text:
    JERRY EVINK, Adm’r of the Estate of Dawn Marie Edwards, a/k/a Dawn Marie Evink, et al., Plaintiffs-Appellants, v. PEKIN INSURANCE COMPANY et al., Defendants-Appellees.
    Second District
    No. 83—137
    Opinion filed February 29, 1984.
    Rehearing denied April 5, 1984.

      Bernard P. Reese, Jr., of Reese, Reese & Bagley, of Rockford, for appellants.
    Brassfield, Cowan & Howard, of Rockford, for appellees.
   JUSTICE HOPF

delivered the opinion of the court:

Plaintiffs, Jerry and Bonnie Evink, and Mary Lou Edwards Gregory, appeal from the denial of their motion to disqualify defendants’ attorney, as well as from the dismissal of their two-count complaint for failing to state a cause of action. Count I of the complaint sought to recover attorney fees and costs from defendants James Poe and Pekin Insurance Company (Pekin) for their alleged tortious interference with the recovery rights of plaintiffs and with Jerry Evink’s right to be administrator of the estate of Dawn Marie Evink. Count II of the complaint sought to recover from Poe, the alleged natural father of Dawn, support and maintenance for the now deceased Dawn Marie. Pekin and Poe are represented by the same attorney.

The facts underlying this cause were set forth in a previous appeal to this court (see In re Estate of Edwards (1982), 106 Ill. App. 3d 635, 435 N.E.2d 1379), but will be repeated briefly here. On November 25, 1980, Dawn Marie Edwards, then 13, was struck and killed by a car driven by Mark Wilson. After her death, Jerry Evink filed a petition to be appointed administrator of Dawn Marie’s estate in order to file a wrongful death action. The Evinks also filed a petition seeking to establish an “equitable adoption” of Dawn Marie, alleging that they obtained permanent custody of the deceased three days after her birth on October 8, 1967, and had agreed to adopt her with the consent of the natural mother, Mary Lou Edwards Gregory. The petition further alleged that James Poe was the natural father, had deserted Dawn at birth, was unknown to the child, and furnished no support, and that the Evinks had cared for Dawn as their own child until the time of her death. James Poe was made a party to the adoption petition. He filed a motion to dismiss, primarily on the ground that the Adoption Act does not permit the adoption of a deceased person. (Ill. Rev. Stat. 1979, ch. 40, par. 1501 et seq.) The petition to appoint Jerry Evink as administrator was granted by the circuit court of Winnebago County; however, the petition for “equitable adoption” was dismissed. Plaintiffs appealed from the dismissal, and this court affirmed in In re Estate of Edwards. We further held that the Evinks as foster parents could not recover damages in an action for the wrongful death of Dawn. In re Estate of Edwards (1982), 106 Ill. App. 3d 635, 638, 435 N.E.2d 1379.

Following their initial appeal, the Evinks filed the instant two-count complaint against defendants. Count I alleged the tortious interference with plaintiffs’ right to recovery and Jerry Evink’s right to be appointed administrator and stated: that James Poe was notified of the hearing on the petitions to adopt and to be appointed administrator of Dawn’s estate; that in response to the petition to adopt, Poe filed a motion to dismiss said petition; that by special and limited appearance, Poe and Mark Wilson joined together by their attorney and requested that the petition for Jerry Evink’s appointment as administrator be denied; that the natural mother had the right to appoint or nominate someone to act as administrator, and that she nominated Jerry Evink to act in that capacity. The count further alleged that neither Poe nor Wilson had the right to intervene in those proceedings; that as a result of that intervention plaintiffs were required to expend money or incur obligations in order to resist defendants’ objections to the appointment of Jerry Evink; that the insurance company’s interference was in violation of certain specified sections of the Illinois Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 613 et seq.); that defendants have interfered with the Evinks’ right to recover funeral expenses and other amounts to which they may be entitled by reason of Dawn’s death; that by reason of defendants’ interference in the proceedings to determine the rights of the parties, the appellate procedure was made more costly; and, that the conduct of Pekin was wilful and malicious and engaged in to reduce its liability to Dawn’s estate. Defendants moved to dismiss count I primarily on the grounds that Poe was made a party to the legal proceedings and had the right to appear and to object, that any request for attorney fees should have been made in the previous proceedings and that the Evinks as a matter of law were not entitled to recover any sum for Dawn’s death, as plaintiffs’ complaint alleged. Defendants’ motion to dismiss count I was granted.

Count II of the complaint sought to recover support from James Poe and alleged that as the natural father of the deceased Poe was obligated and able to pay support for Dawn during her lifetime; that he failed to pay any amount; and, that the Evinks acted in the parents’ stead, thereby assuming financial burdens connected with the support and maintenance of Dawn. Defendants moved to dismiss count II primarily on the ground that it alleged a cause of action for paternity and was not commenced within the time limits provided by law.

Subsequently, plaintiffs moved to disqualify defendants’ counsel alleging that the interests of Pekin and Poe were adverse and that representation of these defendants by the same attorney resulted in an actual conflict of interest “which adversely affects the rights of Plaintiffs ***.” The exact nature of any conflict of interest was not specified.

Defendants’ motion to dismiss count II was granted; plaintiffs’ motion to disqualify defendants’ counsel was denied.

Plaintiffs first argue that their motion to disqualify defendants’ attorney was improperly denied because the interests of Pekin and Poe are adverse and “on their face represent competing and conflicting rights and duties of the various defendants.” Although plaintiffs have raised this issue, they have failed to set forth either the nature of the conflict which they allege exists or how they have been prejudiced by such a conflict, even if it does exist. A reviewing court is entitled to have the issues clearly defined, and to have briefs submitted that are articulate and present an organized and cohesive legal argument in accordance with applicable supreme court rules. (Pecora v. Szabo (1982), 109 Ill. App. 3d 824, 825-26, 441 N.E.2d 360; In re Marriage of Souleles (1982), 111 Ill. App. 3d 865, 869, 444 N.E.2d 721.) It is not the role nor duty of the appellate court to support vague and general contentions of error made by an appellant. (Concerned Citizens for McHenry, Inc. v. City of McHenry (1979), 76 Ill. App. 3d 798, 801, 395 N.E.2d 944.) Even assuming, for the sake of argument, that a conflict does exist between the interests of Pekin and Poe, plaintiffs would have no standing to challenge defense counsel’s ability to represent both of these parties without some showing that this representation adversely affects their interests. (Buehler v. Whalen (1976), 41 Ill. App. 3d 446, 461, 355 N.E.2d 99.) Having failed to do this, we find that the trial court correctly denied their motion to disqualify defendants’ counsel.

Next, plaintiffs contend that count I of their complaint was improperly dismissed for failing to state a cause of action. This count essentially sought to recover the costs of litigation, including attorney fees, which plaintiffs incurred by reason of defendants’ alleged tortious interference in the appointment and adoption proceedings. Plaintiffs’ argument is premised upon the theory that defendants, particularly Pekin, had no standing to object to the appointment proceedings, and that this wrongful objection necessitated the expenditure of large sums of money to successfully defend against the objection, which sums would not otherwise have been spent.

Generally, attorney fees and the ordinary expenses and burdens of litigation are not allowable to a successful litigant in the absence of a statute, agreement or stipulation specifically authorizing the allowance of such costs. (Saltiel v. Olsen (1981), 85 Ill. 2d 484, 488, 426 N.E.2d 1204; Fair v. City of Chicago (1977), 45 Ill. App. 3d 240, 242, 359 N.E.2d 773; Ritter v. Ritter (1943), 381 Ill. 549, 553, 46 N.E.2d 41.) However, this rule does not apply where the loss or expenses were directly caused by the defendant’s wrongful conduct. (See Sorenson v. Fio Rito (1980), 90 Ill. App. 3d 368, 372, 413 N.E.2d 47, allowing recovery of attorney fees and costs where defendant, an attorney, negligently handled plaintiff’s case; Baird v. Liepelt (1965), 62 Ill. App. 2d 154, 156-57, 210 N.E.2d 1, awarding attorney fees incurred in having a wrongful attachment set aside.) In this circumstance, the general rule applies that “one who commits an illegal or wrongful act is liable for all of the ordinary and natural consequences of his act.” Sorenson v. Fio Rito (1980), 90 Ill. App. 3d 368, 371, 413 N.E.2d 47.

In the instant case, we find that the amounts plaintiffs expended in attorney fees and costs of litigation were not occasioned by any wrongful conduct on the part of defendants. Thus, we find no reason to except the present case from the general rule that the ordinary expenses and burdens of litigation are not allowable to a successful litigant. (Saltiel v. Olsen (1981), 85 Ill. 2d 484, 488, 426 N.E.2d 1204.) While plaintiffs argue that defendants Wrongfully filed a motion to dismiss Evink’s petition for appointment without having standing to do so, we are unable to determine the merits of this claim since defendants’ motion to dismiss in the original action was not made a part of the record on appeal. The burden is on the appellant to present a satisfactory record, and any doubt arising from the incompleteness of the record will be resolved against the appellant. (Venturini v. Affatato (1980), 84 Ill. App. 3d 547, 552, 405 N.E.2d 1093.) Further, plaintiffs have cited no authority for the proposition that the conduct of filing a motion to dismiss without standing is in and of itself tortious conduct justifying the recovery of damages. Nor is there any authority for the proposition that plaintiffs have a reasonable expectation to be free from any objections to their petitions to adopt or to be appointed administrator of Dawn’s estate. In fact, case law has established a contrary public policy, holding that a litigant should not be penalized for ascertaining his legal rights and that a certain degree of interference is to be expected when legal proceedings are instituted. See Ritter v. Ritter (1943), 381 Ill. 549, 556, 46 N.E.2d 41; Smith v. Michigan Buggy Co. (1898), 175 Ill. 619, 628, 51 N.E. 569.

Plaintiffs also attempt to create a duty in Pekin not to interfere by referring to sections 154.5, 154.6 and 424 of the Illinois Insurance Code (111. Rev. Stat. 1981, ch. 73, pars. 766.5, 766.6, 1031). However, they have failed to specify how those provisions have been violated. It is not the role nor duty of the appellate court to support vague and general contentions of error made by an appellant. (Concerned Citizens for McHenry, Inc. v. City of McHenry (1979), 76 Ill. App. 3d 798, 801, 395 N.E .2d 944.) Finally, this court’s previous opinion in In re Estate of Edwards (1982), 106 Ill. App. 3d 635, 639, 435 N.E.2d 1379, makes it clear that James Poe was a party to the adoption proceedings and, thus, had the right to defend against plaintiffs’ claims. We therefore conclude that count I of the complaint was properly dismissed.

Finally, plaintiffs claim that count II of their complaint adequately states a cause of action against James Poe for 13 years’ support and maintenance. Defendant Poe argues that count II essentially sets forth a cause of action to establish his paternity and that the action was not filed within the two-year limitation period for such actions. (Ill. Rev. Stat. 1981, ch. 40, par. 1354.) Alternatively, defendant argues that no circumstances exist from which a court could find an implied promise by Poe to reimburse Jerry and Bonnie Evink for their expenses in caring for Dawn.

After reviewing count II of plaintiffs’ complaint, we find that they have failed to allege sufficient facts to establish James Poe’s paternity of Dawn. The complaint does not allege that Poe and plaintiff Mary Lou Edwards Gregory, the natural mother, were ever married, nor that Poe ever acknowledged his paternity of Dawn. Thus, we agree with, the trial court that count II essentially sets forth a cause of action to establish Poe’s paternity after Dawn’s death and to recover from him the amounts expended by the Evinks to raise Dawn.

During the pendency of this appeal, the two-year limitations period governing paternity and support suits brought on behalf of certain illegitimate children was found to be an unconstitutional violation of the equal protection clause of the fourteenth amendment. (Jude v. Morrissey (1983), 117 Ill. App. 3d 782, 454 N.E .2d 24; see also Pickett v. Brown (1983), 462 U.S. 1, 76 L. Ed. 2d 372, 103 S. Ct. 2199, holding an identical limitations period in the Tennessee paternity statute unconstitutional.) We apply the rationale of these authorities in finding that plaintiffs’ failure to file the present complaint within the limitations period expressed in the statute would not have provided an adequate basis for dismissing count II.

Nevertheless, upon reviewing the allegations in count II, we conclude that even assuming Poe’s paternity could be proved, the facts alleged in the complaint are insufficient to establish any obligation by Poe to pay the Evinks for their support and maintenance of Dawn prior to her death.

Case and statutory law have established that a parent owes a legal duty to provide for and support his children (People v. Askew (1979), 74 Ill. App. 3d 743, 393 N.E.2d 1124; Ill. Rev. Stat. 1975, ch. 68, par. 24; Gill v. Gill (1972), 8 Ill. App. 3d 625, 290 N.E.2d 897, aff’d (1973), 56 Ill. 2d 139, 306 N.E.2d 281), and the failure to do so constitutes an actionable wrong under Illinois law whether the child is legitimate or illegitimate. (Poindexter v. Willis (1967), 87 Ill. App. 2d 213, 217-18, 231 N.E.2d 1; Donlon v. Miller (1976), 42 Ill. App. 3d 64, 72, 355 N.E.2d 195.) However, there is no authority for the proposition that a natural father must reimburse third persons who provide support and maintenance to the child without the natural parent’s knowledge or authority or promise, either express or implied, that such necessities would be paid for. In Hunt v. Thompson (1840), 4 Ill. 179, 180, it was stated:

“That a parent is under an obligation to provide for the maintenance of his infant children, is a principle of natural law; and it is upon this natural obligation alone that the duty of a parent to provide his infant children with the necessaries of life rests; ***. *** This natural obligation, however, is not only a sufficient consideration for an express promise by a father to pay for necessaries furnished his child, but when taken in connection with various circumstances, has been held to be sufficient to raise an implied promise to that effect. But either an express promise, or circumstances from which a promise by the father can be inferred, are indispensably necessary to bind the parent for necessaries furnished his infant child by a third person.”

(Accord, Kippen v. Kippen (1939), 301 Ill. App. 178, 183, 21 N.E.2d 906; Charbonneau v. Norton (1931), 263 Ill. App. 341, 346-47; Mullally v. Lott (1911), 162 Ill. App. 533, 534.) These cases are in harmony with the present Paternity Act, which vests the right to institute a suit for child support and maintenance in the natural mother or the Illinois Department of Public Aid. (Ill. Rev. Stat. 1981, ch. 40, par. 1354.) No similar provision exists for third persons.

While the complaint here was brought by both the natural mother of Dawn and the Evinks, count II alleges that the Evinks alone supplied Dawn with all the necessities of life. The complaint alleges no facts to establish an express promise by Poe to pay for these necessities; nor does it allege any facts from which an implied promise to pay can be inferred. The complaint alleges that Poe deserted Dawn before birth, never visited her and never paid support. Dawn was not even aware that Poe was her father. Absent facts indicating at least an implied promise of reimbursement on the part of Poe, no duty evolves upon him to reimburse the Evinks, as third parties, for Dawn’s support and maintenance. (Kippen, v. Kippen (1939), 301 Ill. App. 178, 183, 21 N.E.2d 906; Charbonneau v. Norton (1931), 263 Ill. App. 341, 346-47; Mullally v. Lott (1911), 162 Ill. App. 533, 534; Hunt v. Thompson (1840), 4 Ill. 179, 180.) We therefore find no error in the trial court’s dismissal of count II for failing to state a cause of action.

Accordingly, the order of the circuit court of Winnebago County dismissing plaintiffs’ two-count complaint is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE GREEN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM R. STOUT, Defendant-Appellant.
    Fourth District
    No. 4—83—0445
    Opinion filed February 21, 1984.
    Rehearing denied April 6, 1984.

      Daniel D. Yuhas and James G. Woodward, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On April 18, 1983, following a jury trial in the circuit court of McLean County, defendant, William R. Stout, was convicted of felony murder resulting from a robbery, involuntary manslaughter, robbery, aggravated battery, and battery. He was subsequently sentenced to concurrent terms of 30 years’ imprisonment for murder, 10 years for robbery, and 10 years for aggravated battery. The court did not impose sentences for involuntary manslaughter and battery, because they were included offenses.

On appeal, defendant first contends that the evidence was insufficient to prove his guilt of robbery, involuntary manslaughter or felony murder beyond a reasonable doubt because: (1) No showing was made of the element of robbery which requires that the victim be deprived of property; (2) even if the robbery were proved, defendant was not proved guilty of felony murder by robbery, because no showing was made that the killing of the victim took place in the course of the robbery; and (3) even if the foregoing were shown, the murder and involuntary manslaughter convictions must be set aside, because no showing was made that any acts attributable to defendant were a contributing cause of the death of the decedent. Defendant also maintains that the convictions for battery, robbery, and involuntary manslaughter should be vacated, because they were included offenses of the felony murder or arose from the same act. Finally, he argues that the court abused its discretion in imposing extended-term sentences for the robbery and aggravated battery convictions.

The evidence at trial indicated that the body of the victim, William Spates, was found at approximately 2 p.m. on November 21, 1982, lying face down and fully clothed in his apartment in Bloomington. A pathologist, who performed an autopsy the next day, testified that the body was then in an advanced stage of decomposition which prevented him from obtaining blood or urine samples for toxicological examination and prevented him from determining whether any evidence of exterior trauma had existed. The pathologist testified that X rays taken indicated the victim had suffered no bone fractures or gunshot wounds. He gave an opinion that the victim suffered from coronary arteriosclerosis and pleuralfibrosis. He estimated that the death occurred between five and ten days prior to the autopsy.

Much of the State’s case came from evidence of admissions made by defendant to Detective Charles Crowe of the Bloomington Police Department. Crowe testified that on December 21, 1982, defendant admitted to him that he and Emil Wieland were in the victim Spates’ apartment on the evening of November 15, 1982. Crowe testified that defendant then related the following occurrence. Wieland hit Spates in the area of the head four or five times with a closed fist with such force that Wieland “could have broken his arm.” Defendant was crouched over Spates’ legs while Wieland was striking the blows. Defendant also hit Spates a few times around the mouth. A fracas had started earlier in the kitchen when defendant wanted a drink of liquor from a bottle in Spates’ possession, and Spates would not give defendant a drink. While Spates was on the floor, defendant took off Spates’ watch. Defendant did not know why, because he did not want the watch. When defendant and Wieland left, Spates was partially lying and partially sitting with his head against the wall, but he was alive.

Crowe testified that defendant had previously given him a statement in which defendant said that before he left, three black males had come into the victim’s apartment, and that defendant and Wieland left before the other three. At trial, defendant admitted that statement was false but said he made up the statement (1) to negate implication that he and Wieland were the last persons to be with Spates while Spates was alive, and (2) in order to get Crowe to leave him alone. At trial defendant also denied taking Spates’ watch off Spates’ wrist but said that he had his hand on the watch which was on Spates’ arm when Spates jerked his arm causing the watch to break in defendant’s hand.

We consider first the question of the sufficiency of the evidence to prove beyond a reasonable doubt that a robbery occurred. That offense takes place whenever one “takes property from the person or presence of another by the use of force or by threatening the imminent use of force.” (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 1(a).) Defendant maintains there was no evidence that property was taken from Spates.

Evidence was presented that defendant had several hundred dollars in his possession just prior to the occurrence. The officer viewing the body testified that, at the time he viewed the body, one of Spates’ pants’ pockets was turned inside out and Spates’ wallet was next to the body connected by a chain to the belt. The wallet contained $84. In one of the statements defendant gave to Detective Crowe, he admitted that he and Wieland questioned Spates at the time of the beating about the proceeds of a check belonging to Spates. According to this statement, he asked Spates about the proceeds, because Spates usually gave away some money when, as then, he was intoxicated. The State maintains that this evidence would, of itself, be sufficient for the jury to have inferred that Spates was robbed. We need not decide whether this evidence was sufficient, because we agree with the State’s alternate contention that evidence that defendant removed Spates’ watch was sufficient to support a determination that robbery occurred.

In People v. Gaines (1981), 88 Ill. 2d 342, 430 N.E.2d 1046, the evidence showed that when an accused pointed a pistol at a victim and announced that a holdup was taking place, the victim removed two $1 bills from his pocket and dropped them to the floor. Proof was not made that the accused or anyone acting in his behalf ever took possession of the bills. The supreme court held that the robbery was complete when the possessor of the bills gave up possession, and another did not have to gain possession of the bills for the offense to have occurred. Under the evidence there, the victim gave up possession because of the threat of force by the accused. Here, according to defendant’s statement, possession of the watch was taken from the drunken victim, Spates, by the actual use of force. Defendant had no right to forcefully remove the decedent’s watch. The jury could have found beyond a reasonable doubt that defendant did so. Such a determination would have been a sufficient basis for finding that defendant robbed Spates of his watch even though neither defendant nor Wieland ever took possession of the watch after laying it on the floor.

The question of whether the evidence was strong enough to support a determination by the jury that Spates died as a result of a beating administered while defendant and Wieland were in the apartment is involved in both the issue of whether the killing was shown to have taken place in the course of the robbery, and the issue of whether any acts attributable to defendant were a contributing cause to Spates’ death. We address the question of the time of Spates’ death.

The evidence indicated that Spates’ body was found on the floor. By defendant’s admission, Spates was lying partly on the floor when he and Wieland left the apartment. Evidence also indicated that the body was clothed in the same apparel he was wearing at that time. The pathologist had estimated the time of death to have been five to ten days prior to the autopsy on November 22, 1982. November 15, 1982, when defendant and Wieland were in Spates’ apartment, was seven days prior to the autopsy. Spates’ landlord testified that he knocked on Spates’ door approximately ten times in the week after November 15 and received no answer. A friend of defendant’s who lived in the same building as Spates, testified she saw Spates on November 17, 1983, but the jury could have determined she was mistaken as to the date or making an untrue statement to protect her friend, the defendant. Moreover, she testified that she saw defendant alive at 10:30 p.m. on November 17, a time which was less than five full days before the autopsy and thus not within the five- to ten-day span estimated by the pathologist. The testimony fully supports a determination that Spates died shortly after being beaten by Wieland and defendant.

Because of the lapse of time between Spates’ death and the autopsy, the pathologist’s testimony as to cause of death was of limited significance. Nothing that he found indicated that death resulted from a beating. However, the doctor did testify that a number of blows to the head could cause death in a person in Spates’ physical condition and age. Moreover, any beating Spates received could have been more than defendant admitted. The police officer investigating at the scene where the body was found testified that blood stains appeared on the rug near the body and on the walls of the apartment. Anthony Johnson testified that at the time Wieland and defendant were with Spates, Johnson saw two men through a window, who appeared to be fighting while standing over another person who must have been on the floor. The pathologist testified Spates could have died from causes unrelated to any blows he received. The pathologist admitted that prior to hearing of any scuffle ensuing, he had made out a report indicating that Spates died from natural causes, specifically coronary arteriosclerosis, pleuralfibrosis, and pulmonary congestion. Nevertheless, after hearing the testimony that Spates was struck several times, the jury could have determined that it would have been extremely unlikely for Spates to have died at a time in close proximity to his receiving the blows without the blows having been at least a contributing cause to Spates’ death. People v. Martin (1983), 112 Ill. App. 3d 486, 445 N.E.2d 795.

Defendant argues that the instant case is similar to People v. Brown (1978), 57 Ill. App. 3d 528, 373 N.E.2d 459, and People v. Kent (1982), 111 Ill. App. 3d 733, 444 N.E.2d 570. In both cases, the defendant’s murder conviction was reversed because the evidence was insufficient to prove beyond a reasonable doubt that defendants’ acts were the cause of death.

In Brown, defendant was convicted of murder after the person she stabbed with a knife died from a blood clot in her lung eleven days after the stabbing incident. The treating physician concluded that the blood clot originated from the site of the injury, but on cross-examination the doctor conceded that a healthy person with no injuries or history of heart trouble could die of the same blood clotting condition. On appeal, the court concluded that there was a substantial deficiency in the medical evidence to prove that defendant’s attack caused or contributed to the ultimate reason for death. The court stated that the issue was whether the State had demonstrated with adequate evidence the existence of an act on the part of the defendant sufficient to cause death. In Brown, there was no evidence of an autopsy, and no explanation of decedent’s physical condition at death which would relate it to the defendant’s act.

In Kent, defendant was convicted of murder based on the evidence that she admitted feeding beer to her baby twice daily from the time the baby was three weeks old until it died at the age of four months. Because the pathologist did not initially consider alcohol poisoning as a possible cause of death, he preserved no blood from the body . The level of alcohol found in the baby’s muscle tissue could have been explained by other medical conditions, and thus the appellate court concluded that the evidence was insufficient to show that death was caused by a criminal agency. (People v. Kent (1982), 111 Ill. App. 3d 733, 739, 444 N.E.2d 570, 575.) The court determined that since proper medical tests were not performed to exclude the possibility that the alcohol content was from an innocent source, the court concluded that the determination regarding the cause of death was mere conjecture.

The instant case differs from Brown and Kent because of the evidence here of the concurrence in time between the alleged wrongful acts and the death. That evidence permitted the jury here to conclude beyond a reasonable doubt that blows struck at Spates were a causative factor of his death.

Defendant maintains that, even if defendant robbed Spates, and Spates were killed as a result of the beating he underwent, felony murder was not shown to occur because the evidence indicates that any robbery was an afterthought of the beating administered. The jury was not required to conclude that any robbery occurred as an afterthought. Although the evidence may have been insufficient to show that either defendant or Wieland took any money from defendant, defendant’s admission that he and Wieland thought Spates might give them some money and the open pocket indicate that defendant or Wieland had an intention to deprive defendant of some property at the time the blows were struck.

In any event, no Illinois case has stated that the fact that robbery is an afterthought of acts of beating prevents the operation of the felony murder rule. The rule is broad in scope. (People v. Hickman (1974), 59 Ill. 2d 89, 319 N.E.2d 511.) Responsibility attaches to an accused “for those deaths which occur during a [forcible] felony and which are the foreseeable consequence of his initial criminal acts.” (People v. Brown (1979), 70 Ill. App. 3d 922, 925-26, 388 N.E.2d 1253, 1256.) According to one of defendant’s statements, the striking of Spates was part of the procedure by which the watch was forcibly removed from Spates’ person. Robbery is not a specific intent crime, and neither defendant nor Wieland needed to have the intent to deprive Spates of his property at the time the beating started in order for that conduct to be part of the offense of robbery. Considering Spates’ age and physical condition, his death was a foreseeable consequence of the beating shown by the evidence. The evidence supported a determination that a felony murder occurred.

The evidence that defendant stood over Spates while Wieland was hitting him, and the evidence that defendant admitted striking some blows himself showed defendant’s acts to be a contributing cause of the death, if that be a necessary element in a felony murder case. See Hickman.

The proof of defendant’s guilt of robbery, involuntary manslaughter, and felony murder was sufficient. Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781.

The State concedes that the convictions for robbery, battery, and involuntary manslaughter must be vacated because of our affirmance of the felony murder conviction. The State asserts that the conviction for aggravated battery may stand. We agree. As defendant admitted to administering several blows to Spates, separated by a time span, the battery involved was not necessarily the same act as the force used to commit robbery. The battery became an aggravated battery because Spates, the victim, was 60 years of age or older. (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4(b)(10).) The aggravated battery was not an included offense of the predicate felony of robbery because each offense contained elements not common to the other (the age of the victim being 60 years or older and the taking of property by force). The aggravated battery conviction can properly stand.

Finally, we consider the propriety of the imposition of an extended-term sentence for aggravated battery. The legislation which provides for the imposition of extended-term sentences is section fifi — 3.2 of the Unified Code of Corrections, which states in part:

“Sec. 5 — 5—3.2. Factors in Aggravation, (a) The following factors shall be accorded weight in favor of imposing a term of imprisonment or may be considered by the court as reasons to impose a more severe sentence under Section 5 — 8—1 ***.
* * *
(b) the following factors may be considered by the court as reasons to impose an extended term sentence under Section 5— 8 — 2 upon any offender who was at least 17 years old on the date the crime was committed.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005-5-3.2);

and section 5 — 8—2(a) of the Code, which states in part:

“Sec. 5 — 8—2. Extended Term, (a) A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5 — 8—1 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5 — 5—3.2 were found to be present. Where the judge finds that such factors were present, he may sentence an offender to the following: ***.” Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—2(a).

The State maintains that the foregoing language merely works as a limitation upon imposing an extended term as to the most serious offense in the absence of aggravating factors but does not prohibit extended-term sentences for less serious offenses.

The defendant’s position is supported by People v. Walsh (1981), 101 Ill. App. 3d 1146, 428 N.E.2d 937, and People v. Winston (1982), 106 Ill. App. 3d 673, 435 N.E.2d 1327. The State’s is supported by People v. Way (1983), 115 Ill. App. 3d 198, 450 N.E.2d 43.

On its face, section 5 — 8—2(a) purports only to limit extended-term sentences for the most serious felony. However, in the absence of the language of section 5 — 8—2(a) there is no express statutory authority for an extended-term sentence. Section 5 — 5—3.2 speaks of imposing an extended-term sentence “under Section 5 — 8—2.” However, in People v. DeSimone (1982), 108 Ill. App. 3d 1015, 439 N.E.2d 1311, the court noted that section 5 — 8—4(c)(2) of the Code (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—4(c)(2)) limits consecutive sentences to the sum of maximum terms authorized under section 5 — 8—2 for the two most serious felony offenses. This indicates an intent that more than one extended term may be imposed on the same defendant at the same time. We agree and conclude that multiple extended-term sentences may be imposed as here. Dicta in People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520, did not take this language into consideration.

Accordingly, the convictions of defendant for felony murder and aggravated battery and the extended-term sentences imposed thereon are affirmed. All other convictions and sentences are vacated.

Affirmed in part, vacated in part.

MILLS, P.J., and MILLER, J., concur.


author: PRESIDING JUSTICE MILLS

text:
    ANTHONY PAULY, Plaintiff-Appellant, v. LARRY A. WERRIES, Director of the Department of Agriculture of the State of Illinois, Defendant-Appellee.
    Fourth District
    No. 4—83—0576
    Opinion filed March 5, 1984.

      E. Frederick C. Gain, of Springfield, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Kathleen M. Lien, Assistant Attorney General, of counsel), for appellee.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

A foal named “Maid A. Mary.”

Registration refused.

We affirm.

Pauly applied to the Illinois Department of Agriculture for registration of a 1982 standardbred foal named “Maid A. Mary” as an Illinois conceived and foaled horse pursuant to section 31(j)(2) of the Illinois Horse Racing Act of 1975 (Ill. Rev. Stat. 1981, ch. 8, par. 37 — 31(j)(2)). Registration was denied, based on the fact that the horse was not inspected prior to being removed from Illinois as required by Department rules.

Following an administrative hearing at which Pauly admitted that the foal was not inspected before being removed from Illinois, he sought a writ of mandamus requiring the registration of the horse. The petition was dismissed below and on appeal Pauly argues that the rule under which the Department refused to register the horse is invalid.

Pauly raises several points which he feels render the administrative rule invalid. We find no merit to any of his arguments.

I. The first point raised is that the rule exceeds its statutory enabling authority, bears no relationship to the purpose of its enabling statute, and is arbitrary and void as an executive preemption of legislative prerogative. The rule in question was enacted pursuant to section 31 of the Illinois Horse Racing Act of 1975 (Ill. Rev. Stat. 1981, ch. 8, par. 37 — 31) which provides that the Department of Agriculture shall — by rule — provide for the registration of Illinois conceived and foaled horses. Under the auspices of this act, the Department of Agriculture enacted a series of rules under which this program was to be administered. Since the statute clearly grants the power to the Department to establish rules under which the program is to be administered, Pauly cannot be heard to argue that the enactment of such rules somehow violates the legislative mandate. Similarly, the rule, when examined on its face, bears a clear relationship to the purpose of the enabling statute, and was required by statute, which effectively counters the argument that it preempts the legislative prerogative.

II. The second point raised is that an administrative rule which permits a governmental official to avoid his responsibility under the respective enabling act is void. The cases cited by Pauly involve instances where an administrative agency rule was in direct conflict with a statute. Here, it is palpably clear that the statute and the rule are not in conflict. Pauly goes on to argue that the statute here requires the Director of the Department of Agriculture to register and certify horses. Such an argument misconceives the clear language of the statute which requires the Director only to establish a program under which Illinois standardbred horses may be registered. There is no requirement that all horses foaled in Illinois are to be registered. Rather, the owners must follow the rules as established by the Director in order to accomplish registration. In light of the clear language of the Act, it is the responsibility of the registrant to follow the procedures established by the Department. Failure to do so places the responsibility on the Department to refuse to register the horse.

III. The third point urged is that an administrative rule which does not further the purpose of the statute is void. However, Pauly has failed to support this argument with any citation to authority and as such we deem the argument waived pursuant to Supreme Court Rule 341(e) (87 Ill. 2d R. 341(e)).

IV. The final argument is that an administrative rule which requires inspection prior to a horse leaving a State, but provides no specific inspection procedures, violates the due process clauses of the United States and Illinois constitutions. The legal principles regarding this issue are well established. Since we have previously found in this opinion that the rules promulgated by the Department of Agriculture are within the express provisions of the statute under which the rules were propounded, we may only set them aside if we find them clearly arbitrary, unreasonable, or capricious. (See Aurora East Public School District No. 181 v. Cronin (1981), 92 Ill. App. 3d 1010, 415 N.E.2d 1372.) We note at the outset that administrative rules are clothed with the same presumption of validity as are statutes. And the burden is upon those contesting the rules to show that they are arbitrary or capricious. Moreover, we must bear in mind that these rules are relatively new and are apparently being challenged and tested for the first time. Therefore, our evaluation of them requires us to examine them purely on their face, standing alone. Upon such an examination, we find that the rule promulgated by the Department of Agriculture furthers the ends of the statute granting the powers to the body which enacted it. The rules set forth standards and procedures in crystal clear language and the procedures were simply not followed in this instance by Pauly.

Pauly’s objections to the potential for mismanagement or arbitrary enforcement by the Department are better referred to the Department itself or to the legislature. We do not find that the rule itself is susceptible to any attack on its validity.

Under these circumstances, the trial court was correct in refusing to issue a writ of mandamus requiring the Director of Agriculture to register “Maid A. Mary” as an Illinois conceived and foaled horse.

Affirmed.

TRAPP and GREEN, JJ., concur.


text:
    JOHN F. THAXTON, Plaintiff-Appellee and Cross-Appellant, v. ELMER W. WALTON, Mayor, City of Decatur, et al., Defendants-Appellants and CrossAppellees.
    Fourth District
    No. 4—83—0310
    Opinion filed December 29, 1983.
    Modified on denial of rehearing April 9, 1984.

      John W. Couter, Assistant Corporation Counsel, of Decatur, for appellants.
    Cornfield & Feldman, of Chicago (Jacob Pomeranz, of counsel), for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On May 20, 1982, plaintiff, John F. Thaxton, filed a petition in mandamus in the circuit court of Macon County seeking, among other relief, (1) an order that he be reinstated to a position of employment with defendant, city of Decatur (City), from which he had been discharged, (2) back pay from the time of his discharge, and (3) attorney fees involved in bringing the action. In addition to the City, various of its officers and its civil service commission were joined as defendants. On September 3, 1982, the court ordered that plaintiff be reinstated. On February 8, 1983, the court determined that plaintiff was entitled to back pay from the date of his discharge, but that he was not entitled to attorney fees. By written order of April 8, 1983, the net amount of back pay was fixed in the sum of $12,195.86. Defendants have appealed the award of back pay. Plaintiff has cross-appealed the trial court’s denial of his request for attorney fees.

Prior to the initiation of the instant proceedings the defendant civil service commission had entered an order upholding plaintiffs discharge by the defendant City. In administrative review, the circuit court of Macon County entered an order on February 16, 1982, reversing the order of the civil service commission. No appeal was taken from that order.

The City does not dispute that mandamus properly issued to compel it to reinstate plaintiff. It also agrees that generally, as a matter of common law, a wrongfully discharged governmental worker is entitled to back pay that he would have earned if not wrongfully discharged. The City maintains that an exception to that rule is applicable here because, during a portion of the time plaintiff was not working, the City was required to pay the salary of a substitute hired to replace plaintiff. The City admits that it would be entitled to no setoff for sums paid to the substitute employee after the trial court granted the mandamus relief on September 3, 1983, but maintains that it is entitled to setoff for sums paid the substitute for work prior to that date.

In the past, the general common law rule in regard to recovery for lost earnings by a person in the position of plaintiff has been stated to be:

“Where an officer was wrongfully removed, the rule is that he may on reinstatement recover from the municipality the salary that accrued during the period of removal, unless he has acquiesced in the removal, or unless it appears that such salary was paid to a de facto officer holding the office and performing the duties, but the latter exception is not applicable where no one is especially appointed in place of a de jure officer, or where the salary was not in good faith paid to the de facto officer.” 62 C.J.S. Municipal Corporations sec. 528, at 978 (1949).

The earliest case in point is People ex rel. Sartison v. Schmidt (1917), 281 Ill. 211, 117 N.E. 1037. There, a petition in mandamus was brought requesting that the reinstatement of a discharged State employee be ordered. In a previous case, his discharge had been held to be improper. In the mandamus proceeding, the employee sought reimbursement for the earnings he would have made had he not been discharged. The supreme court affirmed the circuit court’s denial of reimbursement on the basis that, during the course of the discharge, the State had hired and paid another to perform the work the discharged employee would have done.

In McKinley v. City of Chicago (1938), 369 Ill. 268, 16 N.E.2d 727, the supreme court applied the Schmidt rule in a case where a candidate for municipal judge had prevailed in an election contest and had sought the pay he would have earned had he been permitted to take office when the term started. The court held the judge to be barred from the salary because it had been paid to the declared winner. Then, in Corbett v. City of Chicago (1945), 391 Ill. 96, 62 N.E.2d 693, persons who had been refused civil service certification as telephone operators obtained a writ of mandamus compelling their certification. No certification was made until the City had exhausted its appeal rights. Upon being certified and hired, the operators brought suit for the earnings they would have made had they been certified and hired when the writ of mandamus issued. The payment of wages to others who temporarily filled the positions sought by relators was held to be no bar to relators’ claims. The court reasoned that once the relators’ right to the positions had been judicially determined, upon the issuance of the writ of mandamus, the question of the right to the positions was no longer sufficiently in doubt to justify withholding of pay to relators even though payments were being made to others who filled the positions.

The supreme court has not ruled directly on the foregoing question since Corbett. In People ex rel. Trapp v. Tanner (1956), 10 Ill. App. 2d 155, 133 N.E.2d 526, the appellate court followed the previously stated general rule as modified by Corbett. In McReynolds v. Civil Service Com. (1974), 18 Ill. App. 3d 1062, 311 N.E.2d 308, the appellate court cited the modified setoff rule of Corbett as a reason why a statutory requirement that the Civil Service Commission of the State of Illinois grant a hearing to a discharged employee within 30 days of request (Ill. Rev. Stat. 1971, ch. 127, par. 63111) be held to be mandatory. The court recognized the potential loss of earnings to a. discharged employee whose discharge might later be determined to be improper.

The Corbett court distinguished the situation in that case from those in McKinley and Schmidt on the basis that in Corbett, the claimants’ rights to the positions had been judicially determined but indicated adherence to the holdings of those cases. Plaintiff argues that Corbett’s adherence to the rule of those cases should be limited to the situation where the person seeking lost earnings was an applicant for a position and not a discharged employee. We see no language in Corbett to so modify the rule.

Even under the Corbett holding, the City should be entitled to a deduction only for monies paid to plaintiff’s successor prior to February 16, 1982, when the circuit court reversed the order of the Commission allowing for the discharge rather than for the period prior to September 3, 1982, when the court in this case mandated that plaintiff be restored to the position in question. The unappealed judicial order of February 16, 1982, finally determined whether plaintiff could properly be discharged. The court was sitting in administrative review in that case and had no power of mandamus, but the uncertainty as to plaintiff’s right to the job was resolved by that decision. The September 3, 1982, order in this case merely enforced the determination made in the previous proceeding.

Plaintiff maintains that constitutional principles evolving after the Corbett decision have required the abolishment of the common law rule of setoff for monies paid to the employee holding the job to which the claimant was entitled. The cases began with Arnett v. Kennedy (1974), 416 U.S. 134, 40 L. Ed. 2d 15, 94 S. Ct. 1633. There, the United States Supreme Court upheld a summary discharge of a Federal employee pursuant to the provisions of the Lloyd-LaFollette Act (5 U.S.C. sec. 7501 (1970)). The plurality opinion, expressing the views of three justices, held that the employee’s expectation of permanency in his job was no greater than that afforded by the procedures by which he could be removed, and thus he had no property right in the job requiring, under due process, more favorable procedures than those set out in the Act. The concurrence, expressing the views of two justices and one of the dissents, expressing the views of three justices, held that the employee had a property interest in the expected continuance of his government job. The concurrence held that one of the factors justifying the summary procedures used was that after discharge, the employee would have a right to a plenary hearing with an award of back pay if his discharge was found to be improper.

Similarly, Illinois courts have held or indicated that when a governmental employee is summarily suspended or discharged, due process requires that if after a full hearing the governmental action was determined to be improper, the employee be reimbursed for the pay he would have received. (Starkey v. Civil Service Com. (1983), 97 Ill. 2d 91; Kropel v. Conlisk (1975), 60 Ill. 2d 17, 322 N.E.2d 793; Haverly v. Boys (1979), 77 Ill. App. 3d 312, 395 N.E.2d 1005; Bromberg v. Whitler (1977), 57 Ill. App. 3d 152, 372 N.E.2d 837; People ex rel. Cotter v. Conlisk (1974), 17 Ill. App. 3d 346, 308 N.E.2d 1.) Here, most of the deductions claimed by the City from any award of back pay concern a period of time after plaintiff had been given a full hearing as to his discharge. However, a decision of plaintiff’s first full hearing after his discharge was not made until October 13, 1981. Thus, deduction for the period from September 8, 1981, would have run afoul of the rule in the foregoing cases.

In Board of Trustees v. Cook County College Teachers Union, Local 1600 (1976), 62 Ill. 2d 470, 343 N.E.2d 473, the court held that under a collective bargaining agreement, teachers that were not given an opportunity, due them under the agreement, to perform certain work during the summer were entitled to the earnings they would have made. No question of setoff for salaries or wages paid to others was raised.

We are not satisfied that the cases cited by plaintiff change the precedent of Corbett. Accordingly, we deem that precedent to be binding on us and follow it. We hold that the City is entitled to deduct from the sums that would have been paid to plaintiff the amount that was earned after October 13, 1981, and prior to February 16, 1982, by the person hired to replace plaintiff.

Finally, we consider plaintiff’s contention that he was entitled to an award of attorney fees for bringing the mandamus proceeding below. Plaintiff has no common law right to such fees. (Lites v. Jackson (1979), 70 Ill. App. 3d 374, 387 N.E.2d 1118.) Any such right would have to arise from statute. We deem a request for reimbursement to be one for damages arising from an improper discharge rather than for “wages earned and due” within the statutory provisions for recovery of attorney fees in such cases. (Ill. Rev. Stat. 1981, ch. 13, par. 13; World’s Columbian Exposition v. Thompson (1894), 57 Ill. App. 606.) The reimbursement was not for work actually performed as in Reiss v. El Bauer Chevrolet Co. (1968), 96 Ill. App. 2d 266, 238 N.E.2d 619. The reimbursement was not claimed for a violation of a constitutional right. The complaint made no reference to the applicable provisions of the Federal Civil Rights Act (42 U.S.C. secs. 1983, 1988 (1981)). The monies awarded here were awarded as a matter of common law right.

For the reasons stated, the judgment in favor of plaintiff is reversed and the case remanded to the circuit court of Macon County with directions to reduce plaintiff’s recovery by the amount paid after October 13, 1981, and prior to February 16, 1982. The denial of plaintiff’s request for attorney fees is affirmed.

Reversed in part, affirmed in part, remanded.

MILLS, P.J., and TRAPP, J., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID UTT, Defendant-Appellant.
    Third District
    Nos. 82—0710, 82—0691 cons.
    Opinion filed November 16, 1983.
    Rehearing denied April 6, 1984.
    Robert Agostinelli and Gary Hicks, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Joan C. Scott, State’s Attorney, of Lewistown (John X. Breslin and Patricia Hartmann, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

On September 29, 1982, David Utt was convicted of driving while under the influence, possession of a controlled substance, resisting a police officer and improper lane usage as the result of an incident of April 24, 1982. He was sentenced to concurrent prison terms of 364 days, two years and six months for driving under the influence, possession of a controlled substance and resisting a police officer, respectively; and ordered to pay a fíne and court costs totalling $50 for improper lane usage. (Cause No. 82 — 691.) In addition, the defendant’s court supervision, which had been imposed for a March 3, 1982, driving under the influence of alcohol offense, was revoked and another 364-day prison sentence was imposed to run concurrent to the prison sentences imposed for the instant offenses. (Cause No. 82 — 710.) The defendant appeals from the instant conviction for driving under the influence, arguing that the complaint was insufficient and that the trial court erred in instructing the jury. The defendant further contends that if his conviction for the more recent driving under the influence charge is reversed, then he is entitled to a remand for a new sentencing hearing on the remaining convictions and a new hearing on the State’s petition to revoke his supervision on the prior charge.

The facts of the case are not disputed. At approximately 3 a.m. on April 24, 1982, the defendant was driving his car west on Route 9 in Fulton County. Fulton County Sheriff’s Deputies Donald Hackett and Melvin Soltwisch observed the defendant’s car leave its lane of traffic and enter the eastbound lane, return to the westbound lane, and then pull off onto the side of the road. The deputies drove to the defendant’s vehicle.

Deputy Hackett walked up to the defendant’s car and asked the defendant for his driver’s license. The defendant’s speech was slurred and he fumbled with his wallet while searching for the license. Hackett detected a strong odor of alcohol on the defendant. Hacket then asked that the defendant walk to the back of the car. The defendant staggered while walking and fell against the car. The defendant could not touch his finger to his nose or walk a straight line heel to toe.

Deputy Hackett wrote two uniform traffic citations charging the defendant with improper lane usage and “driving while under the influence.” The defendant was arrested and taken to the Fulton County jail. At approximately 4:05 a.m. the defendant took a breath analysis test which showed the defendant’s blood alcohol content to be .13%.

On April 26, 1983, an information was filed charging the defendant with unlawful possession of a controlled substance, and resisting a peace officer in connection with the April 24 incident. Finally, the State filed a petition to revoke supervision and a supplemental petition to revoke supervision alleging that the April 24 offenses violated the conditions of defendant’s supervision. The defendant filed a pretrial motion to dismiss the charge of driving under the influence on the grounds that the citation was insufficient to inform him of the charge. The citation cited to chapter 95V2, par. 11 — 501(a) of the lilinois Motor Vehicle Code (Ill. Rev. Stat. 1981, ch. 95½, par. 11— 501(a)) and described the offense as “Driving while under the influence” as aforesaid. The defendant’s pretrial motion was denied.

At trial, the court gave, over the defendant’s objection, two jury instructions offered by the State. Both instructions recited that a person commits the offense of driving under the influence when the alcohol concentration in the blood or breath is .10 or more.

The defendant argues as his first issue on appeal that the uniform traffic citation charging him with driving under the influence was insufficient to inform him of the charge against him because it does not specify that he was under the influence of alcohol, drugs or both. The defendant asserts that because the traffic citation failed to allege each element of the offense, the charge must be dismissed. We agree.

The courts of this State have in the past held that the absence of any reference to alcohol or liquor on a traffic citation charging a defendant with driving under the influence renders that charge insufficient. (People v. Tucker (1971), 131 Ill. App. 2d 598, 263 N.E.2d 191; People v. Stringfield (1962), 37 Ill. App. 2d 344, 185 N.E.2d 381.) The State contends, however, that where the defendant has not demonstrated that he was prejudiced by failure to specify the intoxicating substance, the better rule is that a charge of driving under the influence is stated sufficiently when the traffic citation cites to the appropriate statute and identifies the offense simply as “driving under the influence.” Under the State’s view, the defendant is thereby placed on notice that he must be prepared to defend against each subsection of the statute.

The offense with which the defendant was charged is codified in section 11 — 501(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501(a)). At the time of his arrest, two statutes had been enacted as section 11 — 501(a). The defendant concedes that he was charged and tried under section 11 — 501(a) as amended by Public Act 82 — 311. Section 11 — 501(a) as amended by Public Act 82 — 311 provides:

“Driving while under the influence of alcohol, other drug, or combination thereof.
(a) A person shall not drive or be in actual physical control of any vehicle within this State while:
1. The alcohol concentration in such person’s blood or breath is 0.10 or more based on the definition of blood and breath units in Section 11 — 501.2;
2. Under the influence of alcohol;
3. Under the influence of any other drug or combination of drugs to a degree which renders such person incapable of safely driving; or
4. Under the combined influence of alcohol and any other drug or drugs to a degree which renders such person incapable of safely driving.” Ill. Rev. Stat. 1981, ch. 95½, par. 11— 501(a).

The nature of the offenses set forth in section 11 — 501(a) are the operation of an automobile while the blood/breath alcohol concentration is .10 or more (par. 11 — 501(a)(1)); or “under the influence” of alcohol (par. 11 — 501(a)(2)); or “under the influence” of any other incapacitating substance(s) which render one incapable of driving safely (par. 11 — 501(aX3) and (4)). In this case the defendant was charged with both driving under the influence and possessing a controlled substance (amobarbitol). A breathalizer established that his breath alcohol concentration exceeded .10, as aforesaid, and the defendant was informed of the results of the test prior to trial.

The defendant does not claim that he was prejudiced by the failure of the complaint to specify the nature of the intoxicating substance which allegedly influenced him, but contends that his pretrial challenge based on sufficiency of a defective charging instrument entitles him per se to a dismissal of the charge. (People v. Lutz (1978), 73 Ill. 2d 204, 383 N.E.2d 171.) The Lutz principle that a challenge to the specificity of a charging instrument made in the trial court does not require a showing of prejudice was recently reaffirmed in People v. Smith (1984), 99 Ill. 2d 467. The strict adherence to statutory requirements as stated in Lutz requires the dismissal of the traffic charge in this case.

Although the State has persuasively argued in this appeal that section 11 — 501(a) essentially defines a single offense of “driving under the influence,” that argument has been recently undermined by the decision of our supreme court in People v. Ziltz (1983), 98 Ill. 2d 38, 455 N.E.2d 70. In our opinion, the supreme court’s recent pronouncements in Smith and Ziltz preclude further consideration of the public policy arguments advanced by the State in this appeal. Such arguments may be properly directed to the legislature. (Smith.) Under the circumstances, we do not address the defendant’s issue respecting jury instructions.

For the foregoing reasons, the defendant’s conviction and sentence for driving under the influence are reversed. The record does not indicate that the sentencing court may have been influenced by the reversed conviction in imposing sentences for possession of a controlled substance, resisting a peace officer and improper lane usage. A new sentencing hearing need not be held with respect to those convictions. The State, however, concedes that a new hearing will be required on the petition to revoke court supervision in the event that the more recent driving under the influence of alcohol conviction is reversed. Accordingly, we remand this cause for that purpose.

Affirmed in part; reversed in part; and remanded.

ALLOY and HEIPLE, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRYAN KILFOY et al., Defendants-Appellants.
    Second District
    Nos. 83—75, 83—76 cons.
    Opinion filed March 8, 1984.

      Robert P. Will, Jr., of Woodstock, for appellant Linda Stroh.
    Edward D. Triwush and Marshall R. Weinberg, both of Weinberg & Weinberg, and James W. Reilley, of Reilley & Witlin, both of Chicago, for appellant Bryan Kilfoy.
    Theodore Floro, State’s Attorney, of Woodstock (Phyllis J. Perko and Andrea Becker, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Bryan Kilfoy, was charged in McHenry County with unlawful possession of more than 500 grams of a substance containing cannabis, and possession of more than 500 grams of a substance containing cannabis with intent to deliver. (Ill. Rev. Stat. 1981, ch. 56½, pars. 704(e), 705(e).) His pretrial motions to quash the search warrant and suppress the evidence and to suppress statements were denied, and he was found guilty in a bench trial of both offenses. He was sentenced on the count charging possession with intent to deliver to a term of four years in the Department of Corrections, and was fined $25,000.

Defendant, Linda Stroh, was charged in McHenry County with unlawful possession of more than 30 grams of a substance containing cocaine, a controlled substance, with unlawful possession of more than 500 grams of a substance containing cannabis, and with one count each of unlawful possession of those two substances with intent to deliver. Ill. Rev. Stat. 1981, ch. 56½, pars. 1402(a)(2), 704(e), 705(e), 1401(a)(2).

Her pretrial motions to quash the search warrant and suppress the evidence, and to suppress statements, were denied, and her case was consolidated for trial with Kilfoy’s. She was found guilty in a bench trial of the unlawful possession charges, and not guilty of the charges of possession with intent to deliver. She was sentenced to a four-year term of imprisonment on the possession of cocaine count and a two-year term on the possession of cannabis count, the sentences to run concurrently, and fined $4,200. Kilfoy and Stroh’s appeals were consolidated on the State’s motion.

Three issues are presented: (1) whether both defendants effectively waived their right to trial by jury; (2) whether the court erred in denying both defendants’ motions to quash the warrant and suppress the evidence; and (3) whether the court erred in denying Stroh’s motion to suppress statements.

On February 5, 1982, at 3:30 p.m., three Chicago police officers conducted a search pursuant to a warrant issued for:

“ ‘Brian’ Male/White Approx. 30 years. 6’0 165 lbs. Brn. hair and 4008 Cherry Valley Road [space] House [space] Crystal Lake, McHenry County, Ill. and seize Marijuana: to wit Cannabis Sativa & Proof of Residency.”

The police were admitted to the house by the defendant, Linda Stroh, and were told the defendant, Bryan Kilfoy, was skiing. In response to a question, she stated that she resided in the house. A friend, Stewart Ogan, was also present when the officers arrived.

During the two-hour search of the residence, four burlap bags and three plastic bags of marijuana were found in a crawl space in the basement, and a quantity of cocaine and marijuana was found in one closet of one of the three bedrooms in the house. Stroh was arrested after the marijuana was found in the crawl space. In response to a question during the search of the house, she stated the bedroom in which the cocaine was found was hers.

Kilfoy arrived at the house in a car driven by Matthew Praxmarer after the search was concluded but before the police had departed. An officer approached the car, said “Bryan?” and Kilfoy responded “Yes.” He also admitted that he lived in the house. He was then arrested. Four individuals other than Praxmarer had come to the house during the two-hour search; Mark Clodius, Robert Vehe, Keith Jansen, and William Jachimek. All gave their addresses to the police and were released.

During trial, it was revealed that Stroh had lived at the house for about seven months with Kilfoy and his girlfriend, Toni Grill. Stroh assisted Kilfoy and Clodius in a workshop in the basement of the house where the three made jewelry. Vehe also stayed at the house on occasion, and did some carpentry work on the house in lieu of rent. Clodius had also lived at the house for a while, and in his work with Kilfoy in their jewelry business, he was present in the house on a daily basis. He and Kilfoy were co-owners of a jewelry store in Lake Geneva, Wisconsin; Stroh occasionally worked at the store and also assisted in the jewelry-making at the house. Additionally, Stroh took in sewing. Stroh testified everyone in the house had access to all the rooms, and that the closet in which the cocaine was found was the “junk” closet. She denied any prior knowledge of the marijuana or the cocaine.

Mark Clodius testified at trial to an incident in which he arrived at the house in late January or early February of 1982, and saw Vehe coming out of Stroh’s bedroom. No one else was in the house at the time, and Vehe appeared very nervous. Clodius also testified Vehe often used the crawl space, and that Kilfoy did not.

Kilfoy testified Vehe did not pay any rent, did some carpentry work around the house, and was supposed to be cleaning the crawl space during the month prior to the search. Kilfoy stated he had not seen Vehe since the day the search was conducted, and denied he had any knowledge of the contraband discovered during the search.

1. Jury Waivers

The defendants make identical arguments, claiming the record fails to show that they effectively waived their right to a jury trial because it does not reflect this right was explained to them; therefore, their written waivers could not be regarded as having been made understandingly and voluntarily. In primary support, they cite People v. Gaston (1971), 132 Ill. App. 2d 900, and People v. Rambo (1970), 123 Ill. App. 2d 299.

Both cases are distinguishable. In Gaston, the defendant entered a negotiated plea of guilty and, except for a written waiver of jury signed by the defendant, the record was completely silent with respect to the right to a jury trial. The court noted the fact of the silent record alone would have been reversible error in light of Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709. That case resulted in the promulgation of Supreme Court Rule 402, which requires that the record show express admonitions by the trial court and express responses by the defendant with respect to the nature of the charge and the rights the defendant relinquishes by pleading guilty, including the right to a trial of any kind. (87 Ill. 2d R. 402.)

The Gaston court stated the defendant’s written waiver was a sufficient expression of the defendant’s desire to reject his right to be tried by a jury, but that the second essential requirement — an indication that the defendant’s waiver was understanding^ and voluntarily waived — was lacking due to the silent record.

The defendant in Rambo was 16 years old, was represented by counsel, and signed a written waiver. Although the record showed the court advised the defendant he had a right to a jury trial and asked him if he understood that right, the court never asked the defendant or his counsel if he wished to waive that right. Further, the Rambo court considered that the mere fact the defendant signed a printed jury waiver did not indicate he had read what he signed, or that he understood what he had signed.

The parties here agree, as they must, that Illinois law affords every person accused of an offense the right to a trial by jury unless that right is understandingly waived by the accused in open court. (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 6.) The State argues that the defendants, by permitting their attorney, in their presence and without objection, to waive their right to a jury trial, may be deemed to have acquiesced in, and to be bound by, his actions. In support, the State correctly cites People v. Sailor (1969), 43 Ill. 2d 256, and People v. Murrell (1975), 60 Ill. 2d 287.

The reasoning underlying such a result was commented on in Sailor, to-wit: “An accused ordinarily speaks and acts through his attorney, who stands in the role of agent.” (People v. Sailor (1969), 43 Ill. 2d 256, 260.) The court also cited to an observation which was made in People v. Melero (1968), 99 Ill. App. 2d 208, 211-12:

“ ‘The trial court was entitled to rely on the professional responsibility of defendant’s attorney that when he informed the court that his client waived a jury, it was knowingly and understandingly consented to by his client. Defendant is not permitted to complain of an alleged error which was invited by his behavior and that of his attorney.’ ” People v. Sailor (1969), 43 Ill. 2d 256, 261.

The viability of the court’s decision in Sailor was challenged — and ultimately reaffirmed — in People v. Murrell (1975), 60 Ill. 2d 287. That court noted that it accepted the recommendation of the American Bar Association that the “preferred” procedure be that “ ‘[t]he court should not accept a waiver unless the defendant, after being advised by the court of his right to trial by jury, personally waives his right to trial by jury, either in writing or in open court for the record.’ ” (People v. Murrell (1975), 60 Ill. 2d 287, 291; ABA Standards, Trial by Jury, Standard 1.2(b) (1968).) Nevertheless, although the ABA procedure is preferred, the Murrell court found it is not constitutionally required, nor do any statutes or Supreme Court Rules require that it be followed. Notably, the Murrell court stated that its Rule 402 “only requires an affirmative showing on the record of a knowing and understanding waiver as to pleas of guilty” and that “[njeither our rule nor Boykin [Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709] contains a similar requirement concerning the waiver of the right to jury trial.” (People v. Murrell (1975), 60 Ill. 2d 287, 290.) Importantly, there, as here, the defendants made no contention that the waiver was not voluntary, that either of the defendants wanted or was deprived of a jury trial, or was in any way prejudiced by counsel’s waiver on their behalf.

The State additionally cites People v. Meier (1975), 30 Ill. App. 3d 1, a case in which the defendant’s argument was the same as the defendants’ argument here; to-wit: that the record did not indicate that he was informed of his right to a jury trial. That court observed “the better practice” would have been for the court on the record to have specifically advised the defendant of his right to a jury trial; nonetheless, adhering to Sailor, the court held the defendant bound by the waiver made in his presence, without any objection, by his own counsel. 30 Ill. App. 3d 1, 8.

The record here contains written jury waivers signed by each defendant, and the report of proceedings shows defendants’ counsel waived their right to jury trial in open court in their presence without objection. Accordingly, we conclude the defendants effectively waived their right to trial by jury and no reversal on this point is warranted.

2. Motion To Quash The Warrant And Suppress The Evidence

The warrant specified the place to be searched was “4008 Cherry Valley Road [space] House [space] Crystal Lake, McHenry County, 111.” Both defendants contend here, and so argued below, that the court erred in denying their motion to quash on the basis the house in which both defendants resided was not in Crystal Lake; rather, it was in Woodstock. Defendants argue the fact the warrant was executed by Chicago police, rather than local police, coupled with the discrepant address, created such a possibility of confusion as to have invalidated the warrant.

The State correctly points out the defendants’ briefs misstate the suppression hearing testimony of the McHenry County building and zoning enforcement officer, Glen Peterson. He did not testify that 4008 Cherry Valley Road was within the Woodstock city limits, as defendants assert. He testified the house was in an unincorporated area of McHenry County known as Bull Valley, and was located about five-six miles from Crystal Lake and five miles from Woodstock. Peterson also testified there is only one Cherry Valley Road in McHenry County, and it is the one located in the area known as Bull Valley. At the hearing, Cherry Valley Road was shown in a McHenry County street and road guide as being in the Woodstock “area.” Peterson testified he believed Bull Valley mailing addresses are partly Crystal Lake, partly Woodstock, and partly McHenry. The defendants’ mailing address was Woodstock.

Although defendants acknowledge that errors in addresses on search warrants are not per se fatally defective (People v. Fragoso (1979), 68 Ill. App. 3d 428), they argue that cases in which an inaccurate warrant has been upheld included other factors in the body of the warrant or its supporting affidavit, or by way of surveillance, which tended to negate the potential for confusion. They cite as examples People v. Bauer (1981), 102 Ill. App. 3d 31 (city designation omitted on warrant for search of grey house with red trim on the west side of the street was included in support affidavit); People v. Hicks (1977), 49 Ill. App. 3d 421 (lack of street address not fatal to warrant where it specified the numbers of the rooms to be searched at the Arlington Park Towers Hotel located at Rowhling Road and Euclid Avenue in Arlington Heights); People v. Mecca (1971), 132 Ill. App. 2d 612 (search of house at 3322 South Western Avenue pursuant to warrant for house at 3322 South Western Boulevard upheld in view of proximity of the boulevard and avenue — separated only by 50-foot-parkway— there was no house at that address on the boulevard, and the house on the avenue was the rear house on the lot, and it had imitation brick siding as stated in the affidavit).

The State asserts the standard for the description of the premises in a search warrant is one of reasonable certainty, and the warrant is sufficiently descriptive if it enables the officer, with reasonable effort, to identify the place. (People v. Watson (1962), 26 Ill. 2d 203.) In Watson, the building to be searched was incorrectly shown as 2300 South State Street; there was no 2300 address, but the first building south of the intersection was 2310 South State Street. The court upheld the search of that building. Similarly, here, the State argues, the only 4008 Cherry Valley Road in McHenry County was the defendants’ residence. The State also cites People v. Kissinger (1975), 26 Ill. App. 3d 260, where the court upheld a search warrant which showed the address to be searched as “ ‘2028 Highview Road, Tazewell County, Illinois and a building or buildings, or portions thereof.’ ” (26 Ill. App. 3d 260, 262.) There was evidence there that there were other Highviews in Tazewell County, but there was no finding that there was any other Highview Road in the county. An even stronger argument for upholding the warrant in the instant case, argues the State, may be made because the court here specifically found there was no other Cherry Valley Road in McHenry, except the one on which defendants’ residence was located in the unincorporated area of Bull Valley.

The purpose of the requirement of particularity of description in search warrants is to prevent the use of general warrants which would give the police broad discretion as to where they may search and what they may seize. (People v. Allison (1983), 115 Ill. App. 3d 1038, 1043; Warden v. Hayden (1967), 387 U.S. 294, 18 L. Ed. 2d 782, 87 S. Ct. 1642.) It was the defendants’ burden to establish that the totality of the circumstances could create confusion or ambiguity. (People v. Fragoso (1979), 68 Ill. App. 3d 428.) At the suppression hearing, the defendants presented evidence that there were other roadways in McHenry County with the preface “Cherry” such as “Cherry Avenue” and “Cherry Lane.” However, there was a specific finding by the court that there was only one “Cherry Valley Road,” and that it was in unincorporated Bull Valley. There was also testimony that that area utilizes three different mailing addresses, one of which is Crystal Lake.

There were other identifying factors here which also tended to remove any ambiguity in the warrant. We point out that the entire record may be considered on review of a defendant’s motion to quash and suppress and the reviewing court is not limited to reviewing only the evidence produced at the hearing. (People v. Webb (1982), 109 Ill. App. 3d 328; People v. Hall (1980), 90 Ill. App. 3d 1073, cert, denied (1981), 454 U.S. 893, 70 L. Ed. 2d 207, 102 S. Ct. 388; People v. Dennison (1978), 61 Ill. App. 3d 473.) The warrant set forth that the person to be searched was “Brian [sic],” and defendant Stroh, upon answering the door, advised the officers that “Bryan” was not home, but was skiing. Although defendants seem to suggest that the fact the executing officers were Chicago police officers may have contributed to the ambiguity in carrying out the terms of the warrant, we note that Illinois police officers may execute search warrants anywhere in the State, not just within their own jurisdiction. (People v. Carnivale (1975), 61 Ill. 2d 57.) Here, Officer Smith, although a Chicago police officer, testified he had seen the house previously within the month. Although the “house” set forth in the warrant was not otherwise described, certainly Smith’s relatively recent observation of the residence is a factor which must be considered in assessing his ability to identify the house “with a reasonable effort.”

On review, the ruling of the circuit court on the defendants’ motion to suppress should not be set aside unless it is found to be clearly erroneous. (People v. Clark (1982), 92 Ill. 2d 96; People v. Gulley (1982), 111 Ill. App. 3d 1091.) For the reasons set forth above, we believe the court correctly denied the defendants’ motion to suppress the warrant.

3. Motion To Suppress Statements

Only defendant Stroh raises as error the denial of the motion to suppress statements made on behalf of both of the defendants. Her argument here hinges on her assertion that she made two statements — that she resided in the house and that the bedroom in question was hers — without having been advised of her Miranda rights. As pointed out by the State, however, the record clearly shows the second statement about the bedroom was made by her after she had been arrested and advised of her Miranda rights. Officer Smith testified Stroh was arrested after the four bales of marijuana were found in the crawl space, that he advised her of her Miranda rights, and that he proceeded to search the upstairs. When he discovered the contraband in the bedroom closet, he testified he leaned over the railing of the loft above the front room where Stroh was sitting and asked whose bedroom it was. She replied that it was hers. Consequently, the only question is whether the officer’s inquiry as to whether she resided there should have been suppressed because she had not yet been advised of her Miranda rights.

Two cases cited by the defendant lend no support to her position: Orozco v. Texas (1969), 394 U.S. 324, 22 L. Ed. 2d 311, 89 S. Ct. 1095, and People v. Clark (1980), 84 Ill. App. 3d 637. In Orozco, the questioning was much more extensive and pointed than that here. Police in that case were admitted to the sleeping defendant’s bedroom. “From the moment he gave his name” he was under arrest. (Orozco v. Texas (1969), 394 U.S. 324, 325, 22 L. Ed. 2d 311, 314, 89 S. Ct. 1095, 1096.) Without advising the defendant of his Miranda rights, officers proceeded to question him and elicited responses which placed the defendant at the scene of a murder and during which questioning the defendant admitted ownership and the location of the gun which fired the fatal shot. His conviction was reversed on the basis the use of his admissions — obtained in the absence of Miranda warnings — violated the self-incrimination clause of the fifth amendment. In Clark, police officers were called to the scene of an accident where they observed a man slumped behind the wheel of a car. Bystanders pointed out the man’s wife nearby. After confirming that the defendant was the shooting victim’s wife, the officer had her and a woman friend of hers sit in the squad car. He then asked the defendant “What happened?” and she responded: “I shot my husband.” Rather than giving defendant her Miranda rights, however, the officer asked the woman friend to leave the car, and he continued to question the defendant about the circumstances of the shooting. The court there determined the officer’s initial question, “What happened?” qualified as general on-the-scene questioning and not custodial interrogation. The officer’s continued questioning after the defendant stated she shot her husband was not general on-the-scene questioning, and due to the absence of Miranda warnings, the court reversed and remanded the cause for a new trial. People v. Clark (1980), 84 Ill. App. 3d 637, 639.

The defendant contends that she was not free to leave as soon as she opened the door, and that Officer Smith so testified at trial. Further, at the same time, she points out Smith testified she was a “focus of his investigation.” Accordingly, she asserts that she should have been advised of her Miranda rights.

The State argues that the defendant’s pre-arrest detention pursuant to the execution of the search warrant was proper (Michigan v. Summers (1981), 452 U.S. 692, 69 L. Ed. 2d 340, 101 S. Ct. 2587), and that the statement she made was not made while she was in a “custodial” setting as contemplated by Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. It asserts the Illinois Supreme Court has determined that Miranda warnings are not required prior to asking preliminary questions when executing a search warrant, citing People v. Fischetti (1970), 47 Ill. 2d 92, and People v. Stansberry (1971), 47 Ill. 2d 541. It points out Orozco, cited by the defendant above, is distinguished in the Fischetti case, as here, by the dissimilar circumstances and the extent of the questioning. It also asserts the defendant’s reliance on People v. Clark (1980), 84 Ill. App. 3d 637, is misplaced, since the questions of the “general nature” addressed to the defendant here cannot be equated with the continued questioning in that case which occurred after the defendant told the police officer she shot her husband.

As Stroh argues, her residency on the premises and her occupancy of the bedroom where the contraband was found were essential elements in the State’s case against her and, as such, her admissions in the absence of Miranda warnings should have been suppressed. However, in view of the fact the record shows her admission that the bedroom was hers was made after she had been given her Miranda rights, that error, if any, with regard to her prior admission that she lived in the house would be harmless beyond a reasonable doubt.

As the State correctly points out, the Supreme Court recently held in Michigan v. Summers (1981), 452 U.S. 692, 705, 69 L. Ed. 2d 340, 351, 101 S. Ct. 2587, 2595, that:

“[A] warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.”

In Summers, the occupant of a home was detained by the police while they executed a warrant authorizing them to search the home for narcotics. After finding narcotics in the home and ascertaining that the occupant owned the home, the police arrested and searched the occupant, and an envelope containing heroin was found on his person. The occupant was charged with the possession of the heroin. At trial in a Michigan State court, he moved to suppress the heroin as the product of an illegal search in violation of the fourth amendment. The trial judge granted the motion, and quashed the information, and that order was affirmed by both the Michigan Court of Appeals and the Michigan Supreme Court. The United States Supreme Court reversed, holding as stated above, and finding that because it was lawful to detain the occupant until evidence establishing probable cause to arrest him was found, his arrest and the search incident thereto were constitutionally permissible.

Although that court found the occupant’s detention did not violate his constitutional right to be secure against unreasonable seizure of his person, it nonetheless noted that his initial detention did constitute a “seizure” within the meaning of the fourth amendment, and the court assumed the seizure, which occurred before he was formally arrested, was unsupported by probable cause. 452 U.S. 692, 696, 69 L. Ed. 2d 340, 345, 101 S. Ct. 2587, 2590-91.

Unlike the instant cause, there was no Miranda question presented in Summers. It is not known how the police “ascertained” the defendant owned the house, and the first footnote of the court’s opinion shows eight occupants of the house were detained during the search. Because of those other occupants, a later footnote in Summers indicates that under Michigan law, the fact narcotics had been found in the basement of the defendant’s house did not give the officers probable cause to arrest or search him. However, the court noted the issue there was not whether there was probable cause. Similarly here, there is no issue of probable cause.

In commenting on the Summers case, Professor LaFave observes:

“Especially because the Court elsewhere refers to the category of persons covered as ‘residents’ who would ordinarily ‘remain in order to observe the search of their possessions,’ it would seem that the word ‘occupants’ is not to be loosely construed as covering anyone present, but instead is to be interpreted literally.” (2 W. LaFave, Search and Seizure sec. 4.9, at 57-58 (1984 Supp.).)

In a footnote there, he writes:

“The dictionary definition of ‘occupant’ is ‘one who takes possession under title, lease, or tenancy at will,’ or ‘one who occupies,’ that is, ‘reside[s] as an owner or tenant’ at, a ‘particular place or premises.’ [Citation.]” (2 W. LaFave, Search and Seizure sec. 4.9, at 58 n.102 (1984 Supp.).)

He further remarks that the police must make the judgment as to who is an occupant rather than visitor, and in making that determination they surely are entitled to act upon “appearances” without regard to what the true facts ultimately turn out to be. The respondent in Summers told the police he had left his keys inside, thus sufficiently giving the appearance, at least, of being an occupant. As La-Fave points out, the court in Summers “did not discuss at all the necessity for police to make the occupancy determination, and thus did not even say whether they need full probable cause or only a reasonable suspicion that the person detained fits the ‘occupant’ requirement.” 2 W. LaFave, Search and Seizure sec. 4.9, at 58 n.104 (1984 Supp.).

In the case at bar, the “occupancy” determination appears to have been made by simply asking Stroh if she lived there. She contends her affirmative response prior to being given the Miranda warnings amounted to a violation of her constitutional rights because she was not free to leave from the time she met Officer Smith at the front door and because Officer Smith testified that she was a focus of his investigation from that point on. The State cogently points out, however, that in determining whether a statement was made in a “custodial” setting — thus mandating Miranda warnings — the court must look to the entire circumstances surrounding the questioning, with no single factor controlling, and then objectively evaluate whether a reasonable, innocent person would have believed he was free to leave. (People v. Savory (1982), 105 Ill. App. 3d 1023; People v. Wipfler (1977), 68 Ill. 2d 158.) Additionally, a police officer’s subjective belief, uncommunicated to the person in question, and/or his testimony that the person was not free to leave, is not the controlling factor in deciding whether a person is in custody. People v. Newsome (1983), 117 Ill. App. 3d 1005, 1010, distinguishing People v. Szerletich (1980), 86 Ill. App. 3d 1121.

We agree with the State that the officer’s simple inquiry to Stroh, whether she lived there at the time she opened the door or very shortly thereafter, did not amount to custodial interrogation, even if the officer subjectively believed Stroh was not free to leave at the time. Nothing in the record suggests that Stroh’s detention at the time the inquiry was made was any different than the pre-arrest seizure described in Summers, and that court specifically found the type of seizúre there was “[i]n sharp contrast to the custodial interrogation in Dunaway [Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248], [and] the detention of [the] respondent was ‘substantially less intrusive’ than an arrest. [Citation.]” Michigan v. Summers (1981), 452 U.S. 692, 702, 69 L. Ed. 2d 340, 349, 101 S. Ct. 2587, 2594.

We do not conclude that such an inquiry is necessarily the proper or the most reliable way for the police to make the occupancy determination, or that there could not be other circumstances under which this inquiry might be made which would constitute “custodial interrogation” and require Miranda warnings. The inquiry made here under these circumstances, however, appears to fall within the category of preliminary on-the-scene questions which do not necessitate that Miranda warnings be given, to-wit: People v. Fischetti (1970), 47 Ill. 2d 92 (defendant admitted ownership when police asked “Whose coat?” after they found what appeared to be marijuana in one pocket while executing search warrant for defendant’s brother), and People v. Stansberry (1971), 47 Ill. 2d 541 (when questioned during police search of the Afro-American Student Association pursuant to a warrant for a search of the defendant and the premises, defendant admitted ownership of several items of clothing, the pocket of one item later found to contain packets of marijuana). In both of those cases, the defendants argued they had not been advised of their constitutional rights as required in Miranda before making the statement regarding ownership. In each case, the court noted:

“The sine qua non for invoking the Miranda rule is that the interrogation be focused on the accused while he is ‘taken into custody or otherwise deprived of his freedom of action [by the authorities] in any significant way.’ 384 U.S. at 444, 16 L. Ed. 2d at 706, 86 S. Ct. 1602.” People v. Fischetti (1970), 47 Ill. 2d 92, 97; People v. Stansberry (1971), 47 Ill. 2d 541, 548 (citing Fischetti).

Each court found that the circumstances under which the statement was made was hot characterized by the compulsion, danger of intimidation, or trickery which the Miranda rule was designed to eliminate and found no violation of the defendant’s constitutional rights had occurred. As shown by the record, the circumstances at bar were similarly noncoercive: the question concerning Stroh’s residence was only the second question she was asked (the first being whether “Brian” was in the house); Stroh was not named in the warrant, nor did the supporting affidavit mention any female residents of the house; a male friend, Stewart Ogan, present at the time the officer arrived, was similarly questioned as to his place of residence, as were Clodius, Vehe, Jansen, Jachimek, and Praxmarer, all of whom arrived during the course of the search; the police did not verify the addresses given by those persons; persons who did not give the premises in question as their place of residence were allowed to leave; the search was completed in two hours’ time; and although Stroh and Ogan sat in the front room of the house during the search, the record does not show they were confined in that room, at least until such time as the marijuana was discovered in the crawl space and Stroh was placed under arrest. Even though the detention which occurred at bar was technically a “seizure,” as characterized in Summers, the pre-arrest detention of the occupants of the premises being searched pursuant to the search warrant was nonetheless substantially less intrusive than an arrest or a custodial interrogation situation such as the one which occurred in Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248. Accord, People v. Townes (1982), 91 Ill. 2d 32; of. People v. Lippert (1982), 89 Ill. 2d 171 (where the court upheld a procedure, based on less than probable cause to arrest, whereby the defendant was placed in a squad car, and transported a short distance for a show-up before victims of robbery which occurred 35 minutes before in a rural area, noting, however, that Miranda warnings were given when the defendant was placed in the squad car, and there was no contention that the warnings were inadequate).

The standard of review of an order denying a motion to suppress is whether the trial court’s disposition was manifestly erroneous. (People v. Kincy (1982), 106 Ill. App. 3d 250, 256.) No such manifest error is evident in the record below, and no reversal is warranted.

The judgments of the circuit court of McHenry County are affirmed.

Judgments affirmed.

HOPF and VAN DEUSEN, JJ., concur.