author: JUSTICE DiVITO

text:
    WINIFRED SMALL, as Independent Ex’r of the Estate of Rene Roughny, Deceased, Plaintiff-Appellant, v. ST. FRANCIS HOSPITAL et al., Defendants (Where the Cars R, Ltd., Defendant-Appellee).
    First District (2nd Division)
    No. 1—90—1249
    Opinion filed September 30, 1991.
    Donald A. Shapiro, Ltd., of Chicago (Kristin M. Boyer and David A. Statham, of counsel), for appellant.
    Querrey & Harrow, Ltd., of Chicago (Michael Resis, of counsel), for appellee.
   JUSTICE DiVITO

delivered the opinion of the court:

Defendant Where The Cars R, Ltd., sold an automobile to Alexander Shlepakov (Alexander), an unlicensed minor. Thereafter, while driving the purchased car, Alexander struck and killed Rene Roughny. Plaintiff Winifred Small, as executor of Roughny’s estate, brought suit against defendant under a negligent entrustment theory. Plaintiff appeals from the circuit court’s order granting defendant’s motion to dismiss for failure to state a cause of action.

The sole issue on appeal is whether an allegedly negligent sale of an automobile can sustain a cause of action for negligent entrustment of the automobile. For reasons that follow, we answer in the affirmative.

The undisputed facts underlying plaintiff’s claim are as follows. Defendant sold Alexander a 1978 Ford Fairmont automobile on June 30, 1988. On that date, Alexander was 15 years of age and did not possess a driver’s license. At approximately 5:20 p.m. on August 18, 1988, Alexander, who was still unlicensed and 15 years of age, struck Roughny with the car purchased from defendant. At the time he was hit, Roughny was waiting for a bus at the intersection of Western Avenue and Lunt Street in Chicago. Roughny suffered severe injuries and, after a lengthy hospitalization, died as a result of those injuries.

Count I of the complaint, which named neither Alexander nor his parents as defendants, alleged that defendant was negligent in selling the car to Alexander because he had not yet attained his 16th birthday; defendant failed to check or inquire as to his identification, age, or training prior to selling him the car; defendant negligently entrusted the car to him when it knew or should have known that he was an unlicensed and incompetent driver; and defendant was otherwise negligent in selling and entrusting the car to him.

The remaining counts of the complaint were brought against various medical doctors and health care providers who were allegedly negligent in their care and treatment of Roughny; those counts are not relevant to this appeal.

Defendant filed a motion to dismiss count I pursuant to section 2—615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—615). On March 29, 1990, the circuit court granted the motion, stating:

“This is not [a] case of negligent entrustment of a motor vehicle. It is an attempt to plead a cause of action for negligent sale of a motor vehicle, and that is not a cause of action recognized in the state of Illinois pursuant to the holding in [Tosh v. Scott (1984), 129 Ill. App. 3d 322, 472 N.E.2d 591]. The motion is well taken on that ground, that ground only.
Count I is stricken for failure to state a cognizable cause of action. The action is dismissed as to the Defendant, Where The Cars Are [sic], and with the specific finding that no possible set of facts in support of this cause of action would ever entitle the Plaintiff to relief, and as such, leave to replead is denied.”

Because of the specific holding of the circuit court, we address only the issue of whether a cognizable cause of action is possible pursuant to the facts alleged in this case. Because the circuit court denied leave to replead, holding that “no possible set of facts *** would ever entitle the [pjlaintiff to relief,” we do not address whether the dismissed complaint adequately pleaded facts sufficient to bring the claim within the scope of a recognized cause of action. See, e.g., Teter v. Clemens (1986), 112 Ill. 2d 252, 492 N.E.2d 1340.

In finding that no possible set of facts would entitle plaintiff to relief, the trial court relied on Tosh v. Scott (1984), 129 Ill. App. 3d 322, 472 N.E.2d 591. In that case, the defendant father sold his automobile to his adult son. The complaint alleged that at the time of the sale, the father knew or should have known that his son did not have a valid driver’s license; that he had a severe drinking problem; that he had been convicted at least three times of driving while under the influence of intoxicating beverages; and that there was a reasonable likelihood that he would operate the vehicle purchased from his father while under the influence of intoxicating liquor. (Tosh, 129 Ill. App. 3d at 323.) Three weeks later, the son was involved in an automobile accident, which resulted in one person’s death and injuries to another person.

In Tosh, the plaintiffs’ suits were based upon negligent sale, which they attempted to equate to negligent entrustment. In affirming the trial court’s grant of summary judgment for the defendant, the Third District Appellate Court rejected the negligent entrustment theory, holding that “an essential element of a negligent entrustment cause of action is the defendant’s ownership or right to control the vehicle.” (Tosh, 129 Ill. App. 3d at 323.) The court also ruled that extending liability to a seller was against public policy. Tosh, 129 Ill. App. 3d at 323.

In the instant case, plaintiff argues that, in Tosh, the court ignored the Restatement (Second) of Torts, “demonstrated a fundamental lack of understanding of negligent entrustment law,” and based its decision on the transfer of ownership which plaintiff deems irrelevant in a negligent entrustment action.

One of the cases plaintiff cites in support of her position is Seward v. Griffin (1983), 116 Ill. App. 3d 749, 452 N.E.2d 558. There the plaintiff was injured when her car was struck by another driven by an unlicensed motorist. The testimony was conflicting as to ownership of the latter automobile, but it appeared that the unlicensed motorist was test-driving the vehicle when the accident occurred. The plaintiff sued the car dealer for negligently entrusting the motor vehicle to one whom he knew to be unlicensed to drive. Seward, 116 Ill. App. 3d at 753-55.

The trial court entered judgment on a jury verdict for the plaintiff and the appellate court affirmed. It found that the defendant knew that the motorist was an unlicensed driver, and held:

“Such an independent act of negligence occurs on the part of the automobile dealer where he lends the automobile to a person he knows is incompetent to drive or is reckless.” (Seward, 116 Ill. App. 3d at 754.)

Plaintiff argues that Seward, though it did not involve a sale, is analagous to the instant case in that, when defendant put the automobile in Alexander’s control, defendant committed an independent act of negligence.

Plaintiff also relies on the case of Salvi v. Montgomery Ward & Co. (1986), 140 Ill. App. 3d 896, 489 N.E.2d 394. In that case, the plaintiff was injured when his 14-year-old brother was cleaning an air gun he had purchased from the defendant. The gun accidentally discharged, and the plaintiff was struck and blinded in one eye. (Salvi, 140 Ill. App. 3d at 900-01.) The plaintiff alleged that the defendant was negligent in selling the gun to his brother. The trial court entered judgment on the jury’s verdict that the defendant was negligent, and the appellate court affirmed.

Although the underlying facts in Salvi did not involve negligent entrustment of a motor vehicle, plaintiff argues that its reasoning is applicable to the case at bar. The Salvi court ruled that it was not unreasonable to place a burden upon the defendant to ask for identification prior to selling an air gun. Similarly, plaintiff contends, in the case at bar the requirement of having Alexander produce a driver’s license was minimal when compared to the benefit of the protection of life and property.

Both parties have cited a number of cases from other jurisdictions. Those cases reveal the split of authority on this issue. Although some States follow the Restatement (Second) of Torts and hold that a sale does not preclude an action for negligent entrustment (Vince v. Wilson (Vt. 1989), 561 A.2d 103; Lombardo v. Hoag (1989), 237 N.J. Super. 87, 566 A.2d 1185; Dillon v. Suburban Motors, Inc. (1985), 166 Cal. App. 3d 233, 212 Cal. Rptr. 360; Flieger v. Barcia (Alaska 1983), 674 P.2d 299; Kahlenburg v. Goldstein (Md. App. 1981), 431 A.2d 76), others do not recognize such a cause of action (Perez v. G & W Chevrolet, Inc. (1969), 274 Cal. App. 2d 766, 79 Cal. Rptr. 287; Rush v. Smitherman (Tex. Civ. App. 1956), 294 S.W.2d 873; Bulge v. McMahon (1942), 265 A.D. 830, 37 N.Y.S.2d 540).

In our resolution of the issue, we are persuaded by the language from the Restatement (Second) of Torts, its commentary, and its illustrations. Section 390 of the Restatement provides:

“§390. Chattel for Use by Person Known to be Incompetent One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.” Restatement (Second) of Torts §390, at 314 (1965).

The comments to the Restatement support those decisions which extend the rule to individuals such as sellers:

“The rule stated applies to anyone who supplies a chattel for the use of another. It applies to sellers, lessors, donors or lenders, and to all kinds of bailors, irrespective of whether the bailment is gratuitous or for consideration.” (Emphasis added.) Restatement (Second) of Torts §390, Comment a, at 315 (1965).

Moreover, the sixth illustration of section 390 of the Restatement lends further support for plaintiff’s position:

“6. A sells or gives an automobile to B, his adult son, knowing that B is an epileptic, but that B nevertheless intends to drive the car. While B is driving he suffers an epileptic seizure, loses control of the car, and injures C. A is subject to liability to C.” (Emphasis added.) Restatement (Second) of Torts §390, Illustration 6, at 316 (1965).

We recognize that the circuit court in the instant case was bound by the Third District Appellate Court’s holding in Tosh. (People v. Harris (1988), 123 Ill. 2d 113, 128, 526 N.E.2d 335.) We also note that, though there are compelling reasons for a court in one appellate district to follow the opinion of a court in another district, it is not required to do so. (People v. Ward (1989), 192 Ill. App. 3d 544, 554, 548 N.E.2d 1120.) Because we believe the rule offered by the Restatement to be legally sound and more consistent with public policy considerations, we reject the Tosh holding and adopt the rule provided by the Restatement (Second) of Torts.

We agree with the Restatement that a sale does not per se preclude a cause of action for negligent entrustment of a motor vehicle. In this case, the complaint alleged that Alexander was 15 years old, unlicensed, and incompetent to drive, and further, that defendant knew or should have known those facts. We agree with the requirement of the Restatement concerning defendant’s knowledge or “reason to know” (as opposed to “should have known”) and we hold that that element must be properly pleaded and not merely asserted in conclusional terms. (Teter v. Clemens (1986), 112 Ill. 2d 252, 492 N.E.2d 1340.) We emphasize that our holding does not require that a seller of a car, whether commercial or private, must ask for a driver’s license or investigate driving proficiency in every case; however, when a car seller has reason to know that a prospective buyer is underage, unlicensed, or otherwise incompetent, a cause of action for negligent entrustment exists.

We believe that public policy considerations are consistent with our holding. We fail to see a reason for distinguishing between a seller and an owner of an item which might harm someone, when the other elements of negligent entrustment are present. The relation of defendant to the particular instrumentality is but one factor to be considered; the key factor is that the negligent entrustment theory requires a showing that the entrustor had reason to know some reason why entrusting the item to another was foolish or negligent. (See Vince v. Wilson (Vt. 1989), 561 A.2d 103, 105.) A seller who knows or has reason to know that his sale to a specific purchaser places someone at risk should be subject to the same liability as a lessor, a donor, a lender, or a bailor.

In Dillon v. Suburban Motors, Inc. (1985), 166 Cal. App. 3d 233, 212 Cal. Rptr. 360, involving some of the same public policy considerations which we address, the California Appellate Court reasoned:

“This case involves an entity ‘doing a volume business in motor vehicles with resultant heavy exposure on the part of the public to the risk involved. We do not consider it unreasonable to require that such entities take adequate precaution with respect to the vehicles owned by them or in their temporary custody. One such precaution[ ] involves requiring the production of evidence from a prospective user of competency to drive.’ ” Dillon v. Suburban Motors, Inc., 166 Cal. App. 3d at_, 212 Cal. Rptr. at 369, quoting Hartford Accident & Indemnity Co. v. Abdullah (1979), 94 Cal. App. 3d 81, 94, 156 Cal. Rptr. 254, 262.

We conclude that a cause of action for negligent entrustment of a motor vehicle may exist in the instant case. We therefore remand the case to the circuit court for the purpose of determining the sufficiency of the complaint and, if necessary, to allow plaintiff an opportunity to replead.

Accordingly, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

SCARIANO, P.J., and HARTMAN, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE MANNING

license: Public Domain

text:
    JEWEL COMPANIES, INC., Plaintiff-Appellee, v. JOSEPH SERFECZ et al., Defendants-Appellants.
    First District (1st Division)
    No. 1—90—1096
    Opinion filed September 30, 1991.

      Lynda J. Khan, of Chicago, for appellants.
    Rudnick & Wolfe, of Chicago (Gerald B. Lurie, of counsel), for appellee.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

This appeal concerns the interpretation of a lease that was signed on July 1, 1963, by the plaintiff, Jewel Companies, Inc. (Jewel), as lessee, and defendants’ predecessor in interest, Chicago Title and Trust Company, as lessor, for land and a store to be built in the Grove shopping center in Elk Grove Village. Defendants Joseph Serfecz (Serfecz) and Mount Prospect State Bank (MPSB) are the successor lessors. Mr. Loren Galbraith, Jewel’s former real estate and construction specialist, negotiated the lease on behalf of Jewel, and following execution of the lease, the main store was built and Jewel began to occupy the premises.

The lease provided for a 15-year term and options for three successive five-year renewals. It provided that the minimum rental for the main building was $2 per square foot, for a total of $44,400 per lease year, and that Jewel was to pay a percentage rental, amounting to 1% of sales in excess of $4,440,000.

The lease also provided inter alia (1) that the lessee had the option to enlarge the leased premises by the construction of an addition to the building, said addition not to exceed 7,800 square feet (paragraph 40(a)); (2) that if the lessor did not build the addition, the lessee could build it at its own expense (paragraph 40(d)); (3) that on the 30th day following the completion of the construction of the addition, the original term or renewal thereof, as the case may be, would be automatically extended for 15 years, followed by the optional renewal terms (paragraph 40(f)); and (4) that the minimum annual rental was to increase by $2 per square foot of the addition and the sales base for the percentage rental would increase up to $6 million.

Jewel built the addition in 1971 during the original term of the lease at an actual cost of construction of $227,395. Thus, the term of the lease was extended by 15 years, making the new termination date September 13, 1986. In September 1986 prior to the expiration of the lease, Jewel exercised its first option to renew for an additional five-year term through September 1991. In the interim, in 1977 Serfecz purchased the shopping center and became the beneficial owner of the land trust for which MPSB is the trustee.

Based on the addition, the minimum rental due under the lease increased by $15,600 (7,800 square feet times $2 per square foot) annually, and beginning on the 30th day after completion of the construction of the addition, Jewel began to exercise its recoupment rights as delineated in paragraph 40(g) of the lease. Paragraph 40(g) states, in relevant part:

“[PJrovided that in the event said addition is constructed by Lessee at its expense, Lessee may recoup or set off from said increase in minimum rent a sum per lease year equal to 10.126% of the Cost of Construction (being the sum required to amortize the Cost of Construction at six percent (6%) per annum over fifteen (15) years on a level monthly payment basis).”

Beginning with the renewal term in September 1986, at which time Jewel had recouped $234,000, it continued to offset rental payments at the same rate. In September 1987 Serfecz notified Jewel that, in his opinion, Jewel’s recoupment rights ended in March of 1986 when it had recouped $227,395 or the actual cost of construction. He demanded Jewel to return the excess it had recouped between March 1986 and September 1986 and served it with a landlord’s ten-day notice. Jewel returned the $22,800 “excess” under protest, filed the instant declaratory judgment lawsuit, vacated the premises, and moved into a new store it had recently built in a shopping center across the street.

Jewel and defendants Serfecz and MPSB filed motions for summary judgment, each arguing that the lease was unambiguous in its favor. On March 13, 1989, the trial court denied the motions, found that the lease was ambiguous and directed the parties to conduct discovery to determine the intent of the original parties to the lease with respect to the recoupment clause.

Attached to defendants’ motion for summary judgment was a letter dated May 1, 1972, written by Ms. Riley to the former manager of the premises. Ms. Riley was Jewel’s lease administrator, whose responsibilities included summarizing the provisions of the lease, calculating the amount of rent due from Jewel and communicating with the lessor. The May 1 letter stated that the cost of construction was $227,394.67 and that pursuant to the terms of the lease Jewel had a right to recoup or offset 10.126% of the “cost of construction,” which amounted to $23,025.98. It further stated, however, “since the lease stipulates that the recoupment may be made from the increase in minimum rental *** we may recoup a total of only $15,600 per lease year, rather than the $23,025.98.”

During her deposition, however, Ms. Riley stated that she now believed her letter of May 1, 1972, to Mr. Victorine was incorrect to the extent that it referred only to recoupment for the actual cost of construction rather than recoupment for the cost of construction plus an interest factor. She also stated that “[i]t was my understanding that we were to recoup the cost of construction plus the factor, however that 10.126 percent relates, but we could recoup the cost of construction plus a rate of interest, which I believe was 6 percent.”

Also disclosed during discovery was a memorandum written by Mr. Galbraith on February 13, 1962, in which he stated that if “we pay for the addition *** the owners will repay Jewel as if it was a loan. The loan to be repaid at six percent (6%) interest with constant level payments over the 15 year term.” However, like Ms. Riley, during the deposition Mr. Galbraith gave another interpretation of what he thought the parties intended when they first entered into the lease. During the deposition, he stated that the parties intended that Jewel could recoup both its cost plus interest; however, they did not expect Jewel to recoup the amount during the first 15-year period following the construction. The record also contained statements issued by Jewel’s accounting department and an affidavit of Mr. John Lincoln, defendants’ qualified financial consultant.

Following discovery, defendants filed a new motion for summary judgment and Jewel filed a cross-motion for summary judgment. Jewel contended that pursuant to paragraph 40(g), it was entitled to recoup $345,525.65, which represented the actual cost of construction plus 6% interest per year, amortized over a term of 15 years, and that it was entitled to set off against the annual increased minimum rent until such time as it recouped the entire amount. Defendants claimed that Jewel could recoup only the actual cost of construction and was limited to the 15-year term in which to recoup that amount.

The trial judge signed an order on March 26, 1990, denying defendants’ motion for summary judgment and granting Jewel’s cross-motion for summary judgment, in which he held that “Jewel is entitled to recoup its costs of construction plus six percent (6%) interest amortized over 15 years, the sum of $345,525.65, all as provided under paragraph 40(g) of the parties’ lease, and that the lease contains no 15 year limitation on the time within which Jewel shall recoup said sum.” Defendants have appealed from that decision. We reverse for the following reasons.

As a threshold issue, Jewel questions whether the appellate court has jurisdiction to review the trial court’s order of March 13, 1989, on the ground that defendants failed to specify such order in their notice of appeal pursuant to Supreme Court Rule 303(c)(2) (134 Ill. 2d R. 303(c)(2)). Rule 303 provides that the notice of appeal “shall specify the judgment or part thereof appealed from and the relief sought from the reviewing court.” (134 Ill. 2d R. 303(c)(2).) However, it is well settled that a notice of appeal is to be liberally construed and should be considered as a whole. (Honkomp v. Dixon (1981), 97 Ill. App. 3d 476, 479, 422 N.E.2d 949.) Moreover, an appeal from an unspecified judgment is not waived (1) where the deficiency is one of form rather than substance or (2) where the unspecified judgment is “a step in the procedural progression leading to the judgment specified in the notice of appeal.” Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 435, 394 N.E.2d 380.

In the instant case, defendants specified the March 1990 summary judgment in their notice of appeal, but did not specify the March 1989 order. The trial court’s order of March 1989 found that the recoupment provision was ambiguous and directed discovery. Although we disagree with the propriety of that decision, we note that the trial court’s finding that the lease provision concerning recoupment was ambiguous constituted but one step in the procedural process leading to the summary judgment in favor of Jewel entered in March 1990. Accordingly, defendants’ notice of appeal from the circuit court’s final order of March 1990 was sufficient to confer jurisdiction upon this court to also review the March 1989 order.

We believe that the trial court’s orders of March 1989 finding paragraph 40(g) to be ambiguous and of March 1990 granting summary judgment in favor of Jewel were both improper, as a matter of law. Summary judgment is proper when the issue is determinable solely as a matter of law. (Smith v. Rengel (1981), 97 Ill. App. 3d 204, 422 N.E.2d 1146.) Where the facts are not in dispute, interpretation of a contract is a question of law which can be decided on a summary judgment motion; moreover, as a question of law, interpretation of a contract can be made on review independently of the trial court’s judgment. (Butler v. Economy Fire & Casualty Co. (1990), 199 Ill. App. 3d 1015, 557 N.E.2d 1281.) Summary judgment will be granted only if the pleadings, affidavits and depositions on file reveal that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Kroll v. Sugar Supply Corp. (1983), 116 Ill. App. 3d 969, 452 N.E.2d 649.

Here, paragraph 40(g) with regard to the recoupment provision is clear on its face. We have reviewed the lease and found that the clear formula set forth in 40(g) allowed Jewel to recoup a percentage (10.126%) of its actual construction cost ($227,395) against its increased rental payments ($15,600) per lease year for 15 years. Although 10.126% of the actual cost of construction amounted to $23,026, Jewel could not recoup such amount because paragraph 40(g) also provided that recoupment was limited to the increased minimum rental of $15,600. Where contract language is plain, its meaning clear, and no absurdity is involved, the agreement must be enforced as written. (Srivastava v. Alia, the Royal Jordanian Airline (1985), 129 Ill. App. 3d 988, 473 N.E.2d 564.) Furthermore, the rights of the parties are limited by the terms expressed in the contract. A.A. Conte, Inc. v. Campbell-Lowrie-Lautermilch Corp. (1985), 132 Ill. App. 3d 325, 477 N.E.2d 30.

Moreover, paragraph 40(g) explicitly states that the recoupment was to be “amortize[d] [for] the Cost of Construction at six percent (6%) per annum over fifteen (15) years.” (Emphasis added.) Thus, contrary to Jewel’s assertions with regard to its recoupment rights, the 6% interest factor was taken into account in the formula as well as the time period in which it could recoup its construction costs. The contract language is plain that the 10.126% figure took into account the cost of construction plus the 6% interest factor per lease year based upon a 15-year term. There is nothing in paragraph 40(g) concerning an extension of time in which to recoup any monies beyond 15 years. Neither is there any mention of recoupment of any amount other than that specifically stated. It is unfortunate, as explained by the experts below, that construction costs escalated considerably between the time the lease was signed and the time of construction. However, the lease agreement speaks for itself. The trial court cannot rewrite paragraph 40(g) to protect Jewel from rising construction costs. In Kerr Steam Co. v. Chicago Title & Trust Co. (1983), 120 Ill. App. 3d 998, 458 N.E.2d 1009, this court followed the holding in one of our Federal decisions, agreeing that “[t]he fact that one party fails to provide a sufficient hedge against inflation is not a reason to construe a lease in a manner inconsistent with its clear language.” (Kerr, 120 Ill. App. 3d at 1006.) Neither may the courts add a provision to an agreement to make it more equitable (Lakeland Property Owners Association v. Larson (1984), 121 Ill. App. 3d 805, 459 N.E.2d 1164) or to suit the parties. Thread & Gage Co. v. Kucinski (1983), 116 Ill. App. 3d 178, 451 N.E.2d 1292.

Accordingly, we hold that the circuit court erred in rewriting the lease under the guise of construction where the language of paragraph 40(g) is clear and definite on its face. (Stein v. Spainhour (1988), 167 Ill. App. 3d 555, 521 N.E.2d 641.) Such error requires reversal.

Defendants next argue that should this court find paragraph 40(g) to be ambiguous, it should review all of the extrinsic evidence, including the affidavit of Mr. Lincoln. Although we have already reached the conclusion that the trial court incorrectly held that paragraph 40(g) was ambiguous, we will briefly address the issue concerning extrinsic evidence. When the terms of an agreement are clear and unambiguous, they will be given their natural and ordinary meaning, and the intent of the parties must be determined from the language of the agreement alone. (Reynolds v. Coleman (1988), 173 Ill. App. 3d 585, 527 N.E.2d 897.) Thus, it was error for the trial court to mandate discovery and allow in extrinsic evidence regarding the intent of the parties. During her deposition, Ms. Riley mentioned the 6% interest factor; however, she was unclear whether it was included in the recoupment formula and “however that 10.126% factor “relate[d].” Mr. Galbraith stated that the recoupment arrangement was to be like a loan, i.e., with a fixed payment amount, interest and term. In spite of the deposition testimony of Ms. Riley and Mr. Galbraith, we conclude that no genuine issue of material fact exists and that based upon the natural and ordinary meaning of the recoupment clause, defendants are entitled to summary judgment as a matter of law. Accordingly, the order of the trial court granting Jewel’s cross-motion for summary judgment and denying defendants’ motion for summary judgment is reversed.

Reversed.

BUCKLEY and O’CONNOR, JJ., concur.


author: JUSTICE McMORROW

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDREW JOHNSON, Defendant-Appellant.
    First District (4th Division)
    No. 1—89—1665
    Opinion filed September 30, 1991.

      Michael J. Pelletier and Ann C. McCallister, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Kathleen F. Hewlett, Special Assistant State’s Attorney, and Renee Goldfarb and Ashley A. Romito, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McMORROW

delivered the opinion of the court:

Defendant and Robert McFadden were jointly charged with robbery. McFadden pleaded guilty to the charge. Defendant entered a plea of not guilty. Following a jury trial, defendant was convicted of robbery and sentenced as a Class X habitual offender to six years’ imprisonment. On appeal, defendant contends that (1) he was denied his constitutional right to conflict-free counsel; (2) the trial court abused its discretion in denying his motion for a continuance; (3) he was not proven guilty beyond a reasonable doubt; and (4) he was prejudiced by several improper prosecutorial remarks in closing argument.

Defendant argues that the evidence did not prove either that he committed or was accountable for McFadden’s commission of the robbery. The record discloses the following.

At trial, Hans Spears (Spears), aged 70, testified that at 5 p.m. on August 21, 1988, he and his wife, Beatrice, and their daughter, Judy, were on their way home from a walk in North Lincoln Park. Spears was 20 to 25 feet ahead of Beatrice and Judy when he noticed two men walking shoulder to shoulder toward him. Spears identified the taller of the men as defendant. As the men came directly toward him, he stepped off the path onto the grass to allow them to pass, but the men stopped. Defendant was standing next to the shorter man and in front of Spears when the shorter man grabbed Spears’ shoulder, stated a profanity, and then pulled Spears’ gold chain from his neck. Both men then ran toward a viaduct leading out of the park underneath the outer drive.

Spears screamed and ran after the men. He fell, got up, and resumed his chase of the men. Judy was approximately 20 feet behind her father. As he was running, he saw a police car and called for assistance. The police apprehended both men and, a few minutes later, returned the chain to Spears. On cross-examination, Spears stated that defendant did not touch or say anything to him, nor did the men speak while in Spears’ presence.

Judy Spears testified that she and her parents were approaching an underground tunnel leading from the park to Marine Drive. By the time she reached the passage to the tunnel, she saw her father on the ground. He said “they got my chain, Judy, go after them.” She saw two men running and began to chase them, calling for assistance as she ran. The taller man, whom she identified as defendant, had something in his hand. Assuming that the object he held was the chain, she followed him rather than the shorter man, who continued running up a different street. Defendant tried to run between some buildings, but returned to the street when he encountered a dead end. She was approximately 25 feet behind him when he threw the chain into a bushy area. By the time defendant reached the end of the block, the police had arrived and arrested him. After a brief search, she and a policewoman found her father’s chain and returned it to him. She did not witness the robbery or see the transfer of the chain from the shorter man to defendant.

Beatrice Spears testified that she saw her husband “being accosted by two men,” one of whom she identified as defendant. She saw her husband running and then fall, and she heard him screaming “they got my chain.” He arose and resumed his chase of the men. As Judy joined the chase, Beatrice also began running and calling for help. She waved down a police car, explained what had occurred and entered the car. When they caught up with Spears a half-block farther, Beatrice exited the car and Spears entered the back seat. She followed the car on foot and saw that two other squad cars had arrived. The police apprehended defendant and the other man. On cross-examination, Beatrice stated that she did not witness the men taking the chain from her husband and that she was first alerted to the incident when she saw her husband fall and heard him screaming that the two running men had taken his chain.

Chicago police officer Steve Murphy testified that he was on routine patrol on Marine Drive when he was flagged down by a motorist. Following a brief conversation, he drove to a street where he was waved down by Beatrice Spear, who informed him that her husband had just been robbed by two men. She entered the car and pointed out Spears running westward. When they stopped, Spears entered the car and they proceeded to where Officer Murphy observed two men walking very rapidly northbound. Spears identified them as the men who had robbed him. Officer Murphy “cut these two men off” with the squad car and was able to stop and arrest the taller man, whom he identified as defendant. The other man went in another direction but was apprehended moments later by other officers. The chain was recovered from the area where Judy informed police she had seen defendant throw it.

Defendant asserts that even when viewed in the light most favorable to the State, the evidence established nothing more than his presence at the scene of the robbery, and that mere presence is insufficient to support a conviction under the law of accountability. He argues that there was no evidence that he “was acquainted” or had a “prior connection” with McFadden, that aside from walking together, he and McFadden were “interacting” prior to the robbery, that he said anything to McFadden or Spears before or during the robbery, or that he in any other way participated in it. Defendant maintains that his only actions in this incident were running from the scene and throwing away the chain that McFadden had handed him as they were running, both of which he did out of fear of being accused of participation in the robbery. He argues that this conduct, which occurred after the commission of the crime, does not render him legally accountable for the robbery itself.

A person is legally accountable for another’s criminal conduct when “[e]ither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” (Ill. Rev. Stat. 1989, ch. 38, par. 5—2(c).) Mere presence at the scene of a crime does not render an accused accountable for the offense. (People v. Gilbert (1990), 194 Ill. App. 3d 184, 550 N.E.2d 1183.) Nevertheless, “[active participation has never been a requirement for the imposition of criminal liability upon the theory of accountability” (People v. Reid (1990), 136 Ill. 2d 27, 61, 554 N.E.2d 174, 190); nor are words of agreement essential to show a common purpose to commit the unlawful conduct (People v. Reid, 136 Ill. 2d at 62). If the evidence shows that the person was present at the crime without disapproving or opposing it, the trier of fact may infer that he assented to the commission of the crime and thereby aided and abetted it (People v. Reid, 136 Ill. 2d at 62; People v. Tinoco (1989), 185 Ill. App. 3d 816, 541 N.E.2d 1198).

In addition to a defendant’s presence at the scene of the crime without any negative reaction to it, other factors raise inferences that an accused aided in its commission. (People v. Reid, 136 Ill. 2d at 61.) Some of those factors are: flight from the scene (People v. Dotson (1986), 143 Ill. App. 3d 135, 492 N.E.2d 903); continued association with the perpetrator after the criminal act; failure to report the incident (People v. Reid, 136 Ill. 2d at 62); acceptance of illegal proceeds from the actual perpetrator which the accused knew did not belong to that person (People v. Clayborn (1990), 194 Ill. App. 3d 1079, 551 N.E.2d 1050); and the subsequent concealment or destruction of evidence (People v. Ruiz (1982), 94 Ill. 2d 245, 447 N.E.2d 148; People v. Watts (1988), 170 Ill. App. 3d 815, 525 N.E.2d 233).

According to the testimony presented at trial in this case, defendant and McFadden approached Spears walking side by side. They simultaneously stopped directly in front of him as Spears was stepping off the path to allow them to pass. McFadden then grabbed Spears’ shoulder, demanded the chain and pulled it from Spears’ neck. Defendant did not say or do anything to intervene or otherwise express his disapproval or opposition to McFadden’s actions. The joint manner in which defendant and McFadden approached Spears and stopped in front of him, together with defendant’s failure to intervene or voice any opposition to McFadden’s actions, is sufficient to establish that he assented to and aided McFadden in the commission of the robbery.

Additionally, defendant does not deny that he and McFadden immediately fled from the scene, running together into the viaduct and onto the street beyond it with all three members of the Spears family in pursuit and calling for bystander assistance. It is also undisputed that at some point during their flight from the scene, McFadden gave defendant the gold chain taken in the robbery of Spears and that just before being apprehended by the police defendant threw it into some bushes. It has been stated that for purposes of determining legal accountability, the crime is not completed until the offender has escaped from the scene. People v. Johnson (1973), 55 Ill. 2d 62, 302 N.E.2d 20; People v. Gil (1984), 125 Ill. App. 3d 892, 466 N.E.2d 1205.

Thus, contrary to defendant’s characterization of his involvement as being solely in possession of proceeds from a fully concluded robbery in which he did not participate, the criminal conduct here was ongoing. Defendant was fleeing from the scene of a robbery, in which he acquiesced, with the proceeds of that robbery, which he disposed of immediately before his apprehension. As stated above, it is proper for the trier of fact to consider such conduct in determining defendant’s guilt under the theory of accountability. (See, e.g., People v. Clayborn, 194 Ill. App. 3d at 1082; People v. Dotson, 143 Ill. App. 3d at 142.) The record evidence before us was more than ample to prove defendant guilty of the robbery on the theory of accountability beyond a reasonable doubt.

We next consider defendant’s contention that he was denied his constitutional right to conflict-free counsel. He argues that the public defender was laboring under a conflict of interest which arose when, at defense counsel’s request, counsel’s supervisor advised McFadden concerning the implications of testifying at defendant’s trial.

The record shows that on the date trial commenced, defense counsel, Assistant Public Defender King, informed the court that defendant wanted codefendant, McFadden, who had pleaded guilty to the robbery, to testify on defendant’s behalf, but that McFadden refused to speak to King about the case. King requested that McFadden be brought back to the courthouse the following day, and that McFadden’s private defense attorney be advised that King might serve compulsory process on McFadden. King also expressed his belief that it might nevertheless be impossible to compel McFadden to testify. Defendant personally interjected his disagreement and requested that the court subpoena McFadden and, as will be discussed further below, to also appoint a bar association attorney to replace King. The court ordered that McFadden remain at the jail so as to be available to testify.

Later that afternoon King advised the court that McFadden had changed his mind and indicated he would testify. King again asked the court whether he should advise McFadden’s attorney of the situation. The trial court responded “certainly.” Trial then commenced, and after the State rested, King stated that he did not anticipate calling any witnesses. Defendant once again addressed the court personally, stating that he wanted McFadden to testify. King explained that it was his strategy decision not to call McFadden because his testimony would be “clearly detrimental to [defendant].” King explained that following his arrest, McFadden denied any involvement in the robbery but then entered a plea of guilty and a stipulation and agreement that both he and defendant had committed the robbery. In the conversation with King on the day of trial, however, McFadden once again asserted his innocence, maintaining that he pleaded guilty because he was afraid of a harsher sentence if he were tried and found guilty. Defense counsel opined that because McFadden made several statements “diametrically opposed to one another,” said anything that came to his mind, and was immature and unrealistic concerning the situation, he should not testify at defendant’s trial.

Defendant requested that McFadden be brought into court and asked if he wished to testify. While awaiting McFadden’s arrival, King advised the court that McFadden’s former attorney had been advised of McFadden’s possible testimony but the former attorney wanted no further involvement with McFadden. In response to questioning by the court, McFadden stated that he wanted to tell the truth but would not testify if doing so could hurt him, such as by causing him to “get *** more time on something.” McFadden was excused, following which King reiterated that even if McFadden had unequivocally expressed his desire to testify, he, King, would not call him as a witness for the previously explained reasons.

Defendant then accused King and another assistant public defender of “scaring” McFadden by telling him that by testifying he could receive additional prison time. King responded that since McFadden’s former attorney refused to counsel McFadden, and because he, King, felt it inappropriate to do so, he asked his supervisor to advise McFadden of his fifth amendment rights. King expressed his belief that McFadden would give perjured testimony, noting McFadden’s numerous conflicting statements, but stated that his supervisor merely “advised McFadden of his right, period.”

We see no conflict of interest in defense counsel King’s conduct or in the fact that he requested his supervisor to advise McFadden of his rights. First, King affirmatively stated to the court that his supervisor did nothing more than advise McFadden of his fifth amendment rights. Moreover, even assuming that McFadden was warned about the consequences of perjuring himself, we fail to see how that fact raises a conflict. Contrary to defendant’s argument that “the Office of the Public Defender was more concerned with the possibility of perjury charges against McFadden” than with “champion[ing] the interests of [defendant],” the record indicates that defense counsel was concerned about the detrimental effect on defendant’s case if McFadden gave perjured testimony. Counsel noted that the State would capitalize on McFadden’s prior inconsistent and conflicting statements to the police and his guilty plea, which included a stipulation of defendant’s involvement. We see no conflict of interest in defense counsel’s request that McFadden be advised of his constitutional rights; nor do we see anything in counsel’s conduct which conflicted with defendant’s best interests.

Although it is recognized that an accused has the ultimate authority to make decisions concerning whether or not to enter a plea of guilty, testify in his or her own behalf, waive the right to a jury trial, and appeal (Jones v. Barnes (1983), 463 U.S. 745, 77 L. Ed. 2d 987, 103 S. Ct. 3308; People v. Campbell (1984), 129 Ill. App. 3d 819, 473 N.E.2d 129; People v. Wilkerson (1984), 123 Ill. App. 3d 527, 463 N.E.2d 139; People v. Hunt (1981), 100 Ill. App. 3d 553, 426 N.E.2d 1268), it is also well settled that an attorney must take professional responsibility for the conduct of the case after consulting with his client. (Jones v. Barnes (1983), 463 U.S. at 753 n.6, 77 L. Ed. 2d at 995 n.6, 103 S. Ct. at 3314 n.6.) The attorney is the “manager” of the case (People v. Wilkerson, 123 Ill. App. 3d at 532), and, therefore, strategic and tactical decisions are within the exclusive province of trained counsel, who possesses the superior ability to make them (People v. Campbell, 129 Ill. App. 3d at 821). Decisions concerning whether to offer certain evidence or call particular witnesses who, in counsel’s judgment, may have a harmful effect on the defendant’s case are within the realm of trial strategy and ordinarily will not serve as a basis for a claim of ineffective assistance of counsel. People v. Barrow (1989), 133 Ill. 2d 226, 549 N.E.2d 240.

In the instant case, defense counsel was adamant that McFadden’s testimony would be detrimental to defendant’s case and stated for the record his reasons for that conclusion. (See People v. Hunt (1981), 100 Ill. App. 3d at 557.) After reviewing the record, we find no fault with counsel’s decision. Even if McFadden had testified that defendant was not involved in the robbery, as defendant apparently expected, we note again that cross-examination would unquestionably have brought out McFadden’s inconsistent and conflicting statements and his guilty plea in which he expressly inculpated defendant. The trial judge observed that “there is no question that if Mr. McFadden waives his fifth amendment right in the courtroom it would have a very negative impact upon the trial of [defendant].” Finally, notwithstanding defendant’s unsupported assertion that defense attorneys admonished McFadden not to testify, the fact remains that McFadden “vociferously,” in the trial court’s words, stated that he would not testify.

There is no indication in this record that defense counsel was laboring under a conflict of interest which served as a basis for his refusal to call McFadden as a witness. The decision was one of strategy based on counsel’s assessment of McFadden’s credibility and demeanor, and his reasoned opinion that McFadden’s testimony would be harmful to defendant’s case.

Defendant also contends that the trial court abused its discretion in denying his request, made on the morning of trial, for a continuance. Defendant argues that because defendant and defense counsel met to discuss his case for the first time that morning, counsel’s “lack of preparation made it impossible for him to adequately represent [defendant].”

Matters relating to continuances in criminal cases are addressed in section 114—4 of our criminal code. (Ill. Rev. Stat. 1989, ch. 38, par. 114—4.) That statute enumerates certain specific circumstances which may justify granting a defense motion for a continuance (Ill. Rev. Stat. 1989, ch. 38, par. 114—4(b)), but also requires a showing of diligence on the part of the movant (Ill. Rev. Stat. 1989, ch. 38, par. 114—4(e)). The decision whether to allow a continuance necessarily depends on the facts and circumstances surrounding each request (People v. Finklea (1989), 187 Ill. App. 3d 610, 543 N.E.2d 536), and rests within the sound discretion of the trial court (Ill. Rev. Stat. 1989, ch. 38, par. 114—4(e); People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453).

A conviction will not be reversed by a reviewing court because of the denial of a continuance, unless the denial resulted in prejudice to the defendant. The burden of establishing such prejudice is on the defendant. If the ground for the continuance was to enable counsel to prepare for trial, but the record shows that trial counsel nevertheless competently represented the defendant throughout trial, no abuse of discretion will be found. People v. Finklea, 187 Ill. App. 3d at 612.

Defendant asserts that a continuance should have been granted because defense counsel King was unprepared for trial. However, the record shows that the matter of a continuance was raised on the morning trial was to begin when defense counsel advised the court that McFadden would not speak to him about the case and that it might be impossible to force McFadden to testify. Defendant interjected his disagreement and requested that the court subpoena McFadden and appoint a bar association attorney in King’s stead because he and King were not “getting along on this case.” The court advised defendant that the case was ready for trial and that he viewed his request for a different attorney as a delaying tactic. Defendant replied “[w]e can go to trial then.” The court ordered that defendant be held in custody so as to consult with King over the lunch break and decide whether to proceed to trial or move for a continuance. Later that day, defense counsel advised the court that he had discussed the case with defendant for five hours but still felt it his responsibility to request a continuance for the purpose of allowing defendant to obtain counsel with whom he would “feel more comfortable.” The trial court indicated that trial would begin the next day. Defendant persisted in his request for appointment of a bar association attorney, which the trial court explained was a practice long ago discontinued in Cook County. The court further advised defendant that he was free to retain any lawyer he chose, as long as that lawyer appeared for trial the following morning.

Thus, the record establishes that the request by King for a continuance was based on defendant’s disagreement with King about trial strategy and personality differences, and not because King was unprepared. Further, we find nothing to support an assertion that King was unfamiliar with the case. The record reveals that King appeared to present a motion for a continuance by agreement approximately six weeks before trial, and, as noted above, spent at least five hours discussing the case with defendant the day before the case was tried. Additionally, a review of the entire trial transcript belies defendant’s assertion that defense counsel was unprepared for trial. That defendant was convicted was not due to lack of preparation, competency or advocacy by counsel on defendant’s behalf, but on the strength of the evidence against defendant. The trial court did not abuse its discretion in denying defendant’s motion for a continuance based upon his dissatisfaction with appointed counsel. See People v. Hall (1986), 114 Ill. 2d 376, 499 N.E.2d 1335; People v. Lewis (1988), 165 Ill. App. 3d 97, 518 N.E.2d 741.

Defendant’s final contention is that the State made certain inflammatory and prejudicial remarks and misstated the jury’s function and the law of accountability during closing argument. He asserts that these comments resulted in substantial prejudice and entitle him to a new trial.

Although defense counsel interposed several objections during the State’s case and its closing argument, no objections were made to the specific remarks challenged on appeal. Also, the motion for a new trial refers only to “prejudicial and erroneous statements *** designed to arouse the prejudice and passions of the jury” without specifying what the remarks were or in what manner they prejudiced him. Failure to object at trial to allegedly improper remarks made by the State or to raise those objections with reasonable specificity in a post-trial motion generally constitutes a waiver of any error on appeal (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124; People v. Smith (1985), 139 Ill. App. 3d 21, 486 N.E.2d 1347), unless the remarks were so egregious and prejudicial that they constituted a material factor in the defendant’s conviction or otherwise prevented him from receiving a fair trial. People v. Johnson (1986), 114 Ill. 2d 170, 499 N.E.2d 1355; People v. Lasley (1987), 158 Ill. App. 3d 614, 511 N.E.2d 661.

Defendant contends that the prosecutor attempted to arouse the jury’s antagonism and to incite racial prejudice against him by pointing out that defendant, who is African-American, lived on the south side of Chicago and that the crime occurred a substantial distance away from defendant’s home, in North Lincoln Park; and by stating that there was “no reason for him to be there except to cause trouble, to look for some victim.” The prosecutor concluded with the statement, “you decide whether to protect your streets, your community from [defendant].” Defendant maintains that the implication of this argument was that “a public park on the north side of Chicago is or should be off limits to a black man from the south side of Chicago,” and that urging the jury to protect “their” community was an appeal to the juror’s racial bias.

Very similar remarks were challenged in People v. McKay (1985), 138 Ill. App. 3d 446, 452, 485 N.E.2d 1257, where the defendant, an African-American, was convicted of a burglary in a distant western suburb of Chicago. In closing argument the prosecutor remarked:

“It’s clear from the evidence, *** the only inference that can be drawn is this man didn’t belong in that area.
You heard the testimony of where he lives. He doesn’t live in that area. He lives on the southside of Chicago.”

The court rejected the defendant’s contention that the prosecutor was attempting to arouse racial fear and animosity by arguing that African-American people did not belong in that suburb and, if there, their only purpose must be to commit a crime. The court found that the prosecutor simply noted that defendant, without any comment on his race, did not live in the area where the crime occurred and did not apparently have a valid reason to be in the area of the burglary on the evening in question, and that this was a proper comment on the facts presented. See also People v. Montague (1986), 149 Ill. App. 3d 332, 500 N.E.2d 592 (vague reference to witnesses from a certain section of the city did not contain any direct racial slurs and was a logical inference based on the evidence presented).

• 4 Like the court in McKay, we do not view the State’s remarks as an improper appeal to racial prejudice. The defense position was that defendant’s presence in the park with the person who committed the robbery was mere coincidence. The prosecutor attempted to counter that theory by pointing out that the particular park where the crime occurred was on the opposite side of the city from where defendant lived. Further, the State’s remarks that defendant was there to cause trouble and to look for some victim were reasonable inferences from the evidence presented.

Neither do we agree with defendant’s interpretation of the prosecutor’s reference to the protection of “your streets, your community from [defendant]” at the conclusion of argument as meaning the protection of “white neighborhoods” from African-American persons. The prosecutor commenced the opening argument by noting that everyone in the courtroom was from the “Chicago area,” that there were numerous recreational areas and activities throughout the city, and that all persons should have the freedom to enjoy these places and activities without fear. The prosecutor’s concluding statement was merely an extension of that theme. It is not improper for the State to comment unfavorably upon the defendant or to urge the fearless administration of the law. People v. Lasley, 158 Ill. App. 3d at 633.

People v. Nightengale (1988), 168 Ill. App. 3d 968, 523 N.E.2d 136, on which defendant relies, is clearly distinguishable. There are obvious differences between the egregious conduct and argument of counsel in Nightengale and that of the prosecutors in the case before us.

Defendant also argues that the State improperly misstated the function of the jury by aligning the jury with the State and its witnesses. Defendant challenges the prosecutor’s statements that “[the witnesses] had the courage to come in and testify for the same reason you are here and that is to see that justice is done.” Defendant has not cited, nor have we found, any case holding that it is a misstatement to say that the purpose of and one’s participation in a criminal trial is to seek justice. In People v. Smith (1990), 199 Ill. App. 3d 839, 557 N.E.2d 596, an argument that the victim depended upon the jury for justice was held to be a permissible urging of the fearless administration of justice. In People v. Emerson (1987), 122 Ill. 2d 411, 522 N.E.2d 1109, the prosecutor’s remark that he had the responsibility to seek justice was merely an explanation of the prosecutor’s function in the criminal justice system. In the case at bar, when the prosecutor’s statement is examined in context, the State’s remark was not focused on the function of the jury, but on the credibility of the witnesses.

Defendant also argues that the prosecutor improperly attempted to confuse the jurors regarding their role by telling them that “in this case you are the People of the State of Illinois.” Once again, no objection was made to this comment. We do not believe that this comment misled the jurors as to their function, on which they were adequately instructed, or that it was a perversion of the principle that a jury is a nonpartisan body. Rather, when considered in the context of the State’s argument in its entirety, we interpret it to be additional urging by the prosecutor that the jury fearlessly administer the law. See People v. Smith, 199 Ill. App. 3d at 855.

Defendant’s final claim of error is that the prosecutor misstated the law of accountability. Defendant argues that the State distorted the State’s burden of proof by incorrectly and prejudicially advising the jurors, through an erroneous analogy, that a person was accountable for the crime if he accepted any of the proceeds after its commission.

Although mere acceptance of the proceeds of a crime does not, standing alone, render a person accountable for the crime, knowing acceptance of stolen property is one of several factors which, as noted above, may be considered by the trier of fact as circumstantial evidence in determining whether defendant is guilty under the law of accountability. (E.g., People v. Clayborn (1989), 194 Ill. App. 3d at 1082.) We do not view the prosecutor’s argument as improper. Moreover, we note that both the prosecutor and defense counsel quoted the statutory definition of accountability, which refers to the defendant’s conduct “before or during the commission of an offense,” and the definition was repeated in the court’s formal instructions, which the jurors were advised they were obligated to follow. Consequently, any misstatements of law and potential prejudice therefrom were adequately cured by the arguments and the jury instruction correctly defining the law of accountability. See People v. Lasley, 158 Ill. App. 3d at 626.

For the reasons stated, defendant’s conviction is affirmed.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.


author: JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNY WALLS et al., Defendants-Appellants.
    First District (5th Division)
    Nos. 1—88—0920, 1—88—1097 cons.
    Opinion filed September 30, 1991.
    Modified opinion filed October 18, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Stephanie L. Ellbogen, Assistant Public Defender, of counsel), for appellant Johnny Walls.
    Michael J. Pelletier and Alan D. Goldberg, both of State Appellate Defender’s Office, of Chicago, for appellant Charles Byrd.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Gael O’Brien, and Veronica X. Calderon, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

Defendants Walls and Byrd were both charged with the murder of Beverly Hemphill (also known as Kimberly or Nookie) and the attempted murder of Monique Hill. (Ill. Rev. Stat. 1985, ch. 38, pars. 8—4, 9—1(a).) The defendants were tried together before a jury and found guilty on both charges. Walls was sentenced to consecutive terms of 35 and 15 years, and Byrd was sentenced to consecutive terms of 30 and 10 years. They both appeal their convictions and sentences, and this court has consolidated their appeals.

The facts of this case are tragic, not only because they tell a tale of how one young girl lost her life and another was seriously injured, but also because they reveal the stark reality of what life is like within the “Projects” of the Chicago Housing Authority. This case is but another reminder that housing for the poor in Chicago is entrenched with gangs which present a constant threat to the safety and well-being of all the residents and that awareness of the gangs and the various gang affiliations has become necessary for one’s very existence.

The evidence indicates that at about 4:30 p.m. on April 3, 1986, Monique Hill, who lived at 1159 North Cleveland, an apartment building within what is known as the “Cabrini Green” housing project of the Chicago Housing Authority, decided to go with her friend, Beverly, to visit their boyfriends at 502 West Oak, near the Cabrini Green Project. To go from Hill’s apartment building to the other apartment building required that the girls walk across a blacktop area known as “the field.” Apparently “the field” is a sort of no-man’s land located at the center of the Cabrini Green Project and bordered by the apartment buildings which are “controlled” by various rival gangs active within Cabrini Green.

As the girls walked across the field, accompanied by Monique’s sister Carmen, they noticed a group of approximately 10 young men playing basketball. Defendants Walls and Byrd were among the group, along with Aron Buckles and Greg Fleming. Buckles, Walls and Byrd were all known to be members of the gang known as the Black Gangster Disciples and, while Monique was apparently not a member of a gang, Beverly was known to be a member of a rival gang known as the Mickey Stone Queens, a female faction of the Cobra Stones. Due to these affiliations, Buckles began to verbally attack Beverly, telling her that she had no right to walk across the field. The girls then ran the rest of the way to 502 West Oak.

After their visit, at about 8:30 p.m. that same day, Monique and Beverly left their boyfriends’ apartment to return to Monique’s apartment. It was dark as Monique and Beverly began the walk back across the field. For this reason Monique could not identify the person she saw step away from the building at 1119 North Cleveland and fire five shots in their direction. All Monique knew was that she felt “something hot” under her right eye and then realized that she had been hit and was bleeding. Beverly called out that she too had been hit and told Monique to run for help as she fell to the ground.

Monique ran toward her apartment and came upon her sister Carmen and Carmen’s boyfriend Fred. They all got into a car and drove to the place where Beverly lay unconscious. Then Carmen and Fred drove Monique and Beverly to Henrotin Hospital. Beverly, who was 15 years old at the time, died from a gunshot wound to her chest. Monique, who was also 15 years old, suffered a gunshot wound to her right cheek, which required surgery and plastic surgery. At the time of trial a two-inch scar was still visible under her right eye.

Shortly after the shooting took place, Officers Virgil Jones and Merle Brown, both assigned to the Public Housing Unit of the Chicago police department working within Cabrini Green, responded to a police radio message regarding shots fired at 1119 North Cleveland. They proceeded to that location and walked to the back of the building. There they had a conversation with a person who was known to the officers and who had supplied them with reliable information in the past. This unidentified informant disclosed that he had not seen the actual shooting, but that just after hearing the shots he observed Gregory Fleming and Johnny Walls run up the stairs of the building at 1117 North Cleveland. Based on this information, the officers proceeded to Fleming’s apartment, number 706, in the building at 1117 North Cleveland. They were permitted entry into the residence by Fleming’s mother and shown to a rear bedroom where Fleming and Walls were located.

What happened next is subject to dispute and, consequently, a more detailed accounting will be given later in this opinion. However, for the sake of brevity, let it suffice to say that there was evidence that the officers knocked at the bedroom door and that Fleming opened it, that both Fleming and Walls were in the room, undressed, with Walls lying on a small bed and their clothes lying in a heap on the floor. Officer Jones, who knew both Fleming and Walls and was aware of their gang affiliations, informed them that there had just been a shooting outside the building and that they had been seen running upstairs after the incident. Officer Jones then asked them what they knew about the shooting.

Despite the fact that both Fleming and Walls claimed that they knew nothing about the shooting, they were asked to accompany the officers to the station at 365 West Oak for further questioning. They were allowed to dress and were taken downstairs to the officers’ police car, patted down for weapons and then transported to 365 West Oak, the Public Housing Unit station. They were later transported to Area 6 Violent Crimes Unit at Western and Belmont.

Throughout the night the police continued their investigation of the shooting, at the scene as well as at the hospital and at Area 6. Several possible witnesses, in addition to Walls and Fleming, were taken to Area 6 for questioning. Walls and Fleming were each interviewed, individually, around midnight and two or three times during the early morning hours. They remained at the station although they both continued to deny any knowledge of the incident. Then, around 9 o’clock the following morning, when Detective O’Brien confronted Fleming with information they had received through their investigation, Fleming informed the police that Walls had fired the gun that shot the girls.

Based upon this and other statements received from various witnesses, Walls was formally placed under arrest on the afternoon of April 4, 1986. After his arrest he made certain admissions concerning the shooting.

In the course of their investigation the police were also told that Charles Byrd gave a gun to Walls just prior to the shooting. For this reason, on April 4, 1986, Officer Dennis Davis and his partner drove to Byrd’s residence and questioned him concerning the shooting. Byrd denied any involvement in the shooting, but admitted that he knew the whereabouts of the gun and accompanied the officers to his grandmother’s residence, where a gun was recovered. After assisting in the retrieval of the gun, Byrd was questioned at Area 6 and then released. Byrd made additional statements to the police on April 17, 1986, but was not arrested for his role in the shooting until May 5, 1986. Subsequently, both Walls and Byrd were named in an indictment for the murder of Beverly Hemphill and the attempted murder of Monique Hill.

Prior to trial Walls filed a motion to quash his arrest and suppress the statements he made subsequent to his arrest. The motion was denied. Walls also moved for severance, citing the confrontation clause and potentially antagonistic defenses as reasons to grant the motion. The trial court, however, denied the motion and the defendants were tried jointly.

As stated earlier, both Walls and Byrd were found guilty as charged and sentenced to consecutive terms. They now appeal, both raising the following issues: (1) whether the State failed to rebut the prima facie showing that it had utilized its peremptory challenges of prospective jurors in a racially discriminatory manner, contrary to the so-called Batson rule (see Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712) and whether the trial judge erred by failing to assess the legitimacy of the State’s asserted reasons for exercising its peremptory challenges once it found that a prima facie showing of discrimination had been made, (2) whether the trial court erred by refusing to instruct the jury concerning accomplice testimony, and (3) whether it was proper to have sentenced defendants to consecutive, rather than concurrent, sentences. Walls raises two additional issues: (1) whether the trial court erred by denying his motion to quash his arrest and suppress his statements, and (2) whether the trial court erred in denying his motion for severance. Since the Batson issue affects both appeals, this court will direct its opinion first to that issue.

Peremptory challenges have long been a part of Illinois and American procedural law. Typically, through the exercise of such challenges, an attorney is able to preclude a certain number of prospective jurors from sitting on the jury without providing a reason or explanation for such action. (See Batson v. Kentucky, 476 U.S. at 119-22, 90 L. Ed. 2d at 102-04, 106 S. Ct. at 1735-36 (Burger, C.J., dissenting).) In Batson v. Kentucky the United States Supreme Court changed this practice in certain instances. Relying on Federal constitutional principles, the Batson Court placed its first limitation on the use of peremptory challenges in the jury selection process, ruling that peremptory challenges could not be used to discriminate against venirepersons based on race. The basis for such a rule is the defendant’s right to a trial by his peers, the prospective juror’s right to participate on the jury, and the damage that such discriminatory procedures have on the community as a whole. See Batson, 476 U.S. at 86-87, 90 L. Ed. 2d at 80-81, 106 S. Ct. at 1717-18.

To effectuate its ruling, the Court placed upon trial courts the duty to conduct a three-step analysis whenever a defendant objects to the prosecutor’s use of peremptories alleging that discrimination motivated the challenges. (Hernandez v. New York (1991), 500 U.S. _, 114 L. Ed. 2d 395, 111 S. Ct. 1859.) In the first step of this analysis, the trial court must determine whether the defendant made out a prima facie showing that the prosecutor utilized his peremptory challenges in a purposefully discriminatory manner. (People v. Mahaffey (1989), 128 Ill. 2d 388, 412, 539 N.E.2d 1172.) For a prima facie showing, the defense must initially show that the State used peremptory challenges to remove from the venire persons who are of the same race as the defendant. However, this alone is insufficient. The defense must also come forth with “other relevant circumstances” that would tend to support a finding that discrimination was the reason that a juror was challenged. People v. Henderson (1990), 142 Ill. 2d 258, 284, 568 N.E.2d 1234.

Only when the trial court determines that a prima facie showing has been established may it move on to the second step of the analysis, where it becomes the prosecutor’s duty to provide his rationale for having challenged the prospective jurors for whom the defense has raised a question. At this point the trial court has the obligation to assess the explanations given to determine whether it appears that the State has set forth legitimate, race-neutral, case-specific reasons to rebut the inference of discrimination or whether, after considering all the relevant circumstances including the explanations, an inference of racial discrimination persists. People v. Hope (1990), 137 Ill. 2d 430, 454, 560 N.E.2d 849.

• 3 Previously, our Illinois Supreme Court, cautioning against “collapsing” the three-step analysis (see People v. Hope, 137 Ill. 2d at 456-57), held that when reviewing a Batson claim a prima facie case could not be presumed from the mere fact that a circuit court invited the State to provide an explanation for the peremptory challenges used. (People v. Garrett (1990), 139 Ill. 2d 189, 564 N.E.2d 784.) Consequently, courts of review were often called upon to consider, on appeal, whether a prima facie case had been established, even after the State was asked to provide its reasons for utilizing peremptory challenges. However, in the recent United States Supreme Court opinion, Hernandez v. New York (1991), 500 U.S. _, 114 L. Ed. 2d 395, 111 S. Ct. 1859, the Court held that “once a prosecutor has offered a race neutral explanation for using the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.”

Furthermore, while courts of review may still be asked to determine the correctness of the trial court’s decision on the ultimate issue of whether a Batson violation has occurred, in light of Hernandez they should not make an independent review of a trial court’s rejection of a Batson claim, but rather, may only overturn a trial court’s finding on the issue of discrimination if it is clearly erroneous. (People v. Johnson (1991), 218 Ill. App. 3d 967.) A trial judge’s findings, because they constitute a credibility determination, must be given great deference. (Batson, 476 U.S. at 98 n.21, 90 L. Ed. 2d at 89 n.21, 106 S. Ct. at 1724 n.21; People v. Harris (1989), 129 Ill. 2d 123, 175, 544 N.E.2d 357.) Nevertheless, if a reviewing court finds that peremptory challenges were used in a discriminatory manner, it is an error of constitutional proportions, requiring reversal no matter how heinous the crime nor how guilty the defendant. People v. McDonald (1988), 125 Ill. 2d 182, 200, 530 N.E.2d 1351.

' In the present case, both defendants are black. During voir dire of the venire the prosecutor peremptorily challenged four prospective black jurors. Immediately defense counsel moved for mistrial, asserting that the State violated Batson by utilizing its peremptory challenges in a racially discriminatory manner. The defense noted that four out of the six jurors challenged by the State were black and that all but one black prospective juror had been excluded by the State.

In response to the motion the trial court stated:

“Based on Batson address [sic], I think, 4 out of 6 blacks is prima facie.”

The trial court then asked the prosecutors to “make some kind of record,” soliciting from the prosecutors their reasons for excusing the four black prospective jurors. The State did not concede that a prima facie case had been made, but proceeded to provide the court with its reasons for excluding the four black jurors. The court then ruled against the defendants’ motion for mistrial, stating:

“Well, I’ve read Batson a couple of times. I’ve only had— this is only the second time the motion has been made when I’ve been a Judge. But it seems in their wisdom, the Court hasn’t really given us any guidelines other than the — thus it appears to be that if the State appears to be moving black jurors off the panel, just because their [sic] black, when there are black defendants, as we have here, that its my obligation to see that the defendants receive a fair trial. And attempt to, as best I can, if I think it is appropriate, to have a hearing.
And I did it based on the numbers as opposed to anything more specific than that. ***
In any event, the State has given me reasons for what they wanted to do. I can’t say that I agree or disagree with those reasons, because I’m not the trial attorney and I haven’t conducted their examination with a view toward what I believe are jurors who would be apropos to my cause. Since I’m suppose to be in — attempting to remain neutral, I look at the jurors to see whether or not I believe they would be neutral jurors and not one sided.
So, it is inappropriate for me at this point, not having viewed the jurors with that in mind to now sit back and try to make a decision as to what I would do were I the trial attorney, to see whether or not the State’s reasoning is reasons I might have, were I to be State’s Attorney, which is as I think, what Mr. Hynes and Mr. Hennelly [the prosecutors] have put in the record.
And, of course, the defense was saying, well, that’s all baloney they’re doing it for other reasons. But, of course, they wouldn’t have made the motion, if they were going to agree those people shouldn’t have been jurors.
And so, I think, that the — unless I see something more, all the — of the reasons which are stated, are reasons which may be appropriate. The Appellate Court wants me to have a hearing, where we put the State under oath and decide whether or not they’re telling the truth about this, I suppose, that’s what we have to go to.
But at this point, I don’t see anything in the record which indicates from the reasons that were given, that these people could not have been excluded for good trial tactic. And for reasons other than race.
And I might add that we have had all those decisions about people for cause to be taken off the jury and when they weren’t dismissed for cause, attorneys on both sides excused them for peremptory reasons. And those are all done for trial tactic reasons and for gut feeling and all those reasons that lawyer’s [sic] exercise peremptories.
I’m not convinced there is bad faith, and I’m going to deny the motion.”

The defendants appeal, contending that the State failed to rebut the prima facie showing of discrimination in utilizing its peremptory challenges and that the trial court failed to properly implement the Batson ruling by refusing to hold the State to its burden of producing specific, race-neutral reasons for its challenges and by refusing to assess the legitimacy of the reasons that were proffered by the State.

The State argues that defendants made no prima facie showing of purposeful discrimination despite the trial court’s ruling that they had, but that, in the event that this court should find that a prima facie case had been made, the trial court properly determined that there had been no purposeful discrimination in the exercise of peremptories.

It may be true, as the State contends, that the trial court erred by deciding the preliminary question of whether a prima facie case of discrimination had been established based solely on the number of black potential jurors excluded. However, this is not to say that we find that the trial court erred in finding that a prima facie case was shown. Nor must we reach this issue since, based on the recent Hernandez decision, whether a prima facie case had been established became moot once the trial court heard the State’s proffered explanations and ruled on the ultimate issue of discrimination. Therefore, we need only consider whether the trial court erred in rejecting the defendants’ Batson claim.

As already stated, defendants argue that the State failed to give race-neutral reasons for challenging the four potential black jurors. We agree.

Despite the fact that the Batson case was decided over five years ago, with an army of appellate and supreme court decisions interpreting and applying it, prosecutors, it seems, continue to exclude Afro-American jurors without giving race-neutral reasons for exercising their challenges, thereby adding to the tremendous expense of criminal litigation. Part of the problem has stemmed from the fact that no supreme or appellate court has provided a definitive determination as to what is, in fact, a race-neutral reason for excluding a prospective juror but, instead, has left it to the discretion of trial courts to be decided on a case-by-case basis. But the fact remains that prosecutors have often been unable to articulate reasonable explanations for excluding members of a defendant’s race and thereby have jeopardized the entire prosecution. Such is the case here.

There were five black individuals on the venire and the State challenged four of these prospective jurors. In only one case, i.e., where the juror stated that she was “scared to death” of being on a jury, did the State make a challenge for cause. In all other instances the State utilized its peremptories to exclude the prospective black jurors. Upon request by the trial court, the State provided facially neutral reasons for those challenges. However, upon closer scrutiny and when examining the reasons given in the context of the venire involved in the case, it is apparent that the reasons given were merely pretextual.

For example, the State indicated that one potential juror was challenged because she was an unmarried mother of children who were about the same age as the defendants and because she indicated that she was affiliated with the organization known as the Eastern Star. However, there were several other jurors, both male and female, who were accepted by the State, despite the fact that they were parents of children having approximately the same age as the defendants. More importantly, there was no indication from any of the jurors that their parental status would make them biased against the State since the victims were also teenagers. Therefore, the State clearly did not provide a legitimate explanation by citing the parental status of one black juror.

We are also unpersuaded that the companion reason given, i.e., the juror’s membership in the Eastern Star, was a legitimate race-neutral reason since the record shows that the prosecutor was not even aware of the nature of this organization. The prosecutor indicated that he believed it to be a religious affiliation so that the juror’s membership in this group indicated strong religious beliefs. However, the prosecutor never questioned the juror about the organization to determine its true nature (it is the female affiliate of the Freemasons) nor did the prosecutor question that juror or any of the other prospective jurors concerning their religious beliefs.

With regard to the second black juror excluded, a 20-year-old black woman, the State alleged that it excluded her because her age was close to that of the defendants and because she allegedly “stared at” the defendants. However, the State accepted two white males, ages 22 and 24, who might have been more likely to identify with the defendants. In fact, if anything, this juror might have been more inclined to be against the defendants since the victims were young girls. Nor should the fact that she looked at the defendants, an action which neither the court nor the defense attorneys noticed, disqualify someone from serving on the jury.

The reason given for excluding the last black juror was that she resided in the vicinity of another “highly-publicized” gang-related incident in which the prosecutor had been involved and because her husband worked for a company where the prosecutor had many friends. However, the State gave no indication of how or why either of these two factors, even if true, caused it to believe that the juror would have been biased or detrimental to its case in any way. For this reason we must find such explanation untenable.

Even though our review is limited to a determination of whether the trial court’s decision was clearly erroneous, and despite the deferential standard to be applied, we feel compelled to conclude that in this case a mistake has been made. We find that the trial court erred, to the extent that it assessed the State’s reasons at all, in finding that no discriminatory intent remained after the State proffered its rationale for excluding three of the five black venirepersons.

We also agree with the defendants that the trial court abdicated its duty to assess the State’s reasons to determine whether they were pretextual. The excerpt from the trial court’s ruling indicates that the trial court was either unaware of or unwilling to fulfill its obligation to evaluate the State’s exercise of its peremptory challenges. Although we may understand the trial court’s reluctance to second-guess the State since prior to Batson there were no restrictions on the prosecutor’s right to utilize peremptories for no reason at all, both the trial courts and reviewing courts must attempt to make a meaningful assessment of the State’s reasoning for challenging certain prospective jurors if the Batson decision is to be followed in practice and not just theory.

For the reasons cited above, we reverse the trial court’s ruling with respect to the Batson claim and remand both cases to the trial court so that new trials may be had.

Ordinarily, the fact that this court has concluded that both defendants are entitled to new trials would alleviate the need to address the remaining issues raised by the defendants. However, because Walls contends that he is entitled to an outright reversal of his conviction because the trial court erred by denying his motion to quash his arrest and suppress the statements he made subsequent to his arrest, we shall address this question.

Walls testified both at the suppression hearing and at trial. Since testimony adduced at trial may be considered when reviewing the propriety of a trial court’s ruling on motions of this sort (People v. Redd, 135 Ill. 2d 252, 289, 553 N.E.2d 316), we shall consider Walls’ testimony from both proceedings.

Walls testified that on April 3, 1986, he was 17 years old and that during the evening he had been walking around in the area of Cabrini Green with some friends, until about 7:30 p.m., when he entered the building at 1117 North Cleveland accompanied by Gregory Fleming. While waiting for the elevator, they heard the sound of shots being fired and then ran up the stairs. They first went to the “candy store” at apartment 1204 and then to Fleming’s apartment on the seventh floor, where they began watching TV in Fleming’s bedroom. About 25 minutes later, they heard a knock on the bedroom door and found that there were two police officers there to see them.

Walls claimed that the officers accused him and Fleming of being responsible for the shooting and then demanded that they go with them to the police station. Walls also claimed that they were searched and handcuffed before being placed in the police car and transported to the station at 365 Oak Street. At the Oak Street station, he and Fleming were kept handcuffed and placed in separate rooms. About an hour later they were transported to Belmont and Western, fingerprinted, and again placed in separate interview rooms, which were about 15 feet by 15 feet in size.

Although he stated that he was not handcuffed in this room, he was required to remain there for about 40 minutes before Detective Rothgeb came to question him. Then, when he told the detective that he knew nothing about the shooting, he was not told that he could leave. Instead, he was kept in the room throughout the night and interviewed two or three more times during that time, even though he continued to maintain that he knew nothing about the shooting.

Walls further testified that the following morning he was questioned by two other detectives. In the first interview he told the detectives that he knew nothing about the shooting. In response the detectives threatened to “bounce him off the wall like a racquetball” and then left the room. Forty-five minutes later the detectives returned and Walls told them that he had heard “on the street” that Ryan Butler had done the shooting. After making this statement, he claimed that he was taken to a different interview room and “slammed” against a wall and hit on the head two or three times. He was then returned to the first interview room and was not spoken to again until 4:30 p.m., at which time he again told the detectives that Ryan Butler was responsible for the shooting. At this interview he also admitted that he had been present, in front of the building at 1119 North Cleveland along with Gregory Fleming, Charles Byrd and Ryan Butler, when Butler pulled out a gun and fired shots in the direction of some “dudes.”

According to Walls, sometime after making this last statement, an assistant State’s Attorney came to speak with him and he repeated the same story. However, detectives then told him that Byrd, Fleming and Butler were accusing him of the shooting, so he gave a statement in which he confessed to firing the gun. This confession was later correctly recorded by a court reporter and signed by Walls.

In his appeal, Walls contends that he was “under arrest” from the time he was taken from Fleming’s apartment or that, if he Wasn’t arrested initially, he was illegally detained, without probable cause, for an excessive period of time. In either event, he argues that his subsequent statements to the police should be suppressed as the fruit of his illegal arrest and detention.

Despite the fact that arrest without probable cause has been considered illegal in Anglo-American jurisprudence since the adoption of the Magna Carta in 1215 A.D., such arrests seem almost commonplace in Cook County, if the number of appeals involving the issue is any criterion. Furthermore, the State’s response to such appeals is generally the same — consent. However, given the circumstances, we often find such explanations disingenuous. Such is the case here.

Even if we were to discount much of what defendant states, it cannot be denied, and the State admits, that there was no probable cause to arrest Walls when he was taken to the police station on the evening of April 3 or when he was kept in a small interview room overnight without a bed, despite his repeated statements that he knew nothing about the shooting. Still, the State argues that Walls was not illegally arrested. It contends that it was proper for the trial court to have found that Walls freely consented to accompany the officers to the police station for questioning and that he remained there voluntarily until the next morning, at which time Gregory Fleming implicated him and he was arrested with probable cause. Alternatively, the State argues that Walls’ confession need not be suppressed, despite the illegal seizure, because his statements were sufficiently purged from the taint of the illegal arrest by intervening attenuating circumstances.

The “accepted test” of whether a person should be deemed “arrested” for purposes of the fourth amendment is whether a reasonable person in defendant’s shoes would have believed himself arrested. (Hicks v. United States (D.C. Cir. 1967), 382 F.2d 158; People v. Wipfler (1977), 68 Ill. 2d 158, 368 N.E.2d 870.) In the present case, Walls was aware that the police officers reasonably believed, because of information received from an informant, that he was at least a possible witness to the shooting incident, although he was not necessarily a suspect nor was he the focus of their investigation. The fact that officers drove Walls to the police station does not automatically require a finding that he was in custody at the time. People v. Gorman (1991), 207 Ill. App. 3d 461, 565 N.E.2d 1349.

It is of some significance that Walls was not singled out to be taken to the police station for questioning, but rather was accompanied by his friend Fleming. Furthermore, there were several other people at the station house for questioning about the incident, a circumstance of which Walls was apparently aware. These facts militate against a finding that defendant was “under arrest” at the time that he was taken from Fleming’s apartment. (See People v. Redd, 135 Ill. 2d at 290.) For this reason, we do not feel that Walls was under arrest at the time that he was initially brought to the police station.

However, a finding that Walls was not initially under arrest should not be the end of the inquiry, since a legal arrest may become an illegal detention with the passage of time. (People v. Booker (1991), 209 Ill. App. 3d 384, 568 N.E.2d 211; People v. Sturdivant (1981), 99 Ill. App. 3d 370, 425 N.E.2d 1046.) It would appear from the evidence available to this court that the circumstances in this case are nearly identical to the circumstances in People v. Young (1990), 206 Ill. App. 3d 789, 564 N.E.2d 1254, wherein this court found it less than credible that a defendant would freely choose to remain in a small interrogation room at the police station overnight, sleeping on the floor, when he had already been questioned by the police and denied any knowledge of the incident being investigated. Here, too, we believe that the State failed to carry its heavy burden in demonstrating that a teenager’s stay in the police station overnight was voluntary.

We are not unsympathetic to the plight of the police in investigating crimes of this sort. Yet we cannot condone the infringement of constitutional rights and find it difficult to believe, as the State must necessarily contend, that citizens typically agree to spend extended periods of time at police stations, kept in small windowless rooms, waiting for the police to conduct their investigations and obtain probable cause for their arrest. (See also People v. Gordon (1990), 198 Ill. App. 3d 791, 556 N.E.2d 573.) For this reason, we must find that the trial court’s ruling was manifestly erroneous and that defendant was illegally detained without probable cause.

Nevertheless, as noted in the cases of Booker and Young, cited above, a finding that defendant’s detention was unlawful does not automatically require the suppression of statements made subsequently. Unless the confession is shown to be the product of the illegal detention or obtained as a result of the “exploitation of the illegal arrest,” the statement may be deemed purged of the original taint and need not be suppressed. (Booker, 209 Ill. App. 3d at 395, Young, 206 Ill. App. 3d at 803.) The question is whether there were sufficient attenuating circumstances to allow the court to find that the confession was “ ‘sufficiently an act of free will to purge the primary taint of the unlawful invasion.’ ” People v. White (1987), 117 Ill. 2d 194, 222, 512 N.E.2d 677, quoting Wong Sun v. United States (1963), 371 U.S. 471, 486, 9 L. Ed. 2d 441, 454, 83 S. Ct. 407, 416-17.

We believe that the record contains some support for a finding that Walls’ confession was not a product of his detention, but rather, resulted from the fact that he had been confronted by the police with the statements of other witnesses who had implicated him as the shooter. (See People v. Franklin (1987), 115 Ill. 2d 328, 504 N.E.2d 80 (confrontation with inculpatory evidence may be sufficient attenuation to purge taint of illegal arrest).) However, because the trial court found that the arrest was legal and it did not consider whether sufficient attenuating circumstances existed to break the causal connection between the arrest and the confession and because the record does not appear sufficiently clear for us to make an independent ruling on this matter, we leave it to the trial court to determine this issue.

Consequently, although a new trial has been ordered for both defendants, we are unable to determine the admissibility of Walls’ inculpatory statements. The trial court may determine, on remand, whether there were sufficient attenuating circumstances to purge the taint of the illegal detention from the subsequent statements so that they may used in the new trial.

However, whether or not the trial court determines that Walls’ confession was tainted “fruit,” outright reversal would not be warranted, since there appears to be adequate evidence to permit a fact finder to find Walls guilty beyond a reasonable doubt, even without his confession.

For the reasons stated above, the convictions and sentences entered against defendants Walls and Byrd are hereby reversed and the cases remanded for further proceedings consistent with this opinion.

Reversed and remanded.

LORENZ, P.J., and GORDON, J., concur.

      Defendants do not contend that the State’s peremptory challenge of this juror was racially motivated, and thus, we shall be concerned only with the challenges of the other three black prospective jurors.