text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BOBBY JOE GRIFFIN, Defendant-Appellant.
    Fifth District
    No. 81 — 421
    Opinion filed August 16, 1983.

      Randy E. Blue and E. Joyce Randolph, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Randy Patchett, State’s Attorney, of Marion (Stephen E. Norris and Frank J. Bieszczat, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE JONES

delivered the opinion of the court:

Defendant was charged with armed robbery, armed violence, intimidation, theft over $150 and unlawful use of weapons. The case was submitted to a jury on the armed robbery and armed violence charges only, and the jury returned a guilty verdict on each. Judgment and sentence were entered on the verdict, the defendant receiving a sentence of 25 years. Defendant raises four issues in this appeal: (1) whether the court committed error in applying collateral estoppel to deny him a hearing on his motion to suppress evidence, (2) whether the armed violence conviction must be reversed because based on the same act as the armed robbery conviction, and, upon vacation, whether sentencing is required, (3) whether resentencing is required because the trial court improperly considered as an aggravating factor that serious bodily harm was threatened although there was no more harm threatened than in most armed robberies, and (4) whether the sentence is excessive in light of defendant’s youth, his remorse and rehabilitation potential, and his prior record which has been acquired in a short span of time.

Defendant was charged with two armed robberies committed in two counties during the same evening. The first was of the attendant of the Martin Oil Company service station in Marion, Williamson County, Illinois, at about 8:05 p.m. on November 16, 1980. The second was of the attendant of the Handee Mart in DeSoto, Jackson County, Illinois, in the early morning hours on November 17, 1980. A short time after the Handee Mart incident, a car occupied by defendant and his two brothers was stopped by Jackson County sheriff’s officers and items taken in the two armed robberies were found in the car. Defendant and his brothers were taken to the Jackson County sheriffs office and questioned. Defendant gave the officers a statement shortly following his arrest on November 17, and made another statement on December 1, 1980, in which he admitted participating in both armed robberies.

The instant prosecution is that in Williamson County for the armed robbery of the Martin Oil Company station. Prior to trial, defendant filed a motion to suppress his confessions given on November 17 and December 1. The basis of his challenge was that the November 17 statement was not voluntary because of his drugged or intoxicated condition at the time and that the December 1 statement was not voluntary because of promises of leniency made to him in the absence of his attorney and not fulfilled. The State filed a motion to strike defendant’s motion to suppress on the grounds that the issues had already been litigated in Jackson County.

Prosecution of defendant for the Jackson County armed robbery of the Handee Mart had occurred prior to this one. In his defense of that ease defendant filed a motion to suppress the November 17 and December 1 statements that was substantially the same as the motion to suppress filed in this case. A hearing was held on the motion. In support of the motion defendant’s wife testified that on the day of the armed robberies defendant had drunk half or more than half of three cases of beer and had shared in the smoking of four “joints” of marijuana. She also testified that on December 1 two sheriff’s officers told her and the defendant that if he would give them a statement, they could get the judge to “make it concurrent,” that they could get some of the charges dropped and “get defendant lesser time.” The court denied the motion to suppress, and the defendant subsequently entered a plea of guilty to the Jackson County armed robbery charge.

At the hearing on the motion to suppress held in Williamson County, the State filed certified copies of the transcripts and orders from the Jackson County hearing in support of their motion to strike. Because he had not testified at the Jackson County hearing, defendant made an offer of proof in which he stated that on the day preceding the two evening robberies he had drunk IV2 to two cases of beer and had smoked about an ounce of marijuana. He further stated that he remembered being arrested but did not remember being interviewed afterward because he was drunk and “could barely stay awake.”

The court took the matter under consideration and subsequently announced that he found the ruling of the court in Jackson County to be proper and that it had had before it evidence of defendant’s drunk and drugged condition similar to that contained in defendant’s offer of proof. The court found that the decision of the court in Jackson County on defendant’s motion to suppress constituted a collateral estoppel to the Williamson County motion and granted the State’s motion to strike. Defendant was later found guilty of both charges by a jury and was sentenced to 25 years in prison on each charge, the sentences to run concurrently with each other and with the sentence imposed in Jackson County.

Defendant attacks the use of collateral estoppel to deny him a hearing upon his motion to suppress because he had additional evidence to present, his own testimony, that was not available to the Jackson County court and because the propriety of the ruling of the Jackson County court was insulated from judicial review by defendant’s subsequent plea of guilty.

Defendant assumes, as he must, that the doctrine of collateral estoppel, which bars relitigation of a decided question, applies in criminal cases as well as in civil cases. (People v. Williams (1975), 59 Ill. 2d 557, 322 N.E.2d 461.) The supreme court in the Williams case set forth a definition of the collateral estoppel rule and, with appropriate citations, told of its acceptance in criminal cases by the United States Supreme Court. Those facets of the rule need not be further discussed here. An often cited case of the Illinois Supreme Court, People v. Hopkins (1972), 52 Ill. 2d 1, 284 N.E.2d 283, succinctly states the rule: “The fact that the same item of evidence may be relevant in several trials involving a defendant does not, without more, entitle him to repeated hearings as to the validity of the arrest and search which produced the item.” (52 Ill. 2d 1, 3-4, 284 N.E.2d 283, 284; also see People v. Armstrong (1973), 56 Ill. 2d 159, 306 N.E.2d 14.) The collateral estoppel rule is applied in criminal cases whether the litigated question arises in separate trials (People v. Hopkins; People v. Armstrong) or at different stages of the same trial. People v. Holland (1974), 56 Ill. 2d 318, 307 N.E.2d 380.

Exceptions to a universal application of the collateral estoppel rule in criminal cases have been developed because of constitutional due process requirements. The supreme court described the exceptions in People v. Armstrong (1973), 56 Ill. 2d 159, 161, 306 N.E.2d 14, 15, as follows:

“In that case [People v. Hopkins], after discussing the considerations pro and con, we held that the doctrine of collateral estoppel bars the relitigation of an order sustaining the validity of a search, in the absence of additional evidence or peculiar circumstances ***.”

Defendant’s argument in this appeal is addressed to the “additional evidence or peculiar circumstances” aspect of the rule. The additional evidence he wished to present at the hearing on the motion in Williamson County consisted solely of his own testimony as exemplified in his offer of proof, and the exceptional circumstances are found in the fact that he was unable to appeal the ruling of his motion by the court in Jackson County because of his plea of guilty there. Defendant relies upon People v. Mordican (1976), 64 Ill. 2d 257, 356 N.E.2d 71, People v. Sampson (1980), 86 Ill. App. 3d 687, 408 N.E.2d 3, and People v. Stiles (1981), 95 Ill. App. 3d 959, 420 N.E.2d 1204. In the Mordican case the supreme court held that the “peculiar circumstances” referred to in People v. Hopkins and People v. Armstrong were found when a defendant was acquitted of charges in a first trial. Such acquittal prevented the defendant from seeking review of the court’s denial of his motion to suppress. The inability of the defendant to seek review of the order denying his motion to suppress was held to be sufficient to entitle defendant to a new hearing on his motion to suppress, even in the absence of any claim of additional evidence. Upon the basis, then, of People v. Mordican we find that the trial court in the instant case committed error in refusing to grant defendant a hearing on his motion to suppress.

In addition to the argument based upon the Mordican case, defendant asserts that the court in Williamson County erred in denying him a hearing on his motion to suppress because he had additional evidence to produce. That new evidence, as we have noted, consisted of defendant’s own testimony that he had chosen to withhold at the hearing in Jackson County. As disclosed in his offer of proof, defendant’s testimony was a reiteration of the testimony given by his wife in Jackson County. Defendant cites People v. Stiles and People v. Colletti (1978), 61 Ill. App. 3d 289, 377 N.E.2d 1276.

The Stiles case presented both exceptions to the application of the collateral estoppel rule. After denial of his motion to suppress made during his first trial, the defendant entered a plea of guilty. This, the Stiles court held, precluded review of the suppression hearing and invoked the rule of the Mordican case. We have done likewise in the case under review. The court in Stiles went beyond the Mordican rule, however, to hold that the defendant’s representation by incompetent counsel in his first trial had resulted in a failure to present crucial evidence regarding probable cause to make an arrest and conduct a search and seizure without a warrant. The court was obviously concerned with apparent improper police procedures which incompetent counsel failed to develop. Thus was disclosed the additional evidence which the Stiles court held would entitle the defendant to a second hearing on his motion to suppress. We consider the “additional evidence” facet of the Stiles case inapposite on its facts to the case at bar.

It is different, however, with the Colletti case. It involved two hearings in the same case before different judges of a defendant’s motion to dismiss the proceeding as barred by the statute of limitations. The defendant did not testify at the first hearing but submitted an affidavit attesting that he had at all times remained within Illinois. At the second hearing the defendant chose to testify, giving evidence regarding the times he had acquired items of personal property that were the subject of charges of theft by obtaining control over stolen property. Following the second hearing before the second judge, the case was dismissed. In a State appeal the appellate court approved of the second hearing on the motion to dismiss because additional evidence had been presented by the defendant’s testimony. The court candidly stated:

“We recognize that his testimony did not ‘become available after the first hearing to suppress’ (People v. Henderson (1976), 36 Ill. App. 3d 355, 370, 344 N.E.2d 239, appeal denied (1970), 43 Ill. 2d 398), and we recognize that, as the State argues, our holding virtually guarantees two hearings for a defendant on the same factual issue as long as he remains silent at the first hearing. Nevertheless, in light of the strong constitutional issues involved as to the right of a defendant to remain silent, we are unwilling to say that the defendant’s testimony here was not additional evidence warranting reconsideration of the issue.” People v. Colletti (1978), 61 Ill. App. 3d 289, 292, 377 N.E.2d 1276, 1279.

In People v. Johnson (1981), 100 Ill. App. 3d 707, 427 N.E.2d 358, a case similar on its operative facts, the court expressly declined to follow Colletti.

“We must respectfully disagree with Colletti’s holding that the defendant’s testimony warranted reconsideration of the motion. We believe that earlier case law established that when a second hearing is predicated on new evidence, that evidence must have become available since the first hearing. Although the court in Colletti was concerned with the constitutional right of a defendant to remain silent, we note that this right is not jeopardized since a defendant’s testimony in support of a motion to suppress evidence cannot be admitted against him at trial on the issue of guilt unless he makes no objection.” (People v. Johnson (1981), 100 Ill. App. 3d 707, 709, 427 N.E.2d 358, 360.)

Of similar import is the case of People v. Coleman (1981), 100 Ill. App. 3d 306, 426 N.E.2d 1124. It, too, declined to follow Colletti because it considered the defendant’s testimony, although sharply contradictory to police testimony given at a first hearing, insufficient to constitute additional evidence that would justify a new hearing on a previously litigated issue. The Coleman court graciously distinguished Colletti upon its facts, but it is our perception that it simply was rejecting Colletti.

Despite defendant’s urging in the present case, we, too, decline to follow Colletti. We believe the better rule to be that expressed in Johnson and Coleman. Though not required for our decision on the issue, we have noted that defendant’s “additional evidence” consisted only of his own testimony which was similar to that given by his wife at the first hearing and which was, at best, merely cumulative.

Although we have found that under the Mordican case the trial court committed error in refusing defendant a hearing on his motion to suppress evidence, reversal is not required. Aside from defendant’s statements of November 17 and December 1, the evidence of defendant’s guilt was more than sufficient to show his guilt beyond a reasonable doubt, and the error may be deemed harmless beyond a reasonable doubt. (Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824; People v. Spicer (1979), 79 Ill. 2d 173, 402 N.E.2d 169; People v. Hansen (1980), 90 Ill. App. 3d 407, 413 N.E.2d 103.) Two men wearing nylon stockings over their faces, one armed with a revolver, committed a holdup of the attendant of the Martin Oil Company station in Marion. The two took $395 in cash and seven cartons of Kool and Marlboro cigarettes. All the items were put in a white sack that looked like a pillowcase. Included in the money taken was a check given by Dennis Dobbins in payment for gas. About five hours later that same evening, defendant and his two brothers were in a car stopped by police in DeSoto. In plain view inside the car, and later seized in a search by warrant, were seven cartons of Kool and Marlboro cigarettes, a fully loaded .22-caliber revolver, three women’s nylon stockings, a white pillowcase, and a brown paper sack containing about $250 in cash. An inventory of defendant’s possessions made at the police station following his arrest disclosed a large sum of money in his pants pocket that included a check made by Dennis Dobbins to the Martin Oil Company. In view of this overwhelming evidence of defendant’s guilt, considered under the guidelines set forth in People v. Wilkerson (1981), 87 Ill. 2d 151, 157, 429 N.E.2d 526, 528, neither a retrial nor a new hearing on defendant’s motion to suppress are required. 73 Ill. 2d R 615(a); People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.

Defendant next contends that since his convictions of armed robbery and armed violence were based on the same physical act, the conviction of armed violence must be vacated. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838; People v. Mormon (1982), 92 Ill. 2d 268, 442 N.E.2d 250.) The State agrees. Accordingly, the conviction of defendant on count II of the information which charged armed violence is vacated.

Defendant also asserts that upon vacation of the armed violence conviction, the case.must be remanded for resentencing because it is impossible to determine how that conviction affected the sentencing. The State, of course, disagrees. We are induced to agree with the State’s position by the fact that during the court’s comments preceding the imposition of the sentence, it repeatedly referred to the armed robbery offense and never once mentioned the armed violence offense until it pronounced the sentence. This indicates to us that the court was sentencing defendant on the armed robbery conviction and that no part of the sentence imposed arose out of any consideration that defendant had also been convicted of armed violence. Accordingly, there is no reason to remand for resentencing. (People v. Jones (1982), 108 Ill. App. 3d 880, 439 N.E.2d 1011; People v. Kosanovich (1979), 69 Ill. App. 3d 748, 387 N.E.2d 1061.) In addition, defendant has failed to suggest any manner in which the trial court may have been influenced by the armed violence conviction in its sentencing on the armed robbery conviction. People v. Ownes (1982), 109 Ill. App. 3d 1150, 441 N.E.2d 908.

Defendant’s final argument is addressed to his sentence of 25 years. He claims that the trial court improperly considered as an aggravating factor that serious physical harm was threatened. This is improper, he says, because the threat or use of force is implicit in the crime of armed robbery, and the legislature has already considered and incorporated the force and harm factor in fashioning the penalty for armed robbery. Defendant contends that there were no more threats or use of force in this case than in the case of any ordinary armed robbery. Defendant relies on People v. Allen (1981), 97 Ill. App. 3d 38, 422 N.E.2d 254, and People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906.

We think the cases that have dealt with this issue, when coupled with the attendant facts of this case, answer defendant’s argument. The following from People v. Johnson (1982), 107 Ill. App. 3d 156, 161, 437 N.E.2d 436, 440, an attempted rape case where the defendant had argued that the use of force implicitly carries a threat of serious harm to the victim and had already been considered as a factor by the legislature, is applicable here:

“The defendant’s analogy of Conover and Allen to this case is faulty. The fact that a crime has an element of force in it does not necessarily mean that serious harm or the threat of serious harm is inherent in the offense. (See, e.g., People v. Carmack (1982), 103 Ill. App. 3d 1027, 432 N.E.2d 282 (threat of serious harm not necessarily implicit in offense of armed robbery).) Similarly, the threat of serious harm is not inherent in the offense of rape. There are wide variances in the risk of harm to victims of sexual attacks. The rapist who uses a deadly weapon in his attack, for example, is usually a much greater threat to his victims than an unarmed rapist who overcomes his victims by fear or intimidation. It is illogical to argue that the legislature intended to prevent a trial court from recognizing these differences and from imposing sentences accordingly. The trial court here properly considered the threat of serious harm as an aggravating factor and imposed a sentence of imprisonment that is supported by the record.”

In the Carmack case, an armed robbery prosecution, the court stated:

“While armed robbery, by definition, involves the use of force or threat of its use (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2), it does not necessarily follow that a threat of serious harm is always involved. In the instant case, the presence of the revolver, stuck in the pharmacist’s back, provided the use of force and its threatened use. In addition, the defendant expressly threatened the victims of the robbery with death. That threat is not inherent in the offense of armed robbery, and it is cognizant under section 5 — 5—3.2, which permits a trial court to consider as an aggravating factor that the defendant threatened serious harm.” (People v. Carmack (1982), 103 Ill. App. 3d 1027, 1037-38, 432 N.E.2d 282, 289.)

In the instant case a fully loaded revolver was pointed directly at the victim by one of the robbers. After receiving some money from the victim, one of the robbers grabbed him by the arm and demanded more money. This conduct is sufficient to permit the court to consider it as an aggravating factor under the sentencing statute for, as stated in People v. Lampton (1982), 108 Ill. App. 3d 41, 47, 438 N.E.2d 915, 919:

“The amount of harm sustained by a victim in a given situation varies from case to case. It is not a constant but one of degree. Its consideration depends not on the classification of the offense but the peculiar conduct of the actor, which is an ever-changing variable. A sentencing judge does not err in considering the amount of harm as a statutory aggravating sentencing factor in such context.”

Still addressing his sentence, defendant asserts that considering his age of 18 years, the lack of brutality in his offense, the absence of adult felony convictions prior to the instant offense, and the fact that he is remorseful and desirous of rehabilitating himself, 25 years is excessive.

It is axiomatic that the imposition of a sentence following conviction of a crime is within the sound discretion of the trial judge and should not be disturbed absent an abuse. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) We can find no breach of discretion here. The record discloses that the trial court gave due consideration to the relevant factors and that he specifically acknowledged defendant’s youth. The court noted that defendant had quit jobs and had quit school. Any employment record was nonexistent. The record shows an extensive criminal history. As a juvenile, defendant had been adjudicated a delinquent for having committed the offense of theft. He was placed on probation and a petition to revoke was filed because of the failure to pay court costs. As an adult, and prior to the instant conviction, defendant had been convicted of two counts of armed robbery and one count of burglary. Thus, despite his age, defendant has already been convicted of four felonies, three of them Class X felonies. In view of defendant’s record we cannot say in this case that the sentence was so inappropriate as to constitute an abuse of discretion upon the part of the trial court.

Conviction and sentence for armed violence vacated; conviction and sentence for armed robbery affirmed.

HARRISON, P.J., and EARNS, J., concur.


source: Caselaw Access Project

author: JUSTICE SCOTT

license: Public Domain

text:
    WILL COUNTY WATER COMPANY, Plaintiff-Appellee, v. THE VILLAGE OF SHOREWOOD, Defendant-Appellant.
    Third District
    No. 82 — 540
    Opinion filed July 29, 1983.
    Rehearing denied September 19, 1983.
    Thomas R. Wilson, of Herschbach, Tracy, Johnson, Bertani & Wilson, of • Joliet, for appellant.
    Keith P. Schoeneberger, of Ross, Hardies, O’Keefe, Babcock & Parsons, of Chicago, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

The plaintiff, Will County Water Company, is a public utility organized under the laws of the State of Illinois. Its business is to provide sewage treatment service and public water supplies. Its activities are regulated by the Illinois Commerce Commission, as are the activities of all public utilities.

In 1975, the plaintiff entered into a contract with the defendant, the village of Shorewood, to provide sewage treatment services, which contract provides in pertinent part:

“After 250 homes, Troy Grade School and existing commercial establishments have been connected to the Village system, as provided above, the company will provide waste water treatment, if and when sewer plant capacity is available, taking into account the Company’s other obligation to provide service, for up to an additional fifty homes, or equivalent, connected to the Village system during any twelve month period.” (Emphasis added.)

In September 1979, the plaintiff sent a letter to the defendant stating that it would provide waste water treatment .service to no additional customers. After receiving that letter, the defendant village added four additional residences to the sewer system. The plaintiff public utility brought suit seeking a judgment to declare the rights of the parties under the contract and seeking an injunction prohibiting all further connections to the sewer mains in the village of Shore-wood. The defendant counterclaims, seeking a money judgment for amounts it alleged was due under the terms of the same contract.

The circuit court of Will County, in a judgment order which declared the rights of the parties under the contract, found that the defendant village had no right to demand that additional homes be connected to the village sewer system which was serviced by the plaintiff utility. At the same time, the circuit court refused to order injunctive relief to prevent any further connections to the sewer system, and the circuit court entered a money judgment for the defendant on its counterclaim. The village appeals that part of the circuit court order which declared the rights of the parties under the contract.

Two issues raised by the appellant village in its oral and written arguments before this court appeared to misconstrue the order of the circuit court previously entered in this cause. The village contends that injunctive relief is available in contract cases only where the contracts are clear, definite and certain, that is free of any ambiguity in language. The village also contends that injunctive relief is only available upon a showing by clear and convincing evidence of irreparable harm. In presenting both of these contentions for our review, the appellant urges that the contract was not free of ambiguity, but rather was subject to differing interpretations, and that there was no showing of irreparable harm, let alone such a showing by clear and convincing proof. The village concludes, therefore, that the circuit court erred in granting injunctive relief.

Whether the village is correct in its contentions that injunctive relief will not lie based upon the record before us is a matter we need not determine, for a careful reading of the lower court order discloses that no injunctive relief was ordered. In its memorandum opinion, the circuit judge states that

“The First Amended Complaint of plaintiff prays, in paragraph A, B and C, for a declaration of the rights of the parties, and this court has done so above. Specifically as to paragraph C, this court finds that it was contrary to the terms of the contract for the Village to allow additional sewer connections after service of the notice by defendant company that the company had insufficient available waste treatment capacity to accommodate such new users. But as to paragraphs D, E and F, this court refuses to issue injunctive relief, for reasons stated above, and for the additional reason that, having declared the rights of the parties in regard to the issues herein, this court feels that injunctive relief is unnecessary.”

Since we interpret the circuit court order as granting no injunctive relief, we believe the appellant’s arguments concerning the standards for granting such relief are inapplicable to the facts before us.

An additional argument proffered by the appellant is grounded on the public policy of the State of Illinois regarding public utilities as set forth in sections 32 and 38 of the Public Utility Act (Ill. Rev. Stat. 1981, ch. 111½, pars. 32, 38). Section 32 states in part the duty of public utilities:

“Every public utility shall furnish, provide and maintain such service instrumentalities, equipment and facilities as shall promote the safety, health, comfort and convenience of its patrons, employees, and public and as shall be in all respects adequate, efficient, just and reasonable.” (Ill. Rev. Stat. 1981, ch. 111½, par. 32.)

And section 38 provides in part:

“No public utility shall establish or maintain any unreasonable difference as to rates or other charges, services, facilities, or in any other respect, either as between localities or as between classes of service.
* * *
Every public utility shall, upon reasonable notice, furnish to all persons who may apply therefor and be reasonably entitled thereto, suitable facilities and service, without discrimination and without delay.” (Ill. Rev. Stat. 1981, ch. 111½, par. 38.)

It is the village’s position that the plaintiff utility is discriminating against that part of the public located within the village of Shorewood by reserving a sewage plant capacity for other members of the public in other areas served by the utility.

While the statute cited by the village and the cases it references that construe the statute set forth a rule of public utility law which requires utilities to provide services without discrimination in a mandated area of service, we believe the rule is not pertinent under the facts before us. It is true that the Will County Water Company has additional capacity at its sewer plant which is currently unused. It is also true, and the company concedes, that it wishes to reserve this additional capacity to provide sewer service direct to customers in areas for which the company holds a certificate of public convenience and necessity. Finally, from the record of the lower court proceedings, we learn that the Will County Water Company’s provision of service to the village of Shorewood is pursuant to a wholesale service contract entered into with the village and is not direct service to customers mandated by a certificate of public convenience and necessity issued by the Illinois Commerce Commission.

Where a utility company seeks and is granted the right to provide direct retail service to customers in a given area, certain reciprocal rights and duties arise by operation of law between the utility and the public it undertakes to serve. (30 Ill. L. & Prac. Public Utilities sec. 4 (1957).) The rights enjoyed by utility companies that seek and are granted such status include the assurance of a reasonable return for its service and the protection from ruinous competition. (30 Ill. L. & Prac. Public Utilities sec. 11 (1957).) However, with such status comes the duty to serve all of the public in a prescribed area on equal terms. By statute, this special status is conferred by a certificate of public convenience and necessity. Ill. Rev. Stat. 1981, ch. 111½, par. 56.

As previously stated, the Will County Water Company does not provide direct service to the residents of the village of Shorewood as a public utility, but rather, it provides services pursuant to a wholesale contract with the village. The utility company has no certificate of public convenience and necessity to serve customers in the village of Shorewood. The rights and corresponding duties which characterize the status of a public utility are not applicable under the instant facts. A utility company has no obligation to provide service as a public utility outside the areas in which it is mandated, by a certificate of public convenience and necessity, to offer service. Chicago District Pipeline Co. v. Illinois Commerce Com. (1935), 361 Ill. 296, 197 N.E. 873.

Accordingly, we conclude that the circuit court of Will County did not err when it refused to overlay the duties of a public utility with the contractual duties of the plaintiff in the case sub judice. The court correctly declared the rights of the parties under the contract, and correctly found that the defendant village had no right to demand that additional homes be connected to the village sewer system which was serviced by the plaintiff utility company.

Affirmed.

BARRY and ALLOY, JJ., concur.


author: PRESIDING JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL HOBSON, Defendant-Appellant.
    Fourth District
    No. 4 — 82—0691
    Opinion filed August 4, 1983.

      Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and Howard Hood, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

Defendant was indicted by a grand jury in McLean county for the murders of Mary and Russell Roughton, two children of the ages of nine and seven years respectively, in violation of section 9 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1); the multicount indictment also charged him with the aggravated kidnaping of the children in violation of section 10 — 2 of the Code (Ill. Rev. Stat. 1981, ch. 38, par. 10 — 2); and with three counts of theft of property exceeding $300 in value in violation of section 16 — 1 of the Code (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1). The latter counts alleged theft of a Datsun pickup truck, a Chevrolet pickup truck, and a red Chevrolet motor vehicle. The count concerning the red Chevrolet was severed and the record reveals no disposition of it. Defendant was tried to a jury in the circuit court of McLean county and was found guilty of all the offenses which were submitted to the jury. The State sought the death penalty for the murders, but the jury was unable to find unanimously beyond a reasonable doubt that it should be imposed. The trial court then sentenced the defendant to a term of natural life pursuant to 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)) for the murders of Mary and Russell Roughton; extended term sentences of 30 years each of imprisonment were imposed on the aggravated kidnaping convictions; and five years of imprisonment on each of two theft convictions, specifically, the Datsun pickup truck and the Chevrolet pickup truck.

On appeal defendant raises four principal issues which may be broadly described as: (1) error by the trial court in denying his pretrial motion to quash his arrest and suppress evidence; (2) reasonable doubt as to murder and aggravated kidnaping of the children; (3) whether defendant received a fair trial by a jury which was “death qualified;” and (4) the constitutionality of section 5 — 8—1(a)(1)(c) requiring a life sentence in the case of multiple murders.

The evidence against the defendant, except for the theft of the trucks, was largely circumstantial, and, as so frequently happens in such cases, the record consists of fragments of testimony and exhibits. In an effort to give a coherent narrative, we have rearranged the sequence of the testimony.

Ramona Hauptman, who was also known as Mickey Coyle, was the mother of the victims, Mary and Russell Roughton. The defendant was described as her “step cousin” and had lived with her and the children in the village of McLean from the month of February 1982 through a part of April 1982.

On Wednesday, April 21, 1982, Russell and Mary ate breakfast and were sent by Ramona at about 8:10 a.m. to the post office to pick up the mail. It was an approximate five-minute walk. The children were to return the mail home before going on to school. They did not return from the post office and the police were notified.

On the following day, Thursday, April 22, at about 2:40 p.m., their bodies were discovered in a gravel pit and dumping area which was located about IV2 to 2 miles north of McLean. Nearby was a partially burned blue Chevrolet pickup truck and near the truck were found four pieces of mail and a box of books from a book club, all addressed either to Mickey Coyle or Ramona Coyle. One of the pieces contained a money order receipt from the Bank of Hallandale, Hallandale, Florida, for $25. The .remitter was William Boemecke, who testified that he was Ramona’s boyfriend and had sent her six separate $25 money orders in an envelope on April 19, 1982.

Medical testimony indicated that death had occurred between 9 a.m. and 12 noon on Wednesday, April 21. Mary had received three blows to her head with a pointed object, two of which penetrated the head and either could have caused death. The wounds had a V-shaped configuration. Russell had received two blows -with a blunt object to the head. Neither penetrated but they made a large depression fracture of the skull sufficient to cause death. Another less lethal wound was found on his head and had the same V-shaped appearance as the blows to Mary’s head. A pry bar was recovered from the cab of the burned pickup truck. The truck’s owner testified that it had been kept in the glove box. The pathologist testified that it could have caused the injuries. After examining the scene, he was of the opinion that it was unlikely that the blows had been inflicted there. Two sheets of plastic material, called “visqueen,” were found near the truck; they had apparently been used to roll the bodies of the children down the mound upon which the truck was found.

Following the discovery and removal of the bodies during the afternoon of April 22, the police posted a watch over the area. The geography is not entirely clear from the record, but it appears that a road, known as the McLean/Funks Grove blacktop, runs north out of McLean towards Bloomington. About IV2 to two miles north of the village it is intersected by a gravel road which runs east to the dumping area. Three sheriff’s reserve officers were dispatched to this road to keep the curious out. They were in two vehicles, a regular sheriff’s squad car and an unmarked car; two reserve officers, Harbison and Cosentino were in the squad car; the third, Arendt, was in the unmarked car. Both cars were pulled into the gravel road, side by side, headed east. They relieved another officer who was there about 7 p.m.

Harbison testified that some traffic passed by on the blacktop during the course of the evening. At about 11:30 p.m. a small truck with a camper top passed by northbound. Harbison’s attention was drawn to it because of its slow speed, approximately 10 miles per hour, according to his estimate. About 15 minutes later the same vehicle returned, this time headed south, and again at the slow rate of speed. Harbison testified that he instructed Arendt to follow the vehicle if it came by a third time and obtain its license number.

At about 11:55 p.m. Harbison and the other reserve officers were relieved at the scene by two deputy sheriffs, Springer and Fillmore. Harbison informed them of the actions of the camper. Springer testified that about 12:25 a.m., it now being April 23, he observed a dark-colored Datsun pickup truck with a light-colored “topper” southbound on the blacktop. It slowed almost to a stop at the gravel road leading to the dump and then proceeded down the blacktop about one-quarter of a mile, at which point its brake lights came on, and it again slowed. Springer testified, “Officer Fillmore radioed to the officer that was working in McLean. It was the McLean marshal and Sgt. Kistner of our department. And he radioed what we observed happened.”

The McLean marshal was Steven Craig, who testified that he and Kistner, upon receiving Fillmore’s radio dispatch, proceeded to the north part of the village and took up positions at a gravel road located there. In due course the pickup truck with the topper came past and Craig pulled onto the blacktop behind it and activated his emergency lights. Several blocks into the village the truck stopped with Craig’s squad car behind it. Craig testified that it was his intention to give the driver a verbal warning for failure to dim headlights.

Craig went to the driver’s side of the truck to speak to the driver and Kistner took a position on the passenger side. Craig asked for a driver’s license; it was produced; and the driver was Hobson, the defendant. Craig told him to step out of the vehicle and then conducted a security pat-down which produced a glass pipe from the left jacket pocket. Craig handed the pipe to Kistner, who had come around to the driver’s side.

Meanwhile, Harbison, after being relieved at the scene, had returned to McLean and arrived at the place where the truck had been stopped by Craig. He testified that it appeared to be the same truck which he had observed twice earlier at the dump scene.

Kistner had attended a staff meeting earlier where he had been instructed that if he saw Hobson, he was to ask him to come in to headquarters at Bloomington to speak with detectives. He did so ask the defendant, who indicated that he was willing to go. Kistner then further explained to defendant that it would be necessary to handcuff him for the trip to Bloomington. This was departmental policy since the vehicle did not have a security shield. The defendant then turned about and offered his hands behind his back to Kistner, who placed the handcuffs on him. He was then placed in the back seat of Kistner’s vehicle.

Kistner’s testimony was that the radio dispatch from Fillmore regarding the pickup truck had arrived at 12:25 a.m. and that the defendant was in the back of his vehicle after being handcuffed at about 12:30 a.m., or about five minutes later. At this time another radio dispatch was received from headquarters that the pickup truck was a stolen one. Kistner also testified that the defendant was at all times cooperative and that he did not ever advise the defendant that he was, or was not, under arrest.

The trip to Bloomington was accomplished without incident and without conversation. Upon their arrival there, Kistner caused the defendant to be seated in the lobby of the building while he informed detectives of his presence.

Defendant was then interviewed at 12:50 a.m. by a special investigator from the Illinois Department of Corrections, Criminal Investigation Divison, Lindsey. Lindsey informed him that he was under arrest for driving a stolen vehicle and administered the Miranda warnings, which the defendant acknowledged and signed a waiver of rights. He admitted stealing the truck and stated that he was enroute to visit his cousin, Mickey Coyle, and became lost. He also gave an exculpatory statement of his whereabouts on April 21 and 22. In substance, he claimed to have spent the day of April 21 in Ottawa and did not leave there until on a 6:30 p.m. bus on April 22, which arrived in Bloomington at 8:30 p.m. He then walked around Bloomington until he took the truck.

The conversation then turned to the disappearance of the children. A detective from the McLean county sheriff’s office, Tulle, spoke to the defendant, informing him that the police knew that he had stolen another truck in Pontiac. Tulle stated, “The keys were in the truck weren’t they?” The defendant replied, “Yes.” He then admitted to being in the vicinity of the children’s home in that truck. However, he also claimed to have been on “speed” and “grass” during the preceding four days and had no real recollection of events.

At one point in the conversation, Tulle told the defendant that the police knew that he had been near the children’s home and had seen them walking with the mail and “you just picked them up and didn’t want to hurt them, just wanted to give them a ride. Right?” The defendant’s response was a single nod of the head. He was then advised that the truck stolen in Pontiac had been found together with the bodies of the children. The interview then ended.

From this recitation it can be seen that the State had no direct evidence, save for the equivocal nod of the head during the interview, of the defendant’s involvement in either the kidnaping or the murder of the children. It was the State’s theory that the defendant committed the offenses with the motive of robbery. To this end, it built a circumstantial case, which we now examine.

Ramona Hauptman, the children’s mother, testified that the defendant had lived with her and the children from February 1982 through part of April 1982. On March 31, 1982, she gave him approximately $80 with which to obtain money orders from the post office; he was to bring these back to her for completion; this was done and she filled one out for $56 for payment on a television set and the other for $13 or $14 for a utility bill; she then returned the money orders to him and directed him to mail them to the creditors. On April 9 the television dealer informed her that her last two payments had not been received.

The postmaster of McLean testified that the defendant had purchased a money order for $56 on March 31 and a few days later came back and asked to cash it. It had been altered to make him the payee. The postmaster refused to do so for lack of identification, but later did cash the money order. He also testified that two children came to the post office on the morning of April 21 between 8:30 and 8:45 a.m. and that he gave them the mail from Box 123, which was that of Mickey Coyle.

Ramona Hauptman further testified that she had two conversations with the defendant concerning the $56 money order, one on April 12 and the other on April 13. She told him that the money order had been altered and the the police would be looking for him. He then took his clothing and left. She next saw him at an auction sale on April 16. He then attempted to sell her a coat for $10 in order to obtain gasoline to go to Wisconsin.

Further testimony from various witnesses concerned vehicles and the presence of the defendant from time to time and place to place in the days preceding April 21 and afterwards. It was established that on Sunday, April 18, defendant was in Ottawa in a red and white GMC flatbed truck. He mentioned that he was going to Pontiac.

A mechanic from a service station in Pontiac testified that at 5:30 a.m. on Tuesday, April 20, he observed a flatbed truck in the parking lot of the station. A blue pickup truck which had been parked there the night before was missing. The flatbed was parked next to the area where the blue pickup had been.

At 7 a.m. the same morning, April 20, a witness was in the Dixie Truck Stop near Bloomington having breakfast. When he left, he found that the magnetic signs had been removed from his truck. The legend on the signs was: “Neal Ellis, Hoopeston, Illinois.”

At 6 p.m. on that date, April 20, defendant was seen by a friend in Farmer City. He was sitting in a blue Chevrolet truck with white magnetic signs on the doors. Defendant and the friend went to a trailer where they obtained a five-gallon gasoline can; they then went to a service station where they took a funnel; and they then went to a John Deere dealership where they stole some gasoline from a tractor. Defendant was invited to spend the night with the friend, but he replied that he had to go to McLean “to wait on some lady to get some money in the mail.”

At about 7:40 a.m. on Wednesday, April 21, the day upon which the children disappeared, a school bus driver saw a blue pickup truck attempting to park in McLean. Her attention was drawn to the plastic magnetic sign on it because the sign was askew. She observed the name “Neil” and the city of “Hoopeston” on the sign. Various other witnesses testified of the presence of the blue pickup in McLean that morning between 7:30 and 8 a.m. Descriptions of the driver varied, but he was typically described as a white male with brown or blond hair.

At 9:15 a.m. on April 21 a witness saw a huge amount of smoke emanating from the dump area. At 10:30 a.m. another witness picked up a hitchhiker on the Funks Grover blacktop; he asked to be taken to Bloomington, but the witness was going only as far as Funks Grove and let him out there. At about 4:30 to 5 p.m. the ticket seller in the Bloomington bus station, who knew the defendant, saw him in the bus station waiting for a 6:25 p.m. bus to Ottawa. She also observed him talking to a cab driver. The cab driver, who had previously on April 13 driven defendant to a house in McLean where he obtained a duffle bag and then returned him to Bloomington, testified that he saw the defendant in the bus station at 6 p.m. on April 21. The defendant indicated to him that he was going to Ottawa.

Another witness stated that he was at a party in Ottawa on the evening of April 21 at about 7:30 p.m. He and some others left the party to go bicycling and about an hour later stopped at one of their houses. Defendant was present there. Defendant and the others stayed together throughout the night hours and began playing basketball at about 5:30 a.m. on Thursday, April 22, and stopped playing about 6:30 to 7 a.m. The witness again saw the defendant in Ottawa at 9 a.m. and at 3:30 p.m. on April 22.

On April 22 at about 6 p.m. defendant purchased a bus ticket from an employee of a billiard parlor in Ottawa; the ticket was for Bloomington. The bus driver testified that the defendant got on the bus at Ottawa and got off at Bloomington at about 8:30 p.m.

An Illinois State police officer testified that during the morning hours of April 22 he saw a man named Larry Wolford hitchhiking along Interstate 55 near Bloomington. He was very dirty and had long, light brown hair; he was glassy-eyed, and the officer decided to restrain him. This was done with the assistance of another officer, and Wolford was booked in the McLean County Law and Justice Center.

The State introduced forensic evidence concerning blood found on the lower right leg of defendant’s trousers. The serologist compared it with blood and hair samples from defendant, Larry Wolford, Mary Roughton, and Russell Roughton. The blood was type B and Russell Roughton was the only one of the four with that type. The enzyme system tests were also consistent with Russell’s blood standards.

This was the State’s case. Defendant presented a number of witnesses. Three of them testified that they saw no smoké from the dump area on April 21 at 8: 40 a.m. or at 11:25 a.m., or from 3 p.m. to 6 p.m. A criminologist from the Department of Law Enforcement testified that one under the influence of cannabis would drive a car very slowly. A friend placed defendant in Farmer City during the evening of April 20 until the early morning hours of April 21. He also testified to the stealing of the gasoline on the evening of April 20. Defendant’s sister testified that she spoke with Ramona Hauptman at 10:30 a.m. on April 21; at that time in answer to the question Hauptman stated that the children were “fine.” Defendant’s aunt testified that she had entrusted her own children to defendant and that in 1978 he had taken care of them every day for a week. A friend testified that he saw defendant in Ottawa on Sunday, April 18, and again on Wednesday, April 21, at approximately 7 p.m. when he did not appear to be out of the ordinary. Another friend testified that he saw the defendant in Ottawa on April 18 and again on April 21 at 3 p.m. On the latter date defendant was coming out of a billiard parlor, and he and defendant and another person, Lewis, remained together in Ottawa throughout the evening and night hours. Lewis’ mother testified that she saw defendant about noon on April 21 and again about two hours later.

In rebuttal the State called Investigator Lindsey, who testified that he had interviewed Ms. Lewis on April 23 and she did not state that she had seen the defendant at noon and 2 p.m., but only remembered that it was afternoon.

We need not rehash all of the foregoing in dealing "with the question of reasonable doubt. Defendant has made no argument concerning reasonable doubt on the theft convictions. Therefore, that matter is waived under Supreme Court Rule 341(e)(7) (87 Ill. 2d R. 341(e)(7)). There can be no contention but that the case insofar as the kidnapings and the murders are concerned was largely circumstantial, but the entire matter was submitted to the jury with the complete Illinois Pattern Jury Instruction, Criminal, No. 3.02 (2d ed. 1981), which directed them to eliminate any possible theory of innocence. Defendant had the motive, robbery, together with knowledge of the household from having lived there. His past conduct relative to Hauptman’s money cries out against him. Defendant admitted a connection with the blue pickup truck which was discovered with the bodies. He was seen in the truck on the evening preceding the murders. One fitting his general description was seen in the blue truck shortly before the children were sent to the post office in the general area. The pry bar, which the owner of the truck testified was kept in its glove compartment, was accessible to him as a weapon. One fitting defendant’s general description was found hitchhiking in the area of the crime scene shortly after the estimated time of death. His whereabouts on April 20, 21, and 22 were largely accounted for and consonant with the commission of the crimes. His interest in the dumping area after-wards seems far too coincidental. By pointing out a few of these salient items, we do not ignore the rest. The circumstantial case here was extremely strong. We find altogether' appropriate the words of the supreme court in People v. Williams (1977), 66 Ill. 2d 478, 484-85, 363 N.E.2d 801, 804, also a multiple homicide case based on circumstantial evidence:

“We find apposite here the statement in People v. Marino [1970], 44 Ill. 2d 562, 580, that ‘it is well settled that the commission of an offense may be established entirely by circumstantial evidence. As we observed in People v. Bernette [1964], 30 Ill. 2d 359, 367, “a conviction may be sustained upon circumstantial evidence as well as direct evidence, (People v. Russell [1959], 17 Ill. 2d 328,) it being necessary only that the proof of circumstances must be of a conclusive nature and tendency leading, on the whole, to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no one else committed the crime. (People v. Magnafichi [1956], 9 Ill. 2d 169; People v. Grizzel [1943], 382 Ill. 11.) The jury need not be satisfied beyond a reasonable doubt as to each link in the chain of circumstances relied upon to establish guilt, but it is sufficient if all the evidence, taken together, satisfies the jury beyond a reasonable doubt of the accused’s guilt.” ’ Proof of guilt beyond a reasonable doubt does not require proof beyond any possibility of a doubt. (People v. Hanson [1935], [3]59 Ill. 266; People v. Branion [1970], 47 Ill. 2d 70.) From our examination of the record we conclude that the evidence is sufficient to prove guilt of both defendants of both murders beyond a reasonable doubt.”

We turn next to the question regarding the stopping of the defendant. He maintains that the officers had no probable cause to stop and detain him and consequently the trial court was in error in denying his motion to quash his arrest. He further argues that the arrest being illegal, all evidence obtained subsequent thereto should be suppressed and that the trial court was likewise in error in denying the companion motion to suppress. We disagree.

The trial court sustained the arrest as a traffic violation. This was erroneous; however, we are not concerned with the reasons assigned by the trial court for its action, but rather with the correctness of its result. People v. Church (1981), 102 Ill. App. 3d 155, 429 N.E.2d 577.

Craig testified that after receiving the radio dispatch from Fillmore it was his intention to stop the defendant and issue a warning for failure to dim headlights. After the stop matters escalated as described above. There was no traffic violation. Section 12 — 210 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95½, par. 12 — 210) requires a driver to dim his headlights when an approaching vehicle from the opposite direction is within 500 feet of him, or when a driver is within 300 feet of a vehicle traveling in the same direction. Neither condition was present here. Both Craig and Kistner were in stopped vehicles, Craig in a perpendicular side road and Kistner on the shoulder of the blacktop.

The stop was proper as an investigative one under Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. The defendant had driven past the dump area three times and had slowed his vehicle each time at the road leading into it. All this had occurred late at night when the ordinary individual would have no legitimate reason to visit the dump. Two of these actions had occurred while Harbison was on watch and the third while Fillmore was there, and it was Fillmore’s dispatch to Craig which led to the stop. Defendant argues that Fillmore had no information beyond the single incident which occurred on his watch and therefore a Terry-type stop was unwarranted. The record is otherwise. At the hearing on the motion to quash Harbison testified as follows on cross-examination:

“Q. [By the prosecutor] Were you relieved of your post there by Officer Fillmore very shortly after seeing this green vehicle the second time?
A. Yes.
Q. Did you, as you recall, in any fashion run the 1028 [a license check] or communicate the information you had to any of the officers that relieved you?
A. I relayed that information that I had seen this vehicle go by very slow and that we were going to run the 28. And I relayed that information on to the other officers.”

When police officers are working together, as they were here, the knowledge of each is the knowledge of all. (People v. Kite (1981), 97 Ill. App. 3d 817, 423 N.E.2d 524.) The reasonable suspicion necessary to stop a defendant may be established on the basis of all the police working in concert. (See People v. Johnson (1982), 104 Ill. App. 3d 572, 432 N.E.2d 1232.) Craig’s particularized reason for making the stop is not significant. He was informed that the vehicle was acting suspiciously. This was based on Harbison’s observations, communicated to Fillmore, who in turn communicated to Craig. The fact that Fillmore stated only the ultimate fact, “suspicious,” does not undermine Craig’s action. It was based upon the aggregated and cumulative knowledge of several officers.

Defendant next argues that he was illegally taken into custody when he was handcuffed and transported to headquarters for questioning. He emphasizes, and we agree, that handcuffing is a serious restraint upon liberty. However, the record is clear that he consented to it and only moments later the officers were informed by radio that the camper which he had been driving was stolen. The case is thus unlike People v. Townes (1982), 91 Ill. 2d 32, 435 N.E.2d 103, upon which he relies. In that case the defendant was detained by the police and questioned over a 12-hour period until probable cause was then generated. Here the detention, even assuming it was involuntary, and probable cause occurred almost simultaneously. Although Kistner’s assigned reason at the time for handcuffing the defendant was departmental policy, within an exceedingly short time thereafter, concrete probable cause appeared.

The Supreme Court in United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870, has held that one may voluntarily accompany police officers from the scene of an investigative stop and consent to a strip search without the situation developing into an unlawful arrest. Our own supreme court has held that detention and transportation is a legitimate investigative procedure even in the absence of probable cause. People v. Lippert (1982), 89 Ill. 2d 171, 432 N.E.2d 605.

Other authorities relied upon by defendant (People v. Shaver (1979), 77 Ill. App. 3d 709, 396 N.E. 2d 643; People v. Gabbard (1979), 78 Ill. 2d 88, 398 N.E.2d 574) are distinguishable. In neither of those cases did the defendant manifest a consent to be handcuffed.

Defendant was legally stopped and legally detained and transported. There is thus no basis for the application of the exclusionary rule to the evidence gathered subsequently thereto.

Defendant’s next contention concerns the selection of the jury. He argues that since the jury was “death qualified,” i.e., that each juror indicated a willingness to impose the death penalty under proper circumstances (something which the jury ultimately declined to do), it was not representational of the community and was conviction-prone and thus he was deprived of a fair trial. We do not agree, and note in passing that the issue was not raised in his post-trial motion.

The matter is controlled by Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770, in which the Supreme Court held that the exclusion of jurors in capital cases merely because of conscientious scruples against the death penalty produced a death-prone jury, which was unconstitutional. However, the court rejected the argument that such a jury would be unrepresentative or unduly conviction-prone. Our supreme court has recently held that Wither-spoon remains valid. People v. Williams (1983), 97 Ill. 2d 252.

The defendant has presented no evidence that this jury was prone to convict. Each side made extensive use of peremptory challenges, apparently based on the jurors’ views concerning the death penalty. Only three veniremen were excused for cause; defendant failed to object to two or these, one of whom was an alternate, and no alternates were used. Thus only one juror was excused for cause over defendant’s objection. This one stated that he could not be impartial, that he had some knowledge of the case, and that he would vote against the death penalty under any circumstances. The dismissal for cause was appropriate apart from any question of death penalty.

Defendant’s final argument centers upon the constitutionality of the statute under which he was sentenced to life imprisonment, section 5 — 8—1(a)(1) of the Unified Code of Corrections. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—1(a)(1).) That section in fact contains three subsections: (a) which provides for a term of 20 to 40 years for murder; (b) which provides for a discretionary term of natural life if the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty, or if any of the aggravating factors found in section 9 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1) is present; and (c) which provides for a mandatory term of natural life if the defendant has previously been convicted of murder, or is found guilty of murdering more than one victim. Defendant’s brief confines itself to argument relating to the second alternate in subparagraph (c), i.e., multiple victims. We therefore find that he has waived any argument relating to the other sub-paragraphs and their subsections, even though he makes a general allegation as to the entire section 5 — 8—1(a)(1). 87 Ill. 2d R. 341(e)(7).

We have searched the record in vain in an effort to determine whether the issue was raised at the trial level and have been unable to find any such indication. There were extensive motions concerning the constitutionality of the death penalty statute (Ill. Rev. Stat. 1981, ch. 38, pars. 9 — 1(b), (c)) but nothing regarding life imprisonment. The post-trial motion is cast in general terms insufficient to raise the issue. We would, therefore, be justified in deeming it waived. People v. Amerman (1971), 50 Ill. 2d 196, 279 N.E.2d 353.

However, the State has not argued waiver, so we feel obliged to discuss the matter briefly. Defendant’s argument centers on the mandatory nature of section 5 — 8—1(a)(1)(c), which provides that the court “shall” sentence the defendant to life imprisonment. He maintains that this is a conclusive presumption that a defendant convicted of multiple murders is unworthy ever to be returned to society and this offends article I, section 11 of the Illinois Constitution of 1970, which provides that all penalties shall be determined with a view towards the seriousness of the offense and the objective of restoring the offender to useful citizenship.

By placing a narrow focus on one alternative of section 5 — 8— 1(a)(1)(c) the defendant ignores that alternative bases used by the trial court in fixing its sentence. The court’s remarks in sentencing are instructive:

“In regard to the offenses of murder, in addition to the findings that the court has already made, the Court finds the defendant has been convicted of murdering two individuals, that these murders were with the intent to kill more than one person, that the murdered individuals were killed in the commission of the felony offense of aggravated kidnapping, and the defendant killed these two individuals with the intent or the knowledge that his acts would cause death or that they created a strong possibility of death.
The Court further finds that the two murdered individuals were under the age of sixteen years of age and that again without reason, with a complete disregard to human life, the defendant’s acts were exceptionally brutal and heinous and indicative of wanton cruelty.
For these reasons, in addition to the statutory mandate, the Court will sentence the defendant to natural life imprisonment for the offenses of murder of Mary Roughton and Russell Roughton.”

The court was clearly proceeding not only under subparagraph (c), but also under subparagraph (b) of section 5 — 8—1(a)(1), subparagraph (b) being permissive — “may.” There is no constitutional impediment to a discretionary life sentence. People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.

Thus, by finding that the murders occurred in the course of committing the felony of aggravated kidnaping the court was making the proper interplay between subparagraph (b), which makes a life sentence discretionary if any aggravating factor is found, and sections 9 — 1(b)(3) and (6)(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 9 — 1(b)(3), (6)(c)), which provide as aggravating factors multiple murders and murder in the course of aggravated kidnaping. Additionally, the court made a finding under the other alternative of subparagraph (b) that the murders were accompanied by exceptionally brutal and heinous conduct indicative of wanton cruelty.

This case is thus distinguishable from People v. Taylor (1983), 115 Ill. App. 3d 621, wherein the appellate court concluded that the word “shall” in subsection (c) was discretionary because the trial court felt it had no alternative. Here alternate bases for sustaining a life sentence not only exist, they are spelled out in the record.

For all the foregoing reasons, the judgment and sentence of the circuit court of McLean County are affirmed.

Affirmed.

MILLS and MILLER, JJ., concur.


author: JUSTICE JONES PRESIDING JUSTICE HARRISON,

text:
      In re MARRIAGE OF BARBARA E. MOORE, Petitioner-Appellee and Cross-Appellant, and JOHN D. MOORE, Respondent-Appellant and Cross-Appellee.
    Fifth District
    No. 82 — 22
    Opinion filed August 25, 1983.
    HARRISON, P.J., dissenting.
    Edward J. Kionka, of Carbondale, and Charles D. Winters, of Winters, Brewster, Brown & Permar, of Marion, for appellant.

      Mitchell & Armstrong, Ltd., of Marion (J. C. Mitchell, of counsel), for appellee.
   JUSTICE JONES

delivered the opinion of the court:

Respondent, John D. Moore, appeals from that portion of the judgment of dissolution of marriage providing for child support. The issues raised by respondent are (1) whether the trial court’s award of $24,000 per year for the support of two minor children constituted an abuse of discretion; (2) whether the trial court erred in providing for automatically escalating child-support payments; and (3) whether the trial court erred in requiring John to pay the two children’s post-majority medical and dental expenses. Petitioner cross-appeals, contending that in the event the child support award is reversed, this court should also reverse the judgment of the trial court regarding the division of marital property and remand for another determination of that issue.

The parties were married in 1966 while in college. Petitioner graduated in 1966 with a degree in accounting and subsequently became a certified public accountant. Respondent continued his education until he graduated from medical school in 1971. Following her graduation petitioner worked as an accountant while respondent was in medical school and completing a four-year residency. From 1975 to 1977 the parties were in Ft. Leonard Wood, Missouri, where respondent served in the Army. Work was scarce at Ft. Leonard Wood, and petitioner was able to work only part time in a thrift shop. Two children were born to the parties, Peter in 1971 and Amy in 1976.

In 1977 the parties moved to Carbondale where respondent joined the staff of the Carbondale Clinic as a general surgeon. Petitioner worked part time as a CPA for a local firm. As an associate of the clinic, respondent’s gross income increased from $62,000 in 1978 to $110,000 in 1980. The parties separated in 1980. Respondent resigned from the clinic in August 1980. At the time of the hearing on the property disposition, maintenance and child support, he was in the process of moving to Sidney, Montana, where he would establish a medical and surgical practice. He had reached an agreement with a hospital in that city whereby he was guaranteed a gross income for the first year of $120,000. There were also agreements with the hospital relating to moving expenses and support for office overhead expenses.

In 1980 petitioner had returned to school to obtain a master’s degree in accounting. It was her stated purpose to teach at the junior college level and it was her expectation to earn $15,000 per year. Although she could expect to earn about $19,000 working as a CPA, she chose to teach to afford herself more time to devote to the raising of the children.

Final judgment was entered on December 21, 1981. Custody of the children was awarded to the petitioner. Respondent as ordered to pay child support in the amount of $12,000 per child per year effective November 1, 1981. Effective January 1, 1983, the child support was to be increased by $1,000 per child per year. Like increases of $1,000 per child per year were ordered until each child reached age 18 or finished high school. Respondent was also ordered to pay higher education expenses of the children, extending through graduate school. Respondent was lastly ordered to keep health and dental insurance for the children or otherwise pay all health and dental costs until each child reaches age 22.

We consider first the requirement in the judgment that respondent pay for the children’s medical and dental expenses past the age of their attainment of majority. Petitioner has conceded that this is error. (Ill. Rev. Stat. 1979, ch. 40, par. 505.) Accordingly, that portion of the court’s order directing the payments is reversed.

Respondent next directs an argument against that portion of the judgment which provided an automatic escalation of the child-support payments. We find that the argument is well taken. The judgment provided that the support payments should increase by $1,000 per child per year “until each child reached his or her eighteenth birthday or finishes high school, whichever occurs last.” In the past we have held that escalation provisions in a judgment for child support are improper. We observed that ‘[b]ecause changes in these facts cannot be anticipated with accuracy, a circuit court should ordinarily not try to anticipate such changes by making its award of child support to increase automatically with the child’s age. [Citation.] The self-adjusting aspect of the award of child support must, therefore, be reversed.” McManus v. McManus (1976), 38 Ill. App. 3d 645, 647, 348 N.E.2d 507.

Petitioner argues that the escalation clause was proper because the “trial court had a right to reasonably expect that John anticipated that his future income would certainly be expected to increase in such a dramatic fashion as it had while he was at the Carbondale Clinic.” However, the trial court was not entitled to rely on the possibility or the likelihood of future increases. (Elizer v. Elizer (1976), 36 Ill. App. 3d 552, 555, 344 N.E.2d 493.) The court in Coons v. Wilder (1981), 93 Ill. App. 3d 127, 416 N.E.2d 785, after quoting McManus with approval, referred to several situations in which automatic increases in support payments based on anticipated gains have been disallowed. The court held that the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 101 et seq.) is “geared towards a present ability to pay support and does not suggest in its terms that possible future financial resources of a party may also be taken into account.” Coons v. Wilder (1981), 93 Ill. App. 3d 127, 134, 416 N.E.2d 785, 792.

Petitioner cites several cases in which courts have “approved” automatic increases in the amount of support payable by the father. Unlike the present case, however, those cases do not involve an arbitrarily fixed increase triggered by nothing more than the passage of a year’s time. In fact, the court in In re Marriage of Raidbard (1980), 87 Ill. App. 3d 158, 408 N.E.2d 1021, did not approve automatic increases of any kind. Rather, the court fixed payments at $650 per month, a modification sought because of a dramatic change in the father’s ability to pay. In Vollenhover v. Vollenhover (1955), 4 Ill. App. 2d 44, 123 N.E.2d 114, a situation in which quarterly bonuses caused the father’s income to fluctuate, the court did provide for increases in support payments, but these were made contingent upon the increases in his income actually taking place. In addition, the court’s order contained a provision for automatic reduction during those months when the earnings decreased. Likewise, In re Marriage of Rizzo (1981), 95 Ill. App. 3d 636, 420 N.E.2d 555, and Robbins v. Robbins (1976), 40 Ill. App. 3d 653, 353 N.E.2d 110, involved situations in which incomes fluctuated unpredictably from year to year. To accommodate these changes, the court in those cases chose the most convenient method of calculation for both the party paying child support and the custodial parent receiving the payments, i.e., it computed the award on a percentage basis which would cause the payments to adjust according to the increases or decreases in income as they occurred. The court’s order in the instant case contains no such adjustments or accommodations. We hold, therefore, that the provision for automatic escalation of support payments was in error.

Respondent finally argues that the trial court erred in fixing the amount of support at $12,000 per child per year. This amount, he contends, is not justified by the evidence relating to the children’s needs and the respondent’s ability to pay and is so excessive as to constitute an abuse of discretion. We must agree.

Section 505(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 505(a)) provides that in a proceeding for dissolution of marriage the court may order either or both parents to pay an amount reasonable and necessary for support, after considering all relevant factors. The relevant factors are stated to include (but are not limited to) the financial resources of the child, the financial resources and needs of the custodial parent, the standard of living the child would have enjoyed had the marriage not been dissolved, the physical and emotional condition of the child, and his educational needs and, finally, the financial needs and resources of the noncustodial parent.

At the hearing held for the purpose of determining the disposition of property and fixing the amount of maintenance and child support, it was established that the net worth of the parties was approximately $200,000. Although the petitioner was unemployed at the time, she anticipated obtaining a teaching position that would pay about $15,000 a year. Petitioner had nonmarital property consisting of stocks, bonds and cash equivalents valued at approximately $23,500. She received in the distribution of marital property approximately $48,885 of income-producing property and the marital home in which the equity was $24,440. Petitioner testified that her living expenses were $17,139 per year. Respondent testified that his living expenses totaled $16,608 and that his business expenses, which were estimated to be $24,968, would increase the following year by $12,264 when he was to commence paying his office rent.

The petitioner testified that the annual expenses of the children totaled $32,856 and furnished a breakdown of the several items to show how she arrived at the figure. She stated on cross-examination that she did not believe the amount excessive for children of the wife of a doctor and the daughter of a doctor. The several items listed included $1,956 for medical and dental costs and insurance, $3,600 for vacations, $2,880 for clothing, $2,580 for child care, $12,624 for household operations and $1,296 for transportation costs. Respondent contends that in light of the financial condition of the parties, these amounts are unreasonable. The trial court must have agreed, at least to some extent, for it fixed the amount payable for the two children at $24,000 per year. However, we believe further reduction is required by consideration of the reasonable and necessary needs of the children and the present financial circumstances and ability of the respondent to pay.

The petitioner acknowledged in her testimony that when it becomes necessary to establish two households, the resulting dilution of available money generally requires the parties to curtail their standard of living.

Petitioner explained the various items in her list of expenses necessary for the children. She was spending $130 a month for counseling for the children to help them understand why their father was leaving. She spent $300 per month (at an annual rate of $3,600) for vacations. She said they took one trip to Canada, three trips a year to watch out-of-town basketball games, a one-week vacation each year, several trips to Sikeston (Missouri, about 80 miles distant from Carbondale), and a river float trip once a year. The $2,200 per year for recreation and hobbies went for swimming lessons, YMCA dues, Cub Scouts, an aquarium, fishing tackle, baseball, Skate Train and movies. She stated that she spent $2,880 a year for the children’s clothing and that such amount was necessary for their customary standard of living. Child care and Sunday School expenses were stated to be $2,580 per year, but both children were in school, Peter all day and Amy in kindergarten at the time. The household operation and transportation expenses were derived by taking two-thirds of the total cost of maintaining the home and a 1980 Mercedes auto. The costs of the household included $716 per month, payment on a mortgage that at the time had a balance due of $76,000. They also included taxes, insurance, utilities, repairs, cleaning and laundry. These figures are all-inclusive and it seems to us unlikely that two-thirds of all the stated items comprising the total figure can be attributable to the direct expense of child-rearing.

While respondent had the assurance of $120,000 of income for his first year at Sidney, Montana, this is a gross, not a net, figure. He was, at the time, still in the process of relocating himself and establishing his household and his medical practice in Sidney. Beyond the first year, he has no assurance of income. While the expectation of a substantial income was present, it is not certain. Many variables would enter into the calculation. Prospects and expectation of a much larger income are an insufficient basis upon which to fix child support. Prudence places the limits for such support within the visible horizon. Having consideration for the facts set forth in section 505(a) of the Act, we are of the opinion that child support in the amount of $24,000 per year is not warranted by the evidence, and the trial court committed a breach of discretion in fixing it in that amount.

In an interim order entered in the case, the trial court set the amount of temporary child support at $500 per child per month. In her motion for temporary relief the petitioner alleged that respondent had been paying her $800 per month but that that amount was insufficient to support herself and the children in the manner and style to which they were accustomed. She then alleged that the amount of expenses for such purposes was as set forth in an itemized statement which accompanied the petition. There was a separate category for the children, containing nine separate items which totaled $1,120 per month. None of the nine items listed included any amount for operation of the household.

In a brief submitted to the trial court at the close of the evidence, and contained in the record, the petitioner urged the court to set child support at $600 per month per child. Admittedly this figure was linked to an urging for a greater allowance of marital property than the court in fact ultimately allowed. In an answering brief the respondent stated the fairness of a figure of $500 per month per child.

Having regard for the factors set forth in section 505(a) of the Act, the reasonable and necessary needs for support and the ability of the parties to pay, we fix the support at $650 per child per month. That amount will be sufficient to furnish the children a high, though not lavish, standard of living and permit some payment for household expenses. The obligation of the respondent for health and dental care, and educational expenses is to remain as determined by the trial court except as to the liability for medical and dental expenses beyond the children’s attainment of majority.

In sum, the judgment of the trial court is modified by deleting the provision that holds respondent responsible for the medical and dental expenses of the children after they attain majority, by deleting the provision for escalation of child-support payments on an annual basis and by reducing the child-support payments to be made by respondent to $650 per month per child.

In her cross-appeal petitioner asks that in the event an adjustment is made in the child-support payments, the case be remanded in its entirety for reconsideration of the disposition of the marital property. However, to do as petitioner requests would constitute a suggestion to the trial court to tilt its disposition of marital property in such a manner as to compensate for the reduction in child-support payments that has now been made. If such “adjustment” were in fact made, it would constitute a subversion of the statute governing the disposition of marital property. Such disposition is to be made solely in accord with the guidelines furnished in that statute. Child-support payments, on the other hand, are to be determined solely in accord with the guidelines furnished by the applicable statute. We have not modified the judgment of the court regarding the disposition of marital property. No imbalance in the division of property has been wrought by our order. Therefore, there is no reason to remand the case to the trial court for a reconsideration of the disposition of marital property.

Judgment modified in part and affirmed in part.

KARNS, J., concurs.

PRESIDING JUSTICE HARRISON,

dissenting:

I respectfuüy dissent.

I agree with the majority that the judgment of the trial court should be modified by vacating the provisions that hold respondent responsible for the medical and dental expenses of the children after they attain majority and that escalate child support payments on an annual basis, but I must dissent from that portion of the order of the majority that holds that the trial court committed a “breach of discretion” in fixing the amount of child support and reduces the child-support payments to be made by respondent to $650 per month per child.

The amount of an award of child support is a matter within the sound discretion of the trial court, and the award will not be disturbed on appeal absent an abuse of discretion. Such an abuse of discretion occurs only when no reasonable man would take the view adopted by the trial court. (In re Marriage of Dwan (1982), 108 Ill. App. 3d 808, 812, 439 N.E.2d 1005, 1008-09.) Under the facts of the case sub judice, I cannot say that the trial court abused its discretion in awarding $12,000 per year per child as child support. Absent an abuse of discretion, a reviewing court should not substitute its discretion for that of the trial court. In re Marriage of Johnson (1982), 106 Ill. App. 3d 502, 508, 436 N.E.2d 228, 232.

Therefore, I would affirm the child-support award entered by the trial court.