author: PRESIDING JUSTICE SEIDENFELD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOHN WETHERBE, Defendant-Appellee.
    Second District
    No. 83—245
    Opinion filed March 26, 1984.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner and Diana Fischer-Woods, Assistant State’s Attorneys, of counsel), for the People.
    James F. Campion, of Wheaton, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Defendant, John Wetherbe, was charged with criminal damage to property, criminal trespass to land, and three counts of burglary. Prior to trial, defendant moved to suppress evidence obtained in a search of his car, contending that the search was the result of an illegal arrest. Following a hearing the trial court granted defendant’s motion, and the State appeals.

The evidence presented at the hearing on defendant’s motion indicated that, on January 28, 1982, at approximately 2 a.m., defendant was driving his car in the vicinity of Prince Crossing Road and North Avenue. Defendant was accompanied by Willard Large. Defendant turned into a construction site for the asserted purpose of visiting a friend who lived and worked there. Upon observing defendant’s automobile, Deputy Dennis Guzlas of the Du Page County sheriff’s department, turned into the access road which led to the buildings and waited. When defendant’s vehicle exited, Guzlas activated his lights and defendant stopped. Guzlas then noticed that defendant’s license plates were expired. When Guzlas requested identification from defendant, defendant was unable to produce his driver’s license, but told Guzlas his name. Guzlas recognized defendant’s name as a suspect in some thefts in the area and recognized Large as a suspected burglar and thief.

Defendant and Large exited the automobile and were patted down. Guzlas then looked inside the car and observed a case of new toothbrushes, several sets of used brake shoes, a truck reflector kit, and some small hand tools. Defendant and Large were arrested for criminal trespass to land. Consequently, Guzlas called a tow truck to take custody of defendant’s vehicle. Before the tow truck arrived, Guzlas inventoried the contents of defendant’s automobile. In the course of the inventory, Guzlas opened defendant’s trunk and found radios and other electronic equipment which appeared to be stolen.

The trial court concluded that the inventory procedure was in fact an investigatory search and suppressed the items found in the search. After its motion for reconsideration was denied, the State appealed, certifying that the trial court’s order substantially impaired the prosecution.

The State contends that the officers were justified in the search either on the basis of probable cause, as incident to a valid arrest, or for the purpose of an inventory.

Under the fourth amendment’s prohibition against unreasonable searches and seizures, a warrant is required before an automobile may be searched, unless the search was made with consent, upon probable cause to believe that the vehicle was used in or contains evidence of a crime, as an incident to an arrest, or after lawful impoundment of the car. People v. Bayles (1980), 82 Ill. 2d 128, 135, cert, denied (1981), 453 U.S. 923, 69 L. Ed. 2d 1005, 101 S. Ct. 3160.

I

If the search had been made on the basis of probable cause, Guzlas would have been able to search the entire vehicle, including the trunk (United States v. Ross (1982), 456 U.S. 798, 821, 72 L. Ed. 2d 572, 591, 102 S. Ct. 2157, 2170; People v. Freeland (1981), 103 Ill. App. 3d 94), even after Guzlas had taken custody of the car (Michigan v. Thomas (1982), 458 U.S. 259, 261, 73 L. Ed. 2d 750, 753, 102 S. Ct. 3079, 3081; People v. Freeland (1981), 103 Ill. App. 3d 94), and regardless of the validity of defendant’s arrest. (Chambers v. Maroney (1970), 399 U.S. 42, 47 n.6, 26 L. Ed. 2d 419, 426 n.6, 90 S. Ct. 1975, 1979 n.6.) However, as the State did not claim at trial that the search was based on probable cause, this ground has been waived as a basis for justifying the search. (People v. Fuentes (1980), 91 Ill. App. 3d 71, 77; People v. Valdez (1980), 81 Ill. App. 3d 25, 28.) In any event, on the basis of this record, the circumstances would not have given Guzlas probable cause to believe that defendant’s automobile contained evidence of a crime. (Compare People v. Smith (1983), 95 Ill. 2d 412; People v. Clark (1982), 92 Ill. 2d 96.) While Guzlas was confronted with suspicious circumstances, there was no attempt in the trial court to develop a theory that Guzlas had any reasonable basis for concluding that the vehicle contained evidence of a criminal offense. The traffic violations which Guzlas observed, expired license plates and defendant’s inability to produce his driver’s license (Ill. Rev. Stat. 1981, ch. 95½, pars. 3 — 701, 6 — 112), would not create probable cause for a search of the car. People v. Kelly (1979), 76 Ill. App. 3d 80, 85; see People v. Watts (1981), 93 Ill. App. 3d 420, 425.

II

When a person is subjected to a lawful custodial arrest, the police, acting without a warrant, may make a contemporaneous search of the person arrested and the immediately surrounding area. (New York v. Belton (1981), 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860.) Because it is the fact of a lawful arrest which authorizes the search, the arrest itself must be valid before a search may be justified as incident to arrest. (Beck v. Ohio (1964), 379 U.S. 89, 13 L. Ed. 2d 142, 85 S. Ct. 223; People v. Mendoza (1978), 62 Ill. App. 3d 609, 622; see Michigan v. DeFillippo (1979), 443 U.S. 31, 35, 61 L. Ed. 2d 343, 348, 99 S. Ct. 2627, 2631.) Defendant contends that his arrest for criminal trespass to land was unlawful, as there was no showing that defendant had been notified that entry was forbidden.

The offense of criminal trespass to land involves entry onto the land of another after the owner has notified the offender, by either personal communication or a sign conspicuously posted on the land, that entry is forbidden. (Ill. Rev. Stat. 1981, ch. 38, par. 21 — 3; People v. Gregorich (1979), 71 Ill. App. 3d 251, 256.) Here, although the owner was in the process of building a fence, the site was not fenced and there were no signs prohibiting entry. There is no indication of any personal communication between the owner and defendant. Consequently, defendant could not be convicted of criminal trespass to land. See Ill. Rev. Stat. 1981, ch. 38, par. 21 — 3; People v. Gregorich (1979), 71 Ill. App. 3d 251, 256.

This fact, however, is not determinative of the validity of defendant’s arrest. The legality of an arrest does not depend upon whether the suspect actually committed a crime (Michigan v. DeFillippo (1979), 443 U.S. 31, 61 L. Ed. 2d 343, 99 S. Ct. 2627; People v. Jackson (1979), 77 Ill. App. 3d 117, 122-23); or is prosecuted for the offense for which the arrest was made. (People v. Jones (1977), 56 Ill. App. 3d 414, 417.) Rather, a warrantless arrest is valid if the arresting officer has probable cause to believe that the person to be arrested is committing or has committed a crime. (Ill. Rev. Stat. 1981, ch. 38, par. 107 — 2; People v. Jones (1983), 114 Ill. App. 3d 576, 581.) This depends upon whether the facts and circumstances known to the officer at the time are sufficient to warrant a reasonable person in believing that a crime has been committed and that the person arrested has committed it. (People v. Moody (1983), 94 Ill. 2d 1, 7.) As such, probable cause is a determination based on factual and practical considerations, rather than legal technicalities, and does not require that the police have evidence sufficient to obtain a conviction. People v. Moody (1981), 94 Ill. 2d 1; see Beck v. Ohio (1964), 379 U.S. 89, 13 L. Ed. 2d 142, 85 S. Ct. 223.

Applying these principles here, probable cause could be found to justify defendant’s arrest. Guzlas knew, from prior conversations with the property owner, that there had been problems with prowlers and vandals at the construction site. The owner had expressly requested that the police patrol the area and keep trespassers away. The time of day and the unlikely explanation given by defendant and Large for their presence suggested that the two men were not on the land for a legitimate purpose. Although the officer’s subjective belief that an offense has been committed is insufficient (Beck v. Ohio (1964), 379 U.S. 89, 13 L. Ed. 2d 142, 85 S. Ct. 223), the circumstances here are such as to warrant a reasonable person in believing that defendant had committed the offense of criminal trespass to land, so as to satisfy the probable cause standard, despite the lack of the notice required by the statute.

Assuming the legitimacy of defendant’s arrest, however, does not sustain the search as incident to arrest. The permissible scope of a search incident to arrest must be limited to the circumstances which permit the initiation of the search. (New York v. Belton (1981), 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860.) Incident to an arrest, the police may search the person of the arrestee and the area within his or her immediate control in order to remove any weapons which the arrestee might seek to use and to prevent him or her from concealing or destroying evidence. (453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860.) Police may not extend their search into places which are clearly beyond the arrestee’s control. (453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860.) While the area within the arrestee’s control has been construed to include the entire passenger compartment of an automobile in which the arrestee was recently riding (New York v. Belton (1981), 453 U.S. 454, 69 L. Ed. 2d 768, 191 S. Ct. 2860), the search of an automobile incident to the arrest of its driver cannot extend to the trunk, under the circumstances here. 453 U.S. 454, 460 n.4, 69 L. Ed. 2d 768, 775 n.4, 101 S. Ct. 2860, 2864 n.4.

III

The remaining possible basis for justifying this search would be to characterize it as an inventory. An inventory of an automobile lawfully taken into police custody is constitutionally permissible. (South Dakota v. Opperman (1976), 428 U.S. 364, 374, 49 L. Ed. 2d 1000, 1008, 96 S. Ct. 3092, 3099; People v. Velleff (1981), 94 Ill. App. 3d 820, 823.) Although there is a split in the authorities over whether an otherwise legitimate inventory may extend to the trunk of a car (see 2 LaFave, Search and Seizure sec. 7.4(a), 578-79 (1978), 221-22 n.66-68 (1984 Supp.); Annot., 48 A.L.R.3d 537, 577-80 (1973), 37-38 (1983 Supp.)), the better view appears to permit inventorying the trunk, as this is consistent with the purposes of an inventory procedure. (State v. Prober (1980), 98 Wis. 2d 345, 297 N.W.2d 1; see Michigan v. Thomas (1982), 458 U.S. 259, 261, 73 L. Ed. 2d 750, 753, 102 S. Ct. 3079, 3081.) An inventory is permitted as a reasonable intrusion because it serves the purposes of protecting the owner’s property while in police custody, protecting the police against claims against lost or stolen property, and protecting the police from potential danger. (South Dakota v. Opperman (1976), 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092.) Given this rationale, probable cause is not a consideration in inventory procedures (428 U.S. 364, 369, 49 L. Ed. 2d 1000, 1005, 96 S. Ct. 3092, 3097; People v. Hamilton (1979), 74 Ill. 2d 457, 464), nor is it always necessary that the inventory be made in conjunction with a lawful arrest. (74 Ill. 2d 457, 464-65.) However, an inventory cannot be undertaken for a simply investigatory purpose or other improper motive. People v. Bayles (1980), 82 Ill. 2d 128, 142, cert, denied (1981), 453 U.S. 923, 69 L. Ed. 2d 1005, 101 S. Ct. 3160; People v. Hamilton (1979), 74 Ill. 2d 457, 466-67; People v. Reincke (1980), 84 Ill. App. 3d 222. See People v. Salter (1980), 91 Ill. App. 3d 831.

The trial court found that Guzlas acted pursuant to an investigatory motive and that the inventory was a sham. This finding must be upheld unless it is manifestly erroneous. (People v. Clark (1982), 92 Ill. 2d 96, 99.) Under the circumstances of this case, the trial court’s conclusion does not appear manifestly erroneous. The fact that Guzlas testified that he followed a departmental policy to inventory all towed vehicles to avoid civil claims, while suggesting a reasonable intrusion, is not conclusive. (People v. Salter (1980), 91 Ill. App. 3d 831, 834.) Moreover, the record strongly suggests that Guzlas acted from an investigatory motive, as the trial court concluded, rather than from purposes which would justify an inventory. See People v. Hamilton (1979), 74 Ill. 2d 457, 466-67. Compare People v. Braasch (1984), 122 Ill. App. 3d 747.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

UNVERZAGT and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON JUSTICE ROMITI,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN TATE et al., Defendants-Appellants.
    First District (4th Division)
    No. 82—1146
    Opinion filed March 22, 1984.

      ROMITI, J., concurring in part and dissenting in part.
    Steven Clark and Patricia Unsinn, both of State Appellate Defender’s Office, of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Thomas Gearen, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a bench trial, defendants, John Tate and Addie Mosby, were convicted of aggravated battery and unlawful restraint (Ill. Rev. Stat. 1979, ch. 38, pars. 12 — 4, 10 — 3), and sentenced to imprisonment of four years and 10 years, respectively.

The following issues are raised for review: (1) whether prior consistent statements made by the complaining witness were properly admitted; (2) whether the prosecution unfairly insinuated that defendants had made prior statements inconsistent with their trial testimony; (3) whether the trial judge had a duty to shield himself from the prejudice of unreliable and incompetent evidence at the hearing in aggravation and mitigation; (4) whether a factor necessarily implicit in an offense may be considered by the judge in aggravation at sentencing; (5) whether the trial judge abused his discretion in imposing the maximum term of imprisonment where due consideration was not given to defendant Mosby’s proven rehabilitative potential; (6) whether defendants’ sentences were grossly disparate; (7) whether defendant Mosby was denied her sixth amendment right under Bruton to confront her codefendant Tate concerning his out-of-court statement and antagonistic testimony; (8) whether defendant Mosby was denied effective assistance of counsel due to conflict of interest where the defense attorney could not effectively cross-examine Tate; and (9) whether defendant Mosby has waived her sixth amendment right to be represented by effective counsel, untainted by conflict of interest.

We affirm and modify.

At trial, the complaining witness testified that on June 20, 1981, at abut 4 p.m., she left her house to purchase marijuana. On her way, she met defendant Mosby, whom she had known for about three years. Mosby told complainant that she knew where some marijuana could be purchased. Mosby bought marijuana and then drove to a building she said she owned. The building was boarded up and padlocked. The complainant and Mosby smoked the marijuana. Mosby told complainant to take off her clothes and then ripped the latter’s shirt. Complainant hit Mosby with a bottle. Mosby threatened complainant with a whip, ordering her to undress and to scrub the kitchen floor. At that point, John Tate, the codefendant, came out of the bathroom. Mosby tied complainant’s hands and feet. Both defendants undressed and Mosby ordered complainant to perform deviate sex acts on her and Tate. Mosby beat complainant with the whip, hit her about the face with masking tape, and beat her with the whip again. Defendants forced complainant to perform other deviate acts and Mosby beat her repeatedly with the whip and an electrical cord. Defendants and complainant fell asleep. When they awoke, defendants again beat complainant. They shaved her head. On that second day, complainant was beaten three or four times, with Tate beating her once. Tate performed sex acts with the victim. After defendants left, complainant was able to untie her bindings and fled from the building.

Two blocks from the house, complainant met a young man and woman who drove her to a security booth where she was questioned by police. She did not know how much time had elapsed between the time she left the house and the time she saw the police. Paramedics took her to a hospital where she remained for three or four weeks. At the hospital, complainant identified Tate in a photographic lineup. Complainant was 19 years old at the time the incidents occurred. She stated that she never consented to sex acts with either defendant.

On cross-examination, complainant admitted the following: she had dropped rape charges in another case a few years before the present case; she had been hit by automobiles on two occasions; she had attended a special school for emotionally disturbed children and children with learning disorders; she had been under medical care from ages 11 to 16; she had behavior problems and had received psychotherapy; she had, at age 14, a drinking problem; she had smoked marijuana since she was 15; and she had used “speed.”

Scott Pierce, a physician, testified that he examined the complainant in an emergency room at Mount Sinai Hospital on June 22, 1981, at around 8:30 a.m. Complainant’s head had been shaved bald. She was badly bruised, shaken, obviously in distress, and crying. Her eyes were blackened and her body was covered with bruises, welts, and scratches. Dr. Pierce testified that her welts could have been inflicted by a whip or an electrical cord.

Robert Collins, a Chicago police detective, testified that on the morning of June 22, 1981, he interviewed complainant at Mount Sinai Hospital, then went to a two-flat building located at 1817 Drake, in Chicago, but it was locked. Collins then went to the 3400 block on West Walnut where he observed a vehicle, a beige Buick, that the victim had described. Collins checked the registration and, after receiving information, went to the address listed. Defendant Mosby answered the doorbell. She told the officer she wanted to change her clothes. After waiting outside for 20 minutes, Collins rang the bell again. Mosby’s grandfather opened the door and allowed the police to enter the apartment, but Mosby’s grandmother denied the police access to the basement.

Officer Collins then obtained an arrest warrant for Mosby and a search warrant for the Drake address. Mosby went to the police station with family members; Collins arrested her there. Collins did not notice any bruises on Mosby. When Collins returned to the Drake address, defendant Tate opened the door. In his search of the apartment, Collins retrieved a bullwhip, electrical wire, a razor, and hair clippings. Collins also returned to the hospital where complainant identified Tate in a photographic lineup.

Kathleen Leahy, a Chicago police officer, was on duty on June 22, 1981, at 7:40 a.m., when she received a radio assignment and within moments arrived at a guard shack at 2600 South California. Inside were two guards and the victim, who wore a short bathrobe with a belt tied around her waist and a scarf around her head. Her head appeared to have been shaved, welts were on her forehead, her eyes and face were discolored and swollen, and her legs were discolored, bruised and swollen. Leahy asked the complainant what had happened. She replied that she had been beaten and raped by a man. The defense objected but the trial court allowed Leahy's testimony as to the victim’s statement as an excited utterance exception to the hearsay rule. The court stated that circumstantial evidence proved that only a few minutes had elapsed from the time the victim escaped to the time Leahy asked the question. The victim was still in an agitated condition.

The parties stipulated that no evidence of semen was present in swabs taken from the victim, but spermatozoa was recovered from the robe she wore. The prosecution then rested.

Bernard Liftridge, who was a friend of Mosby and who had known the victim for two or three years, testified that the victim had used speed, LSD and marijuana, that he had seen her on two occasions with bruises on her body, and that she had a reputation for telling lies.

Michael Collins, Mosby’s cousin, also had known the victim for about two years. He testified that the victim had used marijuana, acid and speed.

John Tate testified in his own defense. He stated that he first saw the complainant with Mosby at 7 or 8 p.m. on June 20, 1981. They were walking down the street near a two-flat building at 1817 South Drake, which he owned. Mosby had a key to the premises. Sometime later, Tate, who was in the upstairs apartment, heard noises coming from the first floor apartment. When he went to investigate, Mosby and complainant were “tussling.” Tate left the building and returned around 10 p.m. Then he and Mosby left to buy sandwiches. All three drank and smoked marijuana. Mosby and complainant took pills and had sex with each other. Before Tate left, Mosby and complainant argued and pushed each other. Complainant told Mosby, “why don’t you beat me.” Mosby whipped complainant with an extension cord, but the latter’s hands were not tied.

Tate denied having sex with complainant and denied that there had been a padlock on the door. He stated that complainant never asked to go home, was always free to leave, and never cried or screamed for help. Mosby cut the victim’s hair, but Tate did not assist. Complainant did not object when Mosby removed some of her hair with a razor, and told Mosby to shave her head. When Tate left the apartment at 5 a.m. Monday with Mosby, the complainant was watching television. She had welts and bruises on her arms, buttocks and legs, but not on her face. Complainant told Mosby she did not want to leave and that Mosby could tie her up. Mosby tied complainant’s hands and feet. Tate saw Mosby beat complainant only once, hitting her seven or eight times.

Addie Mosby testified that she had known the complaining witness for five or six years and that they had used drugs together. On June 20, 1981, she met complainant around 6 p.m. They smoked marijuana and drank beer and then went to the apartment on Drake. There was no padlock on the door. In the apartment, they drank, smoked and then argued. Complainant hit Mosby with a bottle and the latter hit complainant in the eye. At that point, Tate came downstairs and joined them in smoking and drinking. When he left, Mosby and complainant took an “acid” tablet and made love to each other. Mosby left with Tate to buy sandwiches while complainant remained in the apartment. She was not tied up and was free to leave whenever she so desired. All three ate, drank and smoked marijuana.

Complainant told Mosby that she was having problems at home and wanted to stay at the apartment, and, to prove this, Mosby had permission to cut complainant’s hair. Complainant did not cry or scream. She and Mosby again had sex. Complainant asked Mosby to tie her up and beat her. Mosby gave complainant two beatings: the first time she hit complainant 10 times; the second time she hit her 15 to 30 times. She beat complainant with an extension cord, not a whip. She never hit complainant around the head except once. Complainant also tied and beat Mosby, but the latter never sought medical attention for her injuries.

Tate never had sex with complainant and never beat her. Complainant consented to sex with Mosby. Before Mosby left the apartment on Monday morning, she tied up complainant. When the police came to arrest Mosby, she ran out the back door.

Sonia Yvalle, a psychiatrist, treated the complaining witness in July 1981 and diagnosed her a manic depressive. Sheila Curren, a psychiatric social worker, testified that she interviewed complainant during her stay at Mount Sinai Hospital.

The defense rested. On rebuttal, the prosecution recalled Officer Robert Collins. He testified that after Miranda warnings, Mosby told him that she tore off the victim’s clothing after a fight over money and that she struck the victim about 50 times. Tate told Officer Collins that he found the two women fighting, then left and returned about 10 p.m. Tate left again and did not return until Monday, June 22,1981.

The defense recalled Tate who denied that he told Officer Collins that he (Tate) disappeared after the fight.

At the conclusion of trial, the judge found defendants not guilty of rape, deviate sexual assault and armed violence, but guilty of aggravated battery and unlawful restraint. The judge sentenced Tate to five years’ imprisonment, but later reduced the sentence to four years, and Mosby to an extended term of 10 years’ imprisonment. Defendants appeal.

Defendants argue that the credibility of the complaining witness was improperly bolstered by the admission of her prior consistent statements and by the prosecution’s insinuation that defendants had made prior inconsistent statements to police. Defendants find objectionable statements by Officer Leahy, Dr. Yvalle, and Sheila Curren that complainant said she had been beaten and raped.

Defendants also find objectionable the prosecution cross-examination of them. The prosecution asked Mosby: “Did you also tell Detective Collins that you asked [complainant] about the money at that time and she denied that she took any money?” Mosby answered: “Not at that time. I asked her after we were in the building.” Later, the prosecution asked Mosby: “Do you remember telling Detective Collins that you struck [complainant] numerous times?” Mosby responded: “Not at that time, no.” The prosecution asked Tate whether he told Officer Collins that when he left the building and returned at 10 p.m. he found complainant and Mosby fighting. Tate said he did not make any statements to the police. The prosecution also asked Tate whether he made certain exculpatory statements to police; Tate denied making them. Defendants claim that the prosecution did not properly complete its impeachment because Officer Collins was not asked on rebuttal whether defendants made all those statements. In its brief, the People concede that the prosecution failed to perfect its impeachment of defendants on certain minor points.

We reject defendants’ arguments because we find that these alleged errors did not prejudice defendants. With regard to the hearsay statements, we note that defendants did not object to the statements made by Yvalle and Curren when they were made. A rule of evidence not invoked by timely objection is waived for purposes of appeal. (People v. Griggs (1982), 104 Ill. App. 3d 527, 531, 432 N.E.2d 1176, 1179.) The trial court admitted the statement of Officer Leahy as an excited utterance. Even if we assume, arguendo, that the statement was inadmissible, defendants suffered no prejudice. Where erroneously admitted evidence does not prove any element of the crime not established by other properly admitted evidence, then the error in admitting such evidence does not contribute to the finding of guilt and is harmless. (People v. Bacon (1980), 91 Ill. App. 3d 673, 681, 415 N.E.2d 678, 684.) There was ample other evidence that complainant was beaten by defendants — complainant’s own testimony, photographs of complainant and the testimony of those who observed her condition after she escaped from the apartment, Mosby’s admission that she beat complainant, and Tate’s statement that he saw Mosby beat complainant.

With regard to the failure of the prosecution to perfect its impeachment, a failure to follow through with proof of a prior inconsistent statement is not always reversible error. Reversal is not required where there is positive evidence of guilt. (People v. Purrazzo (1981), 95 Ill. App. 3d 886, 897, 420 N.E.2d 461, 469.) As stated above, there was positive evidence of defendants’ guilt. Therefore, we hold that admission of hearsay statements and imperfect impeachment of defendants in this case do not constitute reversible error.

Defendants raise several issues with regard to sentencing. They contend that their sentences must be vacated and the cause remanded for resentencing because the trial judge considered unreliable evidence, and a factor necessarily implicit in every aggravated battery, in reaching his sentencing determination.

At the hearing in aggravation and mitigation on May 12, 1982, complainant testified, over defense objection, that she was unable to work and to attend school until recently because of the incident. She continued to receive counseling for emotional problems resulting from the battery; she had problems discussing sex, and had nightmares about beatings. In imposing sentence, the trial judge remarked that uppermost in his mind was the serious harm to the victim and the fact that the offense was premeditated. Defendants complain that the trial judge made no effort to insure the reliability or accuracy of the victim’s testimony and allowed his sentencing determination to be influenced by the serious harm suffered by the victim although it was no greater than that inherent in almost all aggravated batteries.

We reject defendants’ arguments. The effect of a crime upon the victim is an aggravating factor which a sentencing court may properly consider. Indeed, the legislature has required that such information be included in presentence reports. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 3—2(a)(3).) Additionally, section 5 — 5—3.2(a)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5— 3.2(a)(1)) lists as an aggravating factor that defendant’s conduct caused or threatened serious harm. Courts have said that harm to a victim is properly considered under this provision. People v. Burton (1981), 102 Ill. App. 3d 148, 153, 429 N.E.2d 543, 547.

Defense counsel cross-examined the complainant at the hearing in aggravation and mitigation. We will not substitute our judgment for that of the trial judge with respect to her credibility. (People v. Gray (1981), 99 Ill. App. 3d 851, 856, 426 N.E.2d 290, 293.) We note that in pronouncing the verdict the trial court found the victim’s testimony “believable,” and “clear and convincing,” but gave defendants the benefit of the doubt on the issue of corroboration. Complainant’s beating was corroborated, but not the sex offenses.

We reject the notion that the harm caused to complainant was no greater than that inherent in almost all aggravated batteries. Complainant’s head was shaved, her eyes were blackened, and her body was covered with bruises, welts and scratches. She was hospitalized for several weeks. In our opinion, the trial court, at the hearing in aggravation and mitigation, properly considered complainant’s testimony as to the harm she suffered.

Defendant Mosby argues that her sentence of 10 years is disparate compared to Tate’s sentence of four years and is inconsiderate of her background and rehabilitative potential. The trial judge found Mosby’s conduct exceptionally brutal and heinous and indicative of wanton cruelty and sentenced her to an extended term of 10 years. He sentenced Tate to five years but later reduced the sentence to four years. '

A trial judge’s decisions regarding sentencing are entitled to great deference because the trial judge is ordinarily in a better position to determine the punishment to be imposed. However, fundamental fairness and respect for the law require that defendants similarly situated not receive grossly disparate sentences. (People v. Bares (1981), 97 Ill. App. 3d 728, 738, 423 N.E.2d 538, 545.) We believe that Mosby’s sentence is so disparate that it must be reduced to be more consistent with that of her accomplice. Mosby had no history of prior criminal activity, while Tate had prior convictions for robbery, auto theft and unlawful use of a weapon. While Mosby participated more actively in the beatings, the trial court found both defendants “instrumental in the criminal conduct which was visited upon the victim.” Accordingly, pursuant to Supreme Court Rule 615(b)(4) (87 Ill. 2d R. 615(b)(4)), we hereby reduce defendant Mosby’s sentence to a term of five years with the Department of Corrections, the maximum sentence for an aggravated battery (Ill. Rev. Stat. 1979, ch. 38, pars. 12 — 4(e), 1005-8-1(a)(6).

In a supplemental brief, defendant Mosby raises the following issues: (1) whether she was denied her sixth amendment right to confront Tate concerning his out-of-court statement and antagonistic testimony; (2) whether she was denied effective assistance of counsel due to a conflict of interest where defense counsel, as attorney for both defendants, could not effectively cross-examine Tate concerning his out-of-court statement and antagonistic testimony; and (3) whether she has waived her sixth amendment right to be represented by effective counsel, untainted by conflict of interest.

Mosby argues that her codefendant Tate was a witness against her because the prosecution elicited statements from him that Mosby fought with the victim. Tate also testified that Mosby beat the victim. Mosby claims that this testimony buttressed the prosecution’s case, seriously inculpated her, and partly served as the basis for the court’s finding that she was guilty of aggravated battery. It was impossible for defense counsel to cross-examine Tate to protect Mosby’s interests because he represented both defendants. Defense counsel had to consent to a Bruton violation against Mosby or impeach his other client, Tate.

Mosby contends that where an actual conflict of interest exists, ineffective assistance of counsel will be presumed without a showing of actual prejudice. She further argues that there was no intelligent and knowing waiver of her right to effective counsel, untainted by conflict of interest, because the record is devoid of any indication that she was ever advised of the conflict.

Defendant Mosby’s arguments have no merit. First, we note that these issues were not included in her motion for a new trial. Nevertheless, we shall address the merits of the issues. We have examined the testimony in this case. The testimony of Tate and Mosby is consistent rather than antagonistic. Tate testified, and Mosby admitted, that she fought with the victim and later beat her at the victim’s request. There was no antagonistic testimony, no necessity for defense counsel to impeach Tate, and no conflict of interest rendering ineffective defense counsel’s representation of Mosby.

Joint representation of codefendants is not, per se, unconstitutional. (People v. Williams (1981), 94 Ill. App. 3d 241, 250, 418 N.E.2d 840, 847.) A defendant must show an actual conflict of interest manifested at trial in order to prevail in a constitutional claim of ineffective assistance of counsel. (People v. Berland (1978), 74 Ill. 2d 286, 299-300, 385 N.E.2d 649, 655.) Defendant Mosby has demonstrated no actual conflict of interest and we reject her claim of ineffective assistance of counsel. We conclude that defendant Mosby was not denied her sixth amendment right to confront witnesses and to effective assistance of counsel.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed as to the' convictions, but defendant Mosby’s sentence is reduced to five years.

Affirmed as modified.

LINN, P.J., concurs.

JUSTICE ROMITI,

concurring in part and dissenting in part:

I agree with the majority that Mosby’s conviction should be affirmed but disagree that this is an appropriate case for reduction of sentence.

Certain principles concerning sentences have been so unequivocally stated and so often repeated that they can no longer trigger any serious dispute:

Ordinarily a sentence appealed from is presumed proper (Ill. Rev. Stat. 1979, ch. 38,. par. 1005 — 5—4.1), and while, appellate courts have the power to reduce the sentence (87 Ill. 2d R. 615(b)(4)), that power should be exercised with considerable caution. (People v. Taylor (1965), 33 Ill. 2d 417, 211 N.E.2d 673.) Sentencing is a matter of discretion and absent an abuse of that discretion the sentence of the trial court may not be altered on appeal. (People v. Perruquet (1977), 68 Ill. 2d 149, 268 N.E.2d 882.) The trial judge is normally in a better position to determine the punishment to be imposed than a court of review. People v. Butler (1976), 64 Ill. 2d 485, 356 N.E.2d 330; People v. Perruquet (1977), 68 Ill. 2d 149, 154.

A sentence is not excessive simply because it is disparate. In imposing sentence a court is not limited to considering solely the backgrounds of the defendants. The court may consider, among other factors, the degree and character of the participation of each defendant. People v. Sangster (1981), 95 Ill. App. 3d 357, 420 N.E.2d 181.

I believe that in reducing Mosby’s sentence the majority has failed to follow or apply any of the foregoing principles. A review of the record reveals that the sentence was within statutory limits and that the trial court had an ample basis and reason for sentencing Mosby to a 10-year term:

It was Addie Mosby who met the victim on the street and persuaded her to accompany Mosby to buy marijuana; it was Mosby who made the purchase and who drove the victim to a building which she said she owned; it was Mosby who told the victim to remove her clothes; it was Mosby who repeatedly beat the victim with a whip and with an electric cord; it was Mosby who tied the victim’s hands and feet and was the prime mover in shaving the victim’s head and who ordered the victim to perform the “various deviate sexual acts” involved.

This evidence starkly establishes the differing degrees of participation by defendant Mosby as compared to Tate and in my opinion clearly and strongly supports the trial court’s decision to impose the different and disparate sentence. Since the sentence finds support in the record we should not reduce that sentence simply because we might have imposed some lesser sentence had we been the trial judge. People v. Perruquet (1977), 68 Ill. 2d 149, 156.

I would not interfere with the judge’s decision and would affirm Mosby’s sentence as well as her conviction.


author: PRESIDING JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALPHONSO TRAVIS, Defendant-Appellant.
    First District (3d Division)
    Nos. 82—1070, 82—1261 cons.
    Opinion filed March 21, 1984.
    Sam Adam, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Stephen Erhard Eberhardt, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

The minor defendant, Alphonso Travis, was charged with murder. At the time of the occurrence, defendant was 15 years old. Defendant was tried as an adult and was convicted of murder by a jury. He was then sentenced to 35 years in the Department of Corrections. On appeal defendant contends that (1) the court erred in denying his motion to suppress evidence, (2) he was not proved guilty beyond a reasonable doubt, (3) the State’s closing argument was highly prejudicial and (4) the court erred in refusing to give his instruction on circumstantial evidence. We reverse and remand.

The victim, Calvin Bond, was shot to death at approximately 1:30 a.m. on September 20, 1980, near the Illinois Central railroad tracks at 84th Street in Chicago, Illinois. The police officers who investigated the incident testified that around 6 p.m. on September 20, they saw defendant at his residence and he went with them to an interview room at the police station. The officers testified that defendant was given his Miranda warnings and was then questioned regarding the homicide. The officers stated that defendant was not under arrest at this time. Defendant was at the station for approximately 3/2 hours. When defendant was asked where his parents were, he replied that he did not know where they could be reached. The officers made no further attempt to locate defendant’s parents. One of the officers testified that defendant denied being involved in the shooting, and that defendant stated that around midnight he had argued with the victim regarding a stereo but he then left the victim and headed home. He heard two gunshots at that time and heard the victim yell something like, “Shoot the gun, this is 82nd Street ***.” He did not see who fired the shots.

The police officers also testified that two days later, on September 22, they saw defendant at a laundromat around 3 p.m. Defendant returned to the police station with them. The officers did not attempt to notify defendant’s parents that defendant was at the station. Around 9 p.m., after defendant was again informed of his Miranda rights, he gave the police a statement in which he said that the statement that he had made two days earlier was untrue. Rather than going home at midnight, he met the victim and Darryl Moody. The three of them walked toward the railroad tracks where Moody said that he had hidden some television sets. When defendant stopped to urinate, the other two continued walking. Defendant then heard several shots and heard the victim scream. Moody came running back, and defendant started running, too. When they separated, Moody handed defendant a gun and told him to hide it in a crack in the porch where defendant lived. Moody also told defendant that he had shot the victim because he had caused Moody to be arrested on a burglary charge. The police officers also stated that they accompanied defendant to the spot where he had stated that he had placed the gun, but no weapon was retrieved. All of the officers testified that defendant was not physically abused. Defendant left the station after approximately 10 hours.

Defendant testified at the hearing on the motion to suppress. According to defendant, he was on his way home from a bowling alley when he was arrested by the police around 2 p.m. on September 20. He was kept at the station for approximately seven hours, during which time he was denied food and water, and he was handcuffed. He was not permitted to use the telephone, and no one informed him of his Miranda rights. Defendant further testified that he was beaten by one of the officers.

In regard to the events on September 22, defendant testified that he was at a laundromat washing his clothes when three officers told him to get in their car, and they took him to the police station. He remained there approximately 12 hours, until 4:30 a.m. He stated that he was allowed to make a phone call to the lady with whom he resided to tell her to get his clothes from the laundromat, but he was not permitted to tell her where he was. As on the 20th, he was denied physical comforts, he was handcuffed, and he was beaten. The police did not advise him of his Miranda rights. Defendant denied making a statement on the 20th, and he further testified that he gave the police a statement on the 22d because the police were beating him and they promised him that he could leave after he made a statement. He left the station with his mother, but he did not know who had contacted her.

Defendant was subsequently arrested on December 3, 1980, after Moody’s girlfriend, who had fled to Alabama following the shooting, made statements incriminating defendant.

Initially, defendant contends that the trial court erred in denying his motion to suppress the statements that he made to the police. According to defendant, these statements should have been suppressed because they were the product of an illegal arrest, the police failed to administer Miranda warnings, the police physically abused him, and the police failed to notify his parents or other interested adult that he was in custody as required by section 3 — 2(1) of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 703-2(1)).

On a motion to suppress a confession, the burden of going forward with the evidence and the burden of proving that the confession was voluntary is on the State. However, the voluntariness of the defendant’s statements must be proved by a preponderance of the evidence rather than beyond all reasonable doubt. (See In re Bizzle (1976), 36 Ill. App. 3d 321, 325, 343 N.E.2d 633, 637; Ill. Rev. Stat. 1979, ch. 38, par. 114 — 11(d).) In determining the voluntariness of the defendant’s statements, the trial court should follow the totality of the circumstances approach. This approach mandates an inquiry into the circumstances surrounding the interrogation. (Fare v. Michael C. (1979), 442 U.S. 707, 724-25, 61 L. Ed. 2d 197, 212, 99 S. Ct. 2560, 2571-72; People v. Simmons (1975), 60 Ill. 2d 173, 179, 326 N.E.2d 383, 386.) Thus, no single fact is dispositive, and Miranda warnings, by themselves, will not always purge the taint of an illegal arrest or confession. (See Brown v. Illinois (1975), 422 U.S. 590, 605, 45 L. Ed. 2d 416, 428, 95 S. Ct. 2254, 2262-63.) On appeal, the courts must use special care in scrutinizing the record where a juvenile is involved, since juveniles could be “easy victim[s] of the law.” (Haley v. Ohio (1948), 332 U.S. 596, 599, 92 L. Ed. 224, 228, 68 S. Ct. 302, 303-04.) Here, we conclude that defendant’s statements were not voluntarily made and should have been suppressed.

The State’s testimony shows that on September 20, 1980, around 6 p.m., defendant, who was 15 years old at the time of the incident, was asked to accompany the police to the police station for questioning. While at the station for a period of at least 3V2 hours, defendant stated that although he had argued with the victim regarding a stereo around midnight, he had left the victim and was heading home when he heard two gunshots and heard .the victim yell. Defendant denied being involved in the shooting. When asked by the police where his parents were, defendant replied that he did not know where they could be reached. The police made no further efforts to locate defendant’s parents.

Two days later, on September 22, 1980, around 3 p.m., defendant was again asked to accompany the police to the station for questioning. This time defendant gave the statement in which he said that he had been with Bond and Moody, that he had stopped to urinate, and that after he heard shots being fired, he and Moody fled. Around 10 p.m., defendant took the police to the place where he supposedly had put the gun Moody gave him, but no weapon was recovered. Although the officers who had questioned defendant testified that they had not attempted to locate defendant’s parents, defendant’s mother took defendant home from the police station in the early morning hours. One of the police officers testified that defendant was at the police station for at least 10 hours.

Based on these facts, we believe that defendant was not lawfully in custody at the time he made the inculpatory statements which placed him at the scene of the crime. We believe that the situation here is similar to that in Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248, where the court found that the police had violated a juvenile defendant’s constitutional rights when, without probable cause to arrest, they took the defendant into custody, transported him to the police station, and detained him there for interrogation. In Dunaway, the court referred to the fact that the defendant was not briefly questioned where he was found, but was taken from a neighbor’s home to the police station in a police car. He was placed in an interrogation room where he was questioned after being given his Miranda warnings. He was not informed that he was free to go. Furthermore, the police made it clear that the defendant would have been physically restrained if he had refused to accompany the officers or had tried to escape. 442 U.S. 200, 212, 60 L. Ed. 2d 824, 835-36, 99 S. Ct. 2248, 2256.

The circumstances here are analogous to those in Dunaway. Defendant was not questioned at all before being “asked” to accompany the officers to the police station. The first such request was made of defendant when he was at or near the place where he was residing. The second request was made as defendant stood outside a laundromat where he was doing his laundry. Both requests resulted in defendant being placed in an interrogation room, read his Miranda rights, and then questioned for several hours. The Supreme Court has “consistently recognized [that] the coerciveness of the custodial setting is of heightened concern where *** a juvenile is under investigation.” (Fare v. Michael C. (1979), 442 U.S. 707, 729, 61 L. Ed. 2d 197, 215, 99 S. Ct. 2560, 2574 (Marshall, J., dissenting).) Although the police officers testified that defendant was free to leave, this fact was never conveyed to defendant. Nor do we believe that defendant’s statement that he “voluntarily” accompanied the officers is controlling. The assistant State’s Attorney inferentially admitted in his argument at the suppression hearing that defendant could not have left of his own volition. The assistant State’s Attorney stated that the police “actually did pick [defendant] up,” and that “they did read him his Miranda warnings ***. Because they knew that he was going to be the target [of the investigation].” When the court shortly thereafter asked, “You are not saying that [defendant] was there, he was there voluntarily, and therefore the Miranda rights were not required?” the assistant State’s Attorney replied, “No, Judge, he was picked up by the Police and brought in.” Moreover, as in Dunaway, the circumstances here make it evident that the purpose behind the officers’ actions, “ '*** both in design and in execution, was investigatory. The [officers] embarked upon this expedition for evidence in the hope that something might turn up.’ ” (Dunaway v. New York (1979), 442 U.S. 200, 216, 60 L. Ed. 2d 824, 838, 99 S. Ct. 2248, 2258, quoting Brown v. Illinois (1975), 422 U.S. 590, 605, 45 L. Ed. 2d 416, 428, 95 S. Ct. 2254, 2262.) Also, here the assistant State’s Attorney admitted at the suppression hearing that the police lacked probable cause to arrest defendant. Thus, it is clear that the police acted illegally when, without probable cause, they seized defendant and took him to the police station.

The State correctly points out, however, that the illegality of an arrest does not per se render an inculpatory statement inadmissible. (People v. Tankson (1980), 92 Ill. App. 3d 328, 331, 415 N.E.2d 1218, 1221.) We recognize that where a defendant’s detention is found to be illegal, the question remains as to whether the connection between the unconstitutional police conduct and the incriminating statements was sufficiently attenuated so that the statements could be introduced at trial. (Dunaway v. New York (1979), 442 U.S. 200, 216, 60 L. Ed. 2d 824, 838, 99 S. Ct. 2248, 2258.) In Dunaway, regarding the fact that it was undisputed that the defendant had been given Miranda warnings, the court pointed out that “although a confession after proper Miranda warnings may be found ‘voluntary’ for purposes of the Fifth Amendment, this type of ‘voluntariness’ is merely a ‘threshold requirement’ for Fourth Amendment analysis.” (442 U.S. 200, 217, 60 L. Ed. 2d 824, 839, 99 S. Ct. 2248, 2259.) Beyond this threshold, the test articulated in Brown v. Illinois (1975), 422 U.S. 590, 603-04, 45 L. Ed. 2d 416, 427, 95 S. Ct. 2254, 2261-62, to vindicate the distinct policies and interests of the fourth amendment must be applied. Under Brown, the factors to be considered include the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. Applying the Brown test to the facts before it, the Dunaway court concluded that there were no intervening events to break the connection between the defendant’s illegal detention and his confession. The court based its conclusion on the facts that the defendant was seized without probable cause in the hope that something might turn up and that he confessed without any intervening event of significance. A similar conclusion is mandated by the circumstances in the present case, and here, the illegal conduct occurred not once but twice.

Accordingly, defendant’s statements should have been suppressed on the basis that the State failed to prove that they were not the product of an illegal arrest. (See People v. Townes (1982), 91 Ill. 2d 32, 435 N.E.2d 103.) Otherwise, “[t]o admit [defendant’s statements] in such a case would allow ‘law enforcement officers to violate the Fourth Amendment with impunity, safe in the knowledge that they could wash their hands in the “procedural safeguards” of the Fifth.’ ” Dunaway v. New York (1979), 442 U.S. 200, 219, 60 L. Ed. 2d 824, 840, 99 S. Ct. 2248, 2260, quoting Comment, 25 Emory L.J. 227, 238 (1976).

Another factor contributing to our decision that defendant’s statements should have been suppressed is the failure of the police officers to make a reasonable attempt to notify defendant’s parents that defendant was in custody. Section 3 — 2(1) of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par.703 — 2(1)) provides:

“A law enforcement officer who takes a minor into custody *** shall immediately make a reasonable attempt to notify the parent or other person legally responsible for the minor’s care or the person with whom the minor resides that the minor has been taken into custody and where he is being held; and the officer shall without unnecessary delay take the minor to the nearest juvenile police officer designated for such purposes in the county of venue or shall surrender the minor to a juvenile police officer in the city or village where the offense is alleged to have been committed. ***”

While defendant urges that we should follow the lead of other jurisdictions and rule that any incriminating statements made by a juvenile who is in custody should be inadmissible at trial by virtue of section 3 — 2(1) unless he has at least had an adequate opportunity to have the advice of a lawyer, parent, or person with whom he resides prior to making his statement, we are precluded from adopting defendant’s position in view of the fact that the Illinois Supreme Court has made it clear that the voluntariness of a juvenile’s confession will be determined by the totality of the circumstances. (See In re Stiff (1975), 32 Ill. App. 3d 971, 978, 336 N.E.2d 619, 625.) Moreover, in People v. Zepeda (1970), 47 Ill. 2d 23, 265 N.E.2d 647, the court stated that the Juvenile Court Act did not provide for sanctions where there was a failure to reasonably comply with section 3 — 2(1). However, we do not believe that this means that the failure to comply with section 3 — 2(1) is not an important consideration in determining whether a juvenile defendant’s statements were voluntary under the totality of the circumstances.

In Zepeda, the court found that the juvenile defendant’s statements had been voluntarily given and were obtained with due regard for the defendant’s constitutional rights. There, the defendant made an admission establishing his legal accountability for the crime within 30 minutes of arriving at the station. The statements were reduced to a signed writing within another 35 minutes. Subsequently, a juvenile officer drove defendant, another youth and one of the arresting officers to the State’s Attorney’s office, where the defendant gave a second signed statement. The record showed that the juvenile officer was present when this statement was obtained, although it was not clear whether he had been present for the earlier statements.

In contrast to Zepeda, the defendant in the present case was illegally detained not once but twice. It is unclear at what point defendant made his statements during his lengthy detentions. Although the police officers knew that defendant was a juvenile, they made no effort to locate defendant’s parents beyond asking defendant where they could be reached.

We can only conclude that the absence of an adult interested in defendant’s welfare as envisioned by section 3 — 2(1) contributed to the coercive circumstances surrounding defendant’s interrogations. Although the trial court found that defendant was given Miranda warnings, there is scant evidence in the record to support the conclusion that defendant knowingly waived his rights under the fifth amendment. Defendant was only 15 years old at the time of his interrogation. There is no testimony regarding his intellectual capacity. He was questioned twice by the police at the police station for substantial periods of time. After he was given Miranda warnings, he was merely asked whether he understood them. He did not sign a waiver of rights form at either of the two interrogations, nor did he sign any written statements. Further, it is evident that at the time defendant was questioned, although he was the focus of the police investigation, the police lacked probable cause to arrest him.

Under the circumstances, the failure of the police officers to make any reasonable attempt to locate defendant’s parents becomes a consequential fact. The police were attempting to coerce defendant into making incriminating statements, and their admitted failure to even attempt to notify an adult interested in defendant who could have ensured that defendant understood the extreme importance of the constitutional rights which he allegedly waived without hesitation underscores our conclusion that the State failed to prove that defendant’s statements were voluntary under the totality of the circumstances. Accordingly, the trial court erred in denying defendant’s motion to suppress defendant’s statements at the police station, and defendant’s conviction must therefore be reversed.

In view of our decision that defendant is entitled to a new trial, the only other issue we need to address is whether the evidence, if believed, would have been sufficient to prove defendant guilty beyond a reasonable doubt. Defendant points out that the heart of the State’s case was the testimony of Valerie Dickerson, who was 14 years old at the time of trial. The gist of her testimony was at the time of the occurrence, she was living with the Moody family. She was in love with Moody, and defendant and the victim were her friends. She overheard Moody and defendant talking about killing Bond. Later, she saw defendant, Moody and Bond at the corner of 83d and Ellis, and she saw defendant put a gun to Bond’s head. She then saw Bond run up the stairs, and Moody and defendant, who both had guns, were chasing him. She heard four or five gunshots as she returned to Moody’s house. Around 10:30 a.m., she saw defendant talking to a drunken derelict, and she later overheard defendant tell Moody that he had sold his gun to a wino. Later that day she flew to Alabama to live with her grandmother because she was afraid that Moody would kill her.

Defendant characterizes Dickerson’s testimony as that of a “mixed up, lovesick child,” and concludes that “[t]o predicate a conviction *** on this child’s imaginings is simply beyond the pale.” However, Dickerson’s youth and bias were made clear to the jury, whose duty it was to determine her credibility. We believe that Dickerson’s testimony, in addition to the other evidence, was sufficient for a jury to conclude that defendant was guilty beyond a reasonable doubt. This does not mean that we are making a finding as to defendant’s guilt or innocence which would be binding on retrial, but rather, our consideration of the sufficiency of the evidence protects defendant’s constitutional right against double jeopardy as mandated by People v. Taylor (1979), 76 Ill. 2d 289, 309, 391 N.E.2d 366, 375. See People v. Clark (1980), 84 Ill. App. 3d 637, 642, 405 N.E.2d 1192, 1195-96.

Accordingly, the judgment is reversed and the case is remanded for a new trial.

Reversed and remanded.

McNAMARA and WHITE, JJ., concur.

      See, e.g., Lewis v. State (1972), 259 Ind. 431, 288 N.E.2d 138; In re Dino (La. 1978), 359 So. 2d 586; Commonwealth v. Smith (1977), 472 Pa. 492, 372 A.2d 797.


author: JUSTICE WILSON

text:
    McCRACKEN CONTRACTING COMPANY, Plaintiff-Appellee, v. R. L. DePRIZIO & ASSOCIATES, INC., et al., Defendants-Appellants.
    First District (5th Division)
    No. 83—762
    Opinion filed March 23, 1984.

      Bernard J. Bruno, of Bruno & Orvino, of Melrose Park (Sidney Z. Karasik, of counsel), for appellants.
    Gordon B. Nash, Jr., of Chicago (Gardner, Carton & Douglas, of counsel), for appellee.
   JUSTICE WILSON

delivered the opinion of the court:

Defendants appeal an order of the circuit court of Cook County granting a motion for summary judgment in accordance with an oral settlement agreement. The order dismissed the cause and entered judgment against defendants in the amount of $48,615 plus accrued interest. The sole issue on appeal is whether the trial court erred in granting summary judgment. For the reasons that follow, we affirm the judgment of the trial court.

The pleadings disclose the following facts relevant to our disposition. In May 1972, plaintiff and defendants entered into two agreements: a consignment agreement and an installment agreement for the purchase of certain equipment (equipment agreement). A few months later, the parties entered into a third agreement for the installment purchase of certain tools (tools agreement). In October 1973, because of defendants’ financial difficulties, the parties modified the payment schedule set out in the equipment agreement, reducing the monthly amount and extending the term. No modification was made to the balance due, nor was any agreement other than the equipment agreement affected by the revised payment schedule. Defendants continued to experience financial problems and eventually became delinquent on all three agreements. As a result, in December 1976, plaintiff filed a four-count complaint against defendants requesting: (1) count I — the balance of $61,297.30 plus 6% interest due and owing on the equipment agreement; (2) count II — personal guarantee regarding the amount due in count I; (3) count III — the balance of $5,777 plus 6% interest due and owing on the tools agreement; and (4) count IV — an accounting to determine the amount due on the consignment agreement. In February 1978, in an effort to resolve the lawsuit, the parties met in the office of plaintiff’s attorney and entered into an oral settlement agreement, consolidating the outstanding balances in all three agreements. Consequently, the 1976 complaint was dismissed without prejudice. Pursuant to the settlement agreement, defendants agreed to pay plaintiff a total of $90,000 at 6% interest in 48 monthly installments of $2,113.70 each.

In April 1980, after making 25 of the monthly installments, defendants stopped paying. As a result, on April 24, 1981, plaintiff filed another four-count complaint which essentially realleged those counts in the 1976 complaint with the necessary revisions having been made in the amounts due and owing on the various agreements. In their answer, defendants admitted entering into the original 1972 agreements, but denied the amount due and owing, and, in turn, filed a counterclaim which alleged that they had overpaid plaintiff, and requested reimbursement in the amount of $36,483.17. Plaintiff’s motion to dismiss the counterclaim stated that pursuant to the 1978 agreement, the total amount due plaintiff from defendants was $101,457.60, of which only $52,842.50 had been paid, resulting in underpayment, not overpayment.

Following a change in plaintiff’s attorneys, plaintiff filed a first-amended complaint in which it alleged that in consideration for dismissal of the 1976 lawsuit, defendants had agreed to pay plaintiff monthly installments of $2,113.70 for 48 months, commencing March 1, 1978. However, after making 25 of the monthly payments, defendants refused to pay more. In their answer, defendants admitted to entering into the 1978 settlement agreement, but claimed that: (1) the parties erred because they failed to consider the 1973 agreement; and (2) from October 1, 1973, to April 2, 1980, defendants had paid plaintiff $151,683.17, an amount in excess of their indebtedness.

Plaintiff then filed its motion for summary judgment, stating that there were no genuine issues as to the following: (1) a settlement agreement entered into by the parties in consideration for the dismissal of a 1976 lawsuit; (2) pursuant to the settlement agreement, defendants agreed to pay to plaintiff $90,000 plus interest in 48 monthly installments of $2,113.70 each; (3) after making 25 of the 48 payments, defendants refused to make any more; and (4) the unpaid balance on the settlement agreement is $48,615.10 plus interest. In response, defendants alleged, inter alia, that (1) plaintiff’s pleading contains a discrepancy in the amount due; (2) defendants have overpaid plaintiff; and (3) the parties erred in arriving at the settlement by failing to consider the 1973 agreement. Following a hearing on the motion, the trial court entered its order granting summary judgment and ordered defendants to pay $48,615.10 plus interest. Defendants’ timely appeal followed.

Opinion

Defendants contend that the trial court erred in granting summary judgment because disputed issues of material fact exist as to the basis of the 1978 settlement agreement and as to the amount due and owing at the time of that agreement.

As an effective means of promoting judicial economy, settlements are generally encouraged and favored by the courts, and, in the absence of mistake or fraud, are conclusive on the parties as to all matters included therein and will not be lightly altered or set aside. (Knoll v. Swanson (1968), 92 Ill. App. 2d 398, 402, 234 N.E.2d 543.) If not within the Statute of Frauds, settlements may be oral and are binding so long as there is an offer and acceptance to compromise and there is a meeting of the minds as to the terms of the agreement. Sheffield Poly-Glaz, Inc. v. Humboldt Glass Co. (1976), 42 Ill. App. 3d 865, 868-69, 356 N.E.2d 837.

In the present case, there is no issue as to the offer and acceptance of a compromise. Both parties admit that the 1978 settlement agreement was entered into in consideration of dismissal of the 1976 complaint. However, defendants claim that a material doubt exists as to whether there was a meeting of the minds on the material elements of the agreement precluding the propriety of a summary judgment. In analyzing defendants’ position, we are cognizant that because summary judgment is a drastic method of disposing of cases, we must construe the pleadings, depositions and affidavits most strictly against the movant and most liberally in favor of the opponent. Kolakowski v. Voris (1979), 76 Ill. App. 3d 453, 456-57, 395 N.E.2d 6.

Defendants first contend that issues of fact remain as to the basis of the 1978 agreement. Defendants’ argument on this point is replete with factually erroneous statements and unsupported conclusions that render it totally unpersuasive. First, defendants allege “mutual mistakes of fact arising out of an oversight in the 1973 agreement.” Yet, there is no evidence of this purported oversight. The 1973 agreement is simply described as having been a revision of the equipment agreement’s payment schedule, nothing more. Second, defendant claims that McCracken’s attorney, Peter B. Carey and defendant DePrizio intended the 1978 agreement “to establish a new payment schedule of the prior balance due,” and that neither considered that agreement to modify or compromise the amount due. As the following excerpt from Carey’s deposition illustrates, this is an erroneous statement:

“Q. [H]ow is it that you make the statement that the amount [due] was settled for $90,000?
A. Because the indebtedness, at that time, was in the amount of $88,000 some odd dollars plus interest. Ray [Mc-Cracken] agreed to waive part of that interest, and we agreed on a round figure of $90,000 at a rate of six percent for four years, which when you figure the monthly payments, that comes out to $2,113.70, of which Mr. DePrizio in fact made 25 payments pursuant to the agreement.”

Further, the 1978 settlement agreement was a consolidation and settlement of the balances due pursuant to the equipment agreement, tool agreement and consignment agreement. Clearly, it was not merely an effort to establish a new payment schedule.

Third, defendants claim that based upon the alleged total amount due in the 1976 complaint ($113,677) and the payments acknowledged by Carey to have been received by plaintiff ($9,916 in 1976; $24,580.35 in 1978), defendants’ liability in 1978 would have been only $79,181, not “$88,000 some odd dollars.” However, it is defendants, not plaintiff, who have made the mathematical error. Carey stated that the 1976 complaint was filed in December of that year. Thus, it is reasonable to assume that all payments made in 1976 ($9,916) would have been credited to defendants’ account before the complaint had been filed. Thus, only the amount of $24,580.35 paid in 1978 remains to be credited against the 1976 balance of $113,677, resulting in a 1978 balance of $89,096.65. In our opinion, $89,096.65 can be reasonably characterized as “$88,000 some odd dollars.”

Fourth, defendants place a great deal of emphasis on Carey’s admission that he may not have personally received all of the payments made to plaintiff. Some of the payments could have been made directly to plaintiff. Defendants attempt to use this admission as support for their argument that the amount alleged to be due and owing is arbitrary and inaccurate. We disagree. In his deposition, Carey stated that he had relied upon the information given to him by his client, McCracken, to draft the original complaint and to arrive at the settlement. It is certainly not unreasonable that McCracken would have control over the records of his own company, not Carey. Further, there is no legal requirement that in order to draft a complaint or negotiate a settlement, an attorney must have independent knowledge of the facts contained therein.

Fifth, defendants allege that defendant DePrizio did not intend the 1978 settlement agreement “to affect the amount to be ultimately paid under its terms.” This statement defies rational interpretation. It is difficult to imagine how an experienced business person entering into a contract to pay a certain monthly payment for a certain number of months could expect those payment terms not to affect the amount “to be ultimately paid.”

Finally defendants allege that plaintiff’s claim of $90,000 due and owing is ambiguous because 48 payments of $2,113.70 each do not equal a $90,000 principal with interest at 6%. We refrain from addressing this allegation on the ground that defendants’ failure to raise this issue at trial has waived the issue on appeal. (J.R. Sinnott Carpentry, Inc. v. Phillips (1982), 110 Ill. App. 3d 632, 639, 443 N.E.2d 597.) We further note that defendants’ conclusion lacks any mathematical verification.

Next, we shall address defendants’ contention that issues of fact remain as to whether the 1978 settlement agreement was based on either a mutual mistake of fact or a unilateral mistake. Regarding the former, defendants contend that because the parties were mutually-mistaken as to the correct balance due plaintiff on February 3, 1978, the purported settlement agreement cannot be enforced according to its terms. In the alternative, defendants contend that the settlement is equally unenforceable if only the defendants were mistaken as to the balance due.

Generally, even when a contract has actually been entered into, a court of equity may rescind the agreement at the request of one party who entered into it without negligence, through a material mistake of fact, when it can do so without doing injustice to the other party. (Vece v. De Biase (1964), 46 Ill. App. 2d 248, 252, 197 N.E.2d 79.) However, the mistake must be material to the transaction; must not be the result of lack of diligence; must be of such grave consequence that enforcement of the contract would be unconscionable; and the other party must be able to be placed in statu quo. Wil-Fred’s Inc. v. Metropolitan Sanitary District (1978), 57 Ill. App. 3d 16, 21, 372 N.E.2d 946.

After careful review of the pleadings, depositions and affidavits, which clearly evidence defendants’ lack of diligence in verifying the alleged balance due in 1978, we conclude that, as a matter of law, defendants failed to properly plead the element of diligence necessary to establish a genuine issue of mistake as to a material fact. In defense of their admitted failure to verify the balance due in 1978, defendants argue:

“In the present case, DePrizio met at the office of McCracken’s lawyer. DePrizio was not represented by counsel. He was unwell at the time. DePrizio runs a small business without numerous staff to assist in bookkeeping and other matters. He had known McCracken and trusted him.”

In our opinion, the foregoing constitutes nothing more than a series of excuses for having acted without due diligence. DePrizio’s failure to have legal counsel present for the settlement of a legal dispute when he had full knowledge that McCracken’s counsel would be present demonstrates gross imprudence. DePrizio’s poor health is further reason he should have had legal counsel present. Furthermore, the fact that DePrizio’s business is small does not excuse his negligent record keeping or his failure to consult whatever records he did keep. As the president of a business dealing in transactions involving thousands of dollars, DePrizio cannot rely on ignorance and blind trust to excuse him from acting in a reasonable and diligent manner.

Defendants further argue that “the question of diligence revolves on the issue whether it was reasonable for DePrizio to trust a statement of McCracken and McCracken’s lawyer as to the remaining balance”; and that this is a question of fact for the jury. We disagree. The question of diligence revolves on the issue whether persons of reasonable prudence would have acted in the same manner under the same circumstances. (Vece v. De Biase (1964), 46 Ill. App. 2d 248, 252, 197 N.E.2d 79.) The uncontroverted facts are that defendants agreed to a settlement in consideration for the dismissal of a lawsuit without verifying the amount due through their own records, without legal counsel, and continued to make payments pursuant to the terms of that settlement for two years. Any allegation of diligence made by defendants is unequivocally refuted by these facts. There is no question that all of the information necessary to arrive at a settlement was within defendants’ knowledge and that plaintiff never attempted to conceal anything from defendants. That fact that the settlement was made on an allegedly incorrect basis is not now a sufficient reason for disregarding a settlement made with ample opportunity to verify and obtain full knowledge of the facts. (Janci v. Cerny (1919), 287 Ill. 359, 366, 122 N.E. 507.) To hold otherwise based on this record would undermine the binding effect of oral settlement agreements and permit parties to casually enter into agreements to compromise and settle, only to change their minds later because of an alleged mistake which due diligence would have revealed at the time the compromise was negotiated. By entering into the settlement agreement, the parties agreed to the terms, and each became bound by its acceptance. It would erode the very foundation of equitable jurisprudence to hold that mistake grounded in negligent business practices such as are evident in this case could create a valid defense, and, thus, a genuine issue of fact. See Sheffield Poly-Glaz, Inc. v. Humboldt Glass Co. (1976), 42 Ill. App. 3d 865, 870, 356 N.E.2d 837.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

LORENZ and SULLIVAN, JJ., concur.

      We also note that the record is void of any dispute to the amounts alleged due in the 1976 complaint, which amounts were the basis for the 1978 settlement agreement.


author: JUSTICE HEIPLE

text:
      In re ESTATE OF GERTRUDE MILBORN, Deceased (Paul Campbell et al., Plaintiffs-Appellees, v. William Milborn, Ex’r of the Will of Gertrude Milborn, Deceased, Defendant-Appellant).
    Third District
    No. 3—83—0581
    Opinion filed March 30, 1984.

      Franklin M. Hartzell and Thomas W. O’Neal, both of Hartzell, Glidden, Tucker & Neff, of Carthage, for appellant.
    Albert V. Ancelet and Ross A. Robinson, both of Capps, Ancelet & Stoverink, of Carthage, for appellees.
   JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiffs, Paul and LaVon Campbell, filed combined claims against the estate of Gertrude Milborn, deceased, seeking $5,000 for services performed for the decedent.

The only evidence at trial consisted of the unrebutted testimony of the plaintiffs. LaVon Campbell stated that except for the last few months of decedent’s life, all meals during a five-year period from 1977 until the decedent’s death in 1982 came from the Campbell’s kitchen. Mrs. Campbell also did the housecleaning for the decedent and most of the laundry. Both of the plaintiffs made sure that the decedent took her medicine every day and in the proper dosages.

Paul Campbell testified that he mowed the decedent’s lawn, cared for the yard and patched the roof. While the decedent was hospitalized during the last few months of her life, Mr. Campbell was given a power of attorney authorizing him to handle the decedent’s financial matters. Mr. Campbell also provided transportation for the decedent when she needed to see out of town doctors.

Both plaintiffs testified that they expected compensation for most of the services they performed. The court, sitting without a jury, found that the plaintiffs had established an implied contract with the decedent and allowed their claim in the amount of $5,000. The executor appeals.

There are two kinds of implied contracts; contracts implied in law (also called quasi-contracts) and contracts implied in fact. The trial court found that there was an implied contract between the decedent and the plaintiffs but did not specify which kind. The executor contends that the plaintiffs failed to prove either type of implied contract.

A contract implied in fact is one whereby a contractual duty is imposed by reason of a promissory expression which may be inferred from the facts and circumstances and the expressions on the part of the promissor which show an intention to be bound. (Arthur Rubloff & Co. v. Drovers National Bank (1980), 80 Campbell. App. 3d 867, 873.) The record in the present case reveals no specific acts, conduct or circumstances which permit us to infer a promissory expression or intent to be bound. There is no evidence of a mutual understanding between the parties or the implied terms of the alleged agreement. Thus, there was no contract implied in fact.

A contract implied in law differs from a contract implied in fact in that it arises by implication of law wholly apart from the usual rules relating to contracts and does not depend on an agreement or consent of the parties. A contract implied in law is equitable in nature, predicated on the fundamental principle that no one should unjustly enrich himself at another’s expense. (Arthur Rubloff & Co. v. Drovers National Bank (1980), 80 Ill. App. 3d 867, 875.) Where services are rendered by one person for another which are knowingly and voluntarily accepted, the law presumes that such services were given and received in the expectation of being paid for and implies a promise to pay their reasonable worth. (In re Estate of Dal Paos (1969), 118 Ill. App. 2d 235; In re Estate of Foster (1964), 46 Ill. App. 2d 319.) When set in the context of a claim against a decedent’s estate, the facts giving rise to a quasi-contract must be proven by clear and convincing evidence. See In re Estate of Pomeroy (1974), 21 Ill. App. 3d 648.

The executor does not deny that the plaintiffs performed services ' which were knowingly and voluntarily accepted by the decedent. In fact, the executor presented no evidence at all on behalf of the estate. The executor’s argument is that there was no quasi-contractual liability because the plaintiffs failed to prove by clear and convincing evidence that the decedent requested and expected to pay for the plaintiffs’ services.

The plaintiffs were not required to prove that the decedent requested their services. As previously stated, where useful services are knowingly and voluntarily accepted, the law presumes that such services were given and received in the expectation of being paid for and implies a promise to pay. It is true that a person who officiously confers a benefit upon another is not entitled to be compensated therefore. (66 Am. Jur. 2d Restitution & Implied Contracts sec. 23 (1973).) However, it is not the absence of a request which bars recovery but the officiousness of the claimants’ conduct.

Officiousness is synonymous with meddlesomeness and can be described as volunteering one’s services where they are neither asked for nor needed. (Webster’s Third New International Dictionary 1567 (1971).) Despite the fact that the plaintiffs were not competent witnesses as to any request made by the decedent (Ill. Rev. Stat. 1981, ch. 51, par. 2), it would be unreasonable for us to assume, based on the nature of the work performed by the plaintiffs and the duration of their service, that the decedent made no request whatsoever. Furthermore, it cannot be said that the plaintiffs’ services were unneeded.

According to Mrs. Campbell, the decedent lived alone and never cooked. She would only eat when food was brought to her. Doctors would prescribe medication for the decedent only if someone else would give it to her. Mr. Campbell performed all of the yard work and building maintenance. The decedent may not have required 24-hour nursing care, but it is obvious that she was unable to properly care for herself. In view of the fact that the plaintiffs were unable to obtain assistance from the decedent’s family, their services were not only needed, they were essential and definitely not officious. Even without clear proof of a request by the decedent, her knowing and voluntary acceptance of the plaintiffs’ necessary services over a five-year period raises a promise implied in law to pay the reasonable value of such services.

Next, the executor argues that the plaintiffs intended their services to be gratuitous. Gratuitous intent in cases of this type can be shown in one of two ways. The first is by the conduct of the claimant. With regard to the plaintiffs’ intent and expectations, counsel for the executor made the following statement during closing argument: “I think that the testimony of the claimants show that one party expected to receive payment, that is the Campbells, certainly no contradiction at all on that.” Based on the record, we agree with this conclusion. Having conceded that the plaintiffs’ conduct did not demonstrate a gratuitous intent, the executor may not now argue to the contrary.

Gratuitous intent may also be presumed in certain cases. Where persons live together as members of one family, a promise to pay for services of one to another is not implied from the mere rendition and acceptance of such services. Absent a showing of an express or implied in fact contract for payment, the services are presumed to be gratuitous. Blood kinship is not necessary in order to raise the presumption. The rule rests upon the idea of mutual dependence between those who are members of one immediate family even though there may be no tie of blood or affinity. In re Estate of White (1973), 15 Ill. App. 3d 200.

The executor acknowledges that the plaintiffs are not related to the decedent by blood or marriage and did not share the same house as the decedent. Nonetheless, the executor asks us to extend the presumption of gratuitous intent because of the bond of friendship between the plaintiffs and decedent and because the plaintiffs loved the decedent and treated her as a member of the family.

A bond of friendship between parties who do not live as members of an immediate family is not regarded by the law as sufficient to raise a presumption of gratuitous intent. We are aware of one case in which a friendly business and social relationship between the claimant and decedent was deemed probative of the claimant’s gratuitous intent. (McRoberts v. Estate of Kennelly (1964), 52 Ill. App. 2d 34.) However, the friendship was regarded as a relatively minor factor which was combined with much stronger evidence to show the true intent of the claimant. Furthermore, the court in McRoberts specifically stated that the estate was relying not on a presumption, but on the claimant’s own conduct as revealed by the record. (52 Ill. App. 2d 34, 36-37.) Accordingly, we decline to extend the presumption of gratuitous intent beyond the traditional bounds of an immediate family relationship.

The final issue is whether the plaintiffs proved that their claim was worth $5,000. Mrs. Campbell testified that she arrived at a value of $5,000 based on the fact that her mother was paying $1,700 per month for nursing home care. Although the plaintiffs did not provide the decedent with 24-hour care as would a nursing home, $5,000 is still a nominal figure which breaks down to approximately $60 per month for the plaintiffs’ five years of service.

To recover under a quasi-contract, the plaintiffs are required to prove the reasonable value of their services. (In re Estate of Dal Paos (1969), 118 Ill. App. 2d 235, 240.) The executor certainly cannot argue that $60 per month is an excessive or unreasonable value to place on three meals per day, part-time nursing care, housecleaning, maintenance work and transportation. We find that $5,000 was a reasonable value to place on the plaintiffs’ services and affirm the judgment of the circuit court of Hancock County.

Affirmed.

BARRY and SCOTT, JJ., concur.


author: PRESIDING JUSTICE MEJDA

text:
    HOMER A. BENJAMIN, Petitioner-Appellant, v. THE BOARD OF ELECTION COMMISSIONERS et al., Respondents-Appellees.
    First District (5th Division)
    No. 84—408
    Opinion filed March 19, 1984.

      Homer A. Benjamin, of Chicago, for appellant, pro se.

    Nancy L. Kaszak and Michael Levinson, both of Chicago, for appellees.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Petitioner, Homer A. Benjamin, appeals from an order of the circuit court affirming the decision of defendant Board of Election Commissioners (the Board) not to cause petitioner’s name to be printed on the ballot for the primary election for Democratic Party committeeman for the 46th Ward in Chicago. Initially we note that petitioner’s main brief is devoid of citation to legal authority and contains no legal argument, and we would accordingly be justified in dismissing this appeal. (87 Ill. 2d R. 341(e)(7); 47th & State Currency Exchange, Inc. v. B. Coleman Corp. (1977), 56 Ill. App. 3d 229, 232-33, 371 N.E.2d 294.) Nonetheless, we declined to do so and have considered the issues raised. Following oral arguments, we entered an order affirming the trial court with an opinion to follow. The pertinent facts are hereafter set forth.

Petitioner filed his nominating papers with the Board on December 12, 1983. The nominating petition contained 1,833 signatures. On December 30, 1983, respondent Tomas Bissonnette filed objections to the nominating petition on the ground that oyer 700 of the signatures were invalid. The Board convened a hearing on the objector’s petition on January 3, 1984, which was continued, according to respondents’ brief, to allow for a precinct binder check to determine the validity of the objections to the signatures. No transcript from this hearing appears in the record. After the binder check was completed, petitioner was allowed to submit index cards with the names of signers to be checked against a master file. Petitioner failed to. submit any names.

The hearing was resumed on January 17, 1984. The hearing officer indicated that the minimum number of signatures required was 1,379. At no time did petitioner object to this requirement on any ground. The nominating papers, as already indicated, contained 1,833 signatures. As a result of the binder check, objections to 599 signatures were sustained, primarily on the basis that the signer did not live in the ward or at the indicated address.

Petitioner, called as a witness on the hearing officer’s motion, failed to present any evidence tending to show the validity of the signatures which had been struck. He did not produce any affidavits from signatories nor did he call any witnesses to testify that they were registered voters in the 46th Ward and had signed his petition. On the hearing officer’s motion, a Board employee, Mr. Kikulski, testified that 117 binder cards had not been available for the binder check, and that these cards reflected new registrations occurring on or before the date petitioner’s nominating papers were filed, December 12,1983. The hearing was continued until the next day.

On January 18, 1984, petitioner presented several index cards to the hearing officer after the latter had granted additional time for a master file check. The hearing officer recommended that several signatures which had previously been determined invalid be reinstated. Nonetheless, the nominating petition remained about 138 signatures short of the required number. According to the testimony of the only other witness to appear at the hearing, Allison Tallard, who is also a Board employee, the total of binder cards and change of address cards which was unavailable for the binder check was 124. The hearing officer noted that even if all of these people had signed the nominating petition and all of their signatures had been erroneously disqualified by the Board for failing to appear in the binder check, petitioner would still have failed to tender the required number of valid signatures. The Board adopted the hearing officer’s recommendation and sustained the objections and declared the petition not valid. Petitioner sought review in the circuit court which affirmed the decision of the Board. He then appealed to this court. This court heard the matter on an expedited schedule and after oral argument and due consideration of the record and briefs, announced our decision to affirm the circuit court. At that time we indicated that a written opinion would subsequently be issued to explain the reasons for our decision. This is that opinion.

Opinion

Section 10 — 4 of the Election Code provides that:

«*** guck petition shall be signed by the qualified voters in their own proper persons only, and opposite the signature of each signer his residence address shall be written or printed (and if a resident of a city having a population of over 10,000 by the then last preceding federal census, the street and number of such residence shall be given); ***.
No signature shall be valid or be counted in considering the validity or sufficiency of such petition unless the requirements of this Section are complied with. ***.” (Ill. Rev. Stat. 1983, ch. 46, par. 10 — 4.)

This court has construed this section to require that a person who signs a nominating petition must be registered to vote at the residence address set forth on the nominating petition. (Greene v. Board of Election Commissioners (1983), 112 Ill. App. 3d 862, 869, 445 N.E.2d 1337.) Whether a person is a registered voter and whether he or she is registered at the residence address indicated on the nominating petition are both questions of fact. (See 112 Ill. App. 3d 862, 869.) Review of the Board of Election Commissioners’ decision on such questions of fact does not extend to a de novo assessment of the evidence (Williams v. Butler (1976), 35 Ill. App. 3d 532, 538, 341 N.E.2d 394), and is guided by the familiar manifest weight of the evidence standard Greene v. Board of Election Commissioners (1983), 112 Ill. App. 3d 862, 870-71, 445 N.E.2d 1337.

In the instant case, it is apparent that the Board of Election Commissioners had sufficient evidence to determine that the signatures to which objections were sustained were in fact invalid. Petitioner wholly failed to introduce evidence which would support a contrary finding. Our review of the record indicates that this failure was not occasioned by the Board’s failure to provide voter registration data, but was due instead to petitioner’s strategy of pursuing a one-man campaign. While it is possible that the Board’s records are not entirely current or complete, petitioner has presented no more than speculation to rebut the objector’s contentions. Accordingly, we conclude that the decision of the Board was not against the manifest weight of the evidence and the circuit court did not err in so concluding. Greene v. Board of Election Commissioners (1983), 112 Ill. App. 3d 862, 871, 445 N.E.2d 1337.

At oral argument petitioner called our attention to a case recently decided in the United States District Court, Smith v. Board of Election Commissioners (N.D. Ill., 1984), 587 E Supp. 1136. In that case, United States District Judge Marvin Aspen held that the statute requiring the petitions to contain the signatures of 10% of the primary electors voting in the ward in the previous election was an unconstitutional infringement on the political rights of the plaintiffs. While we are not bound to follow the decisions of a United States District Court, we do give those decisions the weight merited by the persuasiveness of their reasoning. (Chicago Transit Authority v. Yellow Cab Co. (1982), 110 Ill. App. 3d 379, 383, 442 N.E.2d 546.) But more to the point, in the instant case petitioner has utterly failed to raise this point at any stage of the proceedings prior to oral argument and has therefor waived this contention on appeal. See Griffitts Construction Co. v. Department of Labor (1979), 76 Ill. 2d 99, 106-07, 390 N.E.2d 333 (equal protection claim waived by failure to present contention in timely fashion to appropriate tribunal).

For the foregoing reasons we have affirmed the order of the circuit court.

Affirmed.

WILSON and LORENZ, JJ., concur.