author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DOROTHY TAYLOR et al., Defendants-Appellants.
    First District (3rd Division)
    No. 81—3102
    Opinion filed June 15, 1983.

      James J. Doherty, Public Defender, of Chicago (Robert Guch, Assistant Public Defender, of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and David A. Shapiro, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

After a bench trial, defendants Dorothy and Andre Taylor were found guilty of the murders of Derrick Montgomery and Cedrick Maltbia and of armed violence and sentenced to natural life imprisonment. They appeal, contending: (1) section 5 — 8—1(a)(1)(c) of the Unified Code of Corrections imposing mandatory natural life imprisonment is unconstitutional (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—1(a)(1)(c)) and (2) they were improperly convicted of both murder and armed violence.

On January 12, 1981, Derrick Montgomery, Cedrick Maltbia, Enicha Washington and Michael Simmons were at Patti Washington’s apartment at 826 North Sedgwick in Chicago. At that time, defendant Dorothy Taylor and her sister Virgie entered the apartment. Virgie went into a bedroom with Montgomery to discuss his return of her jewelry and, as they exited the room, he struck Virgie. At this, Dorothy pulled out a gun, gave it to Virgie and ordered her to shoot Montgomery. Virgie complied, firing twice at Montgomery. Dorothy then opened the front door and admitted codefendant Andre (the son of Virgie), who was armed with a shotgun.

A few moments later, Dorothy and Virgie started to leave the apartment. Defendant Dorothy Taylor then told her nephew Andre to “kill everyone in the apartment, don’t leave nobody.” Andre shot Cedrick Maltbia twice at close range with a shotgun. Andre then turned toward Michael Simmons, who had grabbed Enicha Washington in order to protect her. Andre pumped the shotgun in their direction. Dorothy Taylor, however, intervened, telling Andre that they should be spared. Andre then turned to Derrick Montgomery and shot him once.

Defendants were sentenced for the murders under section 5 — 8— 1(a)(1)(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—1(a)(1)(c)), which provides:

“Sentence of Imprisonment for Felony, (a) A sentence of imprisonment for a felony shall be a determinate sentence set by the court under this Section, according to the following limitations:
(1) for murder *** (c) if the defendant has previously been convicted of murder under any state or federal law or is found guilty of murdering more than one victim, the court shall sentence the defendant to a term of natural life imprisonment; ***.” (Emphasis added.)

Section 3 — 3—3(d) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 3—3(d)) provides:

“(d) No person serving a term of natural life imprisonment may be paroled or released except through executive clemency.”

The able and experienced trial judge denied defendants’ motion to reconsider the sentences. However, he expressed with eloquence his belief that defendants are not beyond rehabilitation; that he had no choice or discretion with reference to the sentence; and that he, in the exercise of the judicial function, would not have imposed these sentences.

Defendants contend that the natural life sentences imposed under section 5 — 8—1(a)(1)(c) violate article I, section 11, of the 1970 Illinois Constitution: “All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship. ***.”

If section 5 — 8—1(a)(1)(c) is mandatory, we agree.

The power of the legislature to determine punishment is subject to constitutional limitations. (People v. Grant (1978), 71 Ill. 2d 551, 377 N.E.2d 4.) A sentence imposed by a trial court will not be disturbed unless it clearly appears that the penalty constitutes a great departure from the fundamental law and its spirit and purpose. The spirit and purpose of the law are upheld when a sentence in conformity with article I, section 11, reflects the seriousness of the offense and gives adequate consideration to the rehabilitative potential of the defendant. People v. Heflin (1978), 71 Ill. 2d 525, 376 N.E.2d 1367, cert. denied (1979), 439 U.S. 1074, 59 L. Ed. 2d 41, 99 S. Ct. 848; People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677; People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.

The power to impose sentence is exclusively a function of the judiciary. (People v. Davis (1982), 93 Ill. 2d 155, 442 N.E.2d 855.) A reasoned judgment as to the proper sentence to be imposed must be based upon the particular circumstances of each case. Such judgment depends upon many factors, including the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits and age. The trial judge, in the course of the trial and the sentencing hearing, has an opportunity to consider these factors. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

In People v. Cox (1980), 82 Ill. 2d 268, 280, 412 N.E.2d 541, the court said that the trial judge is “charged with the difficult task of fashioning a sentence which would strike the appropriate balance between protection of society and rehabilitation of the offender.”

If subsection (c) of section 5 — 8—1(a)(1) is mandatory, then the trial judge is precluded from considering any mitigating or aggravating factors and thus being able to strike that appropriate balance.

Contrasted to subsection (c) is the language of subsection (b) of that section:

“(b) if the court finds that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty or that any of the aggravating factors listed in subsection (b) of Section 9 — 1 of the Criminal Code of 1961 are present, the court may sentence the defendant to a term of natural life imprisonment ***.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-l(a)(l)(b).)

Subsection (b) thus allows the trial judge to consider mitigating and aggravating factors to arrive at an appropriate balance.

Cases which have upheld natural life sentences under subsection (b) all point to the fact that the sentencing judge was able to use discretion in imposing sentence.

In People v. LaPointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344, the court upheld, against an attack under article I, section 11, a natural life sentence "without parole imposed under subsection (b). The trial court had considered in detail the aggravating and mitigating factors in sections 9 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1) and 5 — 5—3.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.1). The court, recognizing the discretionary power conferred on the trial judge by subparagraph (b), observed (88 Ill. 2d 482, 492-93):

“The Unified Code of Corrections vests a wide discretion in sentencing judges in order to permit reasoned judgments as to the penalty appropriate to the particular circumstances of each case. (People v. Bolyard (1975), 61 Ill. 2d 583.) ***
Defendant argues, however, that our constitution requires the trial court to make specific findings concerning the defendant’s rehabilitative potential. The relevant section provides: ‘All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.’ (Ill. Const. 1970, art. I, sec. 11.) The sentencing judge is always, as we stated in Cox [82 Ill. 2d 268], ‘charged with the difficult task of fashioning a sentence which would strike the appropriate balance between protection of society and rehabilitation of the offender.’ (82 Ill. 2d 268, 280.) That task can be an agonizing one to the solution of which a trial judge may well devote substantial amounts of time and thought.”

In People v. Merchel (1980), 91 Ill. App. 3d 285, 414 N.E.2d 804, appeal denied (1981), 83 Ill. 2d 573, this court upheld a natural life sentence under subparagraph (b) against a claim of unconstitutionality under article I, section 11. The court was careful to point out that the statute was not mandatory; thus, it did not totally ignore the rehabilitative potential of a defendant. The court said (91 Ill. App. 3d 285, 294):

“We first reject the notion that the natural life provision of section 5 — 8—1(a)(1) requires that the judge focus solely on the nature of the offense, without considering the defendant’s rehabilitative potential. The statute provides that the judge ‘may’ impose a natural life sentence where the requisite findings are made; ‘brutal or heinous behavior’ is only a threshold requirement for imposition of natural life. Natural life is not mandated whenever those factors are present, regardless of other circumstances. In fact, subsection (b) of section 5 — 8—1 explicitly authorizes consideration of mitigating factors imposing a sentence under the statute. Many of these mitigating factors reflect on the rehabilitative potential of the defendant.”

The court further observed (91 Ill. App. 3d 285, 295):

“We are careful to note, however, that while the legislature did not mandate a natural life sentence, neither did it leave the sentencing court with unbridled discretion. In imposing sentence on any felony, factors in aggravation and mitigation are to be considered, as well as ‘any other such factors as the judge shall set forth on the record that are consistent with the purposes and principles of sentencing set out in this Code.’ (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(b).) To construe the word ‘may’ as carte blanche for imposition of a natural life sentence without consideration of all statutory sentencing factors, would violate the concept of limited discretion embodied in the Sentencing Act. However, since the sentencing court’s discretion in imposing a natural life sentence for a brutal or heinous murder is modified by these statutory factors, the provision violates neither due process nor equal protection.”

This court has reached the same conclusion in a number of other well-reasoned opinions: People v. Kloiber (1981), 95 Ill. App. 3d 1061, 420 N.E.2d 870, appeal denied (1981), 85 Ill. 2d 571; People v. Nobles (1980), 83 Ill. App. 3d 711, 404 N.E.2d 330, appeal denied (1980), 81 Ill. 2d 597; People v. Bartik (1981), 94 Ill. App. 3d 696, 418 N.E.2d 1108, appeal denied (1981), 85 Ill. 2d 567.

In People v. Bush (1981), 103 Ill. App. 3d 5, 430 N.E.2d 514, relied on by the State, the court upheld consecutive natural life sentences under subsection (b) for two murders which the trial court found were accompanied by “exceptionally brutal or heinous behavior indicative of wanton cruelty,” the court holding that article I, section 11, was not violated because the trial court had considered both the seriousness of the crime and the defendant’s rehabilitative potential. The court’s statement (103 Ill. App. 3d 5, 15): “There can be no challenge to a single sentence of natural life imprisonment in this case because the sentence is mandated by section 5 — 8—1(a)(1), (c) of the Unified Codé of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(a)(1), (c)) for the murder of more than one victim” was not necessary to the decision; nor did it consider the fact that under subsection (c), if mandatory, the trial court could not consider the defendant’s rehabilitative potential.

Although a natural life sentence without parole was not involved, the court in People v. Rickard (1981), 99 Ill. App. 3d 914, 425 N.E.2d 1317, appeal denied (1982), 88 Ill. 2d 554, vacated a murder sentence of 100 to 300 years because it effectively negated any possibility of defendant’s rehabilitation.

Even though a death sentence differs in kind from a mandatory life sentence, the reasoning of the Supreme Court of the United States applies by analogy. That court was careful to point out that, in order for a death sentence to be constitutional as not constituting “cruel and unusual punishment” under the eighth and fourteenth amendments, there must be the individualized consideration of mitigating factors. (Eddings v. Oklahoma (1982), 455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869; Woodson v. North Carolina (1976), 428 U.S. 280, 49 L. Ed. 2d 944, 96 S. Ct. 2978.) In Gregg v. Georgia (1976), 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909, the court upheld the death sentence because the jury was permitted to consider aggravating and mitigating circumstances and a review by the State supreme court was required.

From the above Illinois and Federal authorities, we hold that the sentencing authority must have the right to consider mitigating and aggravating factors. This right becomes all the more important where, as in the case at bar, there is no possibility of parole. In Rummel v. Estelle (1980), 445 U.S. 263, 63 L. Ed. 2d 382, 100 S. Ct. 1133, the court, in upholding a Texas statute imposing a life sentence for the commission of three offenses, relied in large measure on the fact that the defendant had the possibility of parole.

Nor do we believe that the Governor’s power to grant reprieves, commutations and pardons under article V, section 12, of the 1970 Illinois Constitution is a sufficient substitute for the sentencing judge’s consideration of a defendant’s rehabilitative potential.

Further, even though a defendant’s potential for rehabilitation may be so minimal that it need not be reflected in the sentence actually imposed (People v. Shumate (1981), 94 Ill. App. 3d 478, 419 N.E.2d 36, appeal denied (1981), 85 Ill. 2d 573) and even though the legislature has the authority to set the nature and extent of penalties and can determine that a recidivist should be dealt with more harshly (People ex rel. Carey v. Bentivenga (1981), 83 Ill. 2d 537, 416 N.E.2d 259), penalties imposed by such legislation are subject to challenge when the penalty “is clearly in excess of the very broad and general constitutional limitations applicable.” People ex rel. Carey v. Bentivenga (1981), 83 Ill. 2d 537, 542; Rummel v. Estelle.

Where that type of penalty is upheld, it is clear that the rehabilitative potential of the individual has received consideration.

For example, in People ex rel. Carey v. Chrastka (1980), 83 Ill. 2d 67, 413 N.E.2d 1269, the court upheld section 5 — 12 of the Juvenile Court Act, commonly referred to as the Habitual Juvenile Offender Act (Ill. Rev. Stat. 1981, ch. 37, par. 705 — 12), which provides that a juvenile who is adjudicated a delinquent for a third time of having committed an offense which would be a felony if committed by an adult shall be confined until he reaches the age of 21. The Act was challenged on the ground that the mandatory confinement to age 21 violated the rehabilitative objective of article I, section 11. The court rejected the challenge (83 Ill. 2d 67, 79-80):

“Under the Act, the court is dealing with a juvenile who has allegedly committed three offenses within what is necessarily a short period of time. Significantly, the two predicate adjudications afforded the juvenile the opportunity to have a hearing at which he could present mitigating evidence and at which the trial judge could exercise his discretion in determining the appropriate disposition. *** The legislature could legimately conclude that an individual who has committed three such offenses has benefited little from the rehabilitative measures of the juvenile court system and exhibits little prospect for restoration to meaningful citizenship within that system as it had heretofore existed. The rehabilitative purposes of the system are not completely forsaken, but after the commission by an individual of a third serious offense, the interest of society in being protected from criminal conduct is given additional consideration. We consider it to be entirely reasonable and constitutionally permissible for the legislature to so provide and to authorize the disposition specified in the legislative scheme it has developed.”

Under the philosophy underlying the Juvenile Court Act, mitigating factors were required to be considered for each of the first two adjudications of delinquency. It was only because of a third adjudication that the legislature could properly conclude that the juvenile, as the court stated, “has benefited little from the rehabilitative measures of the juvenile court system and exhibits little prospect for restoration to meaningful citizenship.” In the case at bar, however, there is no prior consideration of mitigating or rehabilitative factors; upon the mere proof of two murders, the statute, if mandatory, requires a trial court to impose a natural life sentence.

In People v. Perry (1980), 81 Ill. App. 3d 422, 401 N.E.2d 1263, appeal denied (1980), 81 Ill. 2d 597, cert. denied (1981), 451 U.S. 983, 68 L. Ed. 2d 839, 101 S. Ct. 2313 (relied on by the State), this court rejected the contention that Class X legislation making all sentences determinative, eliminating the prison review board’s discretion in granting parole and by requiring minimum mandatory sentences, has effectively abandoned rehabilitation as an objective of sentencing. The court said that the fallacy of the contention was the assumption that early release and parole are the only means of rehabilitation. It felt that the methods of rehabilitating criminal offenders was a question peculiarly suitable for legislative investigation, analysis and action. But in the Class X legislation, mitigating factors were not completely eliminated as is done by subparagraph (c), if mandatory.

We conclude that if the word “shall” in section 5 — 8— 1(a)(1)(c) is construed as mandatory, that provision is unconstitutional.

People v. Davis (1982), 93 Ill. 2d 155, 442 N.E.2d 855, states the rule to be applied to the case at bar. There, the court, after distinguishing People v. Youngbey (1980), 82 Ill. 2d 556, 413 N.E.2d 416 (in which it had held that the mandatory provision of section 5 — 3—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 3—1), requiring a presentence investigation and report, was within the power of the legislature because it did not infringe on the inherent powers of the judiciary or conflict with a rule of the supreme court), held that to construe as mandatory sections 5 — 4—1(c) and 5— 8 — 1(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, pars. 1005 — 4—1(c), 1005 — 8—1(b)), thus imposing on the trial judge the duty to specify on the record the reasons for imposing a particular sentence, would render the provisions an unconstitutional invasion of the inherent power of the judiciary in violation of the separation of powers clause of the Illinois Constitution (Ill. Const. 1970, art. II, sec. 1). The court said (93 Ill. 2d 155, 161-62):

“Article VI, section 1, of the Illinois Constitution of 1970 provides: ‘The judicial power is vested in a Supreme Court, an Appellate Court and Circuit Courts.’ Judicial power is not defined in the Constitution, but all such power is exclusively and exhaustively granted to the courts. (People v. Cox (1980), 82 Ill. 2d 268, 274; People v. Jackson (1977), 69 Ill. 2d 252, 256.) It is, of course, indisputable that the power to impose sentence is exclusively a function of the judiciary. (People v. Phillips (1977), 66 Ill. 2d 412, 415; People v. Montana (1942), 380 Ill. 596, 608.) To construe the section of the statute under consideration as mandatory would permit a legislative infringement upon the exercise of the judicial function of imposing sentence.
Article II, section 1, of the Illinois Constitution of 1970 provides: ‘The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.’ The General Assembly has the power to enact laws governing judicial practice only where they do not unduly infringe upon the inherent powers of the judiciary. (Strukoff v. Strukoff (1979), 76 Ill. 2d 53, 59; People v. Callopy (1934), 358 Ill. 11.) Furthermore, it is the undisputed duty of the court to protect its judicial powers from encroachment by legislative enactments, and thus preserve an independent judicial department. Agran v. Checker Taxi Co. (1952), 412 Ill. 145, 149.
A statute should be interpreted so as to avoid a construction which would raise doubts as to its validity. (Morton Grove Park District v. American National Bank & Trust Co. (1980), 78 Ill. 2d 353, 363.) It is our duty to construe acts of the legislature so as to affirm their constitutionality and validity, if it can be reasonably done, and further if their construction is doubtful, the doubt will be decided in favor of the validity of the law challenged. Continental Illinois National Bank & Trust Co. v. Illinois State Toll Highway Com. (1969), 42 Ill. 2d 385, 389; Illinois Crime Investigating Com. v. Buccieri (1967), 36 Ill. 2d 556, 561.
In the instant case, in contrast to Youngbey, it is clear that the pronouncement of sentence is at the heart of the judicial function. A construction which would hold sections 5 — 4—1(c) and 5 — 8—1(b) to constitute a mandatory requirement would clearly render the provisions an unconstitutional invasion of the inherent power of the judiciary. However, a construction which rendered the sections to be solely directory would not.
In Youngbey, in construing the import of the term ‘shall,’ we observed:
‘Generally, the use of the word “shall” is regarded as indicative of a mandatory intent. [Citations.] We recognize, however, that this is not an inflexible rule; the statute may be interpreted as permissive, depending upon the context of the provision and the intent of the drafters.’ (People v. Youngbey (1980), 82 Ill. 2d 556, 562.)
In the instant case, to hold that the term ‘shall’ denominates a mandatory requirement imposed upon the judiciary at sentencing would be to find the statute to be constitutionally invalid. As we presume that the legislature intended to enact a valid statute, we read ‘shall’ in this context as permissive rather than mandatory.”

We, as did the supreme court in that case with reference to subsection (b) of the same section that is before us in the case at bar (section 5 — 8—1), read the “shall” in subsection (a)(1)(c) as permissive to avoid a holding that it is constitutionally invalid. The sentences of natural life, therefore, are vacated and the cause remanded for further sentencing procedure as to the murder convictions in conformity with the applicable provisions of the Unified Code of Corrections.

Defendants also contend that their convictions for armed violence should be vacated because they and their murder convictions arose from the same act. We disagree. The evidence shows that the two victims died of multiple gunshot wounds. Thus, the offenses arose not from a single act, as defendants contend, but from a series of closely related or incidental acts. The victims were shot a short time apart, not simultaneously. Under these circumstances, defendants were properly convicted of armed violence. People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273; People v. Myers (1981), 85 Ill. 2d 281, 426 N.E.2d 535.

The murder convictions and the armed violence convictions are affirmed. The cause is remanded for resentencing on the murder convictions and for further consideration of sentences on the armed violence convictions.

Affirmed in part, vacated in part and cause remanded.

McGILLICUDDY and WHITE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE PERLIN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VITTORIO CAMPBELL, Defendant-Appellant.
    First District (2nd Division)
    No. 81—629
    Opinion filed June 21, 1983.

      Steven Clark and Karen Michels, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Paula Carstensen, and Thomas J. Finn, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

In a jury trial, defendant, Vittorio Campbell, was found guilty of armed robbery and aggravated battery and was sentenced to serve two concurrent eight-year terms of imprisonment in the Illinois Department of Corrections. On appeal, defendant contends that he was not proved guilty beyond a reasonable doubt; that he was prejudiced by evidence suggesting that an accomplice had implicated him and by the prosecutor’s repeated reference to this matter in closing argument; and that the trial court improperly restricted his direct examination. For the reasons hereinafter stated, we reverse defendant’s convictions and remand the cause for a new trial.

Miller Tan testified to the following:

At 12:30 a.m. on June 3, 1980, Tan was driving his Ford pickup truck north on Halsted Street in Chicago. Approximately 100 feet north of the intersection of Halsted and 72nd Street, two young women “flagged” Tan. After he parked his truck, a man identified by Tan as Dwayne Robertson approached him and asked him if he “wanted a date, a young lady.” Robertson and Tan agreed to a price of $20 but Tan refused to pay him until he saw the woman. Robertson walked across the street to a vehicle which was parked on the west side of Halsted and spoke briefly with a young black woman who was standing outside the car. The woman crossed the street, entered Tan’s truck and "quoted” a price of $20 to spend the day with her. Tan accepted and suggested that they go to a motel. The woman said that she first had to go to her home. She exited the truck, walked across the street, appeared to have a conversation with Robertson and then returned to Tan’s vehicle.

The woman told Tan to stop at a Clark gas station located at 68th and Halsted and asked him for $5 so that she could buy a “nickle [sic] bag of marijuana.” Tan gave her the money, stating that he would owe her only $15 after their “business was transacted.” The woman took the $5, walked to a blue Buick parked at the station and returned to Tan’s truck. Tan and the woman then proceeded to 61st and Wallace where he parked his truck and left the motor running. The woman exited his truck and returned alone a few minutes later.

After she reentered his vehicle, Tan looked into his mirror and noticed Robertson “creeping” along the driver side of his truck. Robertson, who had a cast on his right arm, reached into the truck and placed his right hand across Tan’s face, knocking Tan’s prescription glasses from his face. Another man, whom Tan identified as defendant, pulled the woman out of the truck, entered the vehicle on the passenger side and thrust a sawed-off shotgun into his right side.

Defendant hit Tan on the side of his head with a shotgun, stating that he always wanted to kill “a pig.” Tan protested that he was not a policeman but defendant kept repeating that he wanted to kill “a pig,” and pushed the shotgun into Tan’s rib cage. Robertson, who was standing outside of the truck on the driver side, struck Tan several times on the left side of his forehead with his cast.

Defendant and Robertson took Tan’s bracelet, his watch and between $40 and $50 in currency. They then forced Tan to the floorboard of the truck and defendant hit Tan with the shotgun on the left side of his head behind the ear. Robertson entered the truck, stepped over Tan and drove the truck approximately 75 feet. Defendant and Robertson then exited the truck, threw the keys onto the floorboard and fled from the scene. There was a third black man standing behind Robertson but Tan saw him only momentarily. After the robbery, Tan drove to the police station located at 51st and Wentworth where he reported the incident. He later spoke with several other police officers at 61st and Racine.

Tan estimated that six to eight minutes had elapsed from when he first saw Robertson in the mirror until he was forced to the floorboard. He thought that there was a street lamp approximately five feet in front of the truck and there was some additional illumination from a nearby railroad crossing. Since defendant failed to close the passenger side door when he entered the truck, the inside dome light remained on for the entire time defendant was inside the vehicle. Tan was compelled to look in defendant’s direction because Robertson had placed his casted arm on Tan’s face. Although Tan had lost his glasses, he experienced no difficulty seeing defendant who was only two feet away from him.

On cross-examination, Tan testified that he was beaten so badly that he was bleeding from several different places on his head. Yet, he did not seek medical attention for several days. Although, at trial, Tan testified that he had not been knocked unconscious, he admitted that at the preliminary hearing he had testified that he became unconscious when defendant struck him on the side of his head with the shotgun. Tan explained that he had been “dazed.”

On June 4, 1980, the day following the robbery, at approximately 4:30 p.m., Tan identified Robertson in a lineup. Ten days later, on June 14, 1980, sometime between 3:30 a.m. and 4:30 a.m., Tan selected defendant’s photograph from an array of seven photographs of black men which the police showed to him at his home. The defendant was the only person depicted who had a beard. He then accompanied the officers to 61st and Racine where he also identified defendant in a lineup.

In his testimony, defendant denied any involvement in the armed robbery and aggravated battery of Miller Tan. Defendant stated that at the time of the offenses, he was playing pool, drinking and watching television in a lounge at 71st and Halsted.

I

Defendant contends that he was not proved guilty beyond a reasonable doubt. In the first part of his argument, defendant submits that Tan’s out-of-court identification of defendant’s photograph was unnecessary, because defendant was already in custody, and impermissibly suggestive, because he was the only person depicted who had a beard. Defendant has waived consideration of this matter, however, since he made no motion to suppress either Tan’s out-of-court identifications or his in-court identification.

Defendant also maintains that the evidence was insufficient to establish his guilt. We have set forth the evidence presented at trial and will not restate that evidence here. We have reviewed the entire record and are satisfied that there was sufficient credible evidence from which the jury could have concluded that defendant was guilty of armed robbery and aggravated battery.

II

Defendant next contends that he was prejudiced by evidence suggesting that an accomplice had implicated him and by the prosecutor’s repeated reference to this matter in closing argument.

At trial, Chicago police officer Stan Salabura testified that after Tan identified Dwayne Robertson in the lineup held on June 4, 1980, Salabura and his partner, John Sehr, spoke with Robertson. As a result of that conversation, the officers reviewed their files looking for someone who used the name “Vick.” Salabura stated that the officers found the name of a person who was known as “Vick.” Defense counsel objected to this reference. The trial court sustained the objection, struck all testimony concerning “Vick,” instructed the jury to disregard such testimony and directed the prosecutor not to pursue this line of questioning.

Salabura then testified that he and his partner left the station and drove to the defendant’s residence at 5743 West 65th Place where they spoke with a woman who identified herself as Mrs. Campbell. At the conclusion of Salabura’s direct examination, the prosecutor asked:

“Before you talked to Dwayne Robertson in the early hours of 4th June, 1980, did you know where Vittorio Campbell lived?”

Defense counsel’s objection to this question was sustained.

On cross-examination by defense counsel, Salabura stated that Tan did not mention the name “Vick” to him. On redirect, the prosecutor attempted to elicit from Salabura the fact that Robertson had in fact provided him with the name “Vick.” The trial court sustained defense counsel’s objection on the grounds that Robertson’s statements to Salabura were hearsay and that “the statements of a codefendant are not admissible against a princip[al] defendant who is on trial.” The court announced that it would “not permit the State to elicit evidence that the co-defendant in this case implicated this Defendant.”

During rebuttal closing argument, the prosecutor commented:

“I agree with counsel, it was only after the police talked to Dwayne Rober[t]son that they started looking for Vittorio Campbell.
[DEFENSE COUNSEL]: Objection.
THE COURT: Objection’s overruled.
[THE PROSECUTOR]: You have got to use your common sense. Where do you think the police got the name of Vittorio Campbell? They got it from Dwayne Rober[t]son.
[DEFENSE COUNSEL]: Objection.
THE COURT: Objection is sustained, the jury is instructed to disregard the last remarks of counsel.
[THE PROSECUTOR]: Ladies and gentlemen, use your common sense. The police didn’t know about Vittorio Campbell before Dwayne Rober[t]son got arrested, after Dwayne Rober[t]son put in the line-up and there is an interview with Dwayne Rober[t]son—
[DEFENSE COUNSEL]: Objection.
THE COURT: Objection is sustained, counsel you are instructed to change your line of argument now.
[THE PROSECUTOR]: The first thing the officer did was to go to Vittorio Campbell’s house, then you heard evidence, Officer [Salabura] ordered a picture of Vittorio Campbell. Why, why Vittorio Campbell of all the people in the world, why did he order a picture of Vittorio Campbell? Use your common sense.
The officer ordered the picture of Vittorio Campbell because the officer learned Vittorio Campbell was involved in this case and the officer was going to show Vittorio Campbell’s picture to the victim Miller Tan.
[DEFENSE COUNSEL]: Objection.
THE COURT: Objection is sustained, the jury is instructed to disregard the last remarks of counsel.”

Defendant contends that the testimony of Salabura and the comments of the prosecutor in closing argument injected prejudicial and inadmissible hearsay into the trial and violated defendant’s sixth amendment right to confront and to cross-examine his putative accuser, Dwayne Robertson. The State initially responds that defendant has waived this contention because he failed to include this issue in his post-trial motion.

Generally, a defendant must specifically raise an issue in his post-trial motion or it will be deemed waived. (People v. Andino (1981), 99 Ill. App. 3d 952, 954-55, 425 N.E.2d 1333.) Supreme Court Rule 615(a), however, provides that “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” (87 Ill. 2d R. 615(a).) In the instant case, we believe that the plain error rule is applicable and we reach the merits of this issue.

In Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, two defendants, Bruton and Evans, were tried jointly, but Evans chose not to testify. Evans’ confession, including statements implicating Bruton, were admitted into evidence. The Supreme Court reversed Bruton’s conviction because the confession constituted inadmissible hearsay which “added substantial, perhaps even critical, weight to the Government’s case in a form not subject to cross-examination, since Evans did not take the stand.” (391 U.S. 123, 128, 20 L. Ed. 2d 476, 480, 88 S. Ct. 1620, 1623.) The court thus held that Bruton had been denied his constitutional right of confrontation. 391 U.S. 123, 128, 20 L. Ed. 2d 476, 480, 88 S. Ct. 1620, 1623.

In our judgment, the defendant in the instant case was also denied his right of confrontation. Although defendant’s case was severed from Robertson’s, the prosecutors, in defiance of the trial court’s explicit instructions, insisted upon repeatedly informing the jury that Robertson had implicated the defendant. Such implications are “devastating to the defendant” and “their credibility is inevitably suspect.” (Bruton v. United States (1968), 391 U.S. 123, 136, 20 L. Ed. 2d 476, 485, 88 S. Ct. 1620, 1628.) “The unreliability of such evidence is intolerably compounded when the alleged accomplice *** does not testify and cannot be tested by cross-examination.” 391 U.S. 123, 136, 20 L. Ed. 2d 476, 485, 88 S. Ct. 1620, 1628.

The State’s argument that in examining Salabura and in closing argument the prosecution was merely trying to explain why Salabura arrested defendant is not borne out by the record. We note that the prosecutor declined the court’s offer to strike the evidence that defendant had been arrested without a warrant or to admonish the jury that the legality of the defendant’s arrest “should play no part in any decision that they make in this case.” The prosecutor also refused to suggest any other method of referring to the defendant’s arrest which would not have disclosed Robertson’s implication of defendant. In our opinion, the prosecutor’s examination of Salabura and comments in closing argument were evidently calculated to urge the jury to convict defendant because Robertson had incriminated him in the robbery. While the trial court sustained virtually all of defense counsel’s objections to the prosecutor’s examination and comments, the salutary effect of these rulings was undermined by the repetition of the objectionable remarks. (People v. Weinstein (1966), 35 Ill. 2d 467, 471, 220 N.E.2d 432.) Finally, we find no basis in the record to support the State’s contention that the prosecutor’s comments in closing argument were invited by defense counsel’s cross-examination of Officer Salabura or by his closing argument.

After carefully examining the record, we are constrained to conclude that the defendant was deprived of his right to a fair and impartial trial. Although the State’s evidence was sufficient to sustain defendant’s convictions in a trial free from prejudicial error, when considered as a whole, we cannot say that the questions and comments complained of were harmless beyond a reasonable doubt or did not contribute to defendant’s convictions. (People v. Weinger (1981), 101 Ill. App. 3d 857, 872, 428 N.E.2d 924.) Defendant therefore must be granted a new trial. In light of our disposition of this issue, it is unnecessary to consider defendant’s remaining contention.

For the foregoing reasons, the judgments of defendant’s convictions are reversed and the cause is remanded to the circuit court of Cook County for a new trial.

Reversed and remanded.

DOWNING, P.J., and HARTMAN, J., concur.

      The State’s reliance on People v. Wright (1974), 56 Ill. 2d 523, 532-33, 309 N.E.2d 537, is misplaced. In Wright, our supreme court held that no Bruton problem arose where the cases of two defendants were severed and the confessing defendant already had been tried, convicted and sentenced and was apparently available to the nonconfessing defendant to bring into court for cross-examination at the time of his trial. Here, there is no evidence that Robertson had been tried prior to defendant and that he would have been available for cross-examination.


author: JUSTICE REINHARD

text:
    PREMIER ELECTRICAL CONSTRUCTION COMPANY, Plaintiff-Appellant, v. LA SALLE NATIONAL BANK, Trustee, et al., Defendants-Appellees.
    Second District
    No. 82—717
    Opinion filed June 22, 1983.

      Kurt David Baer, of Patrick Mazza and Associates, of Chicago, for appellant.
    Robert E. Pfaff, of Jenner and Block, of Chicago, for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

The plaintiff, Premier Electrical Construction Company (Premier), appeals under Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)) from an order of the trial court which, pursuant to the defendants’ motion, dismissed counts I and II of Premier’s five-count amended complaint. On appeal, Premier maintains that the trial court erred in ruling on defendants’ motion which it contends was improper in form, and in dismissing counts I and II which Premier claims were legally sufficient to state a cause of action.

Premier’s amended five-count complaint sought foreclosure of a mechanics’ lien (Ill. Rev. Stat. 1981, ch. 82, par. 1 et seq.) and other relief against La Salle National Bank (bank), as trustee under Trust No. 49475, Neiman Oak Brook Associates, Ltd. (Neiman-Marcus), Carter Hawley Hale Stores, Inc. (Carter Hawley), E. W. Corrigan Construction Company (Corrigan) and other defendants and “unknown owners.” The amended complaint alleged that the bank was the legal owner or titleholder of certain described property located in the Oak Brook Center Mall and that Neiman-Marcus was the beneficial owner of that property.

According to the complaint, Corrigan was the general contractor and had entered into a written contract with the owners of the subject property to construct a new specialty store for Neiman-Marcus, a division of Carter Hawley. Premier, in turn, executed a written agreement with Corrigan whereby Premier, as subcontractor, agreed to provide labor and material for electrical work at the Oak Brook property, in accordance with the terms of the subcontract and of certain drawings, plans, and specifications prepared for that purpose as set forth in the original contract between Corrigan and the owners.

Count I of the amended complaint, which was directed against the owner or owners of the Oak Brook property and sought foreclosure of a mechanics’ lien, further stated that during the course of construction Premier encountered “numerous unusual, unforeseen and unanticipated job conditions” and that the owner requested to take occupancy of the store on a date much earlier than originally anticipated. Due to the above-stated conditions and circumstances, Premier performed additional, different and accelerated electrical work beyond that which was contained in the express contract between Premier and Corrigan, the general contractor. Count I alleged, in addition, that the owners were aware that the additional and different electrical work would cost more than the price originally stated in the subcontract and that the. owners knew and understood that Premier would be paid additional compensation for that work. Due to the continuous understanding between Premier and the owners that the subcontractor would be paid additional consideration for the work performed beyond the express terms of the subcontract, an implied contract existed between Premier and the owners which entitled the subcontractor to a lien on the subject property in the amount of $357,633.

Count II of the amended complaint, which was also against the owners of the premises upon which the construction occurred, recited the same allegations that were summarized above in relation to count I and sought recovery under a theory of unjust enrichment.

The defendants filed a motion “to strike and dismiss” counts I and II of Premier’s amended complaint. That motion did not identify whether it was brought pursuant to section 45 or section 48 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, pars. 45, 48), now re-codified as sections 2 — 615 and 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, pars. 2 — 615, 2 — 619). With respect to the motion to strike and dismiss count I of the amended complaint, the defendants attached, as exhibits to the motion, copies of a waiver of lien to date, a payout order, and a contractor’s affidavit. The motion with respect to count I stated that Premier had executed and delivered the lien waiver to Corrigan and concluded, based on the documents described above and in light of this court’s opinion in Country Service & Supply Co. v. Harris Trust & Savings Bank (1981), 103 Ill. App. 3d 161, 430 N.E.2d 631, that Premier had waived its right to a mechanics’ lien. In addition, the motion to dismiss count II of the amended complaint raised other various matters in support of the relief sought.

The parties filed memoranda of law in support of their respective positions. Premier’s memorandum stated, inter alia, that the motion to strike and dismiss was improper procedurally because it failed to specify whether the motion was pursuant to section 45 (2 — 615) or section 48 (2 — 619), it raised factual matters outside of the amended complaint, and the factual matters were not supported by affidavit. Premier also made legal arguments in support of the sufficiency of the amended complaint. Premier attached as exhibits to its second memorandum of law copies of the same three documents, described above, that the defendants had appended to their motion to dismiss. The defendants’ memorandum of law did not address the procedural objections to their motion and essentially argued that the lien waiver operated to waive all claims against them. During argument on the motion, Premier continued to object to the attachment of the lien waiver to the motion without an affidavit, although it appears that the authenticity of the lien waiver was not in issue. After hearing arguments, the trial court granted the motion to dismiss. However, at the suggestion of defendants’ counsel, the court then treated the original motion to strike and dismiss as a motion for summary judgment, and dismissed counts I and II on that basis. While Premier’s counsel did not specifically object to this procedure at that time, it appears from the record that he did not agree to it and was puzzled by this procedure.

On appeal, defendants acknowledge “that the better practice would have been to specify that dismissal of count I was sought pursuant to section 2 — 619 supported by affidavit establishing the authenticity of the attached contractor’s affidavit and waiver of lien to date, and that dismissal of count II was based upon section 2 — 615.” However, defendants contend that Premier has failed to show how it was prejudiced by this procedure. It also appears that defendants no longer assert that the motion to strike and dismiss was a motion for summary judgment.

The motion practice utilized by defendants below and acquiesced in by the trial court cannot be sanctioned. Unfortunately, the failure to specifically designate whether a motion to dismiss is brought under section 2 — 615 or section 2 — 619 is not an infrequent trial practice. (See, e.g., Davis v. Keystone Printing Service, Inc. (1982), 111 Ill. App. 3d 427, 431-32, 444 N.E.2d 253; Davis v. Weiskopf (1982), 108 Ill. App. 3d 505, 508-10, 439 N.E.2d 60; Galayda v. Penman (1980), 80 Ill. App. 3d 423, 424-25, 399 N.E.2d 656; Cain v. American National Bank & Trust Co. (1975), 26 Ill. App. 3d 574, 585, 325 N.E.2d 799.) This procedure should not be countenanced by trial judges, and although not always fatal (Illinois Housing Development Authority v. Sjostrom & Sons, Inc. (1982), 105 Ill. App. 3d 247, 253, 433 N.E.2d 1350), it will require reversal if prejudice results to the nonmovant. (See Davis v. Weiskopf (1982), 108 Ill. App. 3d 505, 508, 439 N.E.2d 60; Herman v. Hamblet (1980), 81 Ill. App. 3d 1050, 1055, 401 N.E.2d 973.) “Meticulous practice dictates that a lawyer specifically designate whether his motion to dismiss is pursuant to this section [2 — 615] or section 2 — 619. [Citation.]” Ill. Ann. Stat., ch. 110, par. 2 — 615, Historical and Practice Notes, at 410 (Smith-Hurd 1983).

Equally exasperating to this court is the tactic used below by defendants, and in which the trial court acquiesced, whereby defendants’ counsel, at the conclusion of arguments on the motion to strike and dismiss and after the trial court had ruled, asked the court to consider the motion as one for summary judgment. To combine a motion to dismiss with a motion for summary judgment is a procedure not to be sanctioned. (Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 405-06, 312 N.E.2d 605.) Nor can we give approbation to a procedure where, as here, the motion to dismiss is transformed into a motion for summary judgment after the original motion is argued and the trial court has rendered its decision.

We observe also that copies of the lien waiver, the payout order, and the contractor’s affidavit were all attached to the motion to strike and dismiss without a supporting affidavit. Of course, factual defenses are not available under a motion to dismiss brought pursuant to section 2 — 615, and the court may consider the legal sufficiency of the complaint based only on the allegation in the complaint and not upon affidavits or other supporting materials. (Davis v. Weiskopf (1982), 108 Ill. App. 3d 505, 509, 439 N.E.2d 60; Inland Real Estate Corp. v. Christoph (1981), 107 Ill. App. 3d 183, 185, 437 N.E.2d 658.) On the other hand, a motion to dismiss made pursuant to section 2— 619 on grounds not appearing on the face of the pleading attacked, as is apparently the case here as to count I, must be supported by affidavit. (See Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619(a); Yale Development Co. v. Oak Park Trust & Savings Bank (1975), 26 Ill. App. 3d 1015, 1020, 325 N.E.2d 418.) No supporting affidavit was attached to the motion to dismiss to verify the authenticity and the truth of the contents of the lien waiver and other attached documents. While Premier apparently did not object to the authenticity of the lien waiver, it never has conceded the truth of its contents, or that of the other documents, nor that the lien waiver embodied all contracts between the parties. Nor was Premier given an opportunity to file counteraffidavits because of defendants’ failure to specify that the motion to dismiss, as directed to count I, was brought pursuant to section 2 — 619, as now argued on appeal by defendants.

We believe the motion procedure used by the defendants and the subsequent rulings of the trial court thereon, over the objections raised by Premier to this practice, resulted in prejudice to Premier which requires reversal. In view of the numerous procedural errors below, this is not a case where the procedural deficiencies can be overlooked (e.g., Buchalo v. Country Mutual Insurance Co. (1980), 83 Ill. App. 3d 1040, 1044, 404 N.E.2d 473), and we will not address the merits of the motion on appeal.

While defendants on appeal have attempted to incorporate Premier’s original, verified complaint into this case as a judicial admission that all of the work performed was under the express terms of the written contract (see Yarc v. American Hospital Supply Corp. (1974), 17 Ill. App. 3d 667, 307 N.E.2d 749), we do not find the factual pleadings in the original complaint to be sufficiently different from those pleaded in the amended complaint to constitute a judicial admission. Thus, Premier’s prior pleadings may not be considered in ruling on the motion directed to the amended complaint.

For the foregoing reasons, we reverse the judgment of dismissal of counts I and II of the amended complaint, and remand for further proceedings.

Reversed and remanded.

UNVERZAGT and NASH, JJ., concur.


author: JUSTICE JIGANTI

text:
    DONALD ESTEP et al., Plaintiffs-Appellants, v. THE DEPARTMENT OF PUBLIC AID et al., Defendants-Appellees.
    First District (4th Division)
    No. 83—54
    Opinion filed June 16, 1983.
    Thomas Johnson, Robert E. Lehrer, and Dveera Segal, all of Legal Assistance Foundation of Chicago, and Robert Burns, of Northwestern University Legal Clinic, and Mark C. Weber, of Mandel Legal Aid Clinic, all of Chicago, for appellants.
    Jeremiah Marsh, John L. Conlon, and David O. Toolan, all of Hopkins & Sutter, of Chicago, for appellees.
   JUSTICE JIGANTI

delivered the opinion of the court:

This class action challenges the authority of the Illinois Department of Public Aid (IDPA) and its director, Jeffrey Miller, to set the monthly payment distributed to over 110,000 adult General Assistance (GA) recipients who live in Chicago and 40 other downstate communities at a lower amount than that set the year before. Our function on appeal is solely one of statutory interpretation; the plaintiffs have raised no constitutional claim.

The purpose of the GA program is to provide limited aid to meet the basic subsistence requirements of needy individuals. Under authority delegated by the legislature in the Illinois Public Aid Code, the IDPA acts as the program’s administrator and determines the actual dollar amount to be distributed to recipients. The department first establishes the “standard of assistance” by pricing such items as food and clothing to determine the amount of money that a person needs each month to maintain a “livelihood compatible with health and well-being.” (Ill. Rev. Stat. 1981, ch. 23, par. 12 — 4.11.) The IDPA then determines the “aid payment,” or the amount actually provided as a matter of policy to recipients who have no outside income. The “aid payment” is adopted by administrative rule and may be of a lesser amount than the “standard of assistance.” Ill. Rev. Stat. 1981, ch. 23, par. 12 — 4.11.

For the fiscal year 1983 (July 1, 1982 — June 30, 1983), the IDPA established a grant amount of $144 per month by administrative rule. For the fiscal year 1982, the aid payment had been established at $162. Because of budgetary problems, the $162 amount was proposed to be reduced to $144 for the last two months of fiscal year 1982. The reduction was the subject of litigation which the supreme court eventually determined was moot. (Estep v. Department of Public Aid (1982), 92 Ill. 2d 510, 442 N.E.2d 148.) Consequently, those two months are not at issue in this lawsuit. The General Assembly appropriated $191.8 million for the 1983 GA program. The trial court found that, considering the proposed number of GA recipients and the amount of the appropriation, the IDPA properly exercised its discretion under the statute to set grant levels at $144 per month. The plaintiffs contend that the reduction in GA payments from $162 in 1982 to $144 in 1983 was a reduction unauthorized by statute.

The substance of this lawsuit necessarily revolves around the interpretation of section 12 — 4.11 of the Illinois Public Aid Code, which states in relevant part:

“The Department, with due regard for and subject to budgetary limitations, shall establish grant amounts for each of the programs, by regulation. The grant amounts may be less than the prices of the standards [i.e. standard of assistance] and may vary by program, size of assistance unit and geographic area and may be established in the form of a percentage of the standards for any or all programs.
Aid payments shall not be reduced except for changes in (1) cost of items included in the standards, or (2) the expenses of the recipient, or (8) the income or resources available to the recipient, or (If) grants resulting from adoption of a consolidated standard ***” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 23, par. 12 — 4.11.)

The defendants essentially construe the statute to give them the delegated authority to continue to pay the reduced GA payments because the General Assembly’s appropriation for the GA program in fiscal year 1983 would have been exhausted well before the end of the year unless individual GA payments remained at the $144 per month level. Placing primary reliance upon the “subject to budgetary limitations” language of the statute, the defendants contend that it was the legislature’s intent that GA payments continue to be reduced because its $191.8 million appropriation for the program mirrored the $144 benefit level that was later set by the IDPA. In contrast, the plaintiff class members point to the four enumerated instances in the statute which sanction a reduction in aid payments and argue that because a budgetary shortfall does not fall under any of the four categories, the IDPA lacks the authority necessary to reduce payments if it faces a budgetary deficiency. The plaintiffs further argue that the IDPA’s delegated authority to set grant amounts is specifically limited by the legislature in the four exceptions of the statute and that therefore, the IDPA acted in contravention of the statute when it reduced GA payments.

The sole question on appeal is whether the IDPA’s disbursement of 1983 fiscal year GA payments at the lower rate of $144 per month is a violation of section 12 — 4.11 of the Illinois Public Aid Code. (Ill. Rev. Stat. 1981, ch. 23, par. 12 — 4.11.) The plaintiffs contend that the IDPA defied the Illinois Public Aid Code and acted without authority when it reduced GA payments prior to the end of the 1982 fiscal year and that this practice has wrongfully continued into fiscal year 1983. Because the plaintiffs are seeking only prospective relief on this appeal, we are asked to enjoin the IDPA from disbursing future GA payments at a rate of less than $162 per month. After our examination of the rules of statutory construction and an analysis of the legislative intent in this case, we find that the IDPA acted within its statutory authority when it set 1983 GA benefit levels at $144 per month and therefore, we find it necessary to affirm the judgment of the trial court.

Each part or section of a statute should be construed in connection with every other part or section so as to produce a harmonious whole. (2A C. Sands, Statutes and Statutory Construction sec. 46.05, at 56 (4th ed. 1973); see also Mann v. Board of Education (1950), 406 Ill. 224, 92 N.E.2d 743.) It is an elementary rale of construction that effect must be given, if possible, to every word, clause and sentence of a statute and that a court may not read a statute so as to render any part inoperative, superfluous or insignificant. (People v. Lutz (1978), 73 Ill. 2d 204, 383 N.E.2d 171; People v. Warren (1977), 69 Ill. 2d 620, 373 N.E.2d 10; 2A C. Sands, Statutes and Statutory Construction sec. 46.06, at 63 (4th ed. 1973).) In the instant case, we recognize that the two sections cited to us by the parties in support of their divergent positions are to some extent in conflict with one another. Specifically, the plaintiffs argue that aid payments were reduced from the $162 level set in fiscal year 1982 to a $144 level for 1983 even though the rationale for reducing payments, namely a budgetary- shortfall, did not fall under any of the four exceptions which sanction a reduction of aid payments. On the other hand, the defendants contend that the statute authorizes the IDPA to set grants amounts “with due regard for and subject to budgetary limitations” and that this language conceivably operates to guide the IDPA to set grant amounts at a level consistent with annual legislative appropriations for the program. Thus, as the defendants argue, if current grant levels would exceed the amount of money appropriated for the program in an upcoming year, grant levels must be set accordingly to reflect the amount of the appropriation, even if the end result is a decrease in the grant levels that were set the previous year.

Importantly, this appeal does not require us to determine whether the IDPA properly reduced grant levels prior to the end of the 1982 fiscal year and after the 1982 grant level had already been set at $162. We must only decide whether the IDPA had the authority to set fiscal year 1983 grant levels at $144 when levels had been set at a higher rate the previous year. By necessity, it appears to us, grant levels must be set once a year in anticipation of and in harmony with the annual State budget and its related legislative appropriations. We offer these observations to shed some light upon our interpretation of the seemingly disharmonious sections of the Illinois Public Aid Code that are before us now. Specifically, because we are bound to construe the statute as a harmonious whole if it is at all possible, we do not think it unreasonable to conclude that the “subject to budgetary limitations” section of the statute gives the IDPA authority to set its yearly grant level in conformance with the annual budget that is appropriated for the Department by the legislature. After this grant level has thus been set “with due regard for and subject to budgetary limitations,” we then believe that the IDPA is unable to reduce grant amounts for any other reason than one of the four exceptions provided in the statute. In other words, the IDPA has the statutory authority to set grant levels in unison with legislative appropriations for the year but may not reduce those annual grant levels for any reason not specified by the legislature in the statute. We believe that this construction gives meaning to both disputed sections of the statute and most closely mirrors the legislative intent of requiring the IDPA to set grant levels in conformance with legislative appropriations, while providing a degree of protection to recipients by forbidding departmental reductions in grant levels already determined under the guidance of the legislature.

We believe that our interpretation of the seemingly incongruous sections of the statute is correct in light of the statutory and constitutional requirements that an agency such as the IDPA set expenditures so as not to exceed its appropriations. First of all, “[n]o officer, institution, department board or commission shall contract any indebtedness on behalf of the State, nor assume to bind the State in an amount in excess of the money appropriated, unless expressly authorized by law.” (Ill. Rev. Stat. 1981, ch. 127, par. 166.) If, in the instant case, the IDPA had set grant levels at $162, the record discloses that the Department’s annual appropriation would be exhausted well before the end of the fiscal year. And where the IDPA is not expressly authorized to set grant levels in excess of its appropriation, it would have been improper to bind the State to a $162 grant level. Second, the Illinois Constitution provides that the General Assembly shall make all appropriations for expenditures of public funds and that the State may not incur any obligation for payments from public funds that are not authorized by law. (Ill. Const. 1970, art. VIII, secs. 1(b), 2(b).) In the case at bar, a $162 grant level would place an obligation upon the State to pay public funds in excess of the amount appropriated by the legislature to fund the program. Such a situation would be unauthorized by the legislature and would place the legislature in the position of being forced to appropriate additional funds in order to continue payments to aid recipients.

The plaintiffs nonetheless argue that the legislature cannot amend substantive statutory rights indirectly through an appropriations measure. (See Ill. Const. 1970, art. IV, sec. 8(d) (“appropriations bills shall be limited to the subject of appropriations’ ’); Benjamin v. Devon Bank (1977), 68 Ill. 2d 142, 368 N.E.2d 878 (appropriation bill could not change existing statute).) However, we have already established that the exceptions section of the statute does not confer upon the plaintiffs any substantive right not to have grant levels set at a lower level than that set the year before. We therefore cannot conclude that the legislative appropriation for fiscal year 1983 in any way acted to change a right otherwise bestowed by the statute.

Furthermore, our perusal of the record discloses that the legislative intent to set 1983 grant levels at $144 is quite clear. Illustratively, when the Governor signed his statement regarding an additional 1982 fiscal year appropriation, he stated:

“I am today signing House Bill 2211 which authorizes an appropriation for the hiring of revenue auditors and collectors in the Department of Revenue. The legislation also transfers $19.7 million for continued payment of General Assistance through the end of this fiscal year.
The members of the General Assembly have thoroughly debated the issue of whether General Assistance should be $144 or $162 for the months of May and June and have chosen the $144 figure.
The floor debates reflect that the General Assembly was clearly aware of the difficulties the lower figure presented to recipients.
Nonetheless, the $144 figure was chosen and this was the only responsible choice. Many would have liked the higher figure to have been chosen, but given the economic condition of the State and budgetary demands and limitations, we cannot afford to pay more than $144 to this group of people.
In the budget for the next year, we have also based our projections on a $HA grant level for General Assistance. These choices are not easy ones. But we must all work together to hold the line on spending.” (Emphasis added.)

In addition, when it became clear that $144 would become the grant level for 1983, a proposed amendment to the budget was introduced before the General Assembly that was designed to increase the benefit level to $162 per month. Following a debate during which the representatives discussed the propriety of either the $144 or $162 figure, the amendment was voted down. We believe that the fact that the amendment was offered, discussed and subsequently voted down reflects the legislative understanding that the IDPA had the authority under the statute to reduce grant levels from those that were set the previous year. Further, the legislature expressly sanctioned the $144 level set by the IDPA by refusing to enact the proposed amendment. Therefore, we believe that it was the clear intent of the legislature that grant levels be set at $144 and that this intent was acted out by the IDPA when it set grant levels “with due regard for and subject to budgetary limitations,” or in accordance with the legislature’s appropriation for the program.

The parties raise a further argument regarding whether the exceptions portion of the statute applies only when the IDPA is considering the aid payments distributed to a single recipient. However, under our construction of the statute which gives the IDPA authority to set grant levels consistently with annual appropriations, we believe that this issue is irrelevant. Specifically, we think the “subject to budgetary limitations” language gives the IDPA authority to set grant levels either higher or lower than those set the previous year in order to be in line with legislative appropriations. After the grant levels have actually been set, then the IDPA is unable to reduce the levels unless one of the four exceptions is satisfied. Because this case deals with the period of time during which actual grant levels were set, the four exceptions do not come into play in the situation with which we are now faced. Thus, the parties’ argument regarding whether the exceptions apply to one or many recipients is not relevant to this appeal.

For the foregoing reasons the judgment of the trial court is affirmed.

Affirmed.

ROMITI, P.J., and JOHNSON, J., concur.


author: JUSTICE CAMPBELL

text:
    COLUMBIA HOMES, INC., Plaintiff-Appellant, v. JAMES P. SIROIS et al., Defendants—(Chicago Title and Trust Company, Trustee, Defendant-Appellee).
    First District (1st Division)
    No. 82—1392
    Opinion filed June 13, 1983.
    Donald L. Johnson and Marty J. Schwartz, both of Chicago, for appellant.
    Susan E. Woods and Stanley M. Cahn, both of Chicago, for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Columbia Homes, Inc., an Illinois corporation, appeals from an order of the circuit court of Cook County which dismissed defendant, Chicago Title & Trust Company, the escrowee, from this action for specific performance and declaratory judgment. On appeal, plaintiff contends that the escrowee is a proper party to an action for specific performance brought by the purchaser where the purchaser is due set-offs under a real estate installment contract although the escrow agreement does not refer to the set-offs.

On February 4, 1980, plaintiff, Columbia Homes, Inc. (Columbia), entered into a real estate installment contract with defendant James P. Sirois for the purchase of a building located at 720 South Dearborn Street in Chicago, Illinois. Under the terms of the installment contract, Columbia was to pay Sirois the purchase price of $1.2 million in five installments. The final installment of $426,000 plus interest less mortgage payments advanced was due on January 15, 1982. In July 1980, the parties to the contract established an escrow with Chicago Title & Trust Company (CTT) as escrowee pursuant to the terms of the installment contract. Under the terms of the escrow agreement, Sirois deposited with CTT an assignment of beneficial interest in favor of Columbia. Sirois also executed a collateral assignment of beneficial interest in favor of Columbia which Columbia reassigned and deposited with the escrowee. The escrow provided that in the event of default by Columbia, this reassignment of beneficial interest was to be delivered to Sirois. On February 5, 1982, Columbia received notice from CTT that Sirois had made all deposits of documents as required by the escrow agreement. Pursuant to the escrow agreement, Columbia was required to pay the final installment of $426,000 plus interest within 14 days from the date of the notice. Columbia did not make the final installment payment to the escrowee.

On February 17, 1982, Columbia filed its three-count complaint against Sirois and CTT. In count I, Columbia sought a declaratory injunction against Sirois and CTT, both as trustee of the subject real estate and as escrowee, that Columbia was entitled to certain set-offs from the purchase price in excess of $426,000, the amount of the final installment due under the contract. Count II was brought against Sirois and CTT, both as trustee of the subject real estate and as escrowee, and sought specific performance of the real estate installment contract and of the escrow agreement. Count III sought an injunction against CTT, as escrowee, to prevent CTT from delivering the reassignment to Sirois of the collateral assignment of beneficial interest executed by Columbia and to prevent CTT from returning the escrow deposits made by Sirois. On February 18, 1982, Columbia filed its complaint for a preliminary injunction against CTT, as escrowee, seeking to enjoin CTT from delivering the reassignment to Sirois of the collateral assignment of beneficial interest. As an affirmative defense, Sirois and CTT alleged that Columbia’s failure to make the necessary deposits into the escrow in accordance with the escrow agreement barred recovery by Columbia.

Subsequently, CTT filed a motion to dismiss the action pursuant to sections 45 and 48(i) of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, pars. 45, 48(i)). In its motion, CTT argued that as escrowee, it was not a party to the real estate installment contract and that, therefore, it could not have breached the real estate sales contract. CTT also argued that as escrowee, it was bound to the instructions of the escrow agreement and that, in its complaint, Columbia admitted that it had not made the final installment payment of $426,000 into the escrow. CTT also contended that the escrow agreement did not provide for set-offs in lieu of payment of the purchase price and that, therefore, Columbia is in default pursuant to the terms of the escrow agreement.

Following oral arguments, the trial court concluded that the escrow agreement was clear and, accordingly, dismissed CTT, as escrowee, from the action. According to CTT, it distributed that escrow deposit pursuant to the instructions of the escrow agreement after the order of dismissal. Columbia appeals.

Columbia argues that the trial court erred in dismissing CTT from the action. Columbia urges that in order to award the relief which it seeks from the court, CTT must remain a party to the action. Columbia maintains that adherence to the escrow agreement was not required because CTT was on notice that a sum less than $426,000 was due because Columbia’s complaint and Sirois’ answer indicated that Columbia was entitled to certain set-offs. Columbia contends that it was not for CTT to determine which party complied with the modified escrow agreement or if and how the escrow agreement was modified. Columbia argues that it was a breach of a fiduciary duty for CTT, as escrowee, to unilaterally determine that Columbia breached its obligations under the escrow agreement, especially where CTT knew there was a dispute regarding the final payment.

The escrowee under an escrow agreement has been described as both a trustee (Stark v. Chicago Title & Trust Co. (1942), 316 Ill. App. 353, 45 N.E.2d 81), and a special agent (Ortman v. Kane (1945), 389 Ill. 613, 60 N.E.2d 93). In either case, the essence of the escrowee’s position is that its powers to deal with the subject matter of the escrow are strictly limited to the terms of the escrow deposit. (Filosa v. Pecora (1976), 44 Ill. App. 3d 912, 358 N.E.2d 1213.) Where the conditions of the escrow have been satisfied, the escrowee is under an obligation to deliver the subject matter deposited with him to the grantee or obligee, whereas if the conditions of the escrow are not met, the escrowee must return the subject matter to the depositor. (Filosa v. Pecora.) In instances where an escrow provision is ambiguous, it is the duty of the trial court to construe the escrow. See McBride v. Commercial Bank (1981), 101 Ill. App. 3d 760, 428 N.E.2d 739.

In the instant action, the escrow agreement provided that on January 2, 1982, certain documents were required to be deposited with the escrowee. Upon receipt of the documents, CTT was to notify Columbia that the deposits have been made. The agreement provided that within 14 days of the receipt of the notice, Columbia was to deposit the sum of $426,000 plus interest “or such lesser sum ***, part or all of which may be the proceeds of a first mortgage loan,” in a separate money lenders escrow which was attached to the escrow agreement. In the event that the deposit of $426,000 was not made within the 14-day period, CTT was to continue to comply with the terms of the escrow agreement until a written demand by Sirois was made. Upon receipt of Sirois’ demand, CTT was to notify Columbia of the demand. The agreement continued that:

“if the funds have not been received herein on or before 5 days after the date of your [CTT’s] second certified notice, then on further written demand of Mr. Reid [Sirois’ attorney] and with no further written notice to Mr. Braun [Columbia’s attorney], you [CTT] are to return all deposits to the respective depositors thereof, except for the reassignment of beneficial interest, which you [CTT] are to deliver to Mr. Reid.”

By its terms, the escrow agreement sets forth the escrowee’s obligations in the event that the final deposit of $426,000 is not made by Columbia, CTT is bound by the terms of the agreement in its power to deal with the subject matter of the escrow. (See Filosa v. Pecora (1976), 44 Ill. App. 3d 912, 358 N.E.2d 1213.) Under the terms of the agreement, CTT was to return the deposits to the respective depositors in the event Columbia failed to make its final deposit. Under the circumstances of this case, the trial court did not err in refusing to enjoin CTT from following the unambiguous instructions of the parties to the escrow agreement. Further, we hold that the trial court properly dismissed CTT, as escrowee, from the action on the counts for declaratory judgment and specific performance because both of these counts concern the real estate installment contract between Sirois and Columbia, a contract to which CTT was not a party. Contrary to Columbia’s contention, the escrow agreement and the real estate installment contract are separate from one another (see Hakala v. Illinois Dodge City Corp. (1978), 64 Ill. App. 3d 114, 380 N.E.2d 1177), and Columbia cannot use the escrow agreement to make CTT, as escrowee, a party to an action involving a real estate installment contract.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

BUCKLEY, P.J, and GOLDBERG, J., concur.