author: JUSTICE HARTMAN

text:
    MICHAEL C. ANTONELLI, Plaintiff-Appellant, v. FIELD ENTERPRISES, INC., Defendant-Appellee.
    First District (2nd Division)
    No. 82—601
    Opinion filed May 31, 1983.
    Michael E. Antonelli, of Chicago, for appellant, pro se.

    A. Daniel Feldman, Steven R. Gilford, and Michael Goldfein, all of Isham, Lincoln & Beale, of Chicago, for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff appeals from the dismissal of his pro se complaint in which he alleged that defendant Field Enterprises, Inc. (Field), had defamed him by referring to him as a “mobster.” Plaintiff alleged that a June 17, 1980, article printed by the Field-owned newspaper, the Chicago Sun Times, captioned “Mobster v. Media,” knowingly and falsely stigmatized him as a mobster; that the article was printed in reckless disregard of its truth; and that defendant was negligent for having failed to verify that the statements made in the article were accurate. Plaintiff asserted further that he was “a person of good name, sound reputation and character ***” before the article was printed and circulated; and that the article damaged his reputation and standing in the community and caused him severe emotional distress.

Field moved to dismiss the complaint pursuant to sections 45 and 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, pars. 45, 48) now sections 2 — 615 and 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, pars. 2 — 615, 2 — 619), for failure to state a claim and because the claim was barred by the applicable one-year statute of limitations governing libel actions. (Ill. Rev. Stat. 1979, ch. 83, par. 14, now Ill. Rev. Stat. 1981, ch. 110, par. 13— 201.) Plaintiff filed a memorandum in opposition to these motions; however, the motion to dismiss upon the merits of plaintiff’s claim was allowed. The circuit court expressly declined to rule on the applicability of the statute of limitations.

The background facts of this case reveal that plaintiff was a convicted felon who, in 1980, was serving four years in the Federal penitentiary for possession of a stolen automobile, bank fraud, embezzlement, bombings of certain properties, and a series of auto thefts. While in the Federal penitentiary, State charges against him arose in Illinois, including a seven-count indictment for attempted murder, for which he was sentenced to serve 15 years, consecutively to the four being served. Federal charges also arose, including a three-count indictment for possession of a handgun with a silencer.

Plaintiff sought an injunction or “gag order” in the Federal district court while serving the four-year sentence in which he sought to minimize the effects of pretrial publicity and to prevent the dissemination of “undue infamous news reports” of his conviction for possession of a stolen car, bank fraud, embezzlement and the bombings, because such news threatened the fair trial of the then pending State charges for attempted murder and the new Federal charges of possession of a handgun and silencer. His petition for leave to proceed in forma, pauperis in the district court was denied. His appeal to the Seventh Circuit Court of Appeals was also denied. He then filed a petition in the United States Supreme Court for a writ of certiorari to the Seventh Circuit (certiorari petition) in which he set forth the preceding facts of his convictions and pending charges in addition to his summary of new articles which he stated had characterized him as “an unsavory man and a ‘hit man’ for the alleged crime syndicate.” The certiorari petition was made part of this record, having been filed by Field in support of its circuit court motions to dismiss.

The United States Supreme Court denied plaintiff’s certiorari petition on June 16, 1980. (Antonelli v. Tribune Newspaper (1980), 447 U.S. 926, 65 L. Ed. 2d 1120, 100 S. Ct. 3022.) The next day, June 17, 1980, the Chicago Sun Times reprinted an Associated Press account of the Supreme Court’s denial of plaintiff’s certiorari petition as follows:

Plaintiff thereafter filed his pro se complaint in the circuit court of Cook County charging that the foregoing publication defamed and slandered him by virtue of its references to him as a “mobster.” He maintains that “there is a big difference in calling someone a ‘litigant’ or convict or something of that sort and calling him a MOBSTER.” He argues that given the actual and obvious meaning of mobster, the article cannot be given an innocent construction because it imputes to him “an association and lifestyle which is untrue, and is libelous per se.”

An exhaustive review of the law of defamation, particularly the innocent construction rule, was undertaken by our supreme court in Chapski v. Copley Press (1982), 92 Ill. 2d 344, 352, 442 N.E.2d 195. There the court concluded that:

“[A] written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted *** it cannot be actionable per se. This preliminary determination is properly a question of law to be resolved by the court in the first instance.”

The strongest reason advanced in support of the rule is one particularly apt under the facts of this case: that the rule is in consonance with the constitutional interests of free speech and free press and encourages the robust discussion of daily affairs. (Chapski v. Copley Press (1982), 92 Ill. 2d 344, 350; Dauw v. Field Enterprises, Inc. (1979) , 78 Ill. App. 3d 67, 71-72, 397 N.E.2d 41, appeal denied (1980) , 79 Ill. 2d 625.) Although application of the innocent construetion rule to the facts of this case may be deemed somewhat fatuous, it is clear that the circuit court in the present case correctly determined as a matter of law that the words “mobster” and “reputed mobster” in the newspaper article did not defame plaintiff. However, in light of his record of law breaking and convictions set forth in his own certiorari petition, the denial of which was the subject matter of the story, it is clear that the article was nonactionable per se.

Generally, a headline and the news report to which it refers must be considered as one document in analyzing whether or not the words therein contained are libelous under the innocent construction rule. (Dauw v. Field Enterprises, Inc. (1979), 78 Ill. App. 3d 67, 71-72; Reed v. Albanese (1966), 78 Ill. App. 2d 53, 223 N.E.2d 419.) In the case at bar, when the headline “Mobster v. Media” is considered together with the article appearing thereunder, it is clear that the reference to “mobster” was made in conjunction with the balance of the story in which plaintiff is referred to as a “reputed mobster,” which, in turn, was related to his claim that he was unfairly identified as a “mob figure” and “reputed hit man” in news stories which he submitted in his certiorari petition to the United States Supreme Court. The term “reputed” means “supposed, thought, or reckoned ***.” (Webster’s Third New International Dictionary 1929 (1976).) “Supposed” in turn, is defined as “believed to be or accepted as such usu. on slight grounds or in error: erroneously imputed or ascribed ***.” (Webster’s Third New International Dictionary 2298 (1971).) Therefore, Field accurately depicted plaintiff as one about whom the word “mobster” had been “supposedly,” perhaps “erroneously imputed,” as the balance of the article reveals, thereby supporting the “innocent” construction of the word “mobster.”

Furthermore, the term “mobster” is frequently found in newspaper and periodical accounts in the reportage of criminal activity. Webster defines “mobster” as “a member of a criminal gang.” (Webster’s Third New International Dictionary 1450 (1971).) The word “mobster” also is informally identified with the words “criminal, felon, crook, law breaker, scofflaw, and gangster.” (Roget’s International Thesaurus 986.10 (4th ed. 1977).) The words criminal, felon, crook, law breaker, scofflaw, gangster or mobster all connote the same type of person about whom those meanings may be ascribed; one who breaks or violates the law. Based upon the petition submitted by plaintiff to the United States Supreme Court outlining his record of breaking and violating the law, it can hardly be said that any one of the foregoing terms could not truthfully portray and characterize plaintiff’s criminal past, including the word “mobster.” To hold otherwise in this context would lend credulity to the Dickensian Mr. Bumble’s observation in Oliver Twist that “[i]f the law supposes that *** the law is a ass, a idiot.”

Plaintiff complains that by the procedure followed in this case he was denied his day in court and contends that the circuit court abused its discretion in dismissing his suit, thereby preventing him from developing facts and issues in support of his case. Plaintiff was given the opportunity to respond to Field’s motions to dismiss, however, and he did so in a four-page response. The circuit court’s order of dismissal contains the specific statement that it took into account plaintiff’s response to the motions. Dismissal of a complaint for just cause is within the discretion of the circuit court and the court may do so where, as here, the complaint fails to state a cause of action. (Deasey v. City of Chicago (1952), 412 Ill. 151, 105 N.E.2d 727.) This rule applies equally to actions for defamatory damages such as the case at bar. (Trembois v. Standard Ry. Equipment Manufacturing Co. (1949), 337 Ill. App. 35, 84 N.E.2d 862, cert. denied (1950), 338 U.S. 950, 94 L. Ed. 586, 70 S. Ct. 480; Van Tuil v. Carroll (1972), 3 Ill. App. 3d 869, 279 N.E.2d 361.) Under the foregoing authorities, no abuse of discretion by the circuit court can be discerned in consideration of the facts of this case.

For the reasons set forth above, no error in the circuit court’s disposition of this cause appears and its dismissal of plaintiff’s complaint must be affirmed.

Affirmed.

STAMOS and PERLIN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STAMOS

license: Public Domain

text:
    LAWRENCE DIAMOND, Plaintiff-Appellee, v. THE BOARD OF FIRE AND POLICE COMMISSIONERS OF ELK GROVE VILLAGE et al., Defendants-Appellants.
    First District (2nd Division)
    No. 82—1683
    Opinion filed May 31, 1983.
    Rehearing denied June 30, 1983.
    Samelson, Knickerbocker & Schirott, and Peter A. Felice, both of Chicago (George B. Knickerbocker, of counsel), for appellants.
    Thomas F. McGuire, of Chicago, for appellee.
   JUSTICE STAMOS

delivered the opinion of the court:

The Board of Fire and Police Commissioners of Elk Grove Village, Illinois, appeals from the circuit court’s reversal of its order discharging plaintiff Lawrence Diamond from his position as a police officer of the village. The administrative complaint against plaintiff which was brought before the board contained extensive references to the results of two polygraph examinations which were taken by plaintiff during the course of the investigation of the charges that led to his dismissal, but no evidence concerning those examinations was received by the board during the hearings on the complaint. Before this court, the board contends that: (1) the trial court erred in reversing its order because the order was supported by other competent evidence and the polygraph results were not admitted into evidence before the board, and (2) the trial court erred in remanding the case for a new hearing before a specially constituted board of fire and police commissioners.

On August 17, 1981, the police chief of Elk Grove Village filed a complaint against plaintiff before the Village Board of Fire and Police Commissioners. The complaint alleged that on June 27, 1981, plaintiff was on patrol in a squad car when he observed a large number of cars near the home of John Coffman. He stopped to speak with the person who was parking the cars in a vacant lot and was informed that the cars belonged to guests at a party at the Coffman house. He went to the Coffman house, where he encountered John Coffman in the front yard.

While speaking with Coffman, plaintiff heard music coming from the backyard. Plaintiff asked Coffman if he had an amplifier permit for the loudspeaker system, and Coffman asked if one was necessary. Plaintiff stated that one was, and said that he could take care of it. Coffman took a $20 bill from his pocket and gave it to plaintiff, who placed the bill in his pocket. Plaintiff then went back to his squad car. He never gave Coffman a permit or processed an application for one. Elk Grove Village does not require a permit for music played on loudspeakers on private property.

During the investigation of the charges summarized above, the police chief ordered plaintiff to submit to a polygraph examination. The results of the tests and the remarks of the examiners were included in the chiefs complaint to the board. The complaint states that plaintiff took his first polygraph examination on August 6, 1981, and that the examiner’s report stated that plaintiff engaged in “purposeful acts of non-cooperation” during the test and that “it has been the experience of this laboratory that when a subject attempts to distort his polygraph records by purposeful non-cooperation, he does so to avoid detection regarding one or more of the issues under investigation.” The complaint states that plaintiff was ordered to submit to an examination by a different examiner, and quotes the second examiner’s report to the effect that when plaintiff was questioned regarding whether he had solicited or received $20 from Coffman and whether he had told Coffman that an amplifier permit was required, plaintiff answered in the negative. The report states that there were emotional responses “indicative of deception” during the test, and that the examiner was of the opinion that plaintiff solicited and received the $20 from Coffman. The full report was attached to the complaint as an exhibit.

At the hearings on the complaint, plaintiff objected to the introduction of any testimony referring to the polygraph examinations. The objection was sustained by the village attorney, who stated that “*** it would be my feeling that there would be no weight given to such testimony and no value to it. Therefore, on that basis, I believe the Board should sustain that objection.”

Coffman was the only occurrence witness testifying against plaintiff. His testimony paralleled the allegations of the complaint regarding his encounter with plaintiff. Plaintiff testified that he had not solicited the money from Coffman and that he received no money from Coffman.

On October 6, 1981, the board rendered its findings and decision discharging plaintiff from employment as a police officer. Those findings make no reference to the polygraph results.

On administrative review, the circuit court reversed the order of the board, holding that the inclusion of the information concerning the results of the polygraph examinations fatally tainted the board’s decision. The court noted that the board, which was composed of laymen, was never admonished not to consider the results of the tests and that there was no indication that the results were not considered by the board in making its decision. The court also expressed the opinion that the order was otherwise not against the manifest weight of the evidence. The circuit court remanded the case for a new hearing before a specially constituted board of fire and police commissioners.

On appeal to this court, the board contends that: (1) its order should not have been reversed because plaintiff’s objections to the introduction of the polygraph-related evidence were sustained and the order was not against the manifest weight of the evidence which was received, and (2) the circuit court has no authority to order the appointment of a special board of fire and police commissioners to hear this case on remand.

During the pendency of this appeal, our supreme court handed down its decision in Kaske v. City of Rockford (1983), 96 Ill. 2d 298. In that consolidated case, the plaintiffs, Robert Collura, John Kaske, and Paul Triolo, were all police officers who were ordered to submit to polygraph examinations as part of investigations of their activities which were being conducted by their respective chiefs of police. Kaske and Triolo refused to undergo the examinations and filed an action for declaratory judgment and injunction which sought to restrain their police chief from requiring the examinations. The circuit court dismissed the action and the appellate court affirmed. Collura took a polygraph examination, and the results were admitted into evidence before the Board of Fire and Police Commissioners through the testimony of the polygraph examiner. The board ordered that Collura be discharged from employment as a police officer, and that order was affirmed by the circuit court and the appellate court. Both appellate court orders were issued pursuant to Supreme Court Rule 23 (87 Ill. 2d R. 23).

On appeal to our supreme court, the court first noted that there has been a split among the districts of the appellate court concerning the admissibility of polygraph results in administrative proceedings. Such results have been held to be admissible in the First District (see Washington v. Civil Service Com. (1981), 98 Ill. App. 3d 49, 423 N.E.2d 1136), while they have been held to be inadmissible in the Third (see Manias v. Peoria County Sheriffs Department Merit Com. (1982), 109 Ill. App. 3d 700, 440 N.E.2d 1269; Sommer v. Goetze (1981), 102 Ill. App. 3d 117, 429 N.E.2d 901), and Fourth (see McGowen v. City of Bloomington (1981), 99 Ill. App. 3d 986, 426 N.E.2d 328) districts. The court then reviewed its prior holdings that polygraph evidence is inadmissible in criminal trials even though it is stipulated to (see People v. Baynes (1981), 88 Ill. 2d 225, 244-45, 430 N.E.2d 1070), and that polygraph evidence is inadmissible in death sentencing hearings despite the relaxation of the rules of evidence in those proceedings. See People v. Szabo (1983), 94 Ill. 2d 327, 362-63.

The court held that, as to Collura, it was reversible error to receive the polygraph results into evidence before the board, and, as to Kaske and Triolo, that a police officer may not be ordered to submit to a polygraph examination and the refusal to take such an examination can not be the basis for disciplinary proceedings. In so holding, the court stated that:

“The plaintiffs face the potential of the loss of their livelihood. There is a real danger that the board of fire and police commissioners will find the results of the polygraph examination completely determinative of guilt or innocence. We feel that the Sommer case [Sommer v. Goetze (1981), 102 Ill. App. 3d 117, 429 N.E.2d 901] articulates the correct rule that polygraph evidence is not reliable enough to be used as substantive evidence in an administrative proceeding before the board. The findings before a board of fire and police commissioners must be based upon facts proved by competent evidence.” Kaske v. City of Rockford (1983), 96 Ill. 2d 298, 309.

As was previously noted, the results of Collura’s polygraph examination were admitted into evidence through the testimony of the polygraph examiner. In the instant case, the test results were not formally introduced as evidence at all, but were included in paragraphs 13 through 17 of the chief’s complaint to the board. Therefore, while the board was fully aware of the results of plaintiff’s test, he had no opportunity to counter the prejudicial effect of that knowledge through cross-examination or otherwise, and although plaintiff successfully objected to the presentation of the evidence at the hearings, he could do little to erase the knowledge of the test results from the minds of the board members.

The case of Austin v. City of East Moline Board of Fire & Police Commissioners (1972), 7 Ill. App. 3d 537, 288 N.E.2d 39, also presented a situation where the board was aware of the results of a polygraph examination taken by the officer under investigation although the results were not introduced as evidence. The court found that there was no reversible error in that case because the board had been admonished to disregard the polygraph results at least five times. (7 Ill. App. 3d 537, 542.) The court held that these admonitions cured any error that may have resulted from the board’s extrajudicial knowledge of the tests. 7 Ill. App. 3d 537, 543.

No curative remarks were made to the board in the instant case. After plaintiff’s objections to references to the tests were sustained, the village attorney stated that:

“Then it would be my feeling that there would be no weight given to such testimony and no value to it. Therefore, on that basis, I believe the Board should sustain that objection.”

It is impossible to say that the board members considered themselves admonished to refrain from considering the test results by that remark. This is especially so when it is considered that the objection that preceded that statement was to a question asked of the police chief as to whether plaintiff had been ordered to take a polygraph examination. No reference to the results of the tests was made at any time during the hearings, except for the statement made by the attorney for the village that he did not intend to introduce the results or call the examiner as a witness.

The circumstances presented by the board’s extraneous knowledge of the results of Officer Diamond’s polygraph examination are analogous to situations where, in a judicial proceeding, the fact finder is apprised of matters pertaining to issues involved in the case before it through independent investigation or through other means. The board, while making findings of fact concerning charges against a police officer and deciding whether those charges justify dismissal, is exercising a judicial function. The instant board is composed entirely of laymen, and their function partakes of the nature of the function of both a judge and a jury.

Many cases, both civil and criminal, have addressed the problem raised by a showing that extraneous information has reached the fact finder. Our supreme court has stated that “[i]t is axiomatic that any unauthorized information reaching the jury is prejudicial error.” (People v. Rivers (1951), 410 Ill. 410, 419, 102 N.E.2d 303.) A showing that the fact finder relied on unauthorized information in reaching its decision has been held to be reversible error in a plethora of cases, involving both bench trials (see People v. Wallenberg (1962), 24 Ill. 2d 350, 354, 181 N.E.2d 143; People v. Rivers (1951), 410 Ill. 410, 418-19, 102 N.E.2d 303; Drovers National Bank v. Great Southwest Fire Insurance Co. (1977), 55 Ill. App. 3d 953, 956-59, 371 N.E.2d 855; Johnson v. Johnson (1975), 34 Ill. App. 3d 356, 363-64, 340 N.E.2d 68; McGurn v. Brotman (1960), 25 Ill. App. 2d 294, 298-99, 167 N.E.2d 12) and jury trials (see People v. Holmes (1978), 69 Ill. 2d 507, 519, 372 N.E.2d 656; Frede v. Downs (1981), 101 Ill. App. 3d 812, 815, 428 N.E.2d 1035; Heaver v. Ward (1979), 68 Ill. App. 3d 236, 241-42, 386 N.E.2d 134).

Our supreme court has stated that although unauthorized information reaching a jury is always prejudicial, such error does not always require reversal. (People v. Holmes (1978), 69 Ill. 2d 507, 519, 372 N.E.2d 656.) The same holds true for nonjury cases, because a trial judge sitting without a jury is presumed to have considered only competent evidence in reaching his decision. (See Reese v. Melahn (1973), 53 Ill. 2d 508, 512, 292 N.E.2d 375.) It is clear that an administrative body must be regarded as more Closely akin to a jury on review of decisions where incompetent evidence reaches the body, because there is no presumption that the body has considered only competent evidence. In such situations the reviewing court must search the record to determine whether there is enough competent evidence to support the decision. Consolidation Coal Co. v. Property Tax Appeal Board (1975), 29 Ill. App. 3d 465, 468, 331 N.E.2d 122.

In the instant case, even if the polygraph results had been admissible in the hearing, those results could only be considered by the board after they were received into evidence, with the proper foundation being laid through direct examination of the polygraph examiner who administered the test. (See Washington v. Civil Service Com. (1981), 98 Ill. App. 3d 49, 54, 423 N.E.2d 1136.) This process, of course, allows the accused to cross-examine the examiner as to his qualifications, the manner in which the tests were conducted, and the basis of his interpretation of the tests. The precise reason that polygraph evidence is inadmissible in an administrative proceeding is that the results of the tests are susceptible to a wide variety of interpretations, and therefore the examiner’s opinion has a prejudicial effect which is disproportionate to its probative value. (See Kaske v. City of Rockford (1983), 96 Ill. 2d 298, 309.) The instant case presents a situation where inadmissible matter was known to the fact finder and the accused was not afforded the opportunity to attempt to dissipate the unfairly prejudicial effect of that information. Our supreme court has held that a denial of this opportunity operates as a denial of the due process right of the accused to “rely upon his constitutional guarantee that nothing shall be considered against him except the competent evidence introduced in open court, in his presence, by the witnesses who confront him.” (People v. Rivers (1951), 410 Ill. 410, 417, 102 N.E.2d 303.) There is no burden on the accused to show that there is prejudice resulting from the jury’s knowledge of extraneous matter. (410 Ill. 410, 416-17.) Reversal of the verdict is required if the extraneous matter is “in the nature of evidence *** on a crucial question” in the case. Frede v. Downs (1981), 101 Ill. App. 3d 812, 815, 428 N.E.2d 1035; see also People v. Holmes (1978), 69 Ill. 2d 507, 519, 372 N.E.2d 656.

In the majority of the cases cited above, the extraneous evidence considered by the fact finder was matter that would have been admissible had it been properly introduced. In the instant case, of course, the information known to the fact finder was inadmissible for any purpose. As we have noted, the precise reason for the strict rule against the use of polygraph results as evidence is that the test is of indifferent scientific validity and what accuracy it has is completely dependent on a highly subjective interpretation of the data produced by the test. (See generally People v. Baynes (1981), 88 Ill. 2d 225, 234-37, 430 N.E.2d 1070.) Had the results of the tests been received by the board, with full observation of the procedural safeguards attendant to the proper admission of evidence, we would be required to reverse the board’s decision under Kaske. We note that in Kaske, our supreme court did not conduct a search of the record to determine whether the board’s decision as to Collura was supported by competent evidence apart from the polygraph results. We can only conclude that the holding in that case must be regarded as a strict rule that the consideration of polygraph evidence is so prejudicial that the board’s decision must be reversed regardless of what other evidence was considered. It would be anomalous, to say the least, to find that when information is obtained by the board in a manner that violates the accused’s right to due process of law, the board’s decision will stand if it is not against the manifest weight of the evidence in the record, while the admission of that evidence in full observance of due process safeguards would require reversal of the decision without an examination of the other evidence in the record.

In the instant case, plaintiff's attorney made no attempt to have the reference to the polygraph results stricken from the chief’s complaint. Plaintiff contends that such a motion would have been futile, because the members of the board had already seen the complaint by the time such a motion could have been made. Be that as it may, a motion to strike the offending paragraphs in the complaint would at least have led to an express admonition to the board not to consider the polygraph results in making their decision. As the trial court noted, the members of the board are all laymen, and lack the experience and training of a judge in disregarding incompetent evidence. The chief’s attorney tenanciously questioned the chief as to whether he had ordered plaintiff to take a polygraph examination, even after an objection to the question had been sustained by the village attorney. These questions also came after the chief’s attorney had conceded that he had no intention of introducing the test results or of calling the examiner ás a witness. We see that line of questioning as having the effect of drawing the board’s attention to the fact that an examination was administered, and therefore no board member can be thought to have overlooked the information in the complaint concerning the results of the tests.

Plaintiff here was deprived of due process of law by the board’s extraneous knowledge of information going to the most crucial aspect of this case, his credibility. No situation can be imagined in which the board’s extraneous knowledge of unfavorable polygraph results would be more prejudicial to the person under investigation. Such a situation could conceivably require reversal of the board's decision regardless of the character of the information involved. Here, the information involved is inadmissible as evidence for any purpose, and the observance of procedural safeguards could not have authorized the board to consider it. A simple and strongly worded admonition would have cured the prejudice resulting from the board’s extraneous knowledge of the polygraph examination. In the absence of such an admonition, the board’s decision must be reversed.

The board also contends that the trial court erred in ordering that the new hearing in this matter be conducted before a specially constituted board of fire and police commissioners. Plaintiff and the board agree that the appointment and removal of board members is governed by the provisions of division 2.1 of article 10 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 10 — 2.1—1 et seq.), which contains no provision for the appointment of a special board for hearings on particular matters, and which provides that members of the board can be removed only for cause upon written charges by the governing body of the municipality. Ill. Rev. Stat. 1981, ch. 24, par. 10-2.1-3.

Plaintiff contends that the court is authorized to appoint a special board because a home-rule unit such as Elk Grove Village is not bound by the provisions of that statute and may provide for the appointment of board members in ways which are at variance with the statute.

A home-rule municipality may adopt an ordinance for the appointment of fire and police commissioners which is in direct conflict with section 10 — 2.1—3. (See Stryker v. Village of Oak Park (1976), 62 Ill. 2d 523, 527, 343 N.E.2d 919, cert. denied (1976), 429 U.S. 832, 50 L. Ed. 2d 97, 97 S. Ct. 95.) However, it is not contended that Elk Grove Village has adopted an ordinance which provides for the appointment of a special board. The question before us, then, is not whether Elk Grove Village is empowered to enact such an ordinance, but whether the circuit court can order it to do so. We hold that it cannot.

Our supreme court has stated that the courts “cannot exercise legislative powers or compel their proper action” (Donovan v. Holzman (1956), 8 Ill. 2d 87, 93, 132 N.E.2d 501), and that “[t]he courts can neither dictate nor enjoin the passage of legislation.” Fletcher v. City of Paris (1941), 377 Ill. 89, 96, 35 N.E.2d 329.

In the instant case, any procedure by which the village could appoint a special board would have to be adopted by ordinance. We hold that the circuit court has no power to dictate that such an ordinance be adopted, and that that portion of the circuit court’s order which remands this cause to be heard by a specially constituted board of fire and police commissioners is reversed.

It is true that there is a possibility that plaintiff will be prejudiced by a new hearing before the board members who are already aware of the polygraph results. However, that prejudice can be cured by admonishing the board that those results are not to be considered. At any rate, the remedy for any unfairness which may result on rehearing is not the appointment of a special board, but an administrative review of that rehearing. See Mank v. Board of Fire & Police Commissioners (1972), 7 Ill. App. 3d 478, 486, 288 N.E.2d 49.

For the reasons expressed herein, the circuit court’s reversal of the board's findings and decision is affirmed, the circuit court’s order that a specially constituted board hear the case on remand is reversed, and the cause is remanded to the circuit court with instructions to remand the case to the board for a hearing de novo at which no evidence concerning the polygraph tests shall be admitted and at which the board shall be admonished to disregard their prior knowledge of the polygraph results in making their decision.

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

DOWNING, P.J., and PERLIN, J., concur.


author: PRESIDING JUSTICE DOWNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID PEREZ, Defendant-Appellant.
    First District (2nd Division)
    Nos. 81—3117, 82—770 cons.
    Opinion filed May 31, 1983.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Larry J. Crown, Assistant State’s Attorneys, of counsel), for the People.
    Steven Clark and Gordon H. Berry, both of State Appellate Defender’s Office, of Chicago, for David Perez.
   PRESIDING JUSTICE DOWNING

delivered the opinion of the court:

Following a bench trial, defendant, David Perez, was convicted of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(a)), attempt (murder) (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 4), and two counts of armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A — 2). At the time of the incident which led to his conviction, defendant was 16 years old. Following his conviction, defendant was sentenced to terms of imprisonment consisting of concurrent terms of 35 years for murder and 10 years for armed violence; consecutive to concurrent terms of 15 years for attempt (murder) and 10 years for armed violence.

Defendant was sentenced on July 15, 1980, after his motion for a new trial was denied. On July 29, 1981, defendant filed a post-conviction petition pursuant to the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1981, ch. 38, par. 122 — 1 et seq.). Defendant requested that the trial court appoint the State Appellate Defender to prosecute the appeal of his conviction and that he be allowed to file a late notice of appeal. The State’s motion to dismiss defendant’s post-conviction petition was denied. Defendant was granted leave to file a notice of appeal. The State appeals the trial court’s order granting defendant’s post-conviction relief. Both appeals have been consolidated in this court.

These appeals present the following issues: (1) whether the trial court acted properly by granting defendant’s post-conviction relief and denying the State’s motion to dismiss defendant’s petition; (2) whether the trial court erred by reviewing the pretrial transcript during the trial; and (3) whether the trial court abused its discretion by sentencing defendant to consecutive terms of imprisonment.

The underlying facts of this case show that Wilfredo Dones, age 17, and his girlfriend, Bernice Pagan, age 16, were walking from the Kenmore playground at Belmont and Kenmore Streets in Chicago at about 10 p.m. on August 5, 1978, when two men approached them from behind. One of the men, later identified as defendant, pulled a gun and shot Dones in the head from a distance of about three feet. The defendant then turned to Pagan and at point blank range shot her in the face. Dones died three days later. After surgery and extensive medical treatment, Pagan recovered from her wound.

Following an investigation of the incident, defendant was arrested. He was represented throughout the proceedings by a court-appointed attorney. The case was transferred from the juvenile court. (Ill. Rev. Stat. 1981, ch. 37, par. 702 — 7.) Defendant’s motions to quash his arrest and suppress identification testimony were heard and denied by Judge Frank Wilson. Thereafter, Judge Wilson retired. This cause was then heard by Judge Maurice D. Pompey. During the initial stages of the trial, the State suggested that Judge Pompey review the pretrial transcript in order to familiarize himself with matters of evidence previously decided by Judge Wilson. Over defendant’s objection, Judge Pompey reviewed the pretrial transcript and then proceeded with the trial. At the conclusion of the trial, defendant was found guilty of murder, attempt (murder) and two counts of armed violence.

On July 15, 1980, defendant filed a post-trial motion for a new trial, asserting general violations of his constitutional rights. Defendant’s post-trial motion was denied and sentence was pronounced. The trial court admonished defendant regarding his right to appeal and to have counsel appointed for appeal. When defendant’s trial counsel indicated that he could not represent defendant on appeal, the following colloquy occurred:

“THE COURT: So that the record is clear, are you requeting [sic\ today for the court to appoint the Public Defender as your attorney for the purpose of appeal, Mr. Perez?
THE DEFENDANT: Yes.
THE COURT: Very well, the Public Defender is appointed * * * M

The record does not show any further activity regarding defendant’s appeal until March 30, 1981, when defendant filed, pro se, a letter with the trial court indicating that he had not received notice from the public defender regarding his appeal. Defendant requested that the trial court investigate the status of his appeal. The record next indicates that a post-conviction petition, signed by defendant, was filed pursuant to the Act. Defendant was once again represented by the attorney who had represented him at trial for the purpose of the post-conviction proceedings. Defendant’s petition requested that the State Appellate Defender be appointed to prosecute defendant’s appeal and that the Appellate Defender be allowed to file a late notice of appeal. The State responded with a motion to dismiss defendant’s post-conviction petition, contending that no constitutional issue was raised by the petition, thereby precluding relief under the Act.

A hearing was held on April 17, 1981, following which the trial court granted defendant’s petition and allowed the Appellate Defender 30 days to file a notice of appeal on defendant’s behalf. The State appealed (No. 82 — 770) the trial court’s order denying the State’s motion to dismiss defendant’s post-conviction petition. Defendant challenges his conviction (No. 81 — 3117), asserting as error: (1) that he was prejudiced by the trial court’s review of the pretrial transcript, and (2) that the trial court should have imposed concurrent rather than consecutive terms of imprisonment in light of defendant’s youth, lack of criminal past and potential for rehabilitation.

I

At the outset, we consider the issue raised by the State’s challenge to the November 17, 1981, trial court order which allowed defendant to file his notice of appeal 17 months after his conviction. The State argues that defendant’s post-conviction petition fails to present a constitutional issue and, therefore, is not subject to review under the Act. The pertinent part of the Act which defendant invoked reads as follows:

“Sec. 122 — 1. Petition in the Trial Court. Any person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Illinois or both may institute a proceeding under this Article. ***” (Ill. Rev. Stat. 1981, ch. 38, par. 122 — 1.)

Defendant bears the burden of establishing the existence of a substantial constitutional deprivation in order to initiate relief under the Act. (People v. Moore (1975), 60 Ill. 2d 379, 384, 327 N.E.2d 324.) The purpose of the post-conviction proceeding is to inquire into the constitutional issues stemming from the original conviction which have not already been adjudicated — including those issues which have been directly appealed or could have been directly appealed. (People v. Ford (1981), 99 Ill. App. 3d 973, 976, 426 N.E.2d 340.) The Act requires that defendant’s petition “shall *** clearly set forth the respects in which petitioner’s constitutional rights were violated.” (Ill. Rev. Stat. 1981, ch. 38, par. 122 — 2.) Here, defendant’s petition identified the proceedings in which he was convicted, the trial court’s pronouncement of defendant’s rights on appeal, and the fact that the public defender took no action on defendant’s behalf after being appointed to do so.

It is defendant’s contention that the failure of the public defender to act on his appeal amounts to a deprivation of his right to appeal, which is a violation of his constitutional right to the assistance of counsel. The State counters by arguing that the allegations in a post-conviction petition based upon counsel’s failure to file a timely notice of appeal is not a constitutional question which is reviewable under the Act because it does not arise from the proceedings which resulted in defendant’s conviction. However, an allegation of ineffective assistance of appellate counsel may raise an issue of constitutional dimensions “which is cognizable in a post-conviction proceeding.” People v. Edgeworth (1975), 30 Ill. App. 3d 289, 296, 332 N.E.2d 716, appeal denied (1975), 60 Ill. 2d 598; see also People v. Howard (1981), 94 Ill. App. 3d 797, 801, 419 N.E.2d 702.

The case before us is just such a situation in which the inaction of appellate counsel resulted in a violation of defendant’s constitutionally protected rights. Defendant had exhibited an intent to appeal his conviction and responded positively when asked by the trial court if he wished to have the public defender appointed to assist him in his appeal. The trial court appointed the public defender to assist defendant, and defendant relied upon the public defender to file a notice of appeal in this matter. A notice of appeal was never filed. There is no indication in the record which explains the apparent lack of diligence by the public defender. Under these circumstances, the total lack of assistance provided to defendant amounted to a violation of his rights which was appropriately challenged through a post-conviction petition. See People v. Jones (1976), 36 Ill. App. 3d 315, 319, 343 N.E.2d 525.

The right to appeal a criminal conviction is fundamental (Nance v. United States (7th Cir. 1970), 422 F.2d 590, 592) and is guaranteed by the Illinois Constitution of 1970 (Ill. Const. 1970, art. VI, sec. 6; People v. Carter (1980), 91 Ill. App. 3d 635, 638, 415 N.E.2d 17). The procedures for effecting this right to appeal are purely statutory and must be complied with in order to invoke the appellate court jurisdiction. (People v. Carter (1980), 91 Ill. App. 3d 635, 638.) However, the fact that appellate review is such an integral part of the Illinois trial system for adjudicating guilt or innocence (Griffin v. Illinois (1956), 351 U.S. 12, 18, 100 L. Ed. 891, 898, 76 S. Ct. 585, 590) leads us to the conclusion that a complete denial of access to that process, such as occurred here, amounts to a denial of a right of constitutional magnitude.

The State questions the propriety of the relief granted to defendant and the trial court’s authority to allow a late notice of appeal to be filed. Although the relief granted by the trial court in this instance is not the usual remedy provided in a post-conviction proceeding, under these circumstances it was the appropriate relief. The Act allows the trial court to “enter an appropriate order with respect to the judgment or sentence in the former proceedings and such supplementary orders as to rearraignment, retrial, custody, bail or discharge as may be necessary and proper.” (Ill. Rev. Stat. 1981, ch. 38, par. 122 — 6.) The trial court is not limited in its remedies by section 122 — 6 and the purpose of the Act, which is to promote the concept of fundamental fairness, was served by the trial court’s order here. See People v. Frank (1971), 48 Ill. 2d 500, 504, 272 N.E.2d 25.

II

Defendant contends that the trial court committed prejudicial error by reviewing the pretrial transcript of the hearing before another judge. Defendant argues that his conviction was based in part upon the trial court’s examination of these materials which were not a part of the trial record and which were prejudicial.

In a bench trial, the trial court is presumed to have considered only competent evidence. (People v. Shaw (1981), 98 Ill. App. 3d 682, 686-87, 424 N.E.2d 834, appeal denied (1981), 85 Ill. 2d 581.) “In order to rebut this presumption, there must be an affirmative showing on the record that the court actually used the improper evidence.” (People v. Shaw (1981), 98 Ill. App. 3d 682, 687; see also People v. Lester (1981), 102 Ill. App. 3d 761, 768, 430 N.E.2d 358.) Our review of the record does not support defendant’s contention that the trial court considered any improper material. The trial court’s findings were based upon the evidence adduced at trial and upon the trial court’s analysis of the credibility of the witnesses. Defendant has not clearly demonstrated that the trial court based its decision in any way upon materials outside the trial record.

Ill

Defendant further contends that the trial court erred by imposing consecutive rather than concurrent terms of imprisonment as sentence. Defendant argues that his age, lack of previous criminal conduct and potential for rehabilitation warranted concurrent terms of imprisonment.

It is well settled that a court of review will not substitute its judgment for that of the trial court, absent a clear showing of an abuse of discretion, when considering the propriety of the sentence imposed. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882.) Undoubtedly, consecutive sentences should be imposed sparingly. (People v. Zadel (1979), 69 Ill. App. 3d 681, 683, 387 N.E.2d 1092.) However, after consideration of the defendant’s character and background, as well as the nature and circumstances of the crime, a court may feel that consecutive sentences are necessary for the protection of the public from any further criminal activity. People v. DeSimone (1982), 108 Ill. App. 3d 1015, 1023, 439 N.E.2d 1311.

The record here reveals that the trial court considered defendant’s age and background as mitigating factors. However, the trial judge explained that he felt very strongly that it was necessary for the protection of the public that consecutive sentences be imposed, emphasizing the “execution style” killing of Dones and the senseless shooting of Pagan. See People v. Davis (1974), 20 Ill. App. 3d 948, 957, 314 N.E.2d 723, appeal denied (1974), 56 Ill. 2d 588.

Defendant argues that he is only a juvenile and, as such, is not a hardened criminal “whatever the crime.” The baseless excuses defendant offered as possible explanations for his conduct (e.g., peer pressure) show no sense of remorse. One wonders what an individual must do, and at what age, to be considered a hardened criminal. And let us not forget the grief and pain caused to the victim Pagan and to the families of both victims. They, as well as the public, must be protected against such brutal acts.

IV

Lastly, we feel compelled to discuss a question regarding defendant’s convictions and sentences for armed violence which were based upon the same physical acts which led to his convictions for murder and attempt (murder). Under current Hlinois law, a conviction for armed violence cannot stand when it is based upon the same physical act which served as the basis for the underlying felony charge. (People v. Donaldson (1982), 91 Ill. 2d 164, 170, 435 N.E.2d 477.) Here, defendant was charged, convicted and sentenced for murder and armed violence based upon the same act; and defendant was charged, convicted and sentenced for attempt (murder) and armed violence based upon the same physical act. Judgment should have been entered and sentence imposed only on the more serious offense. (People v. Smith (1982), 111 Ill. App. 3d 494, 501, 444 N.E.2d 565.) Therefore, defendant’s convictions and 10-year-sentences for both armed violence charges are vacated in Case No. 81— 3117, and in all other respects the judgment in said case is affirmed.

The November 17, 1981, order of the trial court in Case No. 82 — 770 denying the State’s motion to dismiss defendant’s post-conviction petition is affirmed.

The judgment of the circuit court of Cook County is affirmed in part and, in part, vacated.

Affirmed in part; vacated in part.

STAMOS and HARTMAN, JJ., concur.

      Supreme Court Rule 606(b) (87 Ill. 2d R. 606(b)) provides that a notice of appeal shall be filed within 30 days after entry of the final judgment.


author: PRESIDING JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. WILLIAM SMITH, Defendant-Appellee.
    First District (1st Division)
    No. 81—3058
    Opinion filed June 13, 1983.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Paula Carstensen, and Bryan David Schultz, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (John Thomas Moran, Assistant Public Defender, of counsel), for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

The defendant, William Smith, was arrested and charged with felony theft. (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(a)(1).) The State appeals from an order of the trial court sustaining the defendant’s pretrial motion to quash the indictment.

The record shows that on September 9, 1981, the defendant was arrested and charged with theft by felony complaint for preliminary examination. On that date the defendant’s bond was set and the matter was continued on his motion to September 24, 1981, at which time the matter was again continued to October 20, 1981, so that defendant could obtain counsel. When defendant appeared in court with his counsel on the latter date for the preliminary hearing, he was informed by the prosecutor that he had been indicted by the grand jury on October 13,1981, and would not receive a preliminary hearing.

Following a hearing on defendant’s motion to quash the indictment, the trial court stated that by proceeding by complaint for preliminary hearing and then proceeding to indictment without first obtaining the preliminary hearing, the State put “the defendant through a lot of unnecessary judicial or defense delay.” The court then sustained the defendant’s motion.

The State contends that the trial court erred by granting defendant’s motion to quash the indictment which charged him with the same offense as the pending complaint for preliminary hearing. It maintains that the defendant is not constitutionally entitled to a preliminary hearing where he is initially charged by criminal complaint, but then is indicted for the same crime prior to hearing on the complaint. We agree.

It is a well-established rule that a defendant has no constitutional right to a preliminary hearing for determination of probable cause because a State may, consistent with due process, dispense with the preliminary hearing procedure and initiate the criminal proceeding directly by grand jury indictment. (People v. Redmond, (1977), 67 Ill. 2d 242, 367 N.E.2d 703; People v. Hendrix (1973), 54 Ill. 2d 165, 295 N.E.2d 724.) The alternative procedures of grand jury indictment and preliminary hearing both serve the function of determining probable cause, and to require a repetition of this function by conducting post-indictment preliminary hearings would be an empty formality serving no legitimate purpose. (People v. Franklin (1979), 80 Ill. App. 3d 128, 398 N.E.2d 1071.) All that is required is that an accused be afforded a prompt probable-cause determination of the validity of the charge either at a preliminary hearing or by an indictment by a grand jury. People v. Kline (1982), 92 Ill. 2d 490, 442 N.E.2d 154.

We agree with People v. Franklin that “the statutory and procedural safeguards built into the criminal justice system, the most important being the right of the accused to a fair and impartial trial (see People v. Creque (1978), 72 Ill. 2d 515, 382 N.E.2d 793), minimize any disparity which may arise from the State’s two-part scheme of initiating criminal proceedings.” (80 Ill. App. 3d 128, 132.) We therefore hold that the trial court erred by quashing the indictment herein.

The judgment of the circuit court of Cook County is therefore reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

McGLOON and GOLDBERG, JJ., concur.


author: JUSTICE HOPF

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEON YOUNG, Defendant-Appellant.
    Second District No. 81—941
    Opinion filed June 9, 1983.
    Rehearing denied July 13, 1983.

      G. Joseph Weller and Josette Skelnik, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Raymond L. Beck, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPF

delivered the opinion of the court:

Defendant, Leon Young, appeals following a bench trial from his convictions of rape, aggravated kidnaping, and unlawful restraint. (Ill. Rev. Stat. 1981, ch. 38, pars, ll-l(a), 10-2(a)(3), 10-3(a).) He was sentenced to 10 years’ imprisonment. On appeal he raises the following issues for our consideration: (1) whether the trial court erred in denying his motion to suppress his confession; (2) whether reversible error was committed in conducting the hearing on the motion to suppress simultaneously with the bench trial; (3) whether defendant received the effective assistance of counsel; and, (4) whether defendant’s convictions for aggravated kidnaping and unlawful restraint should be vacated as lesser included offenses of rape.

Prior to trial, defendant, age 16, filed a motion to suppress his pretrial statement on the ground that it was taken from him in violation of his fourth, fifth, sixth and fourteenth amendment rights. The motion also asked that the complaining witness’ pretrial photographic identification of the defendant be suppressed on the ground that the identification was the result of an unduly suggestive procedure. By agreement of the parties, the hearing on the motion was heard simultaneously with the trial.

At approximately 8:30 a.m. on April 16, 1981, Carol Vidovich, the 17-year-old complainant, was walking near a school in Waukegan looking for Cohan Pharmacy, where she planned to apply for a job. When she reached the school area, the defendant whistled at her, told her he thought he knew her from somewhere and asked her for a cigarette. Ms. Vidovich told him he was mistaken; however, she gave him a cigarette and the two began walking and talking together. The defendant stated he would take complainant to a place where she could meet some people from the area. He asked her whether she wanted to “get high,” and complainant indicated she did. The two then walked down a ravine and into a small shed where they sat on some bricks, talked and smoked a marijuana cigarette. They engaged in certain banter which started to cause Vidovich some degree of alarm, including the defendant feigning that he was going to hit the complainant with a saw found lying in the shed. There also was some pushing and shoving to see if the complainant could get out the door. She did testify that she thought these activities were in the nature of joking around. She testified they then sat down and were talking when defendant suddenly grabbed her, threw her against the wall of the shed, and told her to remove her shirt. A struggle ensued during which defendant repeatedly hit complainant and demanded that she remove her shirt. When complainant refused, defendant grabbed her shirt, ripped it, and finally removed it. He then removed her pants, pushed her to the ground, removed his own pants, and had sexual intercourse with her. When he got up complainant was able to grab her pants and flee. She fell, cutting her foot and knee, but ultimately was able to run to a nearby house, where she telephoned the police.

Sergeant Henley and Officer Hansen arrived at the scene, and at trial Sergeant Henley described the complainant as “totally hysterical.” Her blouse appeared stretched at the top and she had a large cut on the bottom of her right foot. The officers administered first aid, and complainant described her assailant and related the events leading up to and including the rape. The officers and the complainant went to the scene of the rape, where Sergeant Henley observed fresh tracks in the ravine area. He also saw the shed, and inside observed an old rusted saw, some shoes, a comb, and a pack of cigarettes and a lighter.

Isabel Ortega, testifying through a translater, and Martha Aireóles, a 13-year-old girl who was staying at Mrs. Ortega’s house, testified that the complainant appeared at the house on April 16 and asked to use the telephone. Both these witnesses testified Vidovich was crying. The complainant told Aireóles that she had just been raped.

Lab reports were introduced into evidence by stipulation. Tests of vaginal smear and aspirate were positive for the presence of sperm and semen, as were tests conducted on the crotch area of Ms. Vidovich’s pants. An examination of Vidovich’s sweater indicated a “ragged hole” at the neck opening, and the fibers in the material showed a “downward force action.”

Evidence on the motion to suppress was, by agreement of the parties, presented concurrently with the trial. Sergeant Bullock of the Waukegan Police Department testified that at approximately 2:30 p.m. on April 16, 1981, he showed Ms. Vidovich two school yearbooks, for 1979 and 1980, and two other photo albums. One photo album contained approximately 250 photos of juvenile male and female Negroes. The other contained approximately 200 photos. The complainant went through the two photo albums and was able to identify her attacker in two separate photographs. Sergeant Bullock then checked out the two photographs chosen by Ms. Vidovich and determined that defendant was the subject in both photographs. He ordered defendant to be brought into the station.

At approximately 4:15 p.m. Waukegan police officer Arthur Temp brought defendant and his mother into the station for questioning. Defendant and Officer Temp sat in an interview room, and defendant’s mother and Corporal Mischikovski of the Waukegan Police Department sat in a connected room eight to 15 feet away. Defendant’s mother was informed of the charges against her son, and his mother stated that defendant could not have committed the rape because he was in school at the time. She stated she had witnesses who could verify this fact. Her statements were admitted without objection by defense counsel. Another photograph was then taken of defendant, and at approximately 5 p.m. the defendant and the two officers went to another interview room down the hall where defendant was interviewed. Defendant was read his Miranda rights one at a time, and defendant said he understood his rights but refused to sign the rights waiver form “because his mother told him never sign anything without her being there.” Corporal Mischikovski then left the room and Officer Temp asked defendant whether he had been at school that day. Defendant responded affirmatively, stating he had arrived there at 8 a.m. and left at 2:30 p.m. Defendant said he did not miss any school time that day, and thereafter told Officer Temp he did not wish to talk to him any further. Defendant’s statements were also admitted without objection. It was approximately 5:15 p.m. at that time, and Officer Temp advised Corporal Mischikovski of defendant’s refusal to speak. Defendant was thereafter placed in a juvenile holding cell without further questioning. Defendant never requested an attorney.

At approximately 6:30 p.m. on April 16, Corporal Mischikovski removed defendant from the holding cell and brought him back to the interview room, where he was requestioned by Sergeant Bullock. Sergeant Bullock testified that prior to requestioning he asked defendant “if he understood the rights as they were presented to him earlier by Officer Temp.” Defendant replied, “you mean the right to remain silent and stuff?” Sergeant Bullock responded affirmatively, and again asked defendant whether he “thoroughly [understood] those rights?” Defendant indicated he did and subsequently made an inculpatory statement regarding the rape. Defendant refused to sign the statement, but acknowledged that the statement was true.

Officer Mischikovski testified that he had contacted defendant’s school and learned from the school principal and several other teachers that defendant did not attend his first and second period classes, the time during which the rape was alleged to have been committed. The statements of the school principal were admitted without objection. After hearing arguments on the motion to suppress, defendant’s motion was denied.

Officer Hansen of the Waukegan Police Department testified as the sole defense witness. The officer arrived at the scene shortly after complainant called the police, and at trial he testified as to the events of the rape, as they were reported to him by complainant. Following Officer Hansen’s testimony, defense counsel stated she did not have any other witnesses because the school people she had attempted to subpoena were on vacation.

After hearing arguments by the parties, the trial court found defendant guilty of rape, aggravated kidnaping and unlawful restraint. Defense counsel filed a post-trial motion for a new trial or for judgment notwithstanding the verdict. At the hearing on the post-trial motion, defense counsel asked for leave to withdraw from defendant’s case, and a new counsel was substituted. A new post-trial motion was filed which ultimately was denied by the court. This appeal followed.

Defendant first contends the trial court erred in denying his motion to suppress because his right to remain silent was not scrupulously honored and because the State failed to prove defendant knowingly and intelligently waived his rights. We disagree.

For incriminatory statements obtained as a result of a custodial interrogation to be admissible, the defendant must have been given the Miranda warnings, including the right to remain silent, prior to giving the statement. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.) If the individual expresses in any manner prior to or during questioning a desire to remain silent, the interrogation must cease. (Miranda; People v. Thompson (1982), 107 Ill. App. 3d 285, 288, 437 N.E.2d 916.) However, there is no per se proscription of renewed questioning by and at the initiation of the police once the person in custody has indicated a desire to remain silent. (Michigan v. Mosley (1975), 423 U.S. 96, 102-03, 46 L. Ed. 2d 313, 320-21, 96 S. Ct. 321, 326; People v. Denby (1981), 102 Ill. App. 3d 1141, 1148, 430 N.E.2d 507; cf. Edwards v. Arizona (1981), 451 U.S. 477, 485, 68 L. Ed. 2d 378, 386, 101 S. Ct. 1880, 1885 (per se prohibition of reinterrogation once defendant has invoked his right to counsel unless reinterrogation is initiated by defendant).) Rather, the admissibility of subsequent statements depends upon whether a defendant’s right to terminate questioning was scrupulously honored. (Michigan v. Mosley; People v. Denby.) Thus, once an individual has exercised his right to remain silent, interrogation may be resumed after a complete cessation of questioning for a significant time and only if Miranda warnings have been repeated so as to enable the person in custody to effectively exercise his rights at the outset of the second period of questioning. (Michigan v. Mosley; People v. Denby.) Additional circumstances which tend to demonstrate that the defendant’s right to remain silent was scrupulously honored are that a different officer conducted the second questioning and that a completely different subject matter was involved in the second questioning. (Michigan v. Mosley.) Finally, statements made by a defendant after being advised of his rights can be admissible if voluntarily given. (People v. Thompson; People v. Dees (1977), 46 Ill. App. 3d 1010, 1022, 361 N.E.2d 1126.) The voluntariness of the statement made under these circumstances is determined by considering the totality of the circumstances. People v. Fleming (1981), 103 Ill. App. 3d 194, 197, 431 N.E.2d 16.

Applying these principles to the instant case, we believe defendant’s right to remain silent was scrupulously honored. The record shows that the initial questioning ceased immediately after defendant first asserted his right to remain silent. (Cf. People v. Thompson (1982), 107 Ill. App. 3d 285, 437 N.E.2d 916; People v. Faison (1979), 78 Ill. App. 3d 911, 397 N.E.2d 1233; People v. Nestrick (1977), 45 Ill. App. 3d 519, 359 N.E.2d 503.) Questioning resumed approximately IV4 hours later, a period of time which is significant under Mosley, and sufficient to convey to defendant that his assertion of silence would be honored by the authorities. (See People v. Ferguson (1981), 102 Ill. App. 3d 702, 429 N.E.2d 1321 (one hour); People v. Pleasant (1980), 88 Ill. App. 3d 984, 411 N.E.2d 132 (1½ hours); Michigan v. Mosley (1975), 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321 (two hours).) Although defendant was questioned by a different officer than the one who conducted the previous interrogation, knowledge of the prior interview is imputed to the officer involved in the second interview. (See People v. Connell (1980), 91 Ill. App. 3d 326, 332, 414 N.E.2d 796.) Defendant was also questioned about the same crime at 6:30 p.m. as he was at 5 p.m. While these two factors militate against a finding that defendant’s rights were scrupulously honored, they do not alone render the second interrogation unlawful. See In re D.W.S. (1981), 99 Ill. App. 3d 1035, 1038, 426 N.E.2d 284; Connell.

The pivotal question here is whether defendant was adequately readvised of his Miranda rights prior to the reinterrogation. In People v. Pleasant (1980), 88 Ill. App. 3d 984, 411 N.E.2d 132, the Third District Appellate Court was faced with the question whether defendant was adequately reapprised when the interrogating officer asked defendant “ ‘if he recalled the Miranda Warnings that Officer Layman had previously read to him.’ ” (88 Ill. App. 3d 984, 987, 411 N.E.2d 132.) The court held this question was sufficient to give defendant an opportunity to effectively exercise his rights. (88 Ill. App. 3d 984, 988, 411 N.E.2d 132; accord, People v. Denby (1981), 102 Ill. App. 3d 1141, 1148, 430 N.E.2d 507, 512.) In addition, in the context of the right to remain silent, it is also generally held that renewed Miranda warnings are not necessary. (See People v. Padilla (1979), 70 Ill. App. 3d 406, 412, 387 N.E.2d 985, cert. denied (1980), 445 U.S. 961, 64 L. Ed. 2d 235, 100 S. Ct. 1646; People v. Henne (1974), 23 Ill. App. 3d 567, 572, 319 N.E.2d 596; People v. Hill (1968), 39 Ill. 2d 125, 131-32, 233 N.E.2d 367.) On the strength of these authorities we believe defendant was adequately reapprised of his rights. Defendant was specifically asked whether he understood the rights which had previously been read to him, and he responded that he did. Under the holding in Pleasant defendant was given an adequate opportunity to exercise his rights prior to reinterrogation, including the right to remain silent, if he so desired. We conclude that on the basis of this record defendant’s right to remain silent was scrupulously honored. See People v. Connell (1980), 91 Ill. App. 3d 326, 332, 414 N.E.2d 796.

We also believe defendant’s statements made during the reinterrogation were properly admitted into evidence. The test for admission of a confession is whether the confession was made freely, voluntarily, and without compulsion or inducement of any sort. (People v. Lester (1981), 102 Ill. App. 3d 761, 765, 430 N.E.2d 358; People v. Alvarez (1981), 93 Ill. App. 3d 111, 115, 416 N.E.2d 1217.) The test for voluntariness is whether the defendant’s will was overborne at the time he made a statement. (Lester.) In making this determination, the trial court must consider the totality of the circumstances, including both the characteristics of the accused and the details of the interrogation. (People v. Dixon (1981), 102 Ill. App. 3d 426, 433, 430 N.E.2d 547; People v. Lopez (1981), 93 Ill. App. 3d 152, 156, 416 N.E.2d 1127.) Voluntariness need only be proven by a preponderance of the evidence, and the trial court’s determination in this regard will not be disturbed on review unless it is contrary to the manifest weight of the evidence. 93 Ill. App. 3d 152,156, 416 N.E.2d 1127.

Defendant received an adequate opportunity to exercise his right to remain silent prior to the reinterrogation. (People v. Pleasant (1980), 88 Ill. App. 3d 984, 411 N.E.2d 132.) Defendant indicated he understood his rights prior to the reinterrogation, and in fact mentioned the very right which he now claims was not waived. Despite his knowledge of the right to remain silent, defendant chose to speak. In addition, the Miranda rights were each read to defendant only IV4 hours before, and at that time defendant expressly indicated his understanding of each right after it was read to him. Although there was some evidence that defendant was of subnormal intelligence, this fact is not dispositive of the issue of voluntariness, but is only one of the factors to be considered. (People v. Devine (1981), 98 Ill. App. 3d 914, 922, 424 N.E.2d 823; People v. Hester (1968), 39 Ill. 2d 489, 500, 237 N.E.2d 466.) Defendant’s understanding of his rights as well as his ability to exercise them was demonstrated by his prior refusal to sign the waiver forms, his prior termination of questioning, and his subsequent refusal to sign the statement he made. (See People v. Padilla (1979), 70 Ill. App. 3d 406, 412, 387 N.E.2d 985, cert. denied (1980), 445 U.S. 961, 64 L. Ed. 2d 235, 100 S. Ct. 1646; People v. Woods (1979), 78 Ill. App. 3d 431, 442, 396 N.E.2d 1204; People v. Fultz (1975), 32 Ill. App. 3d 317, 338-39, 336 N.E.2d 288.) It is likely that defendant possessed this same knowledge and ability at the time he made the oral inculpatory statement. Fultz; People v. Johnson (1969), 112 Ill. App. 2d 148, 156, 251 N.E.2d 393.

It is also significant that prior to the statement, defendant was interrogated for only a few minutes U/4 hours earlier. Defendant made his statement immediately after he was asked to recall the Miranda rights. Thus, no lengthy interrogation occurred during which defendant’s will might be overborne (see People v. Connell (1980), 91 Ill. App. 3d 326, 332-33, 414 N.E.2d 796; cf. People v. Savory (1980), 82 Ill. App. 3d 767, 403 N.E.2d 118), nor did the interrogations take place in the dead of the night after defendant’s sleep was interrupted. (Cf. People v. Stone (1978), 61 Ill. App. 3d 654, 378 N.E.2d 263.) Defendant was not deprived of food or drink, nor was he kept incommunicado for a long period of time. (Cf. Haley v. Ohio (1948), 332 U.S. 596, 92 L. Ed. 224, 68 S. Ct. 302.) We note that although his mother was not present at the time he made his statement, she did accompany him to the station following his arrest. While it is preferable to have responsible adults present during the questioning of juveniles, their absence does not necessitate a finding of involuntariness. (See In re D.W.S. (1981), 99 Ill. App. 3d 1035, 426 N.E.2d 284; People v. Lopez (1981), 93 Ill. App. 3d 152, 416 N.E.2d 1127.) Under the circumstances of this case, it cannot be said the atmosphere of the questioning was coercive. The trial court’s finding of a knowing and intelligent waiver was not against the manifest weight of the evidence and will not be disturbed on appeal. Lopez.

Defendant next contends the trial court improperly conducted the hearing on the motion to suppress simultaneously with the trial. (See People v. McKee (1977), 52 Ill. App. 3d 689, 367 N.E.2d 1000; Jackson v. Denno (1964), 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774.) Defendant claims that this procedure resulted in an unreliable determination of the voluntariness of his statement because the court also had before it the substance of the statement. (See Jackson.) Defendant also claims there could be no reliable determination of his guilt or innocence because the court considered in the motion to suppress evidence which was inadmissible at trial. For the following reasons, we disagree. We note initially that because defendant has challenged the competence of his trial counsel, we reach this issue despite the fact that the procedure complained of was by agreement of the parties.

The instant case is governed by the principles announced in People v. Fultz (1975), 32 Ill. App. 3d 317, 336 N.E.2d 288. In that case, a hearing on a motion to suppress was held in conjunction with the trial, and the defendant claimed this procedure resulted in a denial of his due process rights. The court rejected an assumption that in a bench trial the trial judge cannot make a reliable determination of voluntariness when it is also confronted with the substance of the statement. (32 Ill. App. 3d 317, 332, 336 N.E.2d 288; cf. Jackson v. Denno (1964), 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (holding that a jury cannot be assumed to reliably find the facts as to the voluntariness of a confession when it is also confronted with the statement’s substance).) The Fultz court therefore reasoned that in a bench trial “there must be some indication in the record which demonstrates actual prejudice.” (32 Ill. App. 3d 317, 333, 336 N.E.2d 288; accord, People v. Fugate (1979), 77 Ill. App. 3d 103, 105-06, 395 N.E.2d 1199.) Noting that the confession’s admissibility was determined by the trial judge as an issue of law after a hearing on the motion and before the confession was admitted into evidence, the Fultz court concluded that no actual prejudice existed in that case.

In the instant case, the allegedly incompetent evidence of which defendant now complains is the following testimony of Officer Mischikovski: that defendant’s mother told him defendant could not have committed the rape because he was in school the entire day; that the school principal told him that to the best of his knowledge defendant was not in school on that date, but that he could not be positive; that another teacher told the officer defendant was supposed to be in Mr. Jerdee’s class during the first or second periods; and, that Mr. Jerdee told him defendant was not in school during those periods. Defendant claims all of this testimony was inadmissible prejudicial hearsay and was irrelevant to the issues presented in the motion to suppress.

We first note that at trial no objection was made with respect to the statements of defendant’s mother and the school principal; nor is trial counsel’s failure to object urged on appeal as a ground for defendant’s claim of ineffective assistance of counsel. The propriety of admitting this testimony is therefore not before us. (People v. Griggs (1982), 104 Ill. App. 3d 527, 531, 432 N.E.2d 1176.) Nevertheless, we believe this testimony was properly admitted since it reflected an investigatory procedure which was entirely within the officer’s personal knowledge. (People v. Egan (1978), 65 Ill. App. 3d 501, 511, 382 N.E.2d 477.) Further, any error which may have occurred was harmless in light of defendant’s statement to Officer Temp that he was in school all day, and Officer Mischikovski’s nonhearsay testimony, admitted without objection, regarding the results of his investigation into defendant’s whereabouts. (Egan.) We also believe the results of the investigation were relevant in light of defendant’s repeated references at trial to his misidentification and his statement to the police that he was in school at the time of the rape.

With respect to Officer Mischikovski’s testimony that he was told by a teacher that defendant was supposed to be in Mr. Jerdee’s class during the first and second periods, we note that this testimony was elicited by defense counsel on re-cross-examination. The admission of this testimony therefore cannot be urged by defendant as error on appeal. (People v. Lester (1981), 102 Ill. App. 3d 761, 768, 430 N.E.2d 358; People v. Payne (1981), 102 Ill. App. 3d 950, 959, 429 N.E.2d 1344.) Similarly, the officer’s testimony regarding his conversation with Mr. Jerdee was brought out by defense counsel and, therefore, cannot be claimed as error. (Lester; Payne.) Further, any error in admitting the substance of the conversations was harmless in view of the officer’s previous nonhearsay testimony regarding the results of his investigation.

The record in the instant case is barren of any indication that the trial court considered incompetent evidence in reaching a decision on either the motion to suppress or the defendant’s guilt or innocence. (Cf. People v. McKee (1977), 52 Ill App. 3d 689, 367 N.E.2d 1000.) The facts in this case were neither voluminous nor complicated, and the witnesses were few. (See People v. Fugate (1979), 77 Ill. App. 3d 103, 395 N.E.2d 1199.) A determination of voluntariness was made as an issue of law after a hearing on the motion to suppress and before the statement was admitted into evidence. (See People v. Fultz (1975), 32 Ill. App. 3d 317, 332-33, 336 N.E.2d 288.) Under these circumstances, we find that the simultaneous procedure resulted in no actual prejudice to defendant requiring reversal of his conviction. Fugate; Fultz.

Defendant next contends he was denied the effective assistance of counsel because his trial counsel failed to present probative evidence on the defendant’s inability to waive his rights and failed to investigate a potential alibi defense.

In order to successfully establish incompetence of counsel, a defendant must demonstrate actual incompetence, as manifested in the performance of his or her duties as trial attorney, which resulted in substantial prejudice to the defendant without which the outcome of trial would probably have been different. (People v. Lewis (1981), 88 Ill. 2d 129, 153-54, 430 N.E.2d 1346; People v. Greer (1980), 79 Ill. 2d 103, 120-24, 402 N.E.2d 203.) The alleged incompetency must be founded upon more than the client’s disagreement with counsel’s choice of trial tactics or judgment. Further, substantial prejudice must be shown by more than mere speculation or conjecture on the outcome of the trial had representation been more to the defendant’s liking. (People v. Ferguson (1981), 99 Ill. App. 3d 779, 785, 425 N.E.2d 582.) Finally, no ineffective assistance of counsel results where counsel could have acted but concluded such action would have been futile. (People v. Johnson (1981), 98 Ill. App. 3d 228, 232, 424 N.E.2d 610.) In such circumstances, the outcome would have remained the same. Johnson.

Defendant claims his trial counsel failed to present highly relevant evidence of his educational handicap and inability to read during the hearing on the motion to suppress. While it is true such evidence is relevant to defendant’s ability to exercise a knowing and intelligent waiver of his rights, our reading of the record reveals that the trial court did in fact take these factors into consideration. The court, nevertheless, found under the totality of the circumstances that defendant understood and was able to exercise his rights, but chose not to do so. Thus, it is clear that the presentation of further evidence on this point would not have changed the outcome of the suppression hearing and, therefore, cannot form the basis of a finding of ineffective assistance of counsel. People v. Lewis (1981), 88 Ill. 2d 129, 156, 430 N.E.2d 1346.

Defendant also contends his counsel’s incompetence was demonstrated by her failure to investigate or prepare a viable alibi defense, despite the fact that she was advised of potential witnesses who could testify that defendant was in school at the time in question. The failure .to investigate witnesses may indicate actual incompetence, particularly when the witnesses are known to trial counsel and their testimony may be exonerating. (People v. Corder (1982), 103 Ill. App. 3d 434, 438, 431 N.E.2d 701; People v. Greer (1980), 79 Ill. 2d 103, 123, 402 N.E.2d 203.) However, defendant must demonstrate that potentially favorable testimony was actually available at the time of trial (People v. Stepheny (1970), 46 Ill. 2d 153, 158, 263 N.E.2d 83), or that the testimony would have contradicted other testimony at trial. (Greer.) Conjecture does not serve as a basis for a demonstration of ineffective assistance of counsel, and where a defendant fails to indicate the nature of the omitted testimony, he has failed to prove the requisité prejudice resulting from the omission. People v. Lewis (1981), 97 Ill. App. 3d 982, 990, 423 N.E.2d 1157.

In the instant case, substituted defense counsel presented a post-trial motion for a new trial alleging that defense counsel knew or should have known that defendant was in school between the hours of 8:30 a.m. and 9:36 a.m., the time of the rape. In an affidavit submitted subsequent to the post-trial motion, an investigator retained by defense counsel stated that Mr. Jerdee informed him defendant was in class on the day in question, and that he (Mr. Jerdee) spoke with defendant at approximately 8:30 a.m. The investigator also stated Mr. Mack informed him that defendant reported to his second period class at approximately 9:30 a.m. According to the affidavit, no one ever discussed this case with either Mr. Jerdee or Mr. Mack prior to the affiant. Mr. Mack also submitted an affidavit on behalf of the State stating that he did not see defendant prior to 9:35 a.m. on the date in question. In addition to these affidavits, the affidavits of two juvenile detention officers were submitted which stated that original counsel never visited, conferred with, or counselled defendant prior to trial at the detention center.

It is evident that these affidavits do not establish an alibi for defendant. Assuming the facts in the affidavits are true, they establish only that defendant was seen in school at 8:30 a.m. and again at 9:35 a.m. They do not establish his whereabouts during this interim period, the period of time in which the rape occurred. (See People v. Greer (1980), 79 Ill. 2d 103, 123, 402 N.E.2d 203.) Thus, even assuming defendant could establish that an alibi defense was not investigated he has not sustained his burden of proving prejudice as a result of such failure. Defendant’s allegation of prejudice is based only upon the speculation that one of his teachers saw him in school during the crucial period. However, this allegation remains unsupported by the record and therefore cannot form the basis of a claim of ineffective assistance of counsel. (See People v. Lewis (1981), 97 Ill. App. 3d 982, 990, 423 N.E.2d 1157.) Further, original trial counsel stated in an affidavit that an alibi defense was considered and rejected by her because of the existence of a confession, and that defendant and his mother helped choose this course of action. It is therefore clear that the failure to present an alibi defense was a matter of trial tactics, and not the result of incompetence of counsel. (People v. Ferguson (1981) , 99 Ill. App. 3d 779, 785, 425 N.E.2d 582.) We also note that under these circumstances the presentation of alibi evidence may have made counsel a party to perjury. The court’s refusal to consider the affidavits of defendant and his mother, offered over a month after the court’s ruling on the post-trial motion, is also not a basis for reversal. In the affidavits, defendant and his mother stated that original trial counsel never conferred with either of them regarding the possibility of an alibi defense. However, even if these allegations were true, defendant still has not proven prejudice as a result of the failure to confer with him regarding an alibi defense. Lewis.

Defendant’s claim that original trial counsel did not confer with him prior to trial was contradicted by the affidavit of his original trial counsel, and thus was a question of fact for the trier of fact. The court’s conclusion that adequate counselling occurred prior to trial is supported by the record and will not be disturbed. People v. Toth (1982) , 106 Ill. App. 3d 27, 30, 435 N.E.2d 748.

Defendant’s final contention is that his convictions for unlawful restraint and aggravated kidnaping must be vacated since these charges all arose from the same physical act, that being the rape of the complaining witness. (See People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.) The State concedes that the conviction for unlawful restraint must be vacated pursuant to King. (See People v. McCann (1979), 76 Ill. App. 3d 184, 187, 394 N.E.2d 1055.) However, it contends that under King and its progeny, the aggravated kidnaping conviction should stand because it was not based upon the same physical act as the rape.

In People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, our supreme court held that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, multiple convictions with concurrent sentences can be entered. An “act” is intended to mean “any overt or outward manifestation which will support a different offense.” (66 Ill. 2d 551, 566, 363 N.E.2d 838.) Finally, a lesser included offense, for purposes of this case, is an offense which “[i]s established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged ***.” Ill. Rev. Stat. 1981, ch. 38, par. 2 — 9.

Established case law has held that by definition aggravated kidnaping is not a lesser included offense of rape. (People v. Miller (1978), 58 Ill. App. 3d 1019, 1024, 374 N.E.2d 1118; People v. Graham (1978), 60 Ill. App. 3d 1034, 1045-46, 377 N.E.2d 179; People v. Carroll (1977), 49 Ill. App. 3d 387, 395, 364 N.E.2d 408.) Nevertheless we believe the convictions for rape and aggravated kidnaping in the instant case were based upon the same “act” within the meaning of People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838. The record indicates that the trial court based the aggravated kidnaping conviction upon defendant’s act of grabbing and throwing the complainant against the wall of the shed immediately prior to the rape. Although this act is clearly a separate “overt manifestation” than the actual rape which followed (see King), it is also evident that this act initiated the struggle which culminated in the rape and was designed to detain complainant in the shed for the purpose of committing the subsequent rape.

An analysis of cases dealing with the dual convictions of rape and aggravated kidnaping reveals that dual convictions are upheld under conditions substantially different from those present here. (See People v. Miller (1978), 58 Ill. App. 3d 1019, 374 N.E.2d 1118; People v. Utinans (1977), 55 Ill. App. 3d 306, 370 N.E.2d 1080; People v. Graham (1978), 60 Ill. App. 3d 1034, 377 N.E.2d 179; People v. Stein (1977), 51 Ill. App. 3d 421, 366 N.E.2d 629; People v. Jones (1977), 53 Ill. App. 3d 197, 368 N.E.2d 452; People v. Carroll (1977), 49 Ill. App. 3d 387, 364 N.E.2d 408; People v. Richardson (1977), 50 Ill. App. 3d 550, 365 N.E.2d 603.) In each of these cases the victim was first abducted by defendant and then detained for a substantial period of time before the rape occurred. These circumstances do not exist here.

In People v. Smith (1980), 91 Ill. App. 3d 523, 414 N.E.2d 1117, the court was faced with the question whether dual convictions for robbery and aggravated kidnaping could stand where the robbery occurred while the victims were being driven around 27 blocks. The court set forth the following considerations in determining when an act of detention or asportation rises to the level of a kidnaping: “ ‘(1) [T]he duration of the detention or asportation; (2) whether the detention or asportation occurred during the commission of a separate offense; (3) whether the detention or asportation which occurred is inherent in the separate offense; and (4) whether the asportation or detention created a significant danger to the victim independent of that posed by the separate offense.’ ” 91 Ill. App. 3d 523, 529, 414 N.E.2d 1117, quoting Government of the Virgin Islands v. Berry (3d Cir. 1979), 604 F.2d 221, 227.

Applying these factors to the present case, we do not believe that defendant’s act of grabbing the complainant and throwing her against the wall is sufficient in itself to sustain the charge of kidnaping, a prerequisite to aggravated kidnaping. (Ill. Rev. Stat. 1981, ch. 38, pars. 10 — 1(a)(1), 10 — 2(a).) The duration of the detention was only for the period of time necessary to accomplish the rape and, in fact, marked the beginning of the struggle culminating in the rape. It is also clear that the act relied upon was inherent in the rape itself, since at some point in time complainant had to be restrained in some manner in order to accomplish the rape. Finally, it cannot be said that this overt act created any significant danger to the victim independent of that posed by the separate offense of rape. Under these circumstances, it is our opinion that although this act was a separate overt act under King, it was not an act which could support the offense of kidnaping. People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838; People v. Smith (1980), 91 Ill. App. 3d 523, 526, 414 N.E.2d 1117.

The judgment of the circuit court of Lake County is affirmed with respect to the rape conviction. The conviction for unlawful restraint is vacated, the conviction for aggravated kidnaping is reversed, and the cause is remanded for resentencing.

Affirmed in part, reversed in part, vacated in part, and remanded.

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