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SECOND DIVISION

March 2, 1999

No. 1-97-3045

PRESIDING JUSTICE GORDON DELIVERED THE OPINION OF THE COURT:

The defendant, Cedric Lee, was found guilty by a jury ofhome invasion, residential burglary, aggravated battery of asenior citizen and aggravated battery and was sentenced toconcurrent terms of 22 years, 15 years, 7 years and 7 yearsimprisonment, respectively. On appeal, he raises the followingissues: (1) that he was denied his constitutional right to atrial by jury when the judge failed to respond to two notes sentby the jury during deliberations; (2) that his conviction foraggravated battery must be reversed since that offense is alesser included offense of aggravated battery of a seniorcitizen; (3) that his sentence was based on an unconstitutionalstatute; and (4) that the mittimus must be corrected to reflectthe trial judge's oral pronouncement of sentence. For thereasons discussed below, we affirm defendant's convictions forhome invasion, residential burglary and aggravated battery of asenior citizen; we modify defendant's sentences on the homeinvasion and aggravated battery of a senior citizen convictions;and we vacate defendant's conviction and sentence for aggravatedbattery.

The defendant was charged with the commission of multipleoffenses arising out of an incident that occurred on the eveningof September 9, 1995 in the convent of the Our Lady of GuadalupeChurch in Chicago. A citizenship drive was being conducted inthe basement of the church from 9:00 a.m. to 4:00 p.m. Applicants were charged $95 as an application fee (paid by moneyorder) and $20 for the paperwork (paid in cash).

Francisco Velazquez, a citizenship applicant at the churchon September 9, 1995, testified that, at about mid-day, he saw anAfrican American male, whom he identified in court as thedefendant, walk into the basement and converse with a lady whowas processing the applications. Velazquez stood three feet fromthe man and described him as being a bit taller than 5 feet 7inches and having a medium dark complexion, short hair, and a bitof a mustache. He testified that the man was wearing a shortsleeve, red and blue shirt and long pants. Velazquez alsotestified that he identified the defendant in a lineup onSeptember 12, 1995 as being the man who was present in the churchbasement.

Latisa Gusman, a citizenship application processor,testified that she saw an African American man, later identifiedby her in court as the defendant, come into the church basementon the afternoon of September 9. The man walked up to her table,asked her for food, and glanced down at the pile of money orderson the table. She described the man as having a little mustache,some chin hair, short hair on top of his head with a ponytail inthe back, light-colored eyes, and a medium complexion. Shestated that the man wore a short-sleeved, light-colored shirt andlong, dark pants. Gusman testified that she made a photographicidentification of the defendant on September 11, 1995 and alineup identification on September 12, 1995. She stated that shewas positive of her identifications of the defendant.

Sister Consuelo Hernandez testified, through an interpreter,that on September 9, 1995, shortly before 7:00 p.m. mass, she wasgoing up the stairs in the convent to bathe. At that time, shewas wearing a silver ring and a medal. Sister Hernandez was 65years old. She heard a sound like someone had broken the doorbut ignored the noise. After her shower, she went downstairs tothe first floor living room and saw a man sitting on the couch. The man, who was approximately two meters from her, wore adiscolored bluish shirt, long blue pants and white tennis shoes. She described the man as having short, black hair, no facial hairand green eyes. She stated that he grabbed her by her neckchain, breaking the chain. As she bent over to pick the chainup, the man began hitting her on her back. He grabbed a hatchet,raised it to threaten her, and asked her for money. SisterHernandez stated that after the encounter, the ring she waswearing was missing and her medallion lay in a pool of blood.

Sister Hernandez testified that she made a photographicidentification of the defendant on September 11, 1995 while shewas hospitalized for the injuries she sustained as a result ofthe attack. When asked to make an in-court identification of theman who attacked her, Sister Hernandez pointed to the defendantbut stated, "Could it be that one? It looks like him. It couldbe him. Could it be that one?" She also stated, "I believe Ican see but after so many months."

The parties stipulated that Sister Hernandez sufferedmultiple injuries, was hospitalized, and received intensiverehabilitation until November 16, 1995. She sustained swellingof her right eye; bruises to her face, forehead, neck and righteye; swelling to the left and right sides of her face; fracturednasal bone; and contusions to her neck, left upper chest,shoulders and upper arms. The parties further stipulated thatthe doctors could not evaluate Sister Hernandez's eyes onSeptember 10, 1995 due to severe contusion and non-opening of theeyes.

Sister Regina Bernal, who was 78 years old at the time oftrial, testified that, while preparing for 7:00 p.m. mass onSeptember 9, 1995, she heard Sister Hernandez scream that a manwas hitting her. She returned to the convent and saw the leftleg and left arm of a man who was trying to open the door. Shealso saw Sister Hernandez lying on the floor next to a sofa in apool of blood. On the second floor of the convent, drawers hadbeen opened and pillows, blankets and sheets were turned upsidedown. A television, VCR, gold wristwatch, and small hatchet weremissing.

Officer Fernando Carvajal of the Chicago Police Departmenttestified that on the night of September 9, 1995, he received atip from a clerk at a liquor store located near the convent. Theclerk stated that a person named Gary White tried to sell a goldwatch, broach and ring to him. Carvajal located White andquestioned him. White gave Carvajal the three items of jewelry. Carvajal further testified that White told him that he found theitems in a garbage can. White took Carvajal to the garbage canand, upon searching the can, Carvajal found a pair of blue jeanswith a red substance on them. (The parties stipulated that humanblood was found on the pants and that the blood on the pants wasconsistent with blood drawn from Sister Hernandez. They alsostipulated that White's gym shoes tested negative for humanblood.)

Chicago Police Officer Joseph Ramirez testified that hereceived the broach, ring and watch from Officer Carvajal onSeptember 9, 1995. He further testified that he took the itemsto the hospital for viewing by Sister Hernandez and that sheidentified the ring.

Gary White testified at trial concerning his acquisition ofthe broach, ring and watch. He also stated that he had a full-grown beard and weighed 106 pounds on September 9, 1995. Hetestified that he weighed 165 pounds at the time of trial. Whitestated that he first saw the blue jeans, introduced into evidenceby the State, when they were recovered by the police from thegarbage can.

At trial, Gary White and the defendant tried on the bloodstained blue jeans. There was a 2-to-3-inch gap between White'swaist and the front button of the pants. When the defendanttried on the pants, his underwear appeared above the jeans andthere was "not much curling" on the bottom of the pants.

At the conclusion of the trial, the jury convicted thedefendant of home invasion, aggravated battery, aggravatedbattery of a senior citizen and residential burglary.

On appeal, the defendant first argues that he was denied hisconstitutional right to a trial by jury because the trial courtfailed to respond to two notes sent by the jury indicating thatthey were deadlocked. The defendant contends that the failure torespond had the effect of coercing the deadlocked jury intoreaching a compromise verdict that was not trustworthy. Thedefendant also contends that he was denied his constitutionalright to be present at every critical stage of the proceedingssince he was not present when the jury notes were tendered to thecourt.

The record shows that jury deliberations began atapproximately 1:21 p.m. on Friday, June 6, 1997. At 3:00 p.m.,the jury sent its first note asking the following five questions: was Sister Hernandez in the basement during registration; why wasLee picked up; where was Lee picked up; who identified Lee forthe pick up; and may the jurors view Lee for eye color and facialhair. At 3:12 p.m., after discussion with counsel and withoutobjection, the court sent a note to the jury telling them theyhad all the evidence they were going to receive and to continueto deliberate.

At 4:40 p.m., the jurors sent a second note, described theby trial court as follows:⁽¹⁾

"We, the jury, have discussed and taken a vote on eachcount. We cannot come up with a unanimous vote. Theythen list the votes for each count basically; 10 to 2not guilty [sic] to ten not guilty, 2 guilty for mostof the counts attempt murder, armed robbery, armedviolence et cetera 9 to 3 not guilty to guilty forresidential burglary, aggravated battery to a seniorcitizen, aggravated battery. Based upon the fact thatthe jury cannot agree with that identification made bySister Hernandez of the defendant, we are deadlocked. There are the signatures of the jurors on the back andthere are the signatures. I did not count themmyself."

Without objection from counsel, the court instructed the jury tocontinue to deliberate.

The record shows that the trial court and the attorneys leftthe court premises and reconvened at 8:20 p.m. Upon theirreturn, the trial judge indicated for the record that, while heand the attorneys were absent, the jury had sent two additionalnotes, one at 6:20 p.m. and another at 7:25 p.m. According tothe trial court, the 6:20 p.m. note showed:

"attempt murder 2 guilty, 10 not guilty. Armed robbery2 guilty, 10 not guilty. Armed violence 10 guilty, 2[sic] home invasion 2 guilty, 10 not guilty. Robberyof a senior citizen 10 guilty, 2 guilty [sic], 10 notguilty. Aggravated battery 8 not guilty 3,[sic]guilty. Undecided aggravated battery, 8 not guilty, 2guilty, 1 undecided. We are deadlocked."

The 7:25 p.m. note, read into the record by the trial court,stated, "We have again deliberated, no one has changed theirvote. We feel further deliberations are fruitless." At 8:20p.m., while the court was making a record of these events, thecourt was notified that the jury had reached its verdict. Thedefendant made no objection to the proceedings; and judgment wasentered on the jury's verdict.

The State initially argues that the defendant waived anyerror with respect to this issue by failing to object at trialand failing to raise the issue in defendant's post-trial motion. Generally, in order to preserve an issue for appeal, thedefendant must both contemporaneously object and present theissue in a timely post-trial motion. E.g., People v. Enoch, 122Ill. 2d 176, 522 N.E.2d 1124 (1988). However, in accordance withSupreme Court Rule 615, "[p]lain errors or defects affectingsubstantial rights may be noticed although they were not broughtto the attention of the trial court." 155 Ill. 2d R. 615(a). Under the plain error exception to the waiver rule, reviewingcourts will examine issues not properly preserved where theevidence is closely balanced or the alleged error is sofundamental that it denied the defendant a fair trial. E.g.,People v. Cloutier, 178 Ill. 2d 141, 687 N.E.2d 930 (1997);People v. Thomas, 178 Ill. 2d 215, 687 N.E.2d 892 (1997). Here,we must view the evidence as being closely balanced based uponthe fact that the jury was deadlocked for several hours and hadon three occasions indicated that it could not reach a unanimousverdict. Thus, we will review the issue raised by the defendantunder the plain error exception to the waiver rule.

Our supreme court in People v. Childs, 159 Ill. 2d 217, 636N.E.2d 534 (1994) set forth specific guidelines with respect tocommunications with a deliberating jury. In that regard thecourt held that the trial court had discretion to decline toanswer inquiries from the jury when the instructions are readilyunderstandable and sufficiently explain the relevant law; whenfurther instructions would serve no useful purpose or wouldpotentially mislead the jury; when the jury's inquiry involves aquestion of fact; or when the giving of an answer would cause thecourt to express an opinion which would likely direct a verdictone way or another. Childs, 159 Ill. 2d at 228, 636 N.E.2d at539. Accord People v. Pulliam, 176 Ill. 2d 261, 285, 680 N.E.2d343, 355 (1997) (finding court in its discretion could refuse toanswer juror's question regarding an inability to reach aunanimous verdict and instead respond "You have yourinstructions. Keep deliberating"); People v. Banks, 287 Ill.App. 3d 273, 287-88, 678 N.E.2d 348, 358 (1997) (same withrespect to jury question on reasonable doubt); People v. Blalock,239 Ill. App. 3d 830, 842, 607 N.E.2d 645, 653 (1993) (trialcourt is not required to answer a jury's question when the juryinstructions are sufficient). Where the jury has posed anexplicit question or requested clarification on a point of lawarising from the facts about which there is no doubt orconfusion, the Childs court held that the trial court had a dutyto provide instruction. Childs, 159 Ill. 2d at 228, 636 N.E.2dat 539 (finding error in court's failure to respond to jury'squestion regarding various degrees of murder other than referringjury to the instructions they had been given).

When the jury communicates to the court its inability toreach a unanimous verdict, the court may, in its discretion,proffer some guidance including the giving of a supplementalinstruction such as the Prim instruction. People v. Branch, 123Ill. App. 3d 245, 250-51, 462 N.E.2d 868, 872-73 (1984), citingPeople v. Prim, 53 Ill. 2d 62, 289 N.E.2d 601 (1972), cert.denied, 412 U.S. 918, 93 S. Ct. 2731, 37 L. Ed. 2d 144 (1973). Cf. People v. Cowan, 105 Ill. 2d 324, 328, 473 N.E.2d 1307, 1309(1985) (the trial court can choose to have the jury to continueto deliberate even though it has reported that it is deadlocked);People v. Novak, 242 Ill. App. 3d 836, 611 N.E.2d 1203 (1993),aff'd on other grounds, 163 Ill. 2d 93, 643 N.E.2d 762 (1994)(same). The Prim instruction informs the jury of the requirementthat the verdict be unanimous, that the jury has a duty todeliberate, that jurors must impartially consider the evidence,that jurors reexamine their views and change their opinion ifthey believe it to be erroneous so long as the change is not forthe sole purpose of returning a verdict. Prim, 53 Ill. 2d at 75-76, 289 N.E.2d at 609. The time for the giving of such aninstruction is discretionary with the trial court based upon itsconsideration of such factors as the length of time already spentin deliberation and the complexity of the issues before the jury. Cowan, 105 Ill. 2d at 328, 473 N.E.2d at 1309. The test for thedetermining the propriety of the supplemental instruction is"whether, upon examination of the totality of circumstances, thelanguage used actually coerced or interfered with thedeliberations of the jury to the prejudice of the defendant." Branch, 123 Ill. App. 3d at 251, 462 N.E.2d at 873. AccordPeople v. Ferro, 195 Ill. App. 3d 282, 293, 551 N.E.2d 1378, 1385(1990) ("[a] court's instruction to a jury to continuedeliberating should be simple, neutral, and not coercive").

A corresponding issue that arises with respect to thesubject of communication with the jury is whether the defendanthas been deprived of his right to appear and participate inperson and by counsel at all proceedings which involve hissubstantial rights. Childs, 159 Ill. 2d at 227, 636 N.E.2d at538 ("A communication between the judge and the jury after thejury has retired to deliberate, except one held in open court andin defendant's presence, deprives the defendant of ***fundamental rights"). A jury verdict reached in contravention ofthat right will be set aside if it is apparent that injury orprejudice resulted from a communication to the jury either by thetrial court or a third person outside the presence of thedefendant or his counsel. Childs, 159 Ill. 2d at 227-28, 636N.E.2d at 539. See also United States v. Patterson, 23 F.3d1239, 1254 (7th Cir. 1994), citing Rogers v. United States, 422U.S. 35, 39, 95 S. Ct. 2091, 2094-95, 45 L. Ed. 2d 1 (1975)(applying Fed. R. Crim. P. 43(a) and stating, "the defendant hasa right to be present at all stages of his trial, 'which has beenheld to include the giving of supplementary instructions or othercommunications with a deliberating jury'"). The burden is on theState to prove beyond a reasonable doubt that the error washarmless. Childs, 159 Ill. 2d at 228, 636 N.E.2d at 539. Seealso Patterson, 23 F.3d at 1255.

In the instant case, the defendant makes no contention oferror with respect to the trial court's communications with thejury at 3:12 p.m. and 4:40 p.m. Those communications were madein the presence of and with the acquiescence of counsel for theState and counsel for the defendant. Rather, the defendantargues error occurred when the trial court failed to respond tothe jury's notes sent at 6:20 p.m. and 7:25 p.m. which indicatedthat the deadlock reported at 4:40 p.m. continued to exist. Thedefendant contends that the trial court's failure to respond hadthe effect of coercing the deadlocked jury into reaching acompromise verdict.⁽²⁾

The facts in the instant case are unique in that the trialcourt and counsel for both sides were absent when the 6:20 p.m.and 7:25 p.m. notes were sent by the jury, and that absenceappears to be the reason for the lack of response. We are awareof two cases in which the trial judge was absent while the jurywas deliberating and did not respond to their questions beforethey reached their verdicts. In People v. Sims, 166 Ill. App. 3d289, 519 N.E.2d 921 (1988), the trial judge was presiding at thefinal arguments of defendant's co-defendant while the defendant'sjury was deliberating and sent the judge a question. The juryreached its verdict before the court could consult withdefendant's attorney and respond to the question. The appellatecourt found no error. Sims, 166 Ill. App. 3d at 311, 519 N.E.2dat 935. In People v. Chandler, 110 A.D.2d 970, 487 N.Y.S.2d 887(1985), the trial judge was unaccountably absent from thecourtroom for 50 minutes during which time the jury asked aquestion regarding the testimony and then returned a verdictbefore the trial judge returned and was able to respond. Therethe court held that the delay did not result in the denial of afair trial to the defendant.

Several cases have dealt with the analogous issue of thetrial court's failure to respond to a jury's note, although inthose cases the judges were present when the jury notes weredelivered. In Cowan, 105 Ill. 2d 324, 473 N.E.2d 1307, the jurysent a deadlock note to the court almost four hours afterdeliberations began and was instructed to continue deliberations. Fifteen minutes later, at 4:14 p.m., and, again, sometime before7 p.m., the jury sent two more notes advising the court of itsdeadlock. The court did not respond to either of those latternotes and sequestered the jury at 7 p.m. The jury resumeddeliberations at 9 a.m. the following morning and 45 minuteslater notified the court of its continued deadlock. The courtthereupon notified the prosecutor and defense counsel, for thefirst time, of its receipt of the four notes. Defense counseldid not object to the proceedings and, instead, asked that thejury be instructed to continue to deliberate. Over defensecounsel's objection, the jury was given the "Prim" instructionand shortly thereafter returned a verdict of guilty on some ofthe counts. On appeal the defendant argued that the court'sfailure to respond to the first notes "had the effect ofimproperly hastening a verdict when the Prim instruction finallywas given." Cowan, 105 Ill. 2d at 327-28, 473 N.E.2d at 1309. In addition to affirming the trial court's discretionary decisionto give the Prim instruction after the fourth note, the supremecourt rejected defendant's coercion argument and found no abuseof discretion in allowing the jury to deliberate, after receiptof the two intermediate notes, for eight hours withoutintervention by the trial court. Accord Smith v. United States,389 A.2d 1356, 1361 (D.C. 1978) (trial court's failure to makedirect response to jury's communication of lack of unanimityafter several hours did not have the effect of coercing the juryinto rendering a verdict); Edwards v. State, 668 So.2d 167 (Ala.Crim. App. 1995) (trial court's failure to respond to threedeadlock notes from jury over five hours period was not abuse ofdiscretion). See Mills v. Tinsley, 314 F.2d 311, 312-14 (10thCir. 1963) (trial court's response to deadlock note stating thatit had no response and allowing jury to deliberate for two morehours before giving instruction did not amount to coercion); seealso State v. Bey, 129 N.J. 557, 610 A.2d 814 (1992) (trialcourt's failure to answer jury question prior to jury verdictbeing reached was not reversible error).

Here, while it is unfortunate that the trial court wasabsent from the courtroom, we cannot say that the court'sresultant failure to respond to the two jury notes coerced thejury to reach a unanimous verdict. The length of theirdeliberations was not excessive given the fact that the defendantwas charged with eight counts (first degree murder, armedrobbery, residential burglary, robbery, aggravated battery of asenior citizen, aggravated battery, armed violence and homeinvasion). See Mills, 314 F.2d at 313 (considering length ofcase as a factor that justified extended deliberations); Smith,389 A.2d at 1361 (same). See also Cowan, 105 Ill. 2d at 328, 473N.E.2d at 1309 (complexity of issues is factor relevant otcourt's determination whether to give Prim instruction). Thejury was required to evaluate the evidence as it related to eachof these charges and to exclude those which it felt were notsustained by the evidence or which were lesser included offenses. In that regard the jury found the defendant guilty of half of theoffenses for which he had been charged.

Based upon the record, or lack thereof, before us, it wouldrequire pure speculation on the part of this court to find thatthe court's failure to respond to the two deadlock notes coercedthe jury into rendering a verdict. Courts are reluctant to findcoercion in the absence of a record to support such a conclusion. See Novak, 242 Ill. App. 3d at 856, 611 N.E.2d at 1216 (findingit to be rank speculation that trial court's failure to respondto jury's deadlock note coerced jury into reaching verdict 10minutes later); Blalock, 239 Ill. App. 3d at 841, 607 N.E.2d at652 (defendant's contention of ex parte communication betweenjudge and jury viewed as speculative where defendant failed toprovide record). Cf. Chandler, 110 A.D.2d 970, 487 N.Y.S.2d 887(since defendant objected to court's absence duringdeliberations, court was able to poll jury to determine whetherverdict was tainted). There is nothing in the record to suggestthat the jury felt unduly pressured to reach a verdict underthreat of sequestration (e.g., Ferro, 195 Ill. App. 3d 282, 551N.E.2d 1378; Branch, 123 Ill. App. 3d 245, 462 N.E.2d 868) orunder misconception that they could not be deadlocked (People v.Robertson, 92 Ill. App. 3d 806, 416 N.E.2d 323 (1981) (juryerroneously told, "you can't be deadlocked")). It may very wellbe that the jury felt no compulsion to reach a verdict whenresponses to their notes were not forthcoming, perhapsattributing the lack of response to the fact that the notes wereconveyed during the dinner hour. The possibility exists that thejurors may have been apprised of the temporary absence of thejudge and the attorneys from the court premises.

Moreover, the record does show that the trial court andcounsel were apprised of the jury's deadlock upon the court'sreceipt of the second note at 4:40 p.m. At that time, withoutobjection from the parties, the court advised the jury tocontinue to deliberate. The jury continued to perform its dutyto deliberate and eventually reached unanimity. See Mills,stating:

"It is not unusual for a jury to advise the court thatit is deadlocked and to thereafter agree and return averdict. Every trial judge frequently encounters thatsituation. Experience in the trial of jury casesdemonstrates that jurors are not always the best judgesof whether or not they are able to reach a verdict. Inmost cases for twelve human minds to agree, it takescareful consideration of the law and the evidence inthe case and after that, discussion among the jurors oftheir views of the case. It is this kind of seriousdeliberation that is contemplated in our jury system." 314 F.2d at 313-14.

On the record before us, we cannot say that the court's meresilence to the jury's two notes over a three-hour period, whichfell during the dinner hour, had the effect of coercing the juryto reach a verdict. Smith, 389 A.2d 1356; Edwards, 668 So.2d167; Cowan, 105 Ill. 2d 324, 473 N.E.2d 1307. We believe thejury's verdict was the result of continued deliberation and acareful consideration of the law and the evidence.

In addition to finding a lack of coercion, we also find thatthe proceedings with respect to the deadlock notes did not denythe defendant his right to be present during a critical stage inthe trial. It is true that "[a] defendant and his counsel have aright to be informed of all communications from the jury and tooffer their reactions before the trial judge undertakes torespond." Smith, 389 A.2d at 1360, citing Rogers v. UnitedStates, 422 U.S. 35, 39, 95 S. Ct. 2091, 45 L. Ed. 2d 1 (1975). In Smith, the court did not respond to the jury's note informingit of a lack of unanimity and did not inform defendant or hiscounsel of that note until the next day, after another similarnote had been received. On appeal, the court found the error infailing to apprise the defendant and his counsel was harmlessbecause it would have been speculative to presume that, hadcounsel been apprised of the note, he would have moved for amistrial. Smith, 389 A.2d at 1361 & n.8. Accord Patterson, 23F.3d at 1255 (finding failure to secure presence of defendant andhis attorney in handling of jury inquiry harmless error whereunlikely that defense counsel would have consulted defendant,that defendant would have suggested a response, or thatdefendant's counsel would have suggested the response raised onappeal). Here, the deprivation to the defendant by not beingadvised of the notes is even more attenuated than in Smith, sincehere, unlike in Smith, the jury notes had not been viewed by thetrial court and no action or intentional nonaction by the courtoccurred in defendant's absence. Moreover, even if erroroccurred, it would be harmless since we would be required tospeculate as to what action defendant or his counsel would haveurged with respect to the notes. See Patterson, 23 F.3d 1239;Smith, 389 A.2d 1356. Thus, we must conclude that thedeprivation of the right to be present resulted in harmlesserror.

The defendant next contends that his conviction foraggravated battery must be reversed since that offense is alesser included offense of aggravated battery of a seniorcitizen. The State concedes this error. As it is undisputedthat the offense of aggravated battery is a lesser includedoffense of aggravated battery of a senior citizen, we vacate theaggravated battery conviction and corresponding sentence.

The defendant next argues that his sentence on the remainingconvictions should be vacated and remanded because it was basedupon an unconstitutional statute. The defendant was sentencedunder the "truth-in-sentencing" provisions of section 40 ofPublic Act 89-404, titled "An Act in relation to governmentalmatters, amending named Acts." Pub. Act 89-404,