July 1981 and culminated in the fuel theft the night Deputy Darnell was murdered. During this period, codefendant Quirin purchased only one-quarter of the amount of fuel that he had purchased during the first half of the year from his normal fuel suppliers. Defendant began delivering fuel to Quirin at the time of the first fuel theft and always at night. He was paid by checks which were recorded on Quirin’s corporate books for “truck repairs” or for “salary”; however, Quirin admitted to his bookkeeper that a payment was really made for fuel. Defendant also charged telephone calls from the general area of the thefts to either his home or Quirin’s business at the times of the thefts. Tire tracks made at the theft sites also matched the tires on defendant’s vehicle and Quirin’s tankers.

Defendant also purchased green petroleum dye, which is used to treat diesel fuel. A Quirin employee witnessed green and muddy-brown colors of diesel fuel in Quirin’s fuel storage tanks. During one fuel theft, 150 tubes of grease were also taken. Seized during the execution of a search warrant at defendant’s place of business were grease tubes and boxes bearing the same lot number as those stolen. Finally, all thefts, phone calls, fuel deliveries and checks abruptly ceased following the December 7, 1981, fuel theft and murder. Defendant argues that these crimes were not identical to the crime charged, nor linked to him or even shown to be crimes.

The general rule is that evidence of the commission of other crimes, wrongs or acts committed by a defendant is inadmissible for the purpose of showing a disposition or propensity to commit crimes. (People v. Wright (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.) Such evidence is admissible, however, if relevant to show motive, knowledge, intent, absence of mistake or accident, identity, common scheme, plan or design, or modus operandi. (See People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.) In determining whether to admit evidence of other crimes, courts must consider whether the evidence is so clearly connected with the main issue that it tends to prove the accused guilty of the crime for which he is being tried. (People v. Cross (1981), 96 Ill. App. 3d 268, 421 N.E.2d 262.) The probative value of this evidence must then be balanced against and outweigh the degree of prejudice that will result from its admission. People v. Romero (1977), 66 Ill. 2d 325, 362 N.E.2d 288.

In the present case, the evidence presented established a link between defendant and the thefts of fuel from the bulk storage plants. Proof of other crimes need not be beyond a reasonable doubt (People v. MacRae (1977), 47 Ill. App. 3d 302, 361 N.E.2d 685); yet, it must be more than mere suspicion. (People v. Miller (1977), 55 Ill. App. 3d 421, 370 N.E.2d 1155.) A review of the evidence discloses it to be highly probative on the issues of intent, common scheme or plan and modus operandi and tended to prove defendant’s guilt. The probative value of such evidence outweighs any prejudice therein and, accordingly, was properly admitted. (See People v. Wilson (1970), 46 Ill. 2d 376, 263 N.E.2d 856; People v. Tranowski (1960), 20 Ill. 2d 11, 169 N.E.2d 347.) Furthermore, the jury was given a limiting instruction as to the evidence of other crimes. This instruction substantially reduced any prejudicial impact which may have resulted by virtue of the admission of such evidence. See People v. Kirkwood (1980), 82 Ill. App. 3d 252, 402 N.E.2d 677.

Defendant has raised the issue of possible instances of error which cumulatively deprived him of a fair trial. These include police and prosecution misconduct, incorrect jury instructions, improper closing argument, and verdicts contrary to the manifest weight of the evidence. We have reviewed these alleged errors and find no support for defendant’s contentions. To discuss the alleged errors at length would unduly add to the length of this opinion, which we believe is unnecessary in view of the lack of substance to such contentions of error.

The final issue on appeal is whether the sentences imposed were excessive. Defendant contends the mitigating factors present warrant a reduction of the sentences imposed, i.e., no serious prior record, a Christian upbringing, a hard-working, nondrinking personal life, and close family ties.

Supreme Court Rule 615(b)(4) (87 Ill. 2d R. 615(b)(4)) allows a reviewing court to reduce sentences; however, this alteration of the sentencing judge’s disposition may be done only upon a finding of an abuse of discretion. (People v. Lykins (1979), 77 Ill. 2d 35, 394 N.E.2d 1182; People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) The record shows the sentencing judge reached his decision only after considering the nature and circumstances of the offense and other proper factors bearing upon the sentence. No reasons have been presented to disturb the discretion vested in the trial court to impose these sentences.

Accordingly, for the reasons set forth in this opinion, the judgment of the circuit court of Warren County is affirmed.

Affirmed.

HEIPLE and SCOTT, JJ., concur.


author: JUSTICE WEBBER

text:
    MARTHA E. CAUDILL, Plaintiff-Appellee, v. MERVIN L. BEIL, Defendant-Appellant.
    Fourth District
    No. 4—84—0024
    Opinion filed September 14, 1984.
    Rehearing denied October 30, 1984.

      Mervin L. Beil, of Springfield, for appellant, pro se.

    Samuel C. Patton, of Springfield, for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

Defendant appeals from an order of the circuit court of Sangamon County entered at the conclusion of a trial at bench. The substance of the order declared the plaintiff to be the legal and equitable owner of two parcels of real estate located in the city of Springfield but subject to resulting trusts in favor of the defendant. The court reduced the resulting trusts to monetary amounts which were ordered paid to the clerk of the circuit court by the plaintiff and held until the judgment order became final. It was further ordered that the defendant vacate the premises and remove his personal belongings therefrom and that thereafter the defendant was permanently enjoined from entering upon the premises.

Upon application by the defendant this court stayed the order and judgment pending appeal.

A summary of the evidence adduced at trial follows. Plaintiff and defendant became acquainted about 30 years ago. In 1975 they met again in Springfield. Defendant was in ill health and plaintiff agreed to care for him. He then moved into plaintiff’s rented house in July 1976. Subsequently they agreed to move to a new house. On May 25, 1978, a house at 2100 South Fifth Street in Springfield, one of the-parcels of real estate involved in this litigation, was exposed for sale at public auction. Plaintiff bid $50,300 and the house was struck off to her. She signed the purchase contract and made a down payment of $10,000 with her personal check. The transaction was closed about a month later, and the balance was paid by a purchase money mortgage obtained by plaintiff from a Springfield bank. This loan was after-wards renegotiated and reduced through a series of transactions which culminated in a conventional mortgage executed by plaintiff in October 1979. At trial plaintiff admitted that $8,000 of the down payment was provided by defendant. However, the trial court found that all mortgage payments except one made by the defendant had been made by the plaintiff.

Plaintiff and defendant moved into the Fifth Street house and resided there together until May 1983. The trial court found that the relationship was that of “housekeeper/companion” and not one of cohabitation. Therefore, the court concluded that no fiduciary relationship arose between the parties. During the time in which they resided in the house, the parties purchased various items of personal property, including many antiques.

The other parcel of real estate involved here was located at 1113 South Eleventh Street in Springfield. Defendant and Manning Briggs purchased the property at public auction in 1980 for $16,100. Briggs signed the contract and defendant furnished him with one-half the purchase price, or $8,050. Before the closing, plaintiff and defendant conferred and decided to purchase the property themselves. Briggs agreed and returned defendant’s $8,050 to him, and it was applied on the purchase price. Plaintiff borrowed a like sum from a local bank and applied it on the purchase price. Title was placed in a land trust with a local bank as trustee, and plaintiff was named as the sole beneficiary.

The genesis of the instant litigation was plaintiff’s demand that defendant leave the Fifth Street house. She testified that she did this because defendant was using the house as a law office and had used profane language against her and had threatened to kill her. She claimed to be the owner of the house, although she admitted, as indicated previously, that defendant had supplied $8,000 towards the down payment. She also admitted that defendant owned some personal property in the house. She further testified that she had worked during the relationship and had earned $16,500 to $18,000 annually, from which the mortgage payments had been made.

Defendant’s version of the source of funds for the transactions differed considerably. He claimed that the funds came from a trust which he had created for his children. According to his testimony, he drew the trust instrument himself in 1948 when he was a student in law school. There were no witnesses to the instrument and no original nor a copy were ever produced. He claimed to have made periodic contributions toward the trust over the intervening years until 1972, when he was gravely ill, and then turned the trust assets over to James Griffith.

Griffith testified that he accepted the assets, which consisted of $33,500 in cash and items of valuable coins and jewelry. He also signed an acceptance of trust. According to him, the assets were in an attache case which he kept in the trunk of his car for two months and then in an attic above his garage from 1973 until 1978.

Griffith further testified that he discussed the trust with the plaintiff and the defendant in late 1977 or early 1978. At that time the trust agreement was signed by the plaintiff together with a receipt acknowledging her acceptance of the trust assets. According to his version of the conversation, plaintiff and defendant would purchase a house with the trust assets and the house would be held in trust for the benefit of defendant’s children.

Plaintiff denied any knowledge of the existence of the trust and denied any conversations about it. Defendant produced several witnesses as to conversations with plaintiff and defendant concerning the trust. However, it was established that all of these witnesses were clients of the defendant.

In its order the trial court found that no express trust existed. This is the first issue raised by defendant on appeal.

Although defendant could present no written evidence of a trust in favor of his children, a trust in personal property may be established by parol evidence. (Catherwood v. Morris (1931), 345 Ill. 617, 178 N.E. 487.) In order to impress a trust upon property by parol evidence, it is essential that the facts be established by clear and convincing proof. (Knapp v. Hepner (1957), 11 Ill. 2d 96, 142 N.E.2d 39.) A trial court’s finding as to the existence of a trust will not be disturbed on review unless it is against the manifest weight of the evidence. Price v. State of Illinois (1979), 79 Ill. App. 3d 143, 398 N.E.2d 365.

Where, as here, a party seeks to introduce secondary evidence of a writing, he must first prove the prior existence of the original, its loss, destruction or unavailability, and his own diligence in attempting to procure the original. (Gillson v. Gulf, Mobile & Ohio R.R. Co. (1969), 42 Ill. 2d 193, 246 N.E.2d 269.) In an effort to meet these requirements, the defendant produced his own testimony together with that of Griffith, his clients, and his son, Barron Beil. Much of this has been summarized above. Defendant claimed that the trust provided that it should terminate and be distributed when his youngest child attained the age of 25 years. His son, Barron Beil, an attorney from California, testified that he had long understood that he was a beneficiary of a trust but had never seen any trust agreement; that he learned from Griffith of the assets and general nature of the trust. However, he acknowledged that the youngest child was then 27 years old and no distribution of any type had been made.

As has been indicated, the other witnesses were impeached by their relationships with the defendant.

In our opinion the trial court’s finding that the express trust did not exist was not against the manifest weight of the evidence. A cloud of doubt and suspicion surrounds that “trust.” The bizarre method of handling the assets, especially the lack of termination and distribution; the fact that both defendant and his son were attorneys and presumably knowledgeable in the area of trusts and trust administration; all these militate against the existence of any express trust. The trial court observed the witnesses and was the judge of their credibility. We find no basis upon which to alter its judgment.

A more intricate problem is presented by defendant’s second issue on appeal, which is that the trial court misapplied the theory of resulting trust to the facts of this case. He does not quarrel with the court’s determination that resulting trusts arose in the two parcels of real estate. He argues that the court misapplied the law in determining the nature and extent of his interests. In substance, his argument is that a resulting trust should parallel the amount furnished on the respective down payments; i.e., since he supplied $8,000 of the $10,000 down payment on the Fifth Street house, his resulting trust is 80% of that property; similarly, since he supplied all of the down payment on the Eleventh Street house, his resulting trust there is 100%. We do not agree with these figures, but we also do not agree with the trial court that a resulting trust may be reduced to a cash payment, thus producing the relationship of debtor and creditor.

The basic principles governing resulting trusts are well known. A resulting trust is a remedial device which arises by operation of law from the acts of the parties and is specifically exempt from the operation of the Statute of Frauds. (Kohlhaas v. Smith (1951), 408 Ill. 535, 97 N.E.2d 774.) “[W]here two persons together advance the price, and title is taken in the name of one of them, a trust results in favor of the other to such proportion of the property as is equal to the proportion of the consideration contributed by him.” (Clark v. Clark (1947), 398 Ill. 592, 605-06, 76 N.E.2d 446, 452.) Such trusts arise upon the instant that title is taken, and actions taken subsequent to the taking of title have no bearing on its creation. Kohlhaas v. Smith (1951), 408 Ill. 535, 97 N.E.2d 774; Williams v. Teachers Insurance & Annuity Association (1973), 15 Ill. App. 3d 542, 304 N.E.2d 656.

Defendant’s argument is based upon Tilley v. Shippee (1958), 12 Ill. 2d 616, 147 N.E.2d 347. There the supreme court was faced with a plaintiff and defendant who had incorporated themselves and, as joint venturers, purchased business premises for $60,000. Plaintiff paid $10,000 of the original down payment of $30,000. Defendant paid $20,000. Defendant took title and procured a $30,000 loan to pay the remainder of the purchase price. The court held that defendant held title subject to plaintiffs equitable ownership of one-third of the entire property. The court also found plaintiff to be liable for one-third of the $30,000 mortgage lien under a theory of joint enterprise akin to partnership.

Defendant urges that this case stands for the proposition that, when determining the fraction of equitable ownership in property gained through a resulting trust, the fraction of the down payment paid by each party determines their respective interests in the purchased property. However, in the present case the trial court found that no fiduciary relationship existed between these parties. They were not joint venturers or partners. Rather, the court found that plaintiff alone was liable for the loans secured to furnish the remainder of the purchase price. This distinguishes the present case from Tilley, where both parties were held liable for the mortgage in the same percentages as their down payments. (The mortgage there did not alter the down payment proportions.)

Moreover, as stated in G. Bogert, Trusts & Trustees sec. 456 (2nd ed. 1977), there is no difference in principle between paying money toward the price at the time of the delivery of the deed and giving a note for the sum at that time and paying it later. In both cases the payor has contributed to the payment of the purchase price. The fact that plaintiff’s contributions, here, were made through the use of borrowed money should not diminish their quality. Under this rationale, defendant’s proportionate interest in the Fifth Street property would be eight-fiftieths (not eight-tenths) and his interest in the Eleventh Street property would be one-half.

It is elementary that a resulting trust is an interest in property, not a debt. While we are sympathetic with the trial court’s effort to do fireside equity in a particularly bitter and unseemly piece of litigation, nevertheless the court erred in reducing defendant’s share in the properties to a sum of money. Defendant has an interest in the real estate in proportion to his contribution toward the consideration therefor. Clark v. Clark (1947), 398 Ill. 592, 76 N.E.2d 446; Tilley v. Shippee (1958), 12 Ill. 2d 616, 147 N.E.2d 347; Latham v. Henderson (1868), 47 Ill. 185; Restatement (Second) of Trusts sec. 454 (1959).

The court’s judgment order must therefore be modified to eliminate the sums of money ordered paid by plaintiff and to award defendant an eight-fiftieths interest in the Fifth Street property and a one-half interest in the Eleventh Street property.

As his third issue, defendant claims that the trial court’s order allocating personal property in the Fifth Street house is against the manifest weight of the evidence. We do not agree. The trial court found that the defendant had failed in his burden of proof. Beyond identification, he failed to establish ownership of any personalty. Plaintiff asked for an injunction barring defendant from the premises. She also asked that he be required to remove his personal property. In his answer, defendant admitted that plaintiff held legal title but asserted that both the real estate and the personal property therein were held in trust for his children. Ownership of the personal property was therefore raised by the defendant and became his burden of proof. Plaintiff’s prima facie ownership was shown by title and possession. It was defendant’s burden to prove otherwise, and he failed to do so. The trial court committed no error.

We turn finally to the matter of the injunction itself. Even though it is many times treated.in a cavalier fashion, it still remains an extraordinary remedy, and barring an owner from property in which he has an interest will be done only under extraordinary circumstances. (See, e.g., Ill. Rev. Stat. 1981, ch. 110, par. 11—201(2).) The rule is stated in McRaven v. Culley (1927), 324 Ill. 451, 453, 155 N.E. 282, 283, as follows:

“Equity will interfere to enjoin a trespass only where the complainant has no adequate remedy at law or where it is necessary to prevent a multiplicity of suits by different persons assailing the same right. [Citations.] An exception to the rule exists where the complainant’s title is admitted or has been established in an action at law and repeated trespasses are threatened of such a character that the amounts recoverable as damages in actions at law would be so small and disproportionate to the vexation and expense of the actions as to render the remedy at law inadequate.”

As applied to the instant case, this rule justified the trial court in issuing the injunction in the first instance. The plaintiff’s title was admitted and finally established by the court’s order. However, we have reversed that portion of the order, and it therefore follows that the injunction must be dissolved.

The finding by the trial court that no express trust existed is affirmed; the finding of the existence of resulting trusts is likewise affirmed; the allocation of personal property is affirmed; the reduction of the resulting trust to a money judgment is reversed. The cause is remanded to the circuit court of Sangamon County with directions to modify its order by providing that the defendant has an undivided eight-fiftieths ownership in the Fifth Street property and an undivided one-half ownership in the Eleventh Street property; and to dissolve the permanent injunction.

Affirmed in part, reversed in part, and remanded with directions.

TRAPP and GREEN, JJ., concur.