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    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD WINSTON, Defendant-Appellant.
    Second District
    No. 80-469
    Opinion filed May 18, 1982.

      Mary Robinson and David Morris, both of State Appellate Defender’s Office, of Elgin, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

After a jury trial, defendant, Donald Winston, was found guilty of the offenses of murder and robbery and was sentenced to concurrent extended terms of imprisonment of 60 and 14 years respectively. Defendant appeals, contending: (1) that the trial court erred in refusing to suppress certain statements allegedly obtained after his requests for counsel were ignored by the police and certain members of the State’s Attorney’s office; (2) that he was denied his fifth amendment privilege against self-incrimination by the State’s improper cross-examination; (3) that the selection of the jury in accordance with Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776,88 S. Ct. 1770, resulted in a jury which was conviction-prone and more likely to reject an insanity defense; and (4) that the trial court erroneously concluded that the offense of murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty and erred in failing to state for the record the basis for imposing an extended term for the offense of robbery.

Defendant was charged by information, filed on October 26, 1979, with eight counts of murder and one count of robbery. On November 29, 1979, defendant filed a motion to suppress certain statements alleging, inter alia, that they were obtained after his requests for counsel had been ignored. A hearing on defendant’s motion was held on December 14,1979, at which the following evidence was adduced.

The State’s first witness at the suppression hearing was Thomas L. Knight of the Du Page County State’s Attorney’s office. On September 26, 1979, Knight interviewed the defendant at the Elmhurst police station. Also present at that interview was Thomas Callum of the State’s Attorney’s office. Initially, Knight informed defendant of his Miranda rights and defendant acknowledged that he understood. Knight testified as follows concerning his conversation with the defendant:

“I then said, ‘Would you like to tell us about the incident involving the death of Martin Danforth?
Q. What if anything did the defendant reply to that?
A. He said ‘I’m not sure whether I want to tell you about it. I mean, I want to tell somebody, but if I tell you, you’re going to use it against me. And if I tell my own lawyer, he’ll use it for me.’
Q. What if anything was your response to that?
A. I said, ‘I understand that, and that’s certainly your right and we’ll adhere to that. Is there anything that you do want to tell us?
Q. And what if anything did the defendant say?
A. He said, ‘What do you want to know?’
Q. What if anything was stated next?
A. I said, ‘Anything that you want to tell us about the incident.’ I said, ‘Anything that would help us understand what happened, understand your side of the story.’
Q. Did the defendant ever ask for an attorney?
A. No, he did not.
Q. All right. Did defendant ever refuse to answer any questions during this interview?
A. No, he did not.”

Knight further testified that the defendant was at no time during the interview subject to coercion or threats.

Thomas Callum, an assistant State’s Attorney who was also present at the interview of the defendant on September 26, 1979, testified that after Thomas Knight advised the defendant of his rights and asked him if he would waive those rights and talk, the defendant stated that “he wasn’t sure if he wanted to talk to us; that he wanted to talk to somebody; that if he talked to us that we would use it against him; that if he talked to his own lawyer, he would use it for him.” Knight told defendant that he was correct and that it was his option whether or not to speak. Defendant then responded, “[w]hat do you want to know?” Callum testified that the defendant did not refuse to answer any question and that no form of coercion was used.

James Stamper, a police officer for the city of Elmhurst, also interviewed the defendant on September 26,1979, at approximately 2 p.m. Detective Anthony Markos was also present at the interview. After entering the interview room, Stamper advised defendant of his rights. Defendant then acknowledged that he understood those rights and stated “ ‘yes, I would answer questions except that there might be some questions which I don’t want to answer.’ ” During the course of the interview, defendant did not ask to speak to an attorney. Defendant refused to answer two questions concerning his sexual relations with the deceased stating that he did not want to answer until he could see an attorney. Stamper also testified that no form of coercion was used on the defendant.

On cross-examination, Stamper testified that he transported the defendant from a jail in Boston, Massachusetts. During this time, although defendant did not specifically request an attorney, he indicated that “eventually when he got back that he would be requesting an attorney, and he had previously asked as to the procedure for a public defender being appointed.” Stamper told the defendant in response to his questions concerning the appointment of a public defender, that a public defender, in all probability, would be appointed at the bond hearing “the following morning.” Stamper also told the defendant, however, that if defendant desired an attorney “right now” that he would call the State’s Attorney’s office to “see what arrangements, if any, could be made in regards to that today.”

Anthony Markos, a police officer for the city of Elmhurst, testified that he was also involved in the interview of the defendant on September 26. Markos stated that Officer Stamper advised the defendant of his Miranda rights, and the defendant stated that he understood. During the interview defendant did not ask for an attorney but did refuse to answer two questions.

Defendant, Donald Winston, next testified that on September 25,1979, Officers Stamper and Komerska had a conversation with him in the FBI building in Boston, Massachusetts. The officers informed him that they had a warrant for his arrest and that they were going to extradite him back to Illinois. The officers also asked defendant “if there was anything [he] wanted to tell them about the death of Martin G. Danforth.” Defendant responded, “No, there is nothing I want to say to you.” When the officers informed the defendant that he would be tried in Illinois for murder, defendant stated, “Well, of course I’m going to need an attorney. And since I have no money, how am I going to get an attorney?” Defendant then testified that during a car ride to the Boston jail, he stated that he would like to talk to an attorney before he made any more statements. Defendant also testified that he expressed his desire for an attorney to the officers at the Boston airport and also during the airplane trip to Chicago. Defendant testified as follows concerning what transpired upon his arrival at the Elmhurst police station:

“A. Well, the biggest conversation we had about it was soon after we were in the interview room, soon after Markos and Stamper had started to get me to answer questions. You know, they were giving me my Miranda rights and telling me this and that.
And then I said, ‘Well, I don’t want to say anything until I talk to an attorney.’ I know that. And they said, ‘Do you have any money?’ and I said ‘No.’
They said, ‘How do you expect to get an attorney?’ And I said, ‘Well, there is such a thing as a public defender, isn’t there?’ They said, ‘Yes.’
And I said, ‘Well, can I talk to one now?’ And they said, ‘No. About the soonest you can talk to one is tomorrow after you go to a bond hearing.’
Q. What did they say then, sir—
A. They said — started asking me questions about Martin G. Danforth and his death.”

Defendant testified that he repeatedly asked for an attorney while in the interrogation room and that he stated that he did not want to answer questions.

With regard to defendant’s conversations with Thomas Knight and Thomas Callum, defendant testified that he was “pretty well broken down” by the time that they arrived. Defendant stated that when they first came in, he asked for an attorney. An attorney was not appointed for the defendant until the morning of September 27, 1979.

The final witness called by the defendant at the hearing was Lyle Rossiter, a qualified forensic psychiatrist. Dr. Rossiter had examined the defendant and diagnosed him as alcoholic and homosexual. Rossiter also described defendant’s personality disorder as follows: “Individuals with this type of personality problem typically enter into interpersonal relationships in which they develop a very dependent mode of dealing with another person to such an extent that they will frequently become submissive, extremely compliant and, in some cases, which is true in Mr. Winston’s case, virtually surrender their will and freedom of choice to someone else to whom they have become very attached.”

In rebuttal, the State recalled Officer Stamper. Stamper denied the defendant had requested the services of an attorney during his various conversations with the defendant in Boston. Stamper also testified that defendant'did not request an attorney on the plane trip from Boston nor the ride to the Elmhurst police station. On cross-examination, Stamper stated that during his conversation with defendant at the Elmhurst police station, defendant merely inquired about the procedure for the appointment of a public defender but did not indicate that he wanted one or that he did not want to answer any further questions.

Terry Komerska, a police officer for the city of Elmhurst, next testified that he accompanied Officer Stamper to Boston in order to extradite the defendant. Komerska stated that Stamper advised the defendant of his rights and that the defendant did not request an attorney. Komerska also testified that defendant did not request an attorney during two separate car rides in the Boston area nor did he request an attorney during the ride to the Boston airport or during the plane ride to Chicago. During the entire time that Komerska was in the presence of the defendant, he never heard the defendant request an attorney.

Finally, the parties entered into a stipulation to the effect that Leonard Weir, a Boston police officer who transported the defendant on several occasions to and from court, if called as a witness, would testify:

“4. That he advised Winston of his rights and explained the Interstate Rendition proceedings to Winston at the United States Marshall’s Office, and that he told Winston that Winston was not to discuss the pending Illinois charges with him.
5. That after dismissal of Federal Charges, he again advised Donald Winston of his rights following his being taken into custody by Massachusetts authorities and that he advised Donald Winston that an attorney would be appointed to represent him during the Rendition proceedings pursuant to Massachusetts [sic] law.
6. That Donald Winston was advised he had the right to make a telephone call and exercise that right and that he volunteered to Donald Winston that an attorney would undoubtedly be appointed for him when he got back to Illinois.
7. That he advises all persons transported by him not to make any statements concerning their charges until they have talked with an attorney at the ultimate destination.
8. That he does not recall Donald Winston requested an attorney while in his presence.”

After the parties had filed briefs in support of and opposition to the motion and after hearing argument, the court denied the motion on January 21, 1980.

From February 25 to March 3,1980, voir dire of prospective jurors was conducted. On request of the State, numerous prospective jurors were excused for cause after expressing opposition to the death penalty. After a jury had been selected, the case proceeded to trial on March 3, 1980.

Testimony at the trial disclosed the following. Officers James Stamper and James Altman had driven to the decedent’s home after receiving a call informing them that the decedent had not been at work for two days. The officers discovered the body of the decedent, Martin Danforth, in bed, lying face down, and naked. An extensive amount of blood was observed on the bed and near the body. A belt had been looped around the victim’s neck and pulled tight. In examining the rest of the Danforth house, Stamper observed a small, grey metal bowl, approximately half full of water, located in the middle of the bathtub. Also found in the home was a man’s black wallet containing various items of identification of the defendant.

Officer Stamper later testified that after he had been informed that defendant had been apprehended in Boston, he traveled to Boston to bring defendant back to Illinois. After arriving back at the Elmhurst police station, defendant agreed to answer questions after being informed of his rights. Defendant told Stamper that he had met Danforth in a bar, and thereafter, he began to live with Danforth. Defendant stated that Danforth expected him to “perform sexually” for him. On the date of the offense, defendant complied with Danforth’s request to place a belt around Danforth’s neck and choke him. Defendant then hit the decedent, and the two became “all covered with blood.” Defendant then went to the bathroom to wash up and later searched the house and found approximately $2,500 in the decedent’s wallet and dressers. Defendant took Danforth’s car and drove around all Sunday. Defendant tried to return to Danforth’s home to obtain his wallet, but when he noticed a police car in front of the house, he did not go in. He then drove the car to a church where he got on a bus for Boston. In response to Stamper’s question inquiring as to the reason for the offense, defendant stated “because of the way Marty treated me. He was, he was drunk all of the time and he acted crazy and he was just crazy * #

Thomas Knight of the Du Page County State’s Attorney’s Office also testified to his conversation with the defendant. Defendant described to Knight the various sexual activities he engaged in with the decedent on the date of the offense. Defendant indicated to Knight that Danforth had a belt around his own neck which Danforth was pulling on. Defendant further stated that Danforth was hurting him so he reached out and grabbed a metal ashtray that was near the bed and began hitting Danforth in the back of the head with it. He continued to strike Danforth until he stopped moving. Defendant then took a shower, searched the house for money, and took Danforth’s car to a bar.

Later in the trial, Hans Dolz, a certified pathologist, testified that he had performed an autopsy on the body of Martin Danforth. Dolz observed a band-like depression around the neck of the decedent, lacerations and hematomas around the head and neck area, and “defensive wounds” on the hands. Dolz described defensive wounds on the hands as commonly occurring when a person is assaulted and reaches up with his hands to protect himself. In Dolz’ opinion, the death was caused by strangulation.

Peter Makres, who met the defendant on November 19,1979, in the Du Page County jail, also testified at the trial. Makres had been transported to the Du Page County jail so that he could go to trial on an “outstanding charge.” Makres related the content of his conversation with defendant at that time. The witness also stated that defendant gave him several pieces of paper on which defendant had written certain things about which he wanted to talk to his attorney. People’s exhibit No. 116, one of defendant’s notes, indicated that defendant had had a conversation with “Bill” during which defendant related that he knew of a house that he could easily “rip off and get away with at least a thousand dollars.” The note further indicated that during this conversation, defendant stated that the owner of the house “was a drunk and bothered me to the point that I felt like killing him.”

Defendant later testified in his own behalf. Direct examination centered largely on defendant’s childhood and early family history. On cross-examination the following exchange took place:

“Q. Mr. Winston, I show you what has been marked as People’s Exhibit No. 29 for identification—
MR. SIMPSON: Objection.
BY MR. CALLUM:
Q. [continuing] — and ask you to examine that.
THE COURT: The objection is sustained.
BY MR. CALLUM:
Q. Mr. Winston, I show you what has been marked as People’s Exhibit No. 116 for identification and ask you to examine that.
MR. SIMPSON: Objection, your Honor.
THE COURT: Yes. The objection is sustained.
BY MR. CALLUM:
Q. Mr. Winston, I ask you to examine what has been marked as People’s Exhibit No. 115 for identification.
MR. SIMPSON: Objection, your Honor.
BY MR. CALLUM:
Q. Do you recognize that?
THE COURT: Yes. All of this is beyond the scope of the direct examination.
The objection is sustained.
BY MR. CALLUM:
Q. Mr. Winston, do you know Martin Danforth?
MR. SIMPSON: Objection, your Honor.
THE COURT: The objection is sustained.
BY MR. CALLUM:
Q. Mr. Winston, when did you meet Martin Danforth?
MR. SIMPSON: Objection.
THE COURT: Yes. Let’s go back in chambers.”

The defense also presented the testimony of two psychiatrists. Dr. Gilbert Ferris had examined the defendant in 1978 and concluded he was suicidal and a latent schizophrenic. Dr. Lyle Rossiter also examined defendant and on the basis of hypothetical question asked him based on the past history of the defendant, Rossiter concluded that defendant would be able to appreciate the criminality of his act but would not be able to conform his conduct to the requirements of the law. In rebuttal, the State called Dr. Jan Fawcett who testified that in her opinion, a person with a history such as defendant’s would not lack the capacity to appreciate the wrongfulness of his behavior or to conform such behavior to the requirements of the law.

On March 19,1980, the jury returned general verdicts of guilt for the offenses of murder and robbery. Thereafter, special death penalty proceedings were held, but the jury failed to find an absence of mitigating factors. After a sentencing hearing, the court sentenced the defendant to extended terms of 60 years’ imprisonment for the offense of murder and 14 years’ imprisonment for the offense of robbery.

Defendant first contends that the trial court erred in failing to grant his motion to suppress statements since they were obtained from him after his request for counsel had been ignored by certain police officers and members of the State’s Attorney’s Office. A statement obtained from a defendant by means of interrogation which continued after the defendant had requested an attorney is a violation of Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. (People v. Hennenberg (1973), 55 Ill. 2d 5, 10-11, 302 N.E.2d 27.) A defendant in custody has the right to cut off interrogation by invoking his right to an attorney, and voluntary statements made with a full understanding of Miranda rights and pursuant to a valid waiver may be inadmissible if the right to have questioning terminated has not been honored. (People v. Krueger (1980), 82 Ill. 2d 305, 310, 412 N.E.2d 537.) If a defendant chooses to speak and does not request a lawyer after being informed of and understanding those rights, the court may properly find that he understood his rights and chose not to exercise them. People v. White (1977), 52 Ill. App. 3d 517, 523, 367 N.E.2d 727.

With regard to defendant’s testimony at the suppression hearing that he did, in fact, request a lawyer, the trial court stated:

“The police officer’s testimony and your testimony, I have to believe one or the other. If I believe your testimony that you asked for the appointment of the Public Defender, I certainly would grant your motion. I didn’t believe your testimony is what it boils down to.”

In ruling on a motion to suppress, it is the trial court’s province to determine the credibility of witnesses and the weight to be given their testimony, and its findings should not be disturbed unless contrary to the manifest weight of the evidence. (People v. Householder (1980), 81 Ill. App. 3d 31, 33, 400 N.E.2d 988; People v. Myers (1978), 66 Ill. App. 3d 934, 935, 384 N.E.2d 516.) In light of the substantial testimony that defendant did not specifically request an attorney, we do not find the trial court’s finding to be manifestly erroneous.

The next question becomes whether the other statements of the defendant testified to by the State’s witnesses can be interpreted as exhibiting his desire for an attorney such that all questioning should have been discontinued at that point. Defendant cites certain language in Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, and contends that his statements to police and members of the State’s Attorney’s Office were sufficient expressions of his desire for counsel. In Miranda, the Supreme Court stated that if an accused “indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.” (Emphasis added.) 384 U.S. 436, 444-45,16 L. Ed. 2d 694, 707, 86 S. Ct. 1602,1612.

There was testimony at the suppression hearing that when initially questioned about the death of Martin Danforth, defendant stated, “I’m not sure whether I want to tell you about it. I mean, I want to tell somebody, but if I tell you, you’re going to use it against me. And if I tell my own lawyer, he’ll use it for me.” We do not construe this statement as an affirmative request for counsel. In People v. Krueger (1980), 82 Ill. 2d 305, 412 N.E.2d 537, our supreme court held that the defendant’s statement “Maybe I ought to have an attorney” did not constitute an invocation of the right to counsel. The court noted that “a more positive indication or manifestation of a desire for an attorney was required than was made here.” (82 Ill. 2d 305,312,412 N.E.2d 537.) In the present case, defendant’s statements were indecisive, ambiguous, and did not indicate a present desire for an attorney. Additionally, it was the testimony of Officers Stamper and Callum that, after this statement by the defendant, Officer Stamper indicated to defendant that his right to an attorney would be “adhered to.” Defendant, however, chose to speak, stating, “what do you want to know?” Under such circumstances, we cannot interpret defendant’s statement as an expression of desire for counsel.

Officer Stamper also testified at the suppression hearing that defendant had inquired about “the procedure for a public defender being appointed.” In People v. Rafac (1977), 51 Ill. App. 3d 1, 364 N.E.2d 991, the court held that when the defendant raised the question as to how he could be represented by counsel, the interviewing officer should have regarded such an expression as a “red light” which compelled a cessation of all further questioning. However, we find the facts of the present case to be distinguishable. After Stamper informed the defendant that a public defender could be appointed at the bond hearing the following morning, he also stated that if defendant desired an attorney “right now,” he would call the State’s Attorney’s office to see what arrangements could be made. Since defendant was offered the assistance of an attorney at that time but failed to take advantage of it and continued to answer questions, such clearly amounts to a waiver. In contrast, when the defendant in Rafac inquired about the appointment of an attorney, he was advised that a public defender would be “appointed to represent him when he went to court on the following Monday.” (51 Ill. App. 3d 1, 4, 364 N.E.2d 991.) Thereafter, the interviewing officer encouraged the defendant to cooperate to facilitate defendant’s chances for probation. No such pressure was brought to bear upon the defendant in the instant case. We find that defendant has waived his right to the cessation of questioning by continuing to answer questions after he had failed to accept the offer of an attorney “right now.”

We also do not interpret defendant’s statement while in Boston that he would be requesting an attorney “eventually when he got back” to be a present request for counsel, and as we have concluded, the record does not support that defendant made any such a request at a subsequent time. Additionally, defendant’s refusal to answer two specific questions concerning his sexual relationship with the decedent after he had previously answered many other questions cannot be construed as an invocation of the right to remain silent or a request for the presence of an attorney. See People v. White (1977), 52 Ill. App. 3d 517, 524, 367 N.E.2d 727.

Thus, we conclude that defendant’s various vague references to an attorney were not sufficient to have required that questioning be cut off. As our supreme court stated in People v. Krueger.

“Miranda’s ‘in any manner’ language directs that an assertion of the right to counsel need not be explicit, unequivocal, or made with unmistakable clarity. We do not believe, however, that the Supreme Court intended by this language that every reference to an attorney, no matter how vague, indecisive or ambiguous, should constitute an invocation of the right to counsel.” 82 Ill. 2d 305,311, 412 N.E.2d 537.

Defendant also contends that his statements should have been suppressed because they were obtained in violation of his sixth amendment right to counsel. The rights guaranteed by Miranda are based exclusively upon the fifth and fourteenth amendment privilege against self-incrimination. (Kirby v. Illinois (1972), 406 U.S. 682, 688,32 L. Ed. 2d 411, 416-17, 92 S. Ct. 1877, 1881.) However, the right to counsel guaranteed by the sixth and fourteenth amendments entitles a defendant to the help of a lawyer at or after the time that judicial proceedings have been initiated against him — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. (Brewer v. Williams (1977), 430 U.S. 387, 398, 51 L. Ed. 2d 424, 436, 97 S. Ct. 1232, 1239.) Defendant contends that his sixth amendment right to counsel had attached prior to the questioning in this case and cites United States v. Satterfield (2d Cir. 1976), 558 F.2d 655, for the proposition that the State has a higher burden of showing waiver under the sixth amendment than it does under those rights guaranteed by Miranda. However, the standard of waiver which has been consistently applied in this area is whether the State has proved an intentional relinquishment or abandonment of a known right or privilege. (Brewer v. Williams (1977), 430 U.S. 387,404,51 L. Ed. 2d 424, 439, 97 S. Ct. 1232,1242; People v. Aldridge (1980), 79 Ill. 2d 87, 93, 402 N.E.2d 176; People v. Cozzi (1981), 93 Ill. App. 3d 94, 99, 416 N.E.2d 1192.) The testimony at the suppression hearing indicated that defendant was informed of and acknowledged that he understood his right to counsel. Officer Stamper told defendant that if defendant so desired, he would attempt to procure counsel for him immediately. However, defendant chose to answer the questions propounded to him and expressed reluctance only when the questioning concerned his sexual relationship with the decedent. His refusal to respond to questions only in this area indicates that he was fully aware of his right to do so and that he was not laboring under any misapprehension as to his right to counsel or to remain silent. Under these circumstances, the State had clearly shown a waiver.

The defendant’s next two contentions on appeal are that he was denied his fifth amendment rights when cross-examined on inculpatory matters beyond the scope of direct examination and that the method of qualifying the jurors pursuant to Witherspoon v. Illinois resulted in a jury biased in favor of the prosecution. Neither of these issues were contained in the defendant’s written post-trial motion. Although the State has not asserted the waiver argument in its brief, the general rule is applicable that failure by the defendant to raise an issue in the written motion for new trial constitutes a waiver of that issue. See People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856.

In the record provided us we do not find that any objection was made by defendant to the method of selection of the jurors pursuant to Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770. While it is true that the defendant’s counsel did interpose objections to the series of questions posed to defendant during cross-examination at trial, it is not sufficient that a party only object at trial to preserve an issue for review, but it is necessary to specifically include that issue in a post-trial motion. (People v. Tannenbaum (1980), 82 Ill. 2d 177, 181, 415 N.E.2d 1027; People v. Pallardy (1981), 93 Ill. App. 3d 725, 730, 417 N.E.2d 851.) Specific references in post-trial motions to the reasons why a trial judge’s actions on rulings were wrong enables him to reconsider their propriety in a less pressured environment. If an egregious error has actually occurred, the judge can order a new trial, thus avoiding the delay and expense of appellate review. (People v. Jackson (1981), 84 Ill. 2d 350, 358-59, 418 N.E.2d 739.) Issues not raised in a post-trial motion are effectively waived for appellate review. (People v. Precup (1978), 73 Ill. 2d 7, 16, 382 N.E.2d 227.) When a claim of error has not been so preserved, it will only be considered by a reviewing court under the plain error doctrine set forth in Supreme Court Rule 615(a) (73 Ill. 2d R. 615(a)). The doctrine of plain error may be invoked in criminal cases where the evidence is closely balanced or where the error was of such magnitude that the accused was denied a fair trial. People v. Lucas (1981), 88 Ill. 2d 245, 251, 430 N.E.2d 1091.

In the instant case, the objections to the series of questions asked defendant on cross-examination were promptly sustained and the questions did not refer to any new matters not already in evidence. The prompt sustaining of the objections and the later general instruction to disregard questions to which objections were sustained' cured any possible prejudice to defendant. (People v. Panczko (1980), 86 Ill. App. 3d 409, 407 N.E.2d 988; People v. Callaham (1978), 60 Ill. App. 3d 1020, 377 N.E.2d 171.) From our close examination of the entire record, we conclude that this error complained of fails to rise to the level of plain error.

We would also observe that a defendant who takes the stand waives the privilege against self-incrimination to the extent necessary for legitimate cross-examination (People v. Burris (1971), 49 Ill. 2d 98, 104, 273 N.E.2d 605.) While, as a general rule, cross-examination is limited to the subject matter inquired into on direct examination, it is proper on cross-examination to develop all circumstances within the knowledge of the witness which explain, qualify, discredit or destroy his direct testimony although they may incidentally constitute new matter which aids the cross-examiner’s case. (People v. Williams (1977), 66 Ill. 2d 478, 486, 363 N.E.2d 801.) Thus, counsel should be aware of this rule when seeking to limit cross-examination of a defendant when he has chosen to testify and restricted his direct testimony.

We have reviewed also the defendant’s contention that the qualification of the prospective jurors pursuant to Witherspoon v. Illinois resulted in the selection of a jury that was conviction-prone and one which was more likely to reject an insanity defense to determine if the argument qualifies under the “plain error” exception. It does not. Our supreme court recently held that studies cited to it as supporting the argument that voir dire examination of a jury conducted in accordance with Witherspoon v. Illinois results in a conviction-prone jury are not persuasive. (People v. Lewis (1981), 88 Ill. 2d 129,430 N.E.2d 1346.) Our supreme court has also rejected defendant’s contention raised here that a jury selected pursuant to Witherspoon v. Illinois is one which is more likely to reject an insanity defense and find a defendant sane. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.) We find nothing in the two studies on this subject cited to us by defendant (Haney, Juries and the Death Penalty: Readdressing the Witherspoon Question, 26 Crime & Delinq. 512 (1980), and Bronson, On the Conviction Proneness and Representativeness of the Death-Qualified Jury: An Empirical Study of Colorado Veniremen, 42 U. Colo. L. Rev. 1 (1970)) which would cause us to depart from those decisions. (See also People v. Hamilton (1981), 100 Ill. App. 3d 942, 427 N.E.2d 388; People v. Smith (1980), 91 Ill. App. 3d 438, 414 N.E.2d 1281; People v. Kirkpatrick (1979), 70 Ill. App. 3d 166, 387 N.E.2d 1284.) Accordingly, from a review of the record we find no error in this regard and have no reason to invoke the “plain error” rule.

Finally, defendant contends that the trial court erroneously concluded that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty and that it failed to make a finding indicating its basis for imposing an extended term for the robbery. Section 5 — 5—3.2(b) (2) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b)(2)) provides that an extended sentence may be imposed “[w]hen a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” Recently, our supreme court in People v. LaPointe (1981), 88 Ill. 2d 482,431 N.E.2d 344, held that the phrase “exceptionally brutal or heinous behavior indicative of wanton cruelty”contained in section 5 — 8—1(a) (1) (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(a)(1)) authorizing natural life imprisonment did not require “torture or unnecessary pain upon his victim” in order to find “brutal” or “heinous” behavior. (88 Ill. 2d 482,501,431 N.E.2d 344.) The court stated:

‘Heinous’ is defined by Webster’s Third New International Dictionary (unabridged) as ‘hatefully or shockingly evil: grossly bad: enormously and flagrantly criminal’; ‘brutal’ includes ‘grossly ruthless,’ ‘devoid of mercy or compassion: cruel and cold-blooded.’ Clearly, in our opinion, the statute does not limit the imposition of a sentence of natural life imprisonment to only those murders involving torture or the infliction of unnecessary pain.” (88 Ill. 2d 482, 501, 431 N.E.2d 344.)

The court further concluded from the record in that case that the trial court did not abuse its discretion in sentencing the defendant to natural life imprisonment without parole where the defendant “acted with premeditated, cold-blooded deliberation.” 88 Ill. 2d 482, 501, 431 N.E.2d 344.

In the case at bar, the record supports the trial court’s conclusion that the killing was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty. The evidence indicates that the defendant acted with premeditation to rob and kill the deceased, that the defendant beat the victim repeatedly in the face and head with an ashtray until he was rendered unconscious, that the defendant wrapped a belt so tightly around the victim’s neck that it caused the neck to be severely compressed, and that the defendant showed little concern for the gravity of his actions by his subsequent conduct. We believe this evidence indicates a brutal, merciless, and premeditated killing which comes within the meaning of section 5 — 5—3.2(b)(2).

While defendant has argued that the extended term of imprisonment for the robbery should be vacated for the trial court’s failure to specify the basis for imposing an extended term for that offense, we must reduce that extended sentence on another basis not argued but pertinent to the legality of the sentence. Although the defendant’s failure to specifically raise a contention normally constitutes a waiver (People v. Precup (1978), 73 Ill. 2d 7, 16, 382 N.E.2d 227), the waiver rule is a limitation on the parties and not on the courts, arid a reviewing court may ignore the waiver in the interest of substantial justice. People v. Walsh (1981), 101 Ill. App. 3d 1146,1149, 428 N.E.2d 937.

We observe that the defendant was sentenced to extended terms for both murder and robbery, the former being a separate and higher classification of offense from robbery which is a Class 2 felony. (See Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—1.) Section 5 — 8—2(a) provides:

“A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5 — 8—1 for the class of the most serious offepse of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5 — 5—3.2 were found to be present.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2(a).)

In People v. Evans (1981), 87 Ill. 2d 77,429 N.E.2d 520, the supreme court held that the plain language of this statute required that the most serious offense of which the offender was convicted must be accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. The court recognized that this could lead to the anomalous result of insulating a defendant from receiving an extended sentence for an offense accompanied by wanton cruelty by virtue of his conviction of a more serious offense. Subsequently, in People v. Walsh (1981), 101 Ill. App. 3d 1146, 1449-50, 428 N.E.2d 937, the appellate court, relying on Evans, vacated an extended sentence because it did not belong to the class of most serious offense of which the offender was convicted. We are bound by this statute and those decisions and, accordingly, vacate the extended term of 14 years for the offense of robbery and reduce the defendant’s sentence on that conviction to 7 years which is the maximum for a Class 2 felony. See People v. Walsh (1981), 101 Ill. App. 3d 1146,1150,428 N.E.2d 937.

For the foregoing reasons, the conviction and sentence for murder is affirmed, the conviction for robbery is affirmed, and the sentence for robbery modified to a 7-year concurrent term.

Affirmed as modified.

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


source: Caselaw Access Project

author: PRESIDING JUSTICE GREEN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT H. MORRIS, Defendant-Appellant.
    Fourth District
    No. 17381
    Opinion filed May 19,1982.

      Daniel D. Yuhas and Janet Sinder, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Daniel S. Arbogast, State’s Attorney, of Toledo (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

Defendant appeals his convictions and sentence resulting from pleas of guilt to forgery and theft over $150 in violation of sections 17 — 3(a) (3) and 16 — 1(d)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, pars. 17 — 3(a)(3), 16 — 1(d)(1)). Following his guilty pleas, defendant was sentenced to 4 years’ imprisonment.

On appeal, defendant argues that he did not knowingly and voluntarily waive his right to counsel before pleading guilty. He also challenges the severity of his sentence, the failure of the trial court to consider mitigating factors in reaching that sentence, and a delay of over two years between the filing of the notice of appeal in the trial court and the docketing of the appeal in this court.

Briefly summarized, the facts indicate that defendant was charged by information with felony theft on the basis that defendant obtained control over a stolen social security check with the intent permanently to deprive the rightful owner of the use of the proceeds of the check. A second count of forgery was filed charging that defendant endorsed the stolen social security check in the name of the payee with intent to defraud.

Defendant first appeared on both of these charges in the trial court on July 11, 1978. A docket entry in the common law record indicates that he appeared without counsel and acknowledged the receipt of a copy of the charges. The trial court also explained the charges and penalties to him as well as defendant’s right to a prompt preliminary hearing. Defendant was then advised of his right to counsel and indicated to the court that he wished to waive counsel and plead guilty.

Defendant’s second appearance was the next day at which time the State’s Attorney represented to the court that defendant’s initial appearance had been continued to the second hearing date because of the absence of a court reporter the previous day and the fact that a record needed to be made of the proceedings when defendant was appearing without counsel. Immediately thereafter, the trial court engaged in the following colloquy with the defendant:

“The Court: You are here without counsel. Is it your desire to have a lawyer represent you?
[Defendant]: No, sir.
The Court: Do you understand if you are without funds to hire a counsel the Court will appoint one for you?
[Defendant]: Yes, sir.
The Court: Are you at this time waiving your right to have a lawyer present?
[Defendant]: Yes, sir.
The Court: What do you wish to do on this charge?
[Defendant]: Plead guilty.”

After this exchange, the trial judge again informed defendant of the charges against him, correctly described the penalties applicable to those charges, and inquired whether defendant understood that he was giving up the right to a jury, to subpoena witnesses, and to confront the witnesses against him. The court also admonished defendant that if his request for probation was allowed and he subsequently violated it, probation could be revoked and he could be resentenced. Defendant indicated that no promises had been made to him and a factual basis for the charges was supplied by the State. Thereafter, the trial court accepted the pleas of guilty and entered judgment thereon. The cause was continued for sentencing and a presentence investigation.

On October 16, 1978, defendant appeared without counsel and was advised of his right to counsel for the sentencing hearing. Upon defendant’s request, the public defender was appointed. Concurrent 4-year terms of imprisonment were imposed on October 20,1978.

On November 13, 1978, appointed counsel filed a petition to withdraw the guilty plea, alleging only that on both the date defendant pleaded guilty and the date he was sentenced he was not mentally competent to understand the nature of the proceedings, the consequences of entering a guilty plea or his sentence, and was not competent to assist his counsel in preparing for the sentencing hearing. A subsequent amendment to the petition to withdraw the guilty pleas was allowed. The amendment alleged that prior to the entry of the pleas, defendant was assured by police that if he would make restitution and enter a plea, he would receive probation. After a hearing on the allegations of the petition, the petition was denied. A notice of appeal was timely filed in the trial court on April 20, 1979. That notice, however, was not transmitted to this court for docketing until August 17,1981.

Defendant’s first contention is that his guilty pleas should have been vacated because he did not knowingly and voluntarily waive his right to counsel before pleading guilty. It is alleged that the trial court did not properly admonish defendant under Supreme Court Rule 401(a) (73 Ill. 2d R. 401(a)) before accepting defendant’s waiver of counsel prior to the guilty plea.

Supreme Court Rule 401(a) provides:

“Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:

(1) the nature of the charge;

(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and
(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court.”

Relying upon this court’s recent decision in People v. Derra (1981), 92 Ill. App. 3d 1106,416 N.E.2d 688, in which this court held that trial courts are required to strictly comply with the requirements of Supreme Court Rule 401(a), defendant argues that he should be allowed to plead anew because he was not informed of the nature of the charges and the minimum and maximum sentences possible before being informed that he had a right to counsel, and appointed counsel if he was indigent.

We conclude that defendant’s argument is without merit. The transcript of the proceedings at the guilty plea clearly demonstrates that defendant was correctly informed of the charges against him and the possible penalties. Thus, defendant’s only challenge to the procedure employed by the trial court rests on the theory that the trial court must admonish a defendant as to these matters before proceeding to determine whether a defendant understands his right to counsel and wishes to knowingly and intelligently waive this right. We disagree.

Rule 401(a) does not prescribe any particular order in which admonishments must be given. The trial court’s conclusion that defendant has knowingly waived his right to counsel is based on the totality of a defendant’s response to the court’s admonitions. No one admonition is either more or less important than another in this regard. Thus, a plea is not necessarily defective simply because a defendant indicates the desire to waive counsel before the full admonishments are given. Where, as here, a trial court proceeds to ascertain that defendant understands the full panoply of admonitions covered by the rule before accepting defendant’s waiver of counsel, no error occurs. Here the record conclusively demonstrates that defendant was fully admonished on two separate occasions, the second of which was for the sole purpose of making a record. Under these circumstances, we believe the record demonstrates strict compliance with Supreme Court Rule 401(a) since the trial court did not accept a plea of guilty and did not enter judgment against defendant until after defendant was advised of his right to counsel.

Defendant next contends that his sentence must be vacated because the trial court did not consider the appropriate mitigating factors in reaching a sentence of 4 years’ imprisonment for these Class 3 felonies. Defendant points to a number of mitigating factors which, defendant claims, were not considered by the trial court. Among these, defendant argues that the evidence showed he was able to hold down a job and would cooperate with mental health personnel and any other community resources to which the court referred him. He also testified that he had made restitution to the victim and would continue to cooperate in the State’s case against the individual who originally stole the check which defendant cashed.

The presentence report indicated that defendant had prior convictions dating back to 1959 for the following offenses: drunk and disorderly conduct, petit larceny, theft, two burglaries, and battery. Defendant had also been returned to the penitentiary for violating conditions of his parole on two occasions.

In response to this evidence, before passing sentence, the court stated:

“Due to the fact that you have — have repeated large violations and have been put on parole and have violated that and have been put on probation and violated that, I cant give you probation. There is just no way.
I am mindful of your family situation. But they didn’t get you out there and cause you to write that — or forge that check. Probation is denied. Defendant sentenced to four years in the Department of Corrections, which is not the maximum I could give. But under this I normally would.”

The trial court’s written order imposing sentence states:

“[H]aving offered to hear evidence in aggravation and mitigation of the offense as to the moral character, life, family, occupation, and criminal record of defendant * * * the court hereby sentences said defendant to ° e e Four Years.”

Although the trial court did not give a detailed articulation of the reasons for imposing the sentence, he nevertheless clearly based that sentence upon defendant’s extensive prior criminal record. Furthermore, the fact that defendant received a sentence of 4 years’ imprisonment — slightly more than the minimum for these Class 3 felonies — belies defendant’s contention that the trial court did not take into consideration the mitigating factors presented by defendant.

Since the record affirmatively demonstrates aggravating factors sufficient to justify the sentence imposed and the trial court recited, in general terms, the factors upon which it relied in arriving at the sentence, we perceive no error in the procedure used (People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9), and no abuse of discretion in the sentence imposed. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

Finally, defendant contends that the 2Já-year delay between filing of the notice of appeal in the trial court and the docketing of case in this court is not attributable to him and his sentence must be vacated or in the alternative, remanded for a new sentencing hearing. The delay between the filing of the notice of appeal in the trial court and its transmittal to this court is unexplained in the record before us. Nevertheless, during this period of time, defendant has been free on appeal bond. Although there has been some speculation as to why this delay occurred, we cannot accept defendant’s contention that the fault, if any, and the delay is solely attributable to the State. As the supreme court has said in People ex rel. Millet v. Woods (1973), 55 Ill. 2d 1, 302 N.E.2d 32, a determination of the reasonableness of a delay and the adequacy of its explanation must rest upon an examination of the circumstances of each case. “Of course, the ordinary appeal process can in no manner be considered a delay, since it was initiated by [defendant].” 55 Ill. 2d 1, 4, 302 N.E.2d 32, 34.

In this case, irrespective of any claimed delay which might be attributable to the State, it was nevertheless defendant’s duty to prosecute his appeal in timely fashion. For this reason, we do not believe either discharge or resentencing is appropriate.

Accordingly, defendant’s convictions and the sentence entered thereon are affirmed.

Affirmed.

LONDRIGAN and TRAPP, JJ., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DAVID LENTINI, Defendant-Appellee.
    Second District
    No. 81-446
    Opinion filed May 10,1982.
    Rehearing denied June 22,1982.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, of counsel), for appellant.
    Ralph Gust, Jr., of Lombard, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

The State has taken this interlocutory appeal pursuant to Supreme Court Rule 604(a) (73 Ill. 2d R. 604(a)) from an order of the trial court suppressing the results of blood alcohol tests performed on two blood samples taken from the defendant, David Lentini.

Defendant was charged by indictment filed on February 26, 1981, with the offense of reckless homicide (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 3(a)) as a result of an automobile collision which occurred in Wheaton, Illinois. On June 5,1981, defendant filed an amended motion to suppress the results of the blood alcohol analyses. At the hearing on defendant’s motion, it was stipulated that two blood samples were taken from the defendant at the Central Du Page Hospital, one at approximately 10:45 p.m. on December 19,1980, and the other at approximately 12:40 a.m. on December 20,1980, and that they were taken without benefit of a search warrant. The State assumed the burden of going forward with their evidence based on this stipulation.

Frances Culler, a registered nurse in the emergency room at the Central Du Page Hospital, was the first witness called at the hearing. She was on duty on the evening of December 19, 1980, and examined the defendant at that time. Culler testified as follows concerning the obtaining of the first blood sample:

“THE WITNESS: Officer Fabrie asked Mr. Lentini if we could obtain a blood specimen at that time for use and he had his uniform on at the time, and he said, I need it for — I don’t remember the exact words that he said, but he specifically, I need this specimen for me.”

To this request, defendant responded, “Take anything you want.” At 12:25 a.m., defendant was again approached by Officer Fabrie for the purpose of obtaining another blood sample since the officer misunderstood that the first blood sample was for medical purposes only. The officer again said that he needed the blood specimen for himself. Again, defendant responded, “just take anything you want.” Officer Fabrie was in uniform and the defendant was quite friendly with him having stated that he thought he recognized him.

On cross-examination, Culler testified that defendant was brought into the emergency room on a stretcher and was wearing a cervical collar. Defendant had minor abrasions on his forehead. He kept falling off to sleep, but he was easily arousable with ammonia or body stimuli. Defendant’s pupils were dilated at the time of his admission to the hospital, and he had slurred speech. Culler testified that drowsiness and slurred speech can be symptomatic of a brain concussion. Culler did not hear Officer Fabrie tell the defendant that he had a right to refuse the blood sample or that the sample could be used as evidence against him in court proceedings.

On redirect examination, Culler stated that defendant’s head abrasion was superficial and there was “[n]o active bleeding, no bleeding from the ears or nose, no gross bruises, no hematomas, and no obvious deformities of the skull.” In Culler’s professional opinion, the defendant was “suffering from acute alcohol intoxication” rather than a concussion. She further stated that defendant appeared to be alert and responsive on both occasions when he responded to the officer’s questions regarding a blood sample.

Officer A1 Fabrie of the Wheaton Police Department next testified that in response to his request for a sample of blood, defendant stated, “sure, you can take all you want.” No physical force or threats were used in obtaining the blood samples, and defendant was alert and responsive to Officer Fabrie’s request. Later, Fabrie again asked defendant for a blood sample “for my use” that he could “take back to the department,” and defendant responded, “you can have whatever you want.” Fabrie testified again that no physical force or threats were used in connection with the obtaining of the second blood sample.

On cross-examination, Fabrie stated that the windshield of defendant’s car was cracked above the steering wheel. With regard to the obtaining of the second blood sample, Fabrie asked defendant if he could have a sample “for my use to take to the police department.” Fabrie, however, did not tell defendant that the sample could be used as evidence against him in a court of law nor that he had a right to refuse to give the sample. Fabrie also did not inform the defendant that the other person involved in the collision, Mrs. Gill, had died. Fabrie stated that defendant was never placed under arrest.

After the State had presented its evidence, the defendant moved for a directed finding without presenting any testimony. After oral arguments, the court ruled that defendant had not given his consent to the taking of the blood samples as required by section 11 — 501(c) of the Illinois Vehicle Code. (Ill. Rev. Stat. 1979, ch. 95Já, par. 11 — 501(c).) The court reasoned that the “consent” required by statute must be “intelligent” and “knowing.” The court ruled that the evidence presented by the State did not demonstrate that defendant gave this type of consent since he was not informed “as to what the sample of blood would be used for.” The court stated that at the very least the officer was required to tell the defendant that the “sample of your blood shall be tested to determine its alcoholic content and the determination of that alcoholic content may be important in whether or not you are charged with a crime and can be used against you in a trial of the case.” The court also found there was no coercion used on the defendant.

At this point, the State orally represented that the court’s ruling would substantially impair the ability of the prosecution to proceed with the case. Subsequently, after the record had been filed in this court, the State moved this court to supplement the record on appeal with a written certification of intent to appeal alleging that its ability to prosecute had been substantially impaired by the trial court’s order. The defendant then filed an objection to the State’s motion to supplement the record on appeal and moved to dismiss the appeal. The State filed a response to defendant’s motion, and we ordered that these motions be taken with the case.

Initially, therefore, we must decide whether this appeal should be dismissed for the State’s failure to file the certificate of intent to appeal in the trial court. The State’s right of appellate review is limited to rulings which substantially impair prosecution of the case. (People v. Flatt (1980), 82 Ill. 2d 250,412 N.E.2d 509.) Our supreme court has recently held that in order to take an interlocutory appeal from a pretrial order suppressing evidence, the State must certify that the trial court’s ruling substantially impairs the ability to prosecute. (People v. Young (1980), 82 Ill. 2d 234, 412 N.E.2d 501.) Since the trial court’s ruling was based on its interpretation of the statutorily required “consent,” this case falls squarely under the holding in Young requiring certification when the trial court’s order suppressing evidence is based on other than constitutional grounds. See also People v. Norris (1981), 101 Ill. App. 3d 664, 667, 428 N.E.2d 987, appeal denied (requiring certification also when the order suppressing evidence is based on the determination that evidence was obtained by illegal search and seizure).

Although it has been held that the filing of the certificate in the trial court subsequent to the filing of the notice of appeal (People v. Norris (1981), 101 Ill. App. 3d 664, 668, 428 N.E.2d 987) and the filing of the certificate in the appellate court (People v. Keath (1981), 101 Ill. App. 3d 652, 656, 428 N.E.2d 992) do not affect the appellate court’s jurisdiction, we need not reach the latter issue under the facts of the present case. We find that the State’s specific oral representation to the trial court that its case had been substantially impaired constitutes substantial compliance with rule announced in Young. After the court has articulated its ruling at the suppression hearing, the assistant State’s Attorney stated:

“Your Honor, the position of the People pursuant to People versus Young and People versus Flatt is that Your Honor’s ruling would substantially impair the ability of the prosecution to proceed with this case. * * *
That without this evidence, our ability to prove the extent of his intoxication as an element of recklessness which is clearly manifest by the discovery in this case at this point, and if we were- to proceed to the point where we answered the Bill of Particulars, would be one of the elements of recklessness that we would be relying upon, is substantially deteriorated by the Court’s ruling.
Therefore, we would certify that we have been substantially impaired in our ability to proceed with this case and we will be filing a notice of appeal pursuant to People versus Young and Flatt # « « ”

While we believe the better practice and the one contemplated by Young to be the filing of a written certificate with the trial court, in light of the lack of a showing of prejudice to defendant, we believe that the oral representation was substantial compliance with the rule under these circumstances. Even if we were to find that this was not substantial compliance with the rule, we would hold that the error under the circumstances here was harmless. (Cf. People v. Hopson (1981), 101 Ill. App. 3d 564, 574-75, 428 N.E.2d 680, appeal denied.) We therefore proceed to the merits of the case.

The State contends that the trial court erred in suppressing the results of the blood tests pursuant to its interpretation of the definition of “consent” required by section 11 — 501(c)(3) of the Illinois Vehicle Code. That section provides in relevant part:

“Upon the trial of any action or proceeding arising out of the acts alleged to have been committed by any person while driving or in actual physical control of a vehicle while under the influence of intoxicating liquor, evidence of the amount of alcohol in the person’s blood at the time of the act alleged as shown by a chemical analysis of his breath, blood, urine, saliva or other bodily substance is admissible, as provided hereinafter in this paragraph (c) • * •.
Evidence based upon a chemical analysis of blood, urine, breath or other bodily substance shall not be admitted unless such substance was procured and such analysis made with the consent of the person as provided by this Chapter, whose bodily substance was so analyzed.” (Ill. Rev. Stat. 1979, ch. 95*2, par. 11 — 501(c)(3).)

The State contends that all that is required by the statute is that the consent be voluntary. Defendant, on the other hand, contends that the proper standard is a “knowing and intelligent” consent.

We have previously addressed this issue in a different factual context in People v. Cook (1981), 94 Ill. App. 3d 73,418 N.E.2d 457. In Cook, this court held that in order for a defendant to effectively give his consent to a blood withdrawal, he need not be informed of his Miranda rights. With regard to section 11 — 501(c)(3) of the Illinois Vehicle Code, we specifically adopted the definition of consent articulated by the United States Supreme Court in Schneckloth v. Bustamonte (1973), 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041, while stating that the appropriate inquiry is whether a voluntary consent was obtained from the defendant prior to his submission to the test and that “voluntariness of the consent is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.” (94 Ill. App. 3d 73, 76, 418 N.E.2d 457.) Furthermore, Illinois courts have consistently applied the Schneckloth test in determining the voluntariness of consent in the context of fourth amendment rights. See, e.g., People v. Bean (1981), 84 Ill. 2d 64,417 N.E.2d 608; People v. Lucas (1980), 88 Ill. App. 3d 942,410 N.E.2d 1040; People v. Armstrong (1979), 77 Ill. App. 3d 916, 396 N.E.2d 845.

Quite clearly, the requirement of “consent” is purely statutory in nature and is not constitutionally mandated. In Schmerber v. California (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826, the Supreme Court rejected arguments that a compulsory blood test violated various constitutional rights of the accused. The court held, among other things, that the privilege against self-incrimination protects a defendant only from being compelled to testify against himself or otherwise provide the State with evidence of a testimonial or communicative nature. (384 U.S. 757,761,16 L. Ed. 2d 908,914,86 S. Ct. 1826,1830.) Since the withdrawal and analysis of blood, even though by means of compulsion, was not testimonial nor did it relate to some communicative act or writing of the defendant, the privilege against self-incrimination was not involved. 384 U.S. 757, 765,16 L. Ed. 2d 908, 916-17, 86 S. Ct. 1826,1833.

Indeed, our supreme court has described the consent requirement of section 11 — 501 of the Illinois Vehicle Code as an “unfortunate result and a cruel anomaly.” (People v. Todd (1975), 59 Ill. 2d 534, 544, 322 N.E.2d 447.) The court in People v. Todd stated:

“Since Schmerber v. California (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826, it is clear that a compulsory blood test does not violate any constitutional rights of an individual merely because he objected to such tests. Further, the absence of a formal arrest may not taint a limited search, given probable cause and evidence that may dissipate. (See Cupp v. Murphy (1973), 412 U.S. 291,36 L. Ed. 2d 900,93 S. Ct. 2000.) A number of cases, dealing specifically with the question of blood tests and the removal of blood from a person without consent, have upheld the constitutional right to do so even where the person was unconscious and, in some cases, without a formal arrest so long as probable cause is present. See DeVaney v. State (1972), 259 Ind. 483, 288 N.E.2d 732; People v. Fidler (1971), 175 Colo. 90, 485 P.2d 725; State v. Deshner (1971), 158 Mont. 188, 489 P.2d 1290; State v. Mitchell (Fla. 1971), 245 So.2d 618; State v. Findlay (1966), 259 Iowa 733,145 N.W.2d 650.
Thus, absent a more limiting statutory provision, the taking of a blood sample does not require the consent of the donor. The anomaly is that in drunken-driving cases in certain other jurisdictions, the State may obtain a blood sample if the results thereof are relevant to the case. Yet there is no case which is more compelling than that involving the drunk driver.” (59 Ill. 2d 534, 544-45, 322 N.E.2d 447, 453-54.)

In light of the absence of any express statutory provision specifying the standard of consent and the fact that consent to blood withdrawal and analysis involves no aspect of waiver of one’s privilege against self-incrimination or right to a fair trial, we refuse to adopt the more stringent “knowing and intelligent” standard argued by the defendant. In accordance with our prior ruling in Cook, we hold that section 11 — 503(c)(3) of the Illinois Vehicle Code requires only that the consent be “voluntary” as defined by Schneckloth. Although the Schneckloth definition of consent was articulated in a fourth amendment search and seizure context and we are herein concerned with a purely statutory consent, we find the Schneckloth standard to be relevant. The “knowing and intelligent” standard is neither required by statute nor constitution in Illinois. As stated in Schneckloth, “[ajlmost without exception, the requirement of a knowing and intelligent waiver has been applied only to those rights which the Constitution guarantees to a criminal defendant in order to preserve a fair trial.” (412 U.S. 218, 237, 36 L. Ed. 2d 854, 868, 93 S. Ct. 2041, 2052-53.) The rule has been extended to certain stages before the actual trial only as applied to a waiver of counsel at a pretrial lineup and waiver of counsel upon custodial interrogation by the police. 412 U.S. 218, 238-40, 36 L. Ed. 2d 854, 869-70, 93 S. Ct. 2041, 2053-54.

On the record before us we find that defendant voluntarily consented to the withdrawal of his blood. Both Frances Culler and Officer Fabrie testified that the defendant acquiesced in Fabric’s requests for blood. Although Culler testified that, in her opinion, the defendant was intoxicated, both she and Fabrie testified that defendant was alert and responsive to his requests. Likewise, our reading of the record does not indicate that defendant was of such a mental state that he was incapable of understanding and consenting to these requests. Also, Fabric’s testimony that no physical force or threats were used in obtaining the blood samples is uncontradicted, and the court below found no coercion.

Although it is clear that defendant voluntarily gave his consent to the initial obtaining of the blood samples, the statute requires more. Section 11 — 501(c) states that evidence based upon the analysis of blood “shall not be admitted unless such substance was procured and such analysis made with the consent of the person * ° (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 95%, par. 11 — 501(c).) Thus, the statute requires that the defendant consent not only to the actual withdrawal of blood but also to its subsequent analysis.

A close examination of the trial court’s oral ruling indicates to us that the court felt that defendant’s consent was ineffectual since he was not informed that the blood samples would be tested, would be important in determining if defendant would be charged, and could be used as evidence against him in a trial. However, neither the statute nor the constitution mandates that the defendant be informed to that extent. Requiring such an admonition would be tantamount to imposing the “knowing and intelligent” standard which we have expressly rejected. Our reading of the record satisfies us that defendant voluntarily consented to both the withdrawal of his blood and its later analysis. Nurse Culler testified that defendant was asked by Officer Fabrie if he could take a blood sample “for me.” Also, Fabrie testified that prior to obtaining the second blood sample, he asked defendant if he could take a blood sample “for my use” to “take back to the department.” Defendant readily complied with these requests, and it is uncontroverted, and indeed the trial court found, that no threats of force or coercion were used upon defendant. We regard Officer Fabric’s statements as sufficient to inform defendant that an analysis was to be made on his blood. We do not believe that the defendant need be informed in the precise language of the statute that his consent would result in the blood sample being subject to a chemical analysis. So long as the words used would sufficiently convey this impression to one capable of understanding, this is all we feel is required. (Cf. California v. Prysock (1981), 453 U.S. 355, 69 L. Ed. 2d 696,101 S. Ct. 2806 (warnings required by Miranda need not be a virtual incantation of the precise language contained in that opinion so long as their fully effective equivalent is used).) We find that Officer Fabric’s statements that the blood sample would be for his use to take back to the police department were sufficient to comply with the statutory requirement of consent to the analysis. While the failure of Officer Fabrie to advise the defendant of the potential use of the results of the blood samples at a trial is a factor to be evaluated in assessing the voluntariness of his consent, under the facts here we deem the consent to both the withdrawal and analysis to be voluntary.

Finally, the defendant has argued that if we determine that the trial court incorrectly required a knowing and intelligent consent standard, we should remand to the trial court for further hearings upon the motion to provide the defendant with an opportunity to present his evidence in answer to the State’s evidence previously adduced below. The motion to suppress below alleged both statutory and fourth amendment grounds for suppression of the blood test results. While the issue raised before us on appeal involves solely a suppression of evidence on what, in effect, is an evidentiary ruling for failure to comply with a statute, we feel the procedure for a motion to suppress evidence illegally seized set forth in section 114 — 12 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 12) should be followed when both constitutional and nonconstitutional violations are raised together by motion to suppress. (See People v. Young (1980), 82 Ill. 2d 234,412 N.E.2d 501.) Under section 114 — 12(b) the “burden of proving that the search and seizure were unlawful shall be on the defendant.” In Illinois, the defendant has the primary responsibility for establishing the factual and legal bases for the motion to suppress, and where the basis for the motion is an allegedly illegal search, it is incumbent upon the defendant, in the first instance, to establish both that there was a search and that it was illegal. (People v. Berg (1977), 67 Ill. 2d 65, 68, 364 N.E.2d 880.) In a search pursuant to consent, once a defendant has made a prima facie case that a search is “unreasonable” the State has the burden of going forward with evidence which would demonstrate that consent was in fact freely and voluntarily given. (People v. Lucas (1980), 88 Ill. App. 3d 942, 950, 410 N.E.2d 1040; but see 3 W. LaFave, Search and Seizure sec. 11.2(b), at 498 (1978).) We believe that these procedures are applicable also to motions to suppress on nonconstitutional grounds, especially when brought in the same motion alleging a constitutional basis. Thus, as applied to this case, the parties agreed that the State would go ahead with proofs after a stipulation that the blood samples were not taken pursuant to a search warrant. While we question whether the stipulation alone was sufficient to constitute a prima facie case showing that the consent was not voluntary, especially where only non-constitutional grounds are alleged, the State assumed the burden after the stipulation. Accordingly, the defendant never put on any other evidence since he moved for, and was granted, a “directed finding” after the State concluded its evidence.

The defendant had two opportunities to present evidence — one prior to the State putting on evidence and another at the conclusion of the State’s evidence. Instead, the defendant made a motion for a “directed finding,” a practice not statutorily provided for in pretrial hearings, and now seeks another opportunity to present evidence upon the State’s successful appeal of the trial court’s erroneous suppression order. To allow defendant’s request would be to foster piecemeal appeals contrary to promotion of judicial economy. Defendant had adequate opportunity to present evidence below and has waived his right to present additional evidence upon remand.

For the foregoing reasons we reverse and remand.

Reversed and remanded.

SEIDENFELD, P. J., and UNVERZAGT, J., concur.


author: JUSTICE TRAPP

text:
    JAMES L. MEARIDA et al., Plaintiffs-Appellees, v. PLEASANT R. MURPHY et al., Defendants-Appellants.
    Fourth District
    No. 17482
    Opinion filed May 19,1982.

      A. J. Rudasill, of Herrick, Rudasill and Moss, of Clinton, for appellants.
    Donald W. Wilcox, Jr., of Thomson, Weintraub & Thompson, of Blooming-ton, for appellees.
   JUSTICE TRAPP

delivered the opinion of the court:

Defendants appeal from the judgment of the trial court which granted specific performance of an option to purchase a 28-foot easement across the land of defendants. Plaintiffs are third-party beneficiaries of the option.

In Mearida v. Murphy (1980), 87 Ill. App. 3d 87, 409 N.E.2d 145, this court reversed a summary judgment entered in favor of these defendants and remanded the cause for further proceedings. It was then held that the deed controlled a conflicting contract through the operation of merger and that plaintiffs, as third-party beneficiaries, had standing to enforce the option.

The record discloses that plaintiffs and defendants acquired title to two separate parcels of property from people named Evans in 1969. The plaintiffs, by a deed filed February 26, 1969, acquired title to a 40-acre unimproved tract lying to the south and east of defendants’ land and, in addition, a 32-foot easement over property adjacent to the 40 acres and presently owned by the defendants in fee simple. Two weeks prior to the delivery of the deed to plaintiffs, the grantors, Evanses, entered into a contract for sale of approximately 25 acres to defendants. This contract after reciting a legal description of the property conveyed to defendants, recited that it was “subject to” a separately attached document which purported to give defendants two easements over the property that they were purchasing in fee simple. Apparently, the draftors of the EvansMearida real estate sales contract had merely Xeroxed the easement contained in the first contract, which identified plaintiffs as parties of the second part, and attached it to the Murphys’ contract, which also identified them as parties of the second part, without changing the references to the proper parties.

On March 1, 1969, the Evanses tendered a warranty deed to the Murphys conveying the land but subject to the 32-foot eastment, and also containing the following provision:

“Grantees agree to give an option to James L. Mearida and Mary K. Mearida, to purchase an additional 28 foot easement West of the above described easement and adjacent thereto which would make an easement of 60 feet in width if purchased, for the sum of $750.00 if said option is exercised by giving notice in writing to grantees within ten (10) years from this date.”

Plaintiffs gave timely notice of their intent to exercise this option. Following defendants’ refusal, this suit for specific performance was commenced.

Before the cause proceeded after remandment, the defendants amended their answer and raised the defense of the Statute of Frauds, arguing that the option could not be enforced since the defendants had not signed the deed. The defendants then filed a motion for judgment on the pleadings raising this same defense. The trial court took the motion under advisement, and following a bench trial entered a judgment in favor of plaintiffs and ordered the defendants to execute the option.

At the bench trial, Mr. Murphy testified that he was not represented by an attorney during the transaction, and that he could not read; he had completed only the second grade of formal education. His only knowledge of the easement was through what had been explained by Mr. Evans. According to Mr. Murphy, Mr. Evans told him that he had retained a 10-year easement which could be renewed for $750 at the end of that period. Mr. Murphy later testified that his understanding was that the 32-foot easement would last 10 years after which he would be paid the sum of $750 for real estate taxes covering the realty over which the easement lay. Mr. Murphy could not recall any discussion of an additional 28-foot easement, and said that Mr. Evans did not mention that the 40-acre area connected by the easement was sold to the plaintiffs. The first year after purchasing his property from the Evanses, Mr. Murphy farmed the area that included the easement. A year later, Mr. Mearida informed Mr. Murphy that he owned a 32-foot easement and requested him to move a fence, which Murphy had placed over the easement. Mr. Murphy removed the fence, and Mr. Mearida subsequently leveled off the area, cut ditches and spread gravel over its length.

Evans, the common grantor, testified that while he could not remember specific conversations between Murphy and himself, he was certain that he had discussed all material aspects of the agreement with Murphy. Evans denied describing the easement in the terms Mr. Murphy alleged, and stated that he was not aware that Mr. Murphy could not read until the hearing.

Plaintiff James Mearida testified that in 1969 he informed Pleasant Murphy that he owned the 32-foot easement and that in 1974 Murphy had asked plaintiff whether he intended to pick up the option for the remaining 28 feet. Mearida testified that he needed a 60-foot easement to move heavy equipment around the two 90-degree curves on the easement and speculated that with only the 32-foot easement the road had a tendency to drift shut during the winter snows, due to the proximity of Mr. Murphy’s fence along the 32-foot easement. He felt that with the 60-foot easement such drifting problems would not occur.

In granting specific performance the trial court concluded that defendants were estopped to plead the Statute of Frauds. The court also held that the contract was definite, reasonable, and capable of being specifically performed, and found that Murphy’s evidence that he was not aware of the option clause was not convincing.

Defendants raise three issues for our consideration; (1) whether the Statute of Frauds prevents the enforcement of the option contract contained in the deed; (2) whether the option is specific, fair, reasonable, and was free from misapprehension, and (3) whether the trial court erred in admitting into evidence the real estate sales contracts of both parties.

The defendants argue that the acceptance of the deed by them, which was not signed, renders unenforceable the option contract to the Mear idas. This argument is predicated on section 2 of the Statute of Frauds (Ill. Rev. Stat. 1979, ch. 59, par. 2), which provides:

“No action shall be brought to charge any person upon any contract for the sale of lands, tenements or hereditaments or any interest in or concerning them, for a longer term than one year, unless such contract or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing, signed by such party. This section shall not apply to sales upon execution or by any officer or person pursuant to a judgment or order of any court in this state.”

The plaintiffs take issue with this argument and contend that defendants are estopped to assert the Statute of Frauds by accepting the deed and the benefits thereunder, while at the same instance seeking to repudiate a part of its terms.

It is settled in Illinois that the acceptance by the grantee of a deed conveying an interest in land and containing a covenant or agreement to be performed in the future, followed by the grantee’s entering into possession of the premises, binds the grantee to the performance of the agreement as effectually as if he had signed the deed. (Powell v. Powell (1929), 335 Ill. 533, 167 N.E. 802; Eidman v. Drewes (1933), 269 Ill. App. 264; Koester v. Litherland (1933), 269 Ill. App. 89; but see: McMillan v. Ingolia (1980), 87 Ill. App. 3d 727,410 N.E.2d 162.) In the instant case, the defendants received delivery of and recorded the deed, and have accepted the benefits for over 10 years. Although Murphy claims he was not aware of the option agreement, the trial court found, on conflicting evidence, some awareness on his part of the option. The evidence indicates that although Mr. Murphy was semi-illiterate, the grantor testified that the material terms were explained to Mr. Murphy, and the testimony of plaintiffs indicated some awareness of the option on Mr. Murphy’s part.

We note that the case of McMillan relied upon by defendants suggests a contrary result, but we believe the argument of estoppel to plead the Statute of Frauds was not supported by the record in that case.

In McMillan, the evidence showed that the defendants had not been present at the closing of the transaction, that they had not been advised of the option at the time of accepting their deed, and that they were unaware of plaintiffs’ claim of option until approximately 15 years after the transaction. Thus, no elements of estoppel could be found in the record.

The defendants next argue that specific performance is inappropriate since the evidence does not support the conclusion that the agreement was just, fair, reasonable, and understandingly entered into by defendants, relying principally on Lannon v. Lamps (1980), 80 Ill. App. 3d 318, 399 N.E.2d 712.

Special considerations are applicable when relief of specific performance is requested. It is settled that specific performance of a contract is not to be accorded as a matter of right, but the decision to award such relief rests in the sound discretion of the chancellor (Kukulski v. Bolda (1953), 2 Ill. 2d 11, 116 N.E.2d 384), whose decision will not be upset absent an abuse of discretion, or unless his action is contrary to the manifest weight of the evidence. (Johnson v. Gianacakos (1934), 356 Ill. 410,190 N.E. 691.) To entitle a party to equitable relief, the inadequacy of a legal remedy is a familiar prerequisite to equitable jurisdiction (In re Estate of Johnson (1976), 39 Ill. App. 3d 246, 350 N.E.2d 310), and the contract should be specifically enforced only when it is clear that the agreement is just, reasonable, and was free from misapprehension or misrepresentation. Lannon.

The defendants’ principal argument is simply that the option is unjust, unreasonable, and was misapprehended by them. While we note that the evidence of the need for the additional 28-foot easement to extend the granted 32-foot easement was arguable, we do not consider this as the sole consideration. The evidence reflected that the price for the easement at the time of the deed was a fair one, and Mr. Murphy’s testimony that he was not aware of the option for the 28-foot easement was not accepted by the trial judge. The trial court found that defendants had accepted the deed with knowledge of the 28-foot easement, and defendants have not argued that this finding on appeal is against the manifest weight of the evidence. Evans related his observation that defendants understood the option, and Mr. Mearida indicated that Mr. Murphy had once asked him whether he intended to purchase the additional 28-foot strip. While we are not unmindful that defendants denied any understanding of the 28-foot easement or explanation of such by Evans, we believe these questions of credibility were for the trial court as the finder of fact. While we may not have reached the same conclusion as did the trial court, it is not our prerogative to make the initial assessment. We cannot say that the trial judge’s determination of the justness and reasonableness of the option was an abuse of discretion, or contrary to the manifest weight of the evidence.

Defendants compare at length the similarity between this case and Lannon, wherein the court refused to specifically enforce an option contract on the ground of the unconscionable nature of the agreement. In Lannon, two 80-year-old brothers, who owned 160 acres near an interstate and State highway, granted ■ an option for $10 to an attorney and pharmacist to lease for 99 years farmland for $200 per acre per year. The elderly gentlemen were both suffering from cerebral arteriosclerosis and did not understand the nature and terms of the agreement. In light of these facts, the trial court and the appellate court held that the option was unconscionable. We find this situation distinguishable from the present case.

The evidence at bar shows that defendants had made previous transactions in real estate without an attorney, though they realized that assistance was available to them. The elderly brothers in Lannon may not have realized they could have had an attorney. The fact that Mr. Murphy could not read also is not comparable to the insuperable disability of the defendants in Lannon. Mr. Murphy could have had his wife read the contract to him, which she did not do, and there is sufficient evidence in the record to indicate that defendant understood the deed and the implications of its terms. The trial court found that the consideration for the option was reasonable, which defendants have not challenged on appeal.

We also believe that the option contract was sufficiently definite to be specifically enforced in equity. The description of the easement was made as being west of and adjacent to the legally described 32-foot easement; the parties were clearly identified; the price was stated; and the manner of its exercise was provided for.

Lastly, we reject defendants’ argument that the trial court erred on grounds of relevance in admitting the real estate sales contracts of the Murphys and the Mearidas. Defendants’ assertion that the option agreement in the deed was unfair and unjust could only be evaluated by looking to the prior agreements involved in the entire real estate transactions. When we indicated in our prior opinion that the contract had merged into the deed, we meant only that whether an operative option agreement was created was to be determined from the terms of the deed. In view of defendants’ broad-based challenge to the entire fairness of the transaction between the parties, and to the justness of the option agreement, the contracts were relevant to a finding whether specific performance should be granted. The question of whether equity should act in a given case is necessarily dependent upon an assessment of the totality of the circumstances to determine if there had been fraud, undue advantage, or unfairness in securing the agreement. (Kilcoin v. Ortell (1922), 302 Ill. 531,135 N.E. 16; Lannon.) We find no error in the contracts’ admission.

The order of the trial court granting the plaintiffs specific performance of the option clause contained in the deed accepted and retained by defendants is affirmed.

Affirmed.

GREEN, P. J., and WEBBER, J., concur.


author: JUSTICE McNAMARA

text:
    BRENT L. SMITH, Plaintiff-Appellant, v. NEIL KURTZMAN et al., Defendants-Appellees.
    First District (3rd Division)
    No. 81-853
    Opinion filed March 31,1982.
    Modified on denial of rehearing May 26, 1982.

      Dalton P. Grief, of Chicago, for appellant.
    Clausen, Miller, Gorman, Caffrey & Witous, of Chicago (James T. Ferrini, James O. Nolan, and Michael J. Carrigan, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court;

Plaintiff, Brent L. Smith, appeals from the denial of his motion to vacate the dismissal of a fourth amended complaint and for leave to file a fifth amended complaint in an action arising from the defendant doctors’ alleged medical malpractice. The trial court dismissed the amended complaint as barred by the new four-year statute of limitations applicable to medical malpractice actions. (Ill. Rev. Stat. 1977, ch. 83, par. 22.1.) On appeal, plaintiff contends that the predecessor five-year limitations period is applicable; that the fourth amended complaint was timely filed under the so-called discovery rule; that the statute of limitations was tolled by defendants’ fraudulent concealment of plaintiff’s cause of action; and that the court should have permitted the filing of the fifth amended complaint since it alleges a conspiracy between defendants to wilfully withhold information and misadvise plaintiff resulting in damages.

A limitations statute which shortens the time for filing an action may be applied retroactively if a reasonable time remains for plaintiff to file after the effective day of the new statute. (Anderson v. Wagner (1979), 79 Ill. 2d 295,402 N.E.2d 560.) Section 21.1 (Ill. Rev. Stat. 1977, ch. 83, par. 22.1) was amended, effective September 19,1976, to reduce the outside limit for filing a medical malpractice action from five years to four years. The acts of negligence alleged in the present fourth amended complaint consisted of a kidney transplant, infection, failure to treat the infection, assignment of plaintiff to a quarantined room, the removal of the infected kidney, and the advice given to plaintiff that the kidney was rejected by his body. Unrefuted hospital records attached to defendants’ motion demonstrated that these acts occurred sometime between August 9,1974, and October 21,1974, the date plaintiff was discharged from the hospital. On the effective date of the four-year limitations period, plaintiff had, at a minimum, until August 9,1978, to file suit. Twenty-two months was clearly a reasonable time remaining to file under the new statute. (Anderson v. Wagner (1979), 79 Ill. 2d 295, 402 N.E.2d 560; Meegan v. Village of Tinley Park (1972), 52 Ill. 2d 354, 288 N.E.2d 423; Charles v. Meyer Medical Group, (1981), 96 Ill. App. 3d 275, 421 N.E.2d 334.) The trial court properly applied the four-year statute.

We also believe that the trial court correctly rejected plaintiff’s argument that his action was timely under the discovery rule. The discovery rule provides that a party has two years to file an action measured from the date he discovers both that he suffers an injury and that it was wrongfully caused. (Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869.) In the context of a medical malpractice action, however, that rule is circumscribed by the outside four-year limitations provision of section 21.1. Hence, because the alleged negligence occurred prior to October 21, 1974, the complaint, filed October 30, 1978, was untimely despite any late discovery by plaintiff. Cf. Anderson v. Wagner (1979), 79 Ill. 2d 295, 307-12.

We turn to consider the propriety of denying plaintiff leave to file his fifth amended complaint. Unlike the prior complaints, the fifth amended complaint alleged that the actionable conduct, occurring between October 1974 and September 1975, consisted of defendants’ advice that it would be impossible for plaintiff to obtain a second kidney transplant because the kidney would be rejected by the body, as well as their failure to disclose the true reason for the first kidney rejection. The complaint alleged that this conduct caused plaintiff to forego a second operation until January 1,1977, and that he suffered pain in the interim. Counts I, II and III allege in part that at the time defendants advised plaintiff of the impossibility of a second transplant, they knew that a second transplant could be performed since the first kidney had been rejected by infection. Despite these allegations sounding in intentional misrepresentation, defendants’ conduct is conclusorily characterized in the pleadings as negligence, a negligent breach of fiduciary duty, and wilful and wanton misconduct, respectively. Count IV alleges that at the time defendants advised plaintiff of the impossibility of another transplant, they “conspired and agreed among themselves and wilfully and wantonly failed to disclose” the reason for th kidney rejection. Counts V and VI allege that defendants acted carelessly and negligently in treating and misdiagnosing plaintiff’s condition.

Mere failure to disclose or remedy the effects of prior acts of malpractice is not a tort distinct from the original malpractice from which it stems. (Cf. Henning v. United States (3d Cir. 1971), 446 F.2d 774; Simcuski v. Saeli (1978), 44 N.Y.2d 442, 406 N.Y.S.2d 259, 377 N.E.2d 713.) Since counts V and VI fall within this rule, the court properly viewed the four year limitations period as commencing from the original malpractice, and as barring these counts.

Count III, on the other hand, duplicative of certain allegations in counts I, II, and IV, does state a timely action, not for the original malpractice, but for the subsequent tort of intentional misrepresentation. Plaintiff alleges that, subsequent to October 20,1974, defendants advised him that a second transplant would be impossible when they actually knew that a successful transplant could be performed since the first kidney rejection had been caused by their own malpractice, and they conspired to withhold from him the true reason for the rejection even though he continued in their care from October 1974 to September 1975. Simcuski v. Saeli is instructive. In that case plaintiff alleged that a physician negligently severed a nerve, fraudulently concealed the malpractice, and falsely assured plaintiff that the post-operation therapy would effect a cure. Plaintiff asserted that these acts deprived her of seeking an effective cure of her condition. The intermediate New York court held that the subsequent misconduct related back and was part of the original malpractice for purposes of the statute of limitations. (Simcuski v. Saeli (1977), 57 App. Div. 711, 395 N.Y.S.2d 776.) The highest New York court reversed that decision, however, and held that a separate tort of fraud was properly alleged, and that the complaint was timely. Simcuski v. Saeli (1978), 44 N.Y.2d 442,406 N.Y.S.2d 259,377 N.E.2d 713.

In the present case, plaintiff alleged his reliance on an affirmative, intentional misrepresentation occurring subsequent to the malpractice which caused him to forego a proper cure of his condition. We believe that such affirmative conduct, if proved, sufficiently breaks the continuity of the original malpractice so as to start the statute running anew from the date of the affirmative acts. Although the pleadings are inartfully drawn to the extent that they duplicate portions of other counts, and in that defendants’ conduct is couched in the conclusory term of wilful and wanton misconduct, the factual allegations control our determination of whether a cause of action for intentional misrepresentation is stated. (See, e.g., Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1,394 N.E.2d 437.) Count III states a cause of action. The pertinent allegations in the remaining counts are repetitive and were properly rejected by the trial court.

We note that our holding does not affect the law pertaining to fraudulent concealment, which operates to toll a statute of limitations so that an action for the original malpractice may be filed if plaintiff exercises due diligence after discovery of fraud. (See, e.g., Anderson v. Wagner.) We hold only that where sufficiently distinct misconduct allegedly occurs subsequent to medical malpractice, an action limited to redress for damages caused by the subsequent tort does not relate back to the original malpractice for purposes of the statute of limitations.

Such a holding does not circumvent the policies underlying the enactment of section 21.1. Recently, our supreme court recognized that the four-year limitations provision does not exist in an all-encompassing vacuum when it held that a defendant, in some cases, may be equitably estopped from invoking the protection of the statute. (Witherell v. Weimer.) Similarly, we do not believe the legislature intended that an original act of malpractice should protect a defendant from subsequent, distinct, affirmative conduct.

For the foregoing reasons, the judgment of the circuit court of Cook County denying leave to plaintiff to file counts I, II, VI, and IV, V of the fifth amended complaint is affirmed. The judgment denying leave to file count III is reversed and the cause is remanded for further proceedings consistent with the holdings of this opinion.

Affirmed in part; reversed and remanded in part.

McGILLICUDDY and RIZZI, JJ., concur.