author: JUSTICE MILLER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTOPHER P. HERBERT, Defendant-Appellant.
    Fourth District
    No. 4—82—0808
    Opinion filed February 6, 1984.
    R. C. Lanto, Jr., of Waaler, Evans, Gordon & Lanto, of Rantoul, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and Rebecca White, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLER

delivered the opinion of the court:

The defendant was tried by a jury, convicted of driving while under the influence of alcohol, and sentenced to one year’s conditional discharge with seven days in the county jail. On appeal the defendant argues that the charge should have been dismissed because he was denied a speedy trial. We agree with the defendant and reverse his conviction and sentence.

Before addressing the particular facts and issues presented by this appeal, we shall briefly summarize some rules regarding the prosecution of traffic offenses.

A defendant who wants a jury trial is subject to a different time limit. Supreme Court Rule 505 provides:

“If the accused demands a trial by jury, the trial shall be scheduled within the time prescribed by section 103 — 5 of the Code of Criminal Procedure of 1963, as amended (Ill. Rev. Stat. 1979, ch. 38, par. 103-5).” (87 Ill. 2d R. 505.)

Section 103 — 5 provides that a defendant who is in custody must be tried within 120 days of his being taken into custody, and a defendant who is free on bail or recognizance must be tried within 160 days of his demand for trial. Ill. Rev. Stat. 1981, ch. 38, pars. 103 — 5(a), (b).

Thus, under Supreme Court Rule 505, a defendant who wants a jury trial is entitled to a speedy trial as defined by statute, and a defendant who instead waives a jury and wants a bench trial is entitled to an even speedier trial as provided by supreme court rule.

Supreme Court Rule 505 was not complied with here. On February 6, 1982, a trooper of the Illinois State Police issued the defendant a citation and complaint, a traffic ticket, for driving while under the influence of alcohol, a violation of section 11 — 501 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95V2, par. 11 — 501); the defendant posted bond that same day. As instructed by the ticket, the defendant made an initial appearance in court on March 1, 1982, and was told of the nature of the charge and its possible penalties. Apparently the defendant expressed his intention to plead not guilty, for the case was continued.

On March 15, 1982, defense counsel filed the documents that form the basis for this dispute. Using a form, defense counsel entered his appearance; defense counsel also filled out the sections on the form signifying that the defendant was pleading not guilty and was demanding a jury trial. Attached to the form was the “Court Communications Copy” of the defendant’s ticket; the part containing the admonition regarding multiple court appearances was filled out to show the defendant’s not-guilty plea and his jury demand, and under Supreme Court Rule 505, this began the 160-day period for bringing the defendant to trial. (People v. Seaberry (1980), 86 Ill. App. 3d 369, 408 N.E.2d 51.) We note that copies of these documents were served on the State’s Attorney. The cause was then allotted for docket call on April 28,1982.

On April 13, 1982, defense counsel moved for a continuance because he would not be available for the docket call on April 28. The record does not show how the motion was disposed of. Perhaps that became unnecessary, for at the April 28 docket call an order was filled out showing that the State and the defendant were ready; trial was scheduled for May 17, 1982. The request for a continuance therefore did not result in delay attributable to the defendant.

The next item in the record is the defendant’s motion for discharge for lack of a speedy trial. This motion was filed and denied September 9, 1982, 178 days after the defendant filed the “Court Communications Copy” of his traffic ticket, which contained his demand for a jury trial. The next day, the defendant was charged by information with the offenses, was tried, and was convicted. Nothing in the record indicates that the defendant requested a continuance from the May 17, 1982, trial date.

The defendant was not charged by criminal complaint until after he had become entitled to discharge under Supreme Court Rule 505; therefore, the complaint had no effect and did not remove the case from the scope of the rule. (Mears.) Nor would other possible exceptions to the rule apply, such as unavoidable delay beyond the State’s control or the existence of multiple charges, some represented by timely complaint rather than traffic ticket. (See People v. Davis (1982), 104 Ill. App. 3d 120, 432 N.E.2d 947 (discussing exceptions to the requirement in Supreme Court Rule 505 that bench trials in traffic cases be held seven to 49 days after the original appearance date).) Therefore, we conclude that the defendant’s motion for discharge should have been granted.

Our result here is predicated on the notice provided by the “Court Communications Copy” of the defendant’s traffic ticket, which was submitted March 15, 1982, and which expressed the defendant’s demand for a jury trial. Therefore, we need not decide whether the appearance form filed by defense counsel that same day contained an effective demand for a speedy trial. Nor do we need to address the defendant’s other arguments, which concern the criminal complaint, evidentiary questions, and jury instructions.

Reversed.

MILLS, P.J., and WEBBER, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE STOUDER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GLENN PATTON, Defendant-Appellant.
    Third District
    No. 3—88—0388
    Opinion filed February 24, 1984.

      Alfred L. Levinson, of Palatine, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Peoria County granting the State’s motion to dismiss the defendant’s petition for post-conviction relief under section 122 — 1 et seq. of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 122 — 1 et seq.) and dismissing the defendant’s petition. We affirm.

The defendant was indicted for murder and attempted armed robbery. He sought in a pretrial motion to quash his arrest and suppress statements he had made to the police. The trial court received extensive testimony, particularly on the question of whether there had been probable cause for the police to make their warrantless arrest of the defendant. The defendant was arrested at his residence. The trial court found there had been probable cause and denied the motion. The defendant was tried by a jury, and convicted and sentenced for murder and attempted armed robbery.

When his motion for a new trial was denied, the defendant appealed to this court. We affirmed the court’s finding of probable cause for the arrest and the defendant’s conviction in People v. Patton (1980), 90 Ill. App. 3d 263, 412 N.E.2d 1097. The defendant’s petition for leave to appeal to the Illinois Supreme Court was denied. Thereafter, the defendant filed a petition for a writ of habeas corpus which the Federal magistrate dismissed without prejudice, finding that there remained one unexhausted claim for the State courts to address.

The defendant then filed a petition in Peoria County for post-conviction relief based in substantial part on that one claim: that the defendant’s arrest should have been quashed as a violation of his fourth amendment rights under Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, and United States v. Johnson (1982), 457 U.S. 537, 73 L. Ed. 2d 202, 102 S. Ct. 2579. In the order which dismissed the defendant’s petition for post-conviction relief, the circuit court found that the defendant had waived the issue of whether the warrantless arrest at his residence was in violation of Payton.

In April of 1980, after the defendant’s conviction but before any filing of briefs on his original appeal to this court, the United States Supreme Court held in Payton that the fourth amendment as applied to the States through the fourteenth amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest. The Johnson decision, handed down in 1982, established that Payton applied retroactively to convictions that were not yet final when Payton was delivered.

The State argues that the defendant has waived his right to appeal under Payton and Johnson and that the evidence adduced at the hearing on the defendant’s pretrial motion to quash established that his arrest was not in violation of the Payton rule. The defendant argues that he has not waived the issue and that even if he had, fundamental fairness would require that he be allowed to raise it. Defendant’s counsel on appeal acknowledges that there is no written evidence that he raised the Payton argument on appeal and that there is no mention of the argument in our original opinion. He states, however, that he orally argued Payton before this court, with this court’s permission, thus preserving the issue for subsequent review.

Generally, failure to raise an issue which could be raised in the trial court or on direct appeal constitutes a waiver for subsequent review. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856; People v. Johnson (1976), 37 Ill. App. 3d 328, 345 N.E.2d 531.) We may relax the doctrine of waiver in situations where fundamental fairness so requires. People v. Hamby (1965), 32 Ill. 2d 291, 205 N.E.2d 456.

We agree with the State and the trial court that the defendant could have raised his Payton argument in the trial court or in some written document in the appellate court. Payton was preceded by both United States Supreme Court and Illinois decisions suggesting that the defendant’s warrantless arrest might have been a violation of the fourth amendment even if there were probable cause to arrest. Furthermore, counsel’s recollection that he did orally make such an argument before this court is insufficient to preserve the issue for subsequent review. We conclude that the issue was not previously presented to this court. It is our usual practice to allow counsel to argue orally only those theories which he has briefed or for which he has filed a motion to file additional authority. When we grant an oral motion to orally argue points not of record, we require that counsel file a written memorandum subsequent to the oral argument. Here, there is no written record of the defendant’s orally presenting a Payton argument and no petition for rehearing on the issue.

Nevertheless, we conclude that in the interest of fairness and justice, the defendant’s arrest should be examined under Payton and Johnson. At the time of our initial review the applicability of Payton to the defendant’s case was not clear since the issue of the retroactivity of the opinion was not addressed until by Johnson in 1982. Additionally, the defendant has not waived the right to argue that his arrest was illegal. He consistently has so maintained, although not until his petition for leave to appeal to the Illinois Supreme Court does he make clear that he challenges more than the existence of probable cause for the arrest.

Having chosen to review the defendant’s arrest with reference to the principles established in Payton, we find that the arrest was not in violation of that decision. Payton and cases discussing that decision make clear that a defendant may not be subject to a routine felony arrest in his residence and without a warrant if the arresting officers have entered without consent. However, the facts in this case do not support a finding that the defendant’s arrest was in violation of the Payton rule. According to uncontroverted testimony at the hearing on the defendant’s motion to quash, on June 10, 1979, two Peoria police officers knocked on the door of the defendant’s residence. The defendant voluntarily opened the door to his apartment. The police asked the defendant to go to the police station, as he had agreed to do on June 9, 1979, for questioning. When the defendant declined to go, asking if he were under arrest, the officers arrested him. Given those facts, the defendant’s arrest was properly made without a warrant.

The case is factually similar to People v. Schreiber (1982), 104 Ill. App. 3d 618, 432 N.E.2d 1316, cert, denied (1983), 459 U.S. 1214, 75 L. Ed. 2d 452, 103 S. Ct. 1214. In Schreiber, the court found that the defendant was arrested at the entrance to the hotel apartment where the police found her after she voluntarily opened the door in response to the police officer’s knock. Citing United States v. Santana (1976), 427 U.S. 38, 49 L. Ed. 2d 300, 96 S. Ct. 2406, the court found that under the circumstances as presented the defendant’s arrest was made in a public place so that Payton did not require a warrant. Like the court in Schreiber, we find that the defendant at bar was arrested in a public place so that the warrantless arrest did not violate Payton.

Accordingly, the order of the circuit court of Peoria County is affirmed.

Affirmed.

SCOTT and HEIPLE, JJ., concur.


author: PRESIDING JUSTICE STOUDER JUSTICE ALLOY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOMMY RUTLEDGE, Defendant-Appellant.
    Third District
    No. 3—83—0403
    Opinion filed February 24, 1984.
    ALLOY, J., dissenting.
    James P. Murphy, of Flack, Kwacala & Murphy, of Macomb, for appellant.
    John R. Clerkin, State’s Attorney, of Macomb (John X. Breslin and Patricia Hartmann, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Defendant, Tommy Rutledge, was charged by information with carrying a concealed weapon under section 24 — 1(a)(4) of the Criminal Code of 1961 and carrying a dangerous or deadly weapon with the intent to use it unlawfully under section 24 — 1(a)(2) (Ill. Rev. Stat. 1981, ch. 38, pars. 24 — 1 (a)(4), (a)(2), respectively). In a bench trial before the circuit court of McDonough County, the defendant was acquitted on the concealed weapon charge and convicted under section 24— 1(a)(2). On appeal, the defendant raised two issues. First, whether the information was sufficient to state an offense under section 24— 1(a)(2) and second, whether defendant was proven guilty beyond a reasonable doubt if the section does state an offense applicable to the facts of this case.

Early in the morning on July 1, 1982, an argument started outside the 7-11 Store in Macomb, Illinois. Some college students had been eating in their car when a group of four men including the defendant pulled up in a van. According to the clerk in the 7-11 Store, the van was driven by the defendant. When the four men got out of the van, an argument ensued between the four men and the college students. A fight then broke out, and the police were called. There was conflicting testimony at trial as to whether or not defendant had in his possession a gun that was later recovered from the bushes behind the 7-11 Store.

The defendant argues that section 24 — 1(a)(2) does not apply to firearms. Section 24 — 1(a)(2) provides:

“(a) A person commits the offense of unlawful use of weapons when he knowingly:
* * *
(2) Carries or possesses with intent to use the same unlawfully against another, a dagger, dirk, billy, dangerous knife, razor, stiletto, broken bottle or other piece of glass, stun gun or taser or any other dangerous or deadly weapon or instrument of like character.”

In support of his argument the defendant relies on People v. King (1978), 58 Ill. App. 3d 199, 373 N.E.2d 1045. In King the court considered whether the legislature meant to include firearms under section 24 — 1(a)(2). The court found that this subsection did not include firearms because other subsections specifically dealt with firearms violations, i.e., the other subsection under which this defendant was charged and acquitted and subsection (a)(10). These other statutory references to firearms evidence the legislative intent to exclude firearms from subsection (a)(2). In choosing to follow King we do not ignore the contrary decision in the first district in People v. Manzardo (1980), 87 Ill. App. 3d 129, 409 N.E.2d 44. However, Manzardo based its interpretation of 24 — 1(a)(2) partially on a prior first district case People v. Musselman (1966), 69 Ill. App. 2d 454, 217 N.E.2d 420, which even though it never considered this issue, had allowed a conviction to stand under subsection (a)(2) for carrying a loaded rifle. We have no such precedent in this district and, therefore, have chosen to follow what we believe to be the better reasoned decision.

Because we find that subsection (a)(2) does not include firearms, and we find no evidence in the record that defendant was carrying any of the dangerous or deadly weapons described in subsection (a)(2), we find the evidence insufficient to sustain a conviction under subsection (a)(2) and, therefore, reverse the decision of the circuit court of McDonough County and remand this cause with instructions to the circuit court to enter a verdict of acquittal in favor of the defendant.

Reversed and remanded.

HEIPLE, J., concurs.

JUSTICE ALLOY,

dissenting:

I respectfully dissent.

The basic argument of the defense on appeal is that section 24— 1(a)(2) does not apply to firearms, and, therefore, the information charging the defendant failed to state an offense. The People respond, asserting that a firearm is a dangerous weapon and may be used unlawfully against another, and that section 24 — 1(a)(2) includes firearms. Section 24 — 1(a)(2) states, in part,

“(a) A person commits the offense of unlawful use of weapons when he knowingly:
* * *
(2) Carries or possesses with intent to use the same unlawfully against another, a dagger, dirk, billy, dangerous knife, razor, stiletto, broken bottle or other piece of glass, stun gun or taser or any other dangerous or deadly weapon or instrument of like character.” (Ill. Rev. Stat. 1981, ch. 38, sec. 24 — 1(a)(2).)

In People v. King (1978), 58 Ill. App. 3d 199, 373 N.E.2d 1045, a case relied upon by the defense, the court held that since various other subsections of section 24 — 1(a) refer specifically to firearms, the absence of such a reference in subsection (a)(2) indicates a legislative intent to exclude firearms from the offense stated there. An opposite conclusion, and one with which I agree, was reached by the court in People v. Manzardo (1980), 87 Ill. App. 3d 129, 409 N.E.2d 44, a First District case. In Manzardo, the court rejected the reasoning and conclusion of King, stating:

“The appellate court for the Fourth District in King interpreted subsection (2) of the weapons offense section of the Criminal Code as not applying to firearms. The court distinguished People v. Musselman (1966), 69 Ill. App. 2d 454, 217 N.E.2d 420, and reasoned that a firearm was not ‘of like character' when compared to the weapons specifically enumerated in section 24 — 1(a)(2). Although the precise argument raised here and in King was not raised in People v. Musselman, it is clear that in that case a conviction under subsection (2) was sustained for unlawful use of a rifle. The court specifically commented that the rifle was ‘a dangerous or deadly weapon’ in dealing with Musselman’s argument that his criminal intent was not adequately proven. 69 Ill. App. 2d 454, 458.
We have determined to follow People v. Musselman. First, we consider that if section 24 — 1(a)(2) does not prohibit carrying or possessing a firearm with intent to use the firearm unlawfully against another, there is a hiatus in the statutory scheme for controlling the use of unlawful weapons which we do not think the legislature intended. A firearm is a dangerous weapon, and, even if unloaded or inoperable, it may be used as a bludgeon in the manner contemplated by 24 — 1(a)(2). (See People v. Chapman (1979), 73 Ill. App. 3d 546, 392 N.E.2d 391.) For example, under the aforesaid statute it would not seem unlawful to possess or carry an unloaded, unconcealed firearm in a municipality even with the specific intent to kill or do serious injury or to carry or possess a loaded firearm with similar intent outside a municipality. Therefore, we consider that, under Musselman, subsection (2) does apply to a firearm such as the revolver as it was used in this case.” (People v. Manzardo (1980), 87 Ill. App. 3d 129, 132.)

I believe the reasoning of Musselman and Manzardo is sound and that the approach in them the better one. Our supreme court, in other contexts, has noted that a firearm is a dangerous weapon even though used in a manner for which it was not designed or intended. (People v. Skelton (1980), 83 Ill. 2d 58, 64-65, 414 N.E.2d 455.) In Skelton, the court specifically noted that a handgun, gripped by the barrel, may be used as a bludgeon and is equally dangerous as such, whether loaded or unloaded. I believe we should follow the position of the court in People v. Manzardo, rejecting People v. King, and hold that the information in this case properly charged the defendant under section 24 — 1(a)(2).

For the reasons stated, I believe that the judgment of the circuit court of McDonough County should be affirmed.


author: JUSTICE ALLOY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK J. WETHINGTON, Defendant-Appellant.
    Third District
    No. 3—83—0443
    Opinion filed February 24, 1984.
    Robert J. Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Gary L. Peterlin, State’s Attorney, of Ottawa (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE ALLOY

delivered the opinion of the court:

The defendant, Mark J. Wethington, was convicted following a bench trial of aggravated assault. The defendant appeals from his conviction, arguing that the State failed to prove that he used a deadly weapon and that his waiver of trial by jury was not understandingly made. We affirm.

The State’s evidence introduced at trial showed that the defendant and the victim, Debra Nicklin, were arguing in the hallway of the apartment complex where Nicklin lived. When Nicklin’s boyfriend entered the hallway, the defendant began swinging a pair of numchucks or karate sticks. Nicklin described the instrument as two pieces of wood connected by a length of chain. According to Nicklin, the defendant ordered her to return to her apartment and then swung the sticks, striking the wall near her head.

The defendant argued in his post-trial motion that his conviction for aggravated assault should be reversed because karate sticks are not a deadly weapon under section 12 — 2 of the Criminal Code of 1961. The trial court acknowledged that it was questionable whether a deadly weapon was used but denied the post-trial motion. The defendant renews his argument as his first issue on appeal.

As the defendant notes, the courts of Illinois have twice held that numchucks or karate sticks are not per se deadly weapons. (City of Pekin v. Shindledeeker (1981), 99 Ill. App. 3d 571, 426 N.E.2d 13; People v. Tate (1979), 68 Ill. App. 3d 881, 386 N.E.2d 584.) However, in both Tate and Shindledeeker, the defendants were merely in possession qf the instrument and were not charged with using it as a weapon in an assault.

In People v. Lee (1977), 46 Ill. App. 3d 343, 347-48, 360 N.E.2d 1173, 1176, this court held that an instrument which is not considered a deadly weapon per se may be used in such a manner that it becomes a deadly weapon. Thus, in Lee, the defendant’s conviction of armed violence was affirmed although Lee had been armed only with a walking cane.

The trial court concluded in the instant case that the defendant had used the karate sticks in such a manner as to make them a deadly weapon. We find no error in the trial court’s decision.

The defendant also argues that his conviction must be reversed because the record does not show that he made an understanding waiver of his right to a jury trial. No transcript of the proceedings wherein the defendant waived his right to a jury has been included in the record on appeal. The common law record contains a docket entry stating that the defendant waived a trial by jury on February 18, 1983. The common law record also contains a printed jury waiver form signed by the defendant.

It is clear that where the report of proceedings demonstrates that a jury waiver was not understanding^ made, a docket entry showing an understanding waiver is insufficient to sustain the waiver. (People v. Young (1980), 86 Ill. App. 3d 306, 408 N.E.2d 104.) Similarly, an understanding waiver will not be presumed from a silent record. People v. Losacano (1975), 29 Ill. App. 3d 103, 329 N.E.2d 835.

In the instant case, the transcript of pretrial proceedings does not contradict the common law record showing an understanding waiver. The transcript is also not silent as to the waiver of a jury trial. Instead, there simply is no report of the relevant proceedings. The sole record before this court on the issue of jury waiver is the common law record. The common law record, through the docket entry and signed waiver, demonstrates that the defendant’s waiver of a jury trial was understanding^ made.

Accordingly, the judgment of the circuit court of La Salle County is affirmed.

Affirmed.

STOUDER, P.J., and HEIPLE, J., concur.


author:
JUSTICE SCOTT
      JUSTICE BARRY,

text:
      In re MARRIAGE OF FRANCIS M. ROOFE, Petitioner-Appellee, and EDWARD L. ROOFE, Respondent-Appellant.
    Third District
    No. 82—838
    Opinion filed February 16, 1984.

      BARRY, J., specially concurring.
    Ronald Hanna, of Hamm & Hanna, Ltd., of Peoria, for appellant.
    Kirk Bode, of Bernardi & Bode, of Pekin, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

The respondent, Edward L. Roofe, appeals from the denial of his petition to modify the maintenance decree entered when the respondent’s marriage to petitioner, Francis M. Roofe, was dissolved. The respondent alleged in his petition to modify that the petitioner was residing with a man not her husband. The trial court found that the petitioner was residing in the same household with a man not her husband, but that there was no evidence of a continuing, conjugal relationship as required by statute. The court therefore denied the respondent’s petition.

The only evidence introduced at trial was the testimony of petitioner, Francis M. Roofe. Francis testified that she had been residing with Bill Marshall in Marshall’s home in Washington, Illinois, since September 27, 1982. Francis had therefore resided with Marshall for approximately six weeks at the time of the hearing on the petition to modify. Francis had known Marshall since January of 1982 and had dated him prior to moving in with him. She acknowledged that she and Marshall had sexual intercourse while living together. Socially, Francis and Marshall went out “occasionally.” They had very few visitors.

Marshall was married, but his wife, who had multiple sclerosis for 15 years, had been living in a nursing home for several years. Francis testified that because Marshall was already married, she and Marshall had no plans to marry. Francis stated that if Mrs. Marshall should undergo a miraculous recovery, Mrs. Marshall would have every right to return to her home and husband. However, in response to a question as to whether she and Marshall had discussed marriage, Francis replied: “We’ve talked about it — not as long as his wife lives.” Francis testified that Marshall never promised or agreed to support her. Francis characterized the relationship as temporary.

The 18-year-old daughter of Francis and the respondent also lived in Marshall’s home. Francis testified that she moved in with Marshall so that her daughter would have someone to supervise her while Francis was working the night shift. She stated that when left alone, her daughter would “get into trouble.”

After moving in with Marshall, Francis paid half of the monthly mortgage on Marshall’s home, half of the utility bills, and half of the costs of groceries. Francis and Marshall each owned their own automobiles. Francis and Marshall each maintained separate bank accounts. There was no evidence of commingling of funds, other than shared expenses. However, Francis had not deposited her paychecks into her checking account since August 1982. At the time of the hearing, Marshall was on strike at Caterpillar Company.

Francis owned a home located in East Peoria, Illinois. Although she used this address as her mailing address, she rented the home to her oldest daughter and the daughter’s family for an amount equivalent to the mortgage payment. All utilities were in the name of the oldest daughter. Francis would stop at the house three or four times a week. Some furniture belonging to Francis remained in the house.

The majority of Francis’ furniture was moved into Marshall’s home. Much of Marshall’s furniture was therefore moved to the basement. Francis’ personal belongings, such as photo albums, were also moved into Marshall’s house.

The issue to be resolved is whether the facts set forth above demonstrate cohabitation on a continuing, residential, conjugal basis. Francis’ relationship with Marshall is clearly residential and conjugal. The remaining questions are whether the relationship was continuous and constituted cohabitation.

Francis asserts that the relationship was not continuous because, at the time of the hearing, she had only resided with Marshall for approximately six weeks. Whether a relationship is continuous cannot be measured in terms of time alone. In In re Marriage of Clark (1983), 111 Ill. App. 3d 960, 444 N.E.2d 1369, we held that a relationship which had lasted for four months was not continuous. However, the relationship in Clark had been terminated prior to the hearing. It was therefore clear that the relationship was not a permanent one and was of brief duration.

Similarly, the spouse receiving maintenance in In re Marriage of Bramson (1980), 83 Ill. App. 3d 657, 404 N.E.2d 469, resided with a man not her husband for 4/2 months. The court found that the relationship was not continuous. The court noted, however, that Mrs. Bramson intended to return to the marital home when her turn to occupy the home was due. Therefore, even if one assumed that the system whereby Mrs. Bramson would alternate between one year in the marital home and one year living with her boyfriend would continue, Mrs. Bramson would live with her boyfriend only 50% of the time.

The cases cited by Francis are distinguishable from the instant case. Francis testified that her residence with Marshall was only temporary. However, the facts of the case do not support that conclusion. Francis rented her home to another of her children. This daughter moved into Francis’ house with her family and their belongings. The utilities were then transferred to the daughter’s name. These facts demonstrate that Francis was not contemplating returning to live in her house at any point in the near future, despite her visits to the house. Further, Francis moved much of her furniture and personal possessions into Marshall’s home. Marshall rearranged his home to incorporate Francis’ personal goods into his home. Finally, Francis testified that her relationship with Marshall was such that they had discussed marriage.

The evidence shows that Francis’ residence with Marshall was more than a transitory stay in his home. The facts indicate that both Francis and Marshall intended that Francis reside in Marshall’s home for an indefinite period of time. The facts further show that there were no significant interruptions in Francis’ habitation. While Francis had resided with Marshall for only a short time, there was evidence that the relationship was stable and ongoing, with no termination contemplated. When the facts of the case are analyzed in light of the relationship between Francis and Marshall, it is apparent that their relationship was “continuous” and not at all temporary.

We also find that Francis “cohabited” with Marshall as the term is used in the Illinois Marriage and Dissolution of Marriage Act (hereinafter the Act) (Ill. Rev. Stat. 1981, ch. 40, par. 101 et seq.). As noted earlier, the courts have construed “cohabitation” to mean a de facto husband-wife relationship. Francis contributes one-half of the expenses in the home, including the mortgage payment on Marshall’s home. She has made a home there for herself and her daughter. She and her daughter both cook for Marshall. Marshall is providing guidance and supervision for her daughter. Francis and Marshall share the same bed every night. Francis moved a good part of her personal possessions and her furniture into Marshall’s house while giving up residence in her own home. Francis dated Marshall before moving in with him. They have subsequently discussed marriage.

The respondent must only establish that a de facto husband-wife relationship exists, not that the relationship conforms to the traditional model of marriage or that the relationship is an ideal “marriage.” The facts cited above are all indicative of a de facto husband-wife relationship and would be sufficient to establish cohabitation. The trial court noted, however, in denying the respondent’s petition, that there was no commingling of funds and no joint ownership of property. The court in its order further relied on the fact that the parties could not be legally married.

Contrary to the judgment of the trial court, we find that these factors do not indicate a lack of cohabitation. Instead, they complete a picture of Francis and Marshall developing a relationship as close to that of husband and wife as they are able, given Marshall’s commitment to his wife. With no immediate prospect for marriage, Francis and Marshall have developed a de facto husband-wife relationship. They are “cohabiting” under the Act.

The respondent argues that it is the conjugal nature of a relationship which is the central aspect of cohabitation and that the Act is meant to further public policy against cohabitation without marriage. The courts of this State have repeatedly held that the legislative intent behind the Act was not an attempt to control public morals. (In re Marriage of Clark (1983), 111 Ill. App. 3d 960, 444 N.E.2d 1369.) Instead, the concern underlying the Act was for the recipient’s need for support. In re Marriage of Bramson (1980), 83 Ill. App. 3d 657, 404 N.E.2d 469.

This does not mean, however, as the petitioner suggests, that an economic analysis of the recipient’s need is necessary under the Act. The respondent was required to prove only that the petitioner was cohabiting on a resident, continuing conjugal basis. This he has done.

The judgment of the circuit court of Tazewell County is reversed.

Reversed.

STOUDER, P.J., concurs.

JUSTICE BARRY,

specially concurring:

I concur with the result reached by the majority. However, I cannot agree with all of the reasoning therein.

Firstly, I interpret that cohabiting on a resident, continuing conjugal basis might be a cohabitation lesser than one defined as a de facto husband and wife relationship. For example, one pursued for a more extended period of time, but wherein sex is impossible or not desired.

Secondly, the legislature in no way indicated by contemporaneous testimony any intention whatsoever upon passage of section 510(b). The historical notes suggest that the third termination event, cohabiting on a resident, continuing conjugal basis is consistent with the public policy of the State of Hlinois which is to disfavor the creation of rights which enhance nonmarital relationship, citing Hewitt v. Hewitt (1979), 77 Ill. 2d 49, 394 N.E.2d 1204. I believe the public policy of this State is to disfavor nonmarital relationships whenever to do so affects the public, even indirectly. For that reason I cannot agree with the recitation by the majority “that the legislative intent behind the Act was not an attempt to control public morals.”

Finally, I can find no legislative intent showing that “the concern underlying the Act was for the recipient’s need for support.” In fact, by adding the subject third terminating factor to section 510(b), in my opinion, the legislature evinced a lack of such concern, or at least a lack of such consideration.


author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NORMAN H. McCARREY, Defendant-Appellant.
    Fourth District
    No. 4—83—0393
    Opinion filed February 15, 1984.

      Richard J. Watson, of Champaign, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and Marlene Newton, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

After a bench trial defendant Norman McCarrey was convicted of driving under the influence of alcohol. (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 501.) On appeal he alleges that he was not accorded a speedy trial within 160 days of his demand, as required by the provisions of Supreme Court Rule 505 (87 Ill. 2d R. 505), and that the trial court therefore erred in denying his motion to dismiss the charge against him. We agree and therefore reverse the judgment of the circuit court of Champaign County.

Defendant was charged with driving under the influence of alcohol by means of a traffic ticket issued on November 19, 1981. On November 23, 1981, defendant’s counsel filed a written entry of appearance on behalf of defendant, entering a plea of not guilty and requesting trial by jury. Defendant’s counsel effected this appearance by use of a printed form supplied by the Champaign County clerk’s office. The operative paragraph read as follows:

“REQUEST FOR JURY TRIAL (OPTIONAL)
The above-named defendant, by his/her undersigned attorney, hereby demands trial by jury. (This demand by itself is a demand for immediate or speedy trial.)”

The State suggests that the word “not” was deleted from the parenthetical sentence as it appears on the form as supplied by the clerk’s office, whereunder the parenthetical statement is that the demand by itself is not a demand for immediate or speedy trial.

After the filing of the entry of appearance, plea of not guilty and request for jury trial, the cause was allotted for jury trial docket call on January 27, 1982. On that date, Judge DeLaMar reset the cause for docket call in February 1982. The case apparently appeared on Judge Townsend’s docket call in February and was allotted for a pretrial conference on March 8, 1982. On that date, an information charging the offense was filed and the cause was continued on the defendant’s motion, over the State’s objection, until the April 1982 trial term. Thereafter, on the State’s motion, the cause was reallotted for trial during the June 1982 term. Nothing further appears to have transpired in the case until May 4, 1983, when defendant filed a motion to dismiss the cause on the ground that he had not been afforded a speedy trial despite his demand. After argument by counsel on May 5, 1983, Judge DeLaMar denied defendant’s motion to dismiss the cause. On May 10, 1983, defendant was convicted and sentenced on the offense charged. From this judgment defendant appeals.

Supreme Court Rule 505 provides in pertinent part:

“Upon timely receipt of notice that the [recipient of a traffic ticket] intends to plead ‘not guilty,’ the clerk shall set a new appearance date not less than 7 days nor more than 49 days after the original appearance date set by the arresting officer, and notify all parties of the new date and the time for appearance. If the accused demands a trial by jury, the trial shall be scheduled within the time prescribed by section 103 — 5 of the Code of Criminal Procedure of 1963, as amended (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5).” (Emphasis added.) (87 Ill. 2d R. 505.)

The relevant portions of section 103 — 5 of the Code of Criminal Procedure of 1963 provide:

“(b) Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless delay is occasioned by the defendant ***.
* * *
(f) Delay occasioned by the defendant shall temporarily suspend for the time of the delay the period within which a person shall be tried as prescribed [by subparagraph (b)] of this Section and on the day of expiration of the delay the said period shall continue, at the point at which it was suspended.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5(b), (f).)

We note that while Rule 505 is framed in terms of a demand for trial by jury, section 103 — 5(b) speaks only of a trial demand.

A defendant who is charged with an offense by means of a traffic ticket is generally entitled to a jury or a bench trial within the time limits prescribed by Supreme Court Rule 505 (see People v. Mears (1980), 84 Ill. App. 3d 265, 405 N.E.2d 443), provided that there are no factors beyond the immediate control of the prosecutor and the arresting officer which result in a delay in bringing the defendant to trial. (People v. Davis (1982), 104 Ill. App. 3d 120, 432 N.E.2d 947.) Thus, on the basis of Supreme Court Rule 505 and section 103 — 5(b) and (f) of the Code of Criminal Procedure of 1963, an individual charged with an offense by means of a traffic ticket who is free on bond and demands a jury trial must generally be afforded a jury trial within 160 days of his jury demand. (People v. Seaberry (1980), 86 Ill. App. 3d 369, 408 N.E.2d 51.) Subsequent filing of an information charging the offense has no impact on the efficacy of defendant’s prior demand for trial by jury. The filing of an information subsequently by the prosecution does not come within the meaning of People v. Davis (1982), 104 Ill. App. 3d 120, 432 N.E.2d 947, which concluded that the schedule and trial scheme of Supreme Court Rule 505 did not apply where the complaint was filed contemporaneously with the traffic ticket.

The State did not contest receipt of the document by which defendant’s counsel entered his appearance, filed a plea of not guilty, and requested a jury trial. Neither did the State object that the delay occasioned in this cause was attributable to, or assented in by defendant. Nor does the State point to any factors beyond the control of the prosecutor or arresting officer which caused the delay. Indeed, the trial judge found that the 160-day period encompassed by the speedy-trial statute had run. Judge DeLaMar also expressly found that notice was not an issue in this case. Rather, the trial judge looked to the language of the decision in People v. Jones (1981), 84 Ill. 2d 162, 417 N.E.2d 1301, and concluded that the issue in the cause was whether, in fact, defendant had made a good faith and serious attempt to obtain a speedy trial by the filing and service of the aforementioned document. The judge stated that proper resolution of the issue necessitated an understanding of the use of the form provided by the clerk’s office of the court and the meaning of the language therein:

“Well, to understand those, I think resort should be had to the second paragraph entitled, ‘GENERAL PLEA OF NOT GUILTY,’ again in all caps with the word ‘(optional)’ underneath in parenthesis. Under that caption appears the following language, ‘The above-named Defendant by his/her undersigned attorney, hereby enters a plea of not guilty as to all counts pending in the above-captioned cause. (Written plea by attorney does not satisfy initial appearance in open court by Defendant in person if such appearance is required under the charge pending in this case. . .’ there is further language and then a parenthesis and close quote. Now, it is obvious to anyone reading or utilizing this form that the language appearing immediately at the outset of that paragraph and before the commencement of the language in parenthesis, is meant to be the language of the Defendant which for the convenience of counsel may be adopted by counsel by simply signing on the line indicated at the conclusion of that paragraph. The language in parenthesis is clearly the language of the Court explaining the proper use of this form and advising and admonishing counsel and the Defendant that using this form does not satisfy the obligation of the Defendant to appear initially on the traffic citation. That is clearly not the language of the Defendant. If it were, the Defendant would be saying that this written plea, by his attorney, does not satisfy his own obligation to appear, and that’s nonsensical.
All right. Now, turning back to the paragraph specifically indicating the issue here, request for a jury trial. Again, it is obvious that the language in the parenthesis, ‘This demand by itself is not a demand for immediate or speedy trial,’ is the language of the Court, not the Defendant. Just as is the language in the second paragraph is explanatory, it is the Court instructing and advising the parties that the use of this form alone is not sufficient to demand speedy trial. When that language is altered, what is being provided is an altered form of the Court’s language and the Court is now saying, ‘This demand by itself is a demand for immediate or speedy trial,’ the Defendant is saying nothing. The Court has not demanded a speedy trial in this case, the Court does not have standing to do so, the Court is not the Defendant.
So, I think that this does not constitute demand for speedy trial by the defense. Secondly, I don’t think doing it in this form satisfies the standards set forth in People versus Jones. This does not call attention to the State’s Attorney’s office, to the Court or to anybody else that the defendant is concerned about being brought to trial within 160 days, it does not stand out, it gives no fair notice.”

Notwithstanding the court’s earlier express finding that notice was not an issue, the judge concluded that the aforementioned document filed by defendant was not sufficient to notify the State that defendant was, in fact, demanding a speedy trial.

We disagree. The decision in Jones turned on the lack of notice to the prosecution of the defendant’s demand for speedy trial, which demand was filed only with the clerk of the court. Section 103 — 5 of the Code of Criminal Procedure of 1963 requires “some affirmative act on the part of the accused, either in the form of a written or an oral demand for trial” which must be communicated to the State and preserved in the record. (Jones; People v. Rockett (1967), 85 Ill. App. 2d 24, 228 N.E.2d 219.) Supreme Court Rule 505 does not require more of recipients of traffic tickets.

Irrespective of the parenthetical language of the form offered by the circuit clerk’s office, under the language of Supreme Court Rule 505 a demand for jury trial by the recipient of a traffic ticket is, ipso facto, a demand for speedy trial. Under section 103 — 4(b) of the Code of Criminal Procedure of 1963 a demand for trial is a demand for speedy trial. According to the Committee Comments, .section 114 — l(aXl) of the Code provides the procedure for invoking the right conferred under section 103 — 5: by written motion to dismiss. (Ill. Ann. Stat., ch. 38, par. 114 — 1, Committee Comments, at 196 (Smith-Hurd 1977).) This defendant did.

Reversed.

MILLER and WEBBER, JJ., concur.


author: JUSTICE DOWNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. BERNARD MANN, Respondent-Appellant.
    First District (2nd Division)
    No. 82—3142
    Opinion filed February 14, 1984.
    Rehearing denied March 27, 1984.

      Julius Lucius Echeles, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lawrence R. Stasica, and Rhoda W. Davis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DOWNING

delivered the opinion of the court:

Respondent, Bernard Mann, an attorney, appeals from a judgment of the circuit court finding him guilty of indirect criminal contempt of court and fining him $25. The issues on appeal are: (1) whether the evidence was insufficient to sustain the contempt judgment; (2) whether the contempt hearing denied respondent due process of law; and (3) whether the trial court abused its discretion by finding him in contempt of court.

The uncontroverted facts are that respondent was the attorney of record for the defendant in People v. Ford, a case pending on the traffic court call at 321 North La Salle Street in Chicago. Respondent appeared each' time the case was on the court’s call. After several continuances, a jury demand was made. The case was marked “final” and was scheduled for a jury trial on November 23, 1982, at 9 a.m. However, on that date, although his client was present, respondent did not appear in court until shortly after 11 a.m. and did not telephone the court to report that he would be late. The trial court thereupon issued a rule to show cause why respondent should not be held in contempt of court.

Respondent filed an answer and an affidavit wherein he averred that on November 23, 1982, he was also scheduled to appear as the defense counsel of record in another case marked “final,” People v. Shine, in Branch 34, located at 155 West 51st Street in Chicago. Respondent stated that he appeared first in Branch 34 and then proceeded to traffic court to try the case there. But when he arrived the State had already excused the police officer and the jury. Respondent said he appeared at Branch 34 first because of the common procedure in traffic court for the prosecutors and defense counsel to confer prior to a jury trial, and he did not anticipate that the State would be ready for trial the first time the case appeared on the jury call. Respondent further asserted that he had a “deep and abiding respect” for the presiding judge and “never meant to obstruct, prevent or embarrass the due administration of justice.”

On the hearing date for the contempt petition, no evidence was presented, nor did respondent request a hearing. At the hearing, the assistant State’s Attorney reviewed the record and the attorney for the defendant referred to the facts set forth in his affidavit and answer. The trial court stated that it was “embarrassed” by respondent’s tardiness because the prosecutor and a court reporter were present. The court found respondent “guilty of contumacious conduct,” and observed that “I have notice of all those facts that took place before me.” A written order was thereupon entered finding respondent guilty of indirect criminal contempt. Respondent’s motion for reconsideration was denied, and he has appealed.

I

Respondent’s first contention on appeal is that the contempt hearing denied him due process of law. However, inasmuch as a written rule to show cause was entered by the trial court, respondent was informed of the charges against him, had an opportunity to file an answer and appeared in court for the hearing represented by counsel, the requirements of due process were satisfied. (People v. Javaras (1972), 51 Ill. 2d 296, 300, 281 N.E.2d 670.) Respondent’s counsel was present at the hearing, participated in it and made no request for an evidentiary hearing. Cf. Peltier v. Peltier (1978), 120 R.I. 447, 450, 388 A.2d 22, 24.

II

Respondent’s second contention is that the record does not support the finding of contempt. The State argues in its brief that we should either construe respondent’s failure to timely appear as a direct contempt of court which is subject to summary punishment or, in the alternative, that the trial court’s finding of contempt is supported by respondent’s own admission that he appeared on another case in a different court location at the time he was scheduled to appear in traffic court.

We have previously rejected the State’s argument that an attorney’s failure to appear in court constitutes direct contempt, since an essential part of the contumacious act occurs outside of the presence of the court and is dependent for its proof upon extrinsic evidence of some kind. Illinois courts have consistently characterized the unexplained absence of an attorney at trial as constituting possible grounds for indirect contempt which is not subject to being punished summarily. (People v. Edwards (1979), 69 Ill. App. 3d 626, 387 N.E.2d 969; People v. McNeil (1976), 42 Ill. App. 3d 1036, 356 N.E.2d 1073; People v. Pincham (1976), 38 Ill. App. 3d 1043, 350 N.E.2d 67.) It is to be noted there is a diversity of opinion in various other State courts as to whether such conduct constitutes a “direct” or “indirect” contempt. (See In re Potter (1981), 207 Neb. 769, 301 N.W.2d 560; Chula v. Superior Court (1962), 57 Cal. 2d 199, 368 P.2d 107, 18 Cal. Rptr. 507.) We will therefore address only the State’s second contention that the record supports the contempt judgment.

In general, an attorney who is an officer of the court and aware of his obligation to the court may be held in contempt for failure to appear for an important hearing or trial unless adequate excuse is offered on his behalf. (United States v. Ferm (N.D. Ill. 1982), 547 F. Supp. 33, 34; People v. Adam (1973), 15 Ill. App. 3d 669, 304 N.E.2d 711.) In this case, respondent was aware of his scheduling conflict in advance of the trial date, yet he failed to take any steps to advise the court or the assistant State’s Attorney of his conflict. The result was inconvenience to the trial court, his client the defendant, the assistant State’s Attorney, the State’s witness, the prospective jurors, each of whom were present and ready for trial but unable to proceed. The trial court found respondent’s excuse for his tardiness unreasonable. The finding of guilty of contempt is a question of fact to be determined by the trial court, and' its decision will not be disturbed unless it is against the manifest weight of the evidence or the record disclosed an abuse of discretion. (In re Estate of St. George (1981), 99 Ill. App. 3d 388, 390, 426 N.E.2d 6.) Under these circumstances, the finding of contempt was within the discretion of the trial court, and we decline to interfere with its judgment.

The judgment of the circuit court is affirmed. Pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, we grant the State’s request that respondent be assessed $50 as costs for defending this appeal and incorporate it as part of the judgment.

Affirmed.

HARTMAN, P.J., and STAMOS, J., concur.


author: JUSTICE WILSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS SMALLEY, Defendant-Appellant.
    First District (5th Division)
    No. 82—1334
    Opinion filed February 24, 1984.

      Steven Clark, of State Appellate Defender’s Office, and Eileen J. Furey, of Schiff, Hardin & White, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney and Edward Barron, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WILSON

delivered the opinion of the court:

Following a bench trial, defendant was convicted of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(a)(1)) and sentenced to 30 years in the Department of Corrections. On appeal, defendant argues that he was denied his constitutional right to effective assistance of counsel. For the following reasons, we affirm the judgment of the trial court.

The record reveals the following pertinent facts. Approximately 9 p.m. on May 20, 1981, Darryl Adams was shot and killed while running across a crowded playground between two apartment buildings located on South State Street in Chicago. Testimony presented two versions of the events leading up to and including the shooting.

First, Joyce Hughes testified that while she was sitting on a playground bench with two girl friends, she noticed Darryl Adams standing about 20 feet from her talking to another black male whom she did not know. She then saw the second man fire one shot at Darryl, followed by several more aimed at Darryl’s back as he fled toward the building at 4845 South State.

On cross-examination, Hughes stated that Darryl was on a bicycle, facing the bench on which Hughes was sitting and the second man had his back to her. She did not see anyone else join the conversation.

David Bush testified to substantially the same occurrence facts as did Hughes but added that he did have an opportunity to view the assailant’s profile which enabled him to pick out defendant’s photo from a photo array at police headquarters on the night of the shooting and also to identify defendant as the assailant at trial.

Cornell Cousins then testified that approximately 9 p.m. on the night of the shooting he was standing on the ground floor at 4845 South State when he heard a gunshot, stepped out of the building corridor and looked toward State Street where he saw defendant shooting at Darryl Adams as he chased Darryl across the playground. On cross-examination, Cousins stated that he had been with his friend, Earl Norwood, five minutes before the shooting and later left with Norwood to get a beer. Norwood had not been with his girl friend. Cousins also admitted to knowing Tom Singleton.

Next, Earl Norwood testified that at the time of the shooting, he and his girl friend were sitting on the seventh floor porch of the building at 4844 South State when he heard gunshots coming from the direction of the 4848 building. When he looked down, he saw defendant shooting at Darryl as they were both running across the playground. On cross-examination, Norwood stated that he had been sitting on the porch for approximately two hours when the shooting occurred. He had had no plans to meet Cornell Cousins later that evening. The 4844 building is located approximately 75 to 100 feet from the 4848 building, and defendant came as close as 50 feet to the 4844 building while he was running. Thereafter, the State rested its case and the court denied defendant’s motion for a directed finding.

Following the testimony of several defense witnesses, defense counsel requested that the case be either passed or held over pending the arrival of two additional defense witnesses, Tom Singleton and Maurice Norris. In response to the trial court’s query as to whether their testimony would be germane to the case, defense counsel explained that Singleton would testify that Cousins told him that he had not seen the shooting. When the court noted that defense counsel had not laid a proper foundation for impeachment of Cousins, the following colloquy ensued:

“DEFENSE: Well, I don’t think Mr. Thomas Smalley, in a case as serious as this, should be punished for the incompetency of his lawyer, Judge.
COURT: The difficulty I am having *** is how to rectify the situation.
DEFENSE: I could get a subpoena out to Cousins today and have him brought back at the Court’s convenience to reopen cross-examination.
COURT: For this limited purpose?
DEFENSE: For that limited purpose.
COURT: Does the State have any means of bringing Mr. Cousins back, other than subpoenaing him?
STATE: No, Sir.
* * *
COURT: *** I will put this case over until Monday. If Mr. Cousins is present, I am going to allow you to reopen your cross-examination for the limited purpose of confronting him with this evidence. If you are at that time in a position to complete the impeachment, then [the motion to strike the impeachment testimony] would be denied. I don’t know what else I can do for you.”

When trial resumed the following Monday, defense counsel requested a side bar during which she informed the court that Norris and Singleton were in the jury room and expressed fear about testifying in front of the victim’s family who was in the courtroom. In fact, Norris had had a rock thrown at him within the last few days. Defense counsel further stated that she had been told that Cousins had received the subpoena and was going to be in court that day, but she had not yet seen him. Defense counsel then made the following request of the court:

“I am making a request and if it is unorthodox, either have the proceedings in chambers or the jury room. I don’t know how you can ask the public to leave the courtroom.
I don’t know how it can be done. I would hate to see them controlling the trial.”

In response, the State argued that defense counsel’s fears were “just bold accusations.” The court then queried defense counsel as to her inability to produce Cousins for purposes of laying a foundation for impeachment. Acknowledging that Cousins had failed to appear, defense counsel requested leave to have the impeachment testimony taken with its admission subject to Cousins’ later appearance. The court agreed.

Tom Singleton then testified in open court that although he had not seen the actual shooting, he had heard the shots and had run to the scene. When Singleton denied ever having overheard any statements madé by Cousins regarding his appearance at the preliminary hearing, defense counsel requested a side bar during which she informed the court as to the following:

“The witness had been to court two or three times. The first time was a month and a half or two months ago. He told me two or three times that he was in the lot playing ball with the team and Cornell Cousins, who was a spectator, made the comment after he testified against Thomas Smalley at the preliminary hearing he was the only one called or the only one that came to the preliminary hearing.
He said in front of Mr. Singleton that he shouldn’t be going because he didn’t know nothing about it and it isn’t right that you should do this to friends or conversation that he’d have to use, his own words.”

Defense counsel also reiterated Singleton’s fear about testifying in front of the victim’s family.

When questioning resumed, Singleton admitted having met defense counsel previously, but denied having had any conversations with her about this case. Defense counsel then rested her case and the proceedings were continued to the following day.

When proceedings commenced, defense counsel requested that the case be reopened to allow defendant to testify, whereupon defendant testified that he was aware of the charges against him, and denied shooting Darryl Adams. On cross-examination, defendant stated that he was arrested while in Cook County Hospital where he was being treated for a gunshot wound incurred in an unrelated incident. Defendant then proceeded to give his version of the events leading up to and including the shooting. Approximately 8:45 p.m. on the evening of the occurrence, defendant rode a bicycle to 51st Street to get some ice. He returned within 10 minutes and was talking to White Cloud when Darryl Adams walked up to them and started arguing with defendant about the bicycle. Darryl was shot while he was running from the area where defendant was standing. Defendant left the area immediately after the shooting, exiting through the breezeway of the 4844 building.

On redirect, defendant denied that he was carrying a gun and stated that he immediately left the scene of the shooting because he was on parole and did not want to get involved. When interviewed by the police while he was in Cook County Hospital, defendant told the police that White Cloud, leader of the Disciples gang, shot Darryl. Prior to the night of the shooting, defendant had never seen Darryl.

Upon query by the court, defendant further explained that just prior to the shooting, he was riding a bicycle through a building breezeway when he was flagged down by White Cloud, whose real name is Sammie. As they were talking, Darryl Adams walked up and asked defendant where he got his bicycle. When defendant told him that Maurice Norris had given it to him, Darryl started arguing that it was his. At that point, White Cloud told Darryl to leave or he would get hit in the head with something and then proceeded to pull a .22 pistol out of his vest pocket. Darryl continued to taunt White Cloud and when he tried to reach for the gun, White Cloud fired. Darryl then turned and ran across the playground with White Cloud in pursuit, firing at Darryl’s back. On recross, defendant stated that he did not know the whereabouts of White Cloud. Following closing arguments, the court recessed for consideration of the evidence.

Prior to rendering its decision, the trial court made several pertinent comments on the evidence, noting that identification witnesses David Bush and Earl Norwood were credible and that Cornell Cousins, the most important State witness, was highly credible. The court further noted that Joyce Hughes’ testimony contradicted defendant’s statement that there was a third person present when he was talking to Darryl and that no evidence was introduced to corroborate defendant’s version of the events. Finally, acknowledging that the case was “difficult,” the court found defendant guilty of murder and entered judgment on the finding.

Thereafter, defendant filed a post-trial motion, alleging that: (1) he was denied effective assistance of counsel; (2) the finding was against the manifest weight of the evidence; and (3) he was not found guilty beyond a reasonable doubt doubt. At the post-trial hearing, defense counsel was granted leave to amend the motion, adding an allegation of newly discovered evidence and deleting the allegation regarding ineffective assistance of counsel. With respect to the newly discovered evidence, defense counsel argued that: (1) Joyce Hughes was the girl friend of the victim’s brother and possibly the mother of his children, thus establishing bias against defendant; (2) the Disciples gang did not want a member of their own gang arrested, so members testified against defendant; (3) Earl Norwood’s sister would testify that Earl was at his mother’s on the night of the shooting; and (4) Brenda, one of the women sitting on the park bench with Joyce Hughes, would testify differently than did Hughes regarding the occurrence. In denying the motion, the court addressed both of defense counsel’s general arguments: reasonable doubt and newly discovered evidence, stating that it remained satisfied beyond a reasonable doubt of defendant’s guilt and that the newly discovered evidence did not satisfy the standard for a new trial set forth in People v. Ramos (1980), 80 Ill. App. 3d 722, 725, 400 N.E.2d 676. Defendant’s timely appeal followed.

Opinion

The sole issue before this court is whether defendant received effective assistance of counsel. Initially, we note that issues raised for the first time on appeal, such as the one at bar, are generally waived. (People v. Thomas (1983), 116 Ill. App. 3d 216, 220, 452 N.E.2d 77.) The exception to this common law rule is Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)), commonly known as the “plain error rule” which allows the reviewing court, in its discretion, to rule on plain errors or defects which affect substantial rights. It is our opinion that the issue of incompetency of counsel, especially in a criminal action, rises to the level of plain error and as such we take cognizance of the issue presented.

The governing standard for determining incompetency of counsel, court-appointed or privately retained, is whether the alleged incompetence produced substantial prejudice to the defendant without which the result would probably have been different. (People v. Royse (1983), 99 Ill. 2d 163, 457 N.E.2d 1217.) Collaterally, defendant is entitled to competent, not perfect representation and, in the absence of a demonstration that the outcome of a new trial would probably be different, the constitution does not require a new trial for every defendant whose counsel errs at trial. People v. Greer (1980), 79 Ill. 2d 103, 121, 402 N.E.2d 203.

Defendant argues that based upon the aforementioned incompetency standard, he is entitled to a reversal of his conviction or, in the alternative, a new trial. Specifically, he cites four general instances which allegedly demonstrate defense counsel’s incompetence. First, defense counsel failed to conduct an adequate pretrial investigation of potential defense witnesses. Defendant makes particular reference to Earl Norwood’s sister and a woman named “Brenda,” a friend of Joyce Hughes. After the close of trial, defense counsel had moved for a new trial based on discovery of these witnesses, alleging that their testimony might lead to a different result. Defendant argues that failure to discover these witnesses before or during trial reflected a lack of diligence and inadequate preparation. Apparently the State assumes that the witnesses were readily available. Yet there is no evidence to support that assumption. More importantly, there is nothing in the record to indicate that no attempts were made by defense counsel to locate these witnesses prior to or during trial. Thus, because defendant’s allegation is based solely upon conjecture, it provides insufficient grounds to warrant reversal or a new trial. (People v. Witherspoon (1973), 55 Ill. 2d 18, 22, 302 N.E.2d 3.) Furthermore, it is our opinion that the record contradicts defendant’s allegation of a general lack of diligence during the pretrial investigation. For example, prior to trial, defense counsel requested several continuances in an effort to locate additional witnesses, and she amended her answer on two occasions to add critical witnesses. Moreover, considering the obstacles presented by nicknames and gang loyalty, any difficulty in locating witnesses cannot reasonably be considered proof of lack of diligence.

In addition, there has been no conclusive showing of a prejudicial effect from defense counsel’s failure to elicit the testimony of the two newly discovered witnesses. Based on the facts before us, the allegation that Earl Norwood’s sister would testify that he had been having dinner with his mother the night of the shooting does not preclude the possibility that Norwood could have seen the shooting. We have no information as to where his mother lived or at what time Norwood allegedly ate dinner with her. Further, contrary to defendant’s paraphrase of defense counsel’s remarks, there was no allegation that Brenda’s testimony would corroborate defendant’s version. Defense counsel merely stated that Brenda’s testimony would be “different” from that of Hughes. Likewise, there was no indication that Brenda’s testimony would impeach the credibility of Joyce Hughes. “Different” is not synonymous with “contradictory.”

As support for her allegation of incompetency by lack of diligence, defendant relies upon People v. Stepheny (1970), 46 Ill. 2d 153, 263 N.E.2d 83, People v. Witherspoon (1973), 55 Ill. 2d 18, 302 N.E.2d 3, and People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203. We find these cases unpersuasive of defendant’s position for several reasons. First, contrary to defendant’s interpretation of Stepheny, that case did not hold that “failure of defense counsel to interview potential witnesses constitutes ineffective assistance of counsel.” In fact, this was not even the issue before the Stepheny court. Instead, the court was asked to review the dismissal of defendant’s petition for an evidentiary hearing on the question of inadequate representation. The court concluded that the petition was sufficient to entitle defendant to the hearing and the cause was remanded. Second, People v. Wither-spoon, which addressed the question of whether a certificate attesting to good faith efforts must be filed by appointed counsel, is factually distinguishable from the situation at bar. Finally, we find People v. Greer more favorable to the State than it is to defendant on the ground that the Greer court emphasized the requirement of prejudicial effect in charges of incompetency, a requirement clearly not met in the present case.

The second instance of incompetency cited by defendant is defense counsel’s failure: (1) to impeach the testimony of Joyce Hughes with a statement she gave to the police; (2) to establish Hughes’ bias against defendant; and (3) to point out inconsistencies 'in her eyewitness account. The police record indicates that Hughes stated that she was sitting on a park bench "with four other women. At trial, she stated that she was with two of her girl friends, omitting reference to the other two women who were Hughes’ sister and the victim’s sister. Defendant claims that defense counsel’s failure to note this discrepancy coupled with her failure to query Hughes about her obvious close friendship with the victim’s sister resulted in the exclusion of “potentially serious impeachment evidence.” Not only do we find defense counsel’s failure to note the discrepancy inconsequential to the outcome of the trial, we also fail to see how sitting on a park bench with someone in a crowded playground on a warm, spring night is indicative of the “close” friendship defendant suggests. Further, even if Hughes were a friend of the victim’s sister, we do not see this as a motive for convicting the wrong person of his murder. In fact, the opposite conclusion would be more likely.

Defendant further argues that defense counsel should have questioned Hughes about the factual inconsistency in her testimony regarding the fact that she was not able to see the assailant’s face, yet she was able to see him put the gun into his pocket and walk away. Defendant suggests that this is improbable and that Hughes was unwilling, not unable, to identify defendant as the assailant. We find defendant’s conclusion to be merely a speculative interpretation of what he thinks Hughes could see. Other interpretations are equally viable. For example, the assailant could have had his back to Hughes and put the gun into a side pocket, which she could have seen very easily. In our opinion, the only reason defense counsel failed to note this inconsistency was because no inconsistency existed.

The third instance of incompetence alleged by defendant is defense counsel’s decision to put defendant on the stand. In this regard, defendant points out that the testimony elicited from him on direct was nothing more than his name, current address, whether he was aware of the charges brought against him, whether he knew the victim, and whether he had shot the victim. By contrast, he was subjected to a “scathing” cross-examination. The decision to put a defendant on the stand is clearly a matter of defense counsel’s trial tactics and, as such, is not reviewable. (People v. Witherspoon (1973), 55 Ill. 2d 18, 22, 302 N.E.2d 3.) Furthermore, notwithstanding the fact that defense counsel could have believed that defendant’s demeanor on the stand would bolster his credibility, the majority of the evidence elicited during cross-examination was in the record and could have been easily reviewed by the trial court whether defendant took the stand or not. Any irrelevant or incompetent evidence which may have been elicited and did not otherwise appear in the record is presumed not to have been considered by the trial court. (Cook County Department of Environmental Control v. Tomar Industries (1975), 29 Ill. App. 3d 751, 755, 331 N.E.2d 196.) Further, we do not agree that defense counsel’s failure to object to scope or relevancy during the cross-examination resulted in any prejudice to defendant. Neither do we find defendant’s reliance on People v. Gardiner (1922), 303 Ill. 204, 135 N.E. 422, persuasive on this point. Gardiner involved a jury trial during which the cross-examination focused extensively on defendant’s moral character and matters wholly foreign to the issue before the court. None of these determinative elements is present in the case at bar.

The final instance of alleged incompetence is defense counsel’s failure to lay the foundation for seriously impeaching testimony. Before applying the incompetency standard to the facts pertinent to this allegation, it is imperative that we correct several misstatements made by defendant in his brief. Defendant argues: “At some point late in the trial, the Public Defender learned that, shortly after testifying, Mr. Cousins told a number of persons that he had no business testifying in court against Mr. Smalley ***. The Public Defender asked leave of court to bring in two witnesses who would testify to Mr. Cousins’ statements.” The witnesses referred to by defendant are Maurice Norris and Tom Singleton. First, there was only one impeachment witness and that was Tom Singleton. While it is true that both Norris and Singleton expressed fear at testifying in front of the victim’s family, only Singleton had allegedly overheard Cousins’ remarks. Second, neither witness was discovered “late in the trial.” Norris’ name appeared in defendant’s answer to discovery as early as October 30, 1981, approximately five months prior to trial, and Singleton was added one month prior to trial.

Defendant contends that defense counsel’s failure to lay the foundation to impeach Cousins seriously prejudiced his case because the trial court, considered Cousins to be the State’s most important witness. Unquestionably, the record reveals several instances where defense counsel erred in her attempt to impeach State witnesses. She appeared particularly confused about when and how to lay a foundation for impeachment. However, as previously noted, a defendant is entitled to competent, not perfect, representation, and in order to establish incompetence, substantial prejudice must be shown. (People v. Greer (1980), 79 Ill. 2d 103, 121, 402 N.E.2d 203.) Because it was never conclusively established that Singleton’s testimony would impeach Cousins, the necessary prejudice was never shown. In fact, defense counsel’s error in failing to lay a foundation became a moot issue as a result of Singleton’s subsequent denial that he had ever overheard Cousins state that he had not actually seen the shooting. Defendant argues that Singleton testified as he did because of defense counsel’s failure to pursue her request that Singleton be allowed to testify outside the presence of the spectators. Once again, this is only speculation on defendant’s part and, as such, is insufficient to warrant reversal or a new trial. (People v. Witherspoon (1973), 55 Ill. 2d 18, 22, 302 N.E.2d 3.) Accordingly, because there is no evidence of prejudice to defendant from defense counsel’s failure to lay a foundation for impeachment, we decline to find such an error indicative of incompetency.

In summary, we conclude that defendant has not shown that defense counsel was actually incompetent. Despite defense counsel’s confusion regarding impeachment testimony, the record shows no prejudice resulted to defendant and that, overall, defense counsel represented her client vigorously, and to such a proficient degree as to preclude a finding of incompetency.

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

Affirmed.

MEJDA, P.J., and SULLIVAN, J., concur.


author: JUSTICE PEKLIN PRESIDING JUSTICE HARTMAN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLAY TURNER, Defendant-Appellant.
    First District (2nd Division)
    No. 82—2778
    Opinion filed February 21, 1984.

      HARTMAN, P.J., dissenting.
    James J. Doherty, Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, James S. Veldman, and Thomas T. Finn, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PEKLIN

delivered the opinion of the court:

After a bench trial, the defendant was convicted of armed robbery and aggravated battery, and sentenced to concurrent prison terms of 10 and five years. On appeal, he argues that evidence of his lineup and in-court identifications should have been suppressed as the products of an illegal arrest.

At the pretrial hearing on the defendant’s motion to quash his arrest and suppress the evidence of his lineup and in-court identifications, the only evidence presented was the testimony of one of the arresting police officers. He stated that on November 21, 1980, he received a telephone call from a high school principal who said he had received an anonymous telephone call naming the defendant as the perpetrator of a shooting and robbery attempt that morning in Chicago. On the next day, the officers received information that a witness to the crime had made a photographic identification of the defendant. Consequently, on November 23, the police went to the home of the defendant’s mother and arrested the defendant. The police officer admitted that no arrest warrant ever was obtained; however, no information was adduced as to precisely where or under what circumstances the arrest took place, or whether consent was given to enter the mother’s home. After the trial judge denied the defendant’s motion to quash the arrest and suppress evidence without a statement of the reasons for his decision, a bench trial was held. At the trial, both victims identified the defendant as their assailant, and he was found guilty of armed robbery and aggravated battery.

Initially, we note that the State is incorrect in arguing that the defendant waived his right to raise the issue of the legality of his arrest by failing to make his claim in a post-trial motion. As the defendant points out, he was not required to file a post-trial motion where he was tried by the court and raised the same issue at the trial level at the hearing on the motion to quash and suppress. People v. Kelly (1979), 76 Ill. App. 3d 80, 394 N.E.2d 739.

We also note, however, that the burden is on a defendant to establish the illegality of his arrest when he intends to utilize the alleged illegality as a basis for suppression of evidence. (People v. Petersen (1982), 110 Ill. App. 3d 647, 442 N.E.2d 941.) Here, the defendant failed to establish any such illegality at the pretrial hearing where the only evidence, the testimony of one of the arresting officers, clearly suggested that probable cause for the arrest existed. No testimony whatsoever was elicited as to whether the entry into the home was or was not consensual. For that matter, no testimony was elicited as to whether an entry even was made; the defendant and his mother never testified during the motion to suppress, and the officer stated only that the arrest was made “at his house.” Under the circumstances, the defendant did not establish even a prima facie case for a nonconsensual police entry, and the trial judge did not err in denying his motion at the hearing. See People v. Sakalas (1980), 85 Ill. App. 3d 59, 405 N.E.2d 1121.

However, because a ruling on a motion to suppress is not final and may be reversed at any time, a reviewing court may consider evidence during trial after the conclusion of the suppression hearing. (See People v. Taylor (1981), 99 Ill. App. 3d 15, 424 N.E.2d 1246; People v. Sakalas (1980), 85 Ill. App. 3d 59, 405 N.E.2d 1121.) Here, one victim testified at trial that not until November 23 did he identify the defendant’s picture. Further, an arresting officer testified that another suspect was arrested on November 21, that he tried to arrest the defendant the same day, and that he was not aware of any photographs being shown on either November 21 or 22. The defendant’s mother then testified that the police came to her home several times before he was arrested. She said that on November 23, they told her: “they could search [the home]. I could let them search it willingly or they could get a court order to search it. I have a German Shepard [sic]. At that time he was barking. One of the men told me, ‘No, that was all right,’ he would take my word. And the other two officers said, ‘no, they had to search.’ ” She then moved the dog into another room, and the police entered.

Our review of the record at trial therefore discloses that in regard to the defendant’s earlier motions, the discrepancy between the first police officer’s preliminary hearing testimony and the witness’ trial testimony about the date of the photo identification of the defendant at most only raised a factual question as to the probable cause the police had to arrest the defendant. Similarly, the ambiguous statement of the defendant’s mother did no more than raise a question of fact as to whether she consented to the search voluntarily, or whether she passively submitted to police authority. (See People v. Montgomery (1980), 84 Ill. App. 3d 695, 405 N.E.2d 1275.) Therefore, the factual ambiguities and discrepancies which manifested themselves at trial are not sufficient to suggest that the trier of fact’s initial determination at the pretrial hearing was so contrary to the manifest weight of all the evidence as to warrant reversal on appeal. See People v. Sakalas (1980), 85 Ill. App. 3d 59, 405 N.E.2d 1121; People v. Petersen (1982), 110 Ill. App. 3d 647, 442 N.E.2d 941.

Accordingly, the judgment of the circuit court of Cook County is affirmed. As part of the judgment, we incorporate the State’s request of $50 as costs of this appeal in accordance with People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194.

DOWNING, J., concurs.

PRESIDING JUSTICE HARTMAN,

dissenting:

I respectfully dissent. In my view, the record and the relevant law compels the conclusion that the warrantless arrest of Turner in his home violated his constitutional rights. Under Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, in the absence of strictly defined exigent circumstances, warrantless and non-consensual entry into a suspect’s home to effect his arrest violates the fourth amendment. No exigent circumstances were present here, as there was no “hot pursuit” of defendant and, in fact, two days had elapsed between the informant’s accusation of defendant and the arrest, more than sufficient time to secure a warrant. See People v. Johnson (1981), 99 Ill. App. 3d 863, 866, 425 N.E.2d 1215.

Furthermore, the police entry into defendant’s home was not the result of a valid, voluntary consent. The arresting officers told defendant’s mother that they “had to search” the home, whether “willingly” or under a “court order.” Her silent acquiescence to their entry, under the circumstances, appears more a submission to authority than a voluntary consent. Although defendant bears the burden of establishing the illegality of an arrest for purposes of suppressing evidence (People v. Petersen (1982), 110 Ill. App. 3d 647, 654, 442 N.E.2d 941), such burden must be viewed in the light of the caveat in Payton that warrantless searches and seizures within a home are “presumptively unreasonable” (445 U.S. 573, 586, 63 L. Ed. 2d 639, 651, 100 S. Ct. 1371, 1380). Where consent to enter a home is at issue, the burden is on the State to show by a preponderance of evidence that the consent was voluntarily given. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 222, 36 L. Ed. 2d 854, 860, 93 S. Ct. 2041, 2045; People v. Posey (1981), 99 Ill. App. 3d 943, 947, 426 N.E.2d 209.) This the State failed to do.

Accordingly, I would reverse and remand the cause for a new trial, or, alternatively, for a hearing to determine whether the evidence used against defendant was tainted by the illegal arrest.


author: JUSTICE STAMOS

text:
    THE VILLAGE OF SCHAUMBURG, Plaintiff-Appellant, v. KINGSPORT VILLAGE, INC., et al., Defendants-Appellees.
    First District (2nd Division)
    No. 82—3040
    Opinion filed February 21, 1984.

      Jack M. Siegel, of Chicago, for appellant.
    Frankel, McKay & Orlikoff, of Chicago (Jerome Meister, of counsel), for appellees Kingsport Village, Inc., and Nathan Green.
    Marks, Katz, Randall, Weinberg & Blatt, of Chicago (Stuart D. Gordon, of counsel), for appellee Ridge Development Corp.
   JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff village of Schaumburg instituted this mandatory injunction action against defendants Kingsport Village, Inc.; Ridge Development Corporation; and various Schaumburg homeowners. Kingsport Village and Ridge Development filed motions to dismiss which were granted, and plaintiff appeals.

Defendant developers are responsible for constructing at least 46 residences in the village of Schaumburg which plaintiff claims violate its building code. These alleged violations have resulted in cracked driveways and defective concrete work around the residences in issue. The developers ultimately sold these residences to various homeowners who are named defendants in this action. This is the second time this matter has been before us. In the first suit, plaintiff filed separate actions against the defendant developers only, seeking a mandatory injunction which would compel them to repair their defective work and make the residences conform to the building code. The suits were consolidated and dismissed on defendants’ motion, and plaintiff appealed.

On appeal, we stated that it was apparent that the trial court had dismissed the complaints because of plaintiff’s failure to join the homeowners as party defendants. (Village of Schaumburg v. Kingsport Village, Inc. (1982), 106 Ill. App. 3d 1055, 1057, 436 N.E.2d 677.) The sole issue addressed by us with respect to the injunction count was “whether the developers’ nonownership of the properties in issue should affect the right of the Village to seek mandatory injunctions compelling work to be done on those properties.” (106 Ill. App. 3d 1055, 1057.) We ruled that a mandatory injunction could not issue if the property owners were not made parties to the action. Our mandate stated:

“The trial court’s dismissal of the amended complaints, which fail to name the property owners as parties, is affirmed. This cause is remanded to the trial court to allow the Village to add the individual property owners as parties. If these property owners are not named as parties, the cause should be dismissed.” 106 Ill. App. 3d 1055, 1059-60.

On remand, plaintiff joined the property owners as party defendants pursuant to section 2 — 405 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 405). The relief sought against them, however, was limited to a prayer that they be ordered to allow defendant developers onto the property for the purpose of effecting repairs. The prayer for a mandatory injunction was directed only toward the developers. Defendant developers’ motion for a dismissal of the complaints was granted and plaintiff again appeals.

Plaintiff first contends that it complied with this court’s previous mandate by joining the property owners as party defendants and that therefore, the trial court’s dismissal of its action was improper. Plaintiff argues that by remanding the matter and directing that the property owners be “joined,” we were indicating that the prayer for mandatory injunction was properly directed at the developers. Defendant developers assert, however, that we previously held that a mandatory injunction that certain work be done on a given tract of land could only be directed toward the property owners.

To the extent that our prior decision in this matter implies that the village could properly seek a mandatory injunction against the developers, it was improvidently phrased. The intended thrust of our decision was that, under the circumstances presented, “a mandatory injunction [could not issue] against a nonowner of the property which [was] the subject of the injunction.” (106 Ill. App. 3d 1055, 1058.) Our reasons for such a conclusion were twofold: First, because the village failed to show that criminal sanctions available to it would not prompt the developers to act, and second, because the village had failed to seek statutory injunctive relief available to it.

The criminal sanctions which the village failed to utilize are embodied in the penalties provision of article VIII of Ordinance No. 268 of the village of Schaumburg:

“(a) Any person who shall violate a provision of this Ordinance or fails to comply therewith or with any of the requirements thereof, or who shall erect, construct, alter or repair, or has erected, constructed, altered or repaired a building or structure or portion thereof, in violation of a detailed statement of plan submitted and approved thereunder, or of a permit or certificate issued thereunder, shall be guilty of a misdemeanor punishable by a fine of not less than twenty-five dollars ($25.00) nor more than five hundred dollars ($500.00), or by imprisonment not exceeding six months, or by both such fine and imprisonment, in the case of a first offense; and by a fine of not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00) or by imprisonment not exceeding six months, or by both such fine and imprisonment, for each and every subsequent offense.
* * *
(c) Each day that a violation continues shall be deemed a separate offense.”

Under this provision, the village could subject defendant developers to a $500 fine and six months’ imprisonment for each offense, with each day of a continuing offense constituting a new offense. The briefs in the instant case indicate that plaintiff filed a criminal complaint against the developer defendants under the aforementioned ordinance, but, for some unexplained reason, failed to pursue the prosecution to final judgment. It would seem likely that the imposition of a daily fine of up to $500 against the defendant developers for each day they fail to bring the properties in question up to code standards would be an effective means of inducing the developers to act, thereby accomplishing the ultimate relief sought by plaintiff in the instant action. Until it has been established that the criminal penalties provided in the ordinance quoted above will not prompt the developers to act, an injunction should not issue. See City of Chicago v. Festival Theatre Corp. (1982), 91 Ill. 2d 295, 313, 438 N.E.2d 159 (criminal prosecution not shown to be inadequate remedy — injunction wrongly issued).

The village has also failed to pursue the remedy available to it under section 11 — 31—2 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 31—2). Section 11 — 31—2 authorizes a municipality to secure a mandatory injunction against a property owner who fails, after notice, to correct ordinance violations on his property. Thus, in the instant case, plaintiff is authorized by statute to secure a mandatory injunction against the owners of the properties in issue to compel them to bring their properties into conformance with the building code. This, in turn, would leave the property owners to pursue whatever remedy they might have against the developers for their faulty construction work.

Plaintiff, however, for reasons which are not apparent, insists upon securing injunctive relief against only the developers. It is not clear under what authority plaintiff bases its insistence on pursuing a particular defendant. In any event, it is clear that the village may use an injunction to force compliance with a building code only when such means are necessary to protect the health and safety of the community as a whole. (Cf. People ex rel. Terp v. Washingtonian Home (1935), 361 Ill. 522, 525, 198 N.E. 721 (public official is appropriate party to enjoin public injury).) If the village has concluded that the interests of the community as a whole require that the properties in issue be brought up to code, it should be left to pursue the available statutory remedy designed to accomplish that end.

For the reasons expressed herein, the judgment of the circuit court is affirmed.

Affirmed.

DOWNING and PERLIN, JJ., concur.