author: JUSTICE BOWMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ONDREA EDGESTON, Defendant-Appellant.
    Second District
    No. 2—91—0679
    Opinion filed March 29, 1993.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Charles M. Schiedel and Jon E. McPhee, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

Defendant, Ondrea Edgeston, was charged by indictment with first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1) and attempted murder (Ill. Rev. Stat. 1989, ch. 38, par. 8 — 4(a)). A jury acquitted him of the attempted murder charge but convicted him of first degree murder, and the court sentenced him to 60 years in prison. On appeal defendant challenges the sufficiency of the evidence against him and alleges ineffective assistance of trial counsel.

On March 10, 1990, around 1:30 a.m., Charlotte Meyers heard someone knock at her front door. The knocking grew louder until it sounded like someone kicking the door. Moments after telling her son to call the police, Meyers heard a gunshot which sounded like it was just outside the front door. Police arrived about 10 minutes later.

At 2 a.m. a Rockford fire department dispatcher received an emergency call from Claire Constantine, who said she had been shot. Constantine told the officer who responded to the call that she had awakened to find two masked men in her home. One of them shot her, and they fled. Constantine died a short time later from a gunshot wound.

Shortly before 3 a.m. a Winnebago County deputy sheriff responded to a possible burglary call on Fitzgerald Road, about a mile from the Constantine residence. He found Brian DuBrock on the back porch of a house, bleeding from a gunshot wound in the left shoulder.

Around 4 a.m. Rockford police responded to a call at 1116 Irving. There they found Forest King lying in the first-floor hallway. King had been shot but was able to tell the officers that the name of his assailant was “Ondrea Edgeston.” Shortly thereafter, acting on an anonymous phone-tip, the police found defendant and Ricky Sullivan in an apartment at the 1116 Irving address. Defendant was taken into custody, and Sullivan was arrested a short while afterwards.

Later that morning witnesses found one newly spent shotgun shell on Fitzgerald Road and another near the garage at the home where Brian DuBrock had been found bleeding. Charlotte Meyers found a key, shotgun wadding, and a swatch of black cloth near a five-inch circular bum containing pellet marks which had been made in her porch.

Defendant told police Sullivan had shot King. One of the detectives, however, noticed what appeared to be blood on defendant’s coat. Later that day Officer Rice told defendant that the police believed he, rather than Sullivan, had shot King; that the blood on his coat was from the victim; and that he knew where the gun was. Defendant then told Rice the gun was under some brash in an alley across from Auburn Manor Apartments. The police later found a single-barrel, sawed-off shotgun at the location defendant had described.

When police told him they knew there was another shooting, defendant indicated that he and Sullivan had been driving in a car and picked up a man walking down the road. Sullivan had demanded the man’s money and then shot him as he tried to escape from the car. When asked if Sullivan had shot “the lady” too, defendant responded affirmatively and indicated that he had waited outside while Sullivan went into the lady’s house. Detectives Rice and Pobjecky then typed defendant’s statement. When later confronted with Sullivan's statement that defendant had been in the house with him when Claire Constantine was shot, defendant admitted he was there but maintained that he had not shot the victim.

Defendant and Richard Sullivan were subsequently charged with the murder of Claire Constantine and the attempted murder of Brian DuBrock. (Apparently, charges arising from the murder of Forest King were brought separately and are not pertinent to this appeal.) The indictment alleged that the defendants killed Constantine while committing the forcible felony of burglary at Constantine’s home. No other form of murder was charged.

At trial the prosecution read to the jury defendant’s statement to Detectives Rice and Pobjecky. Rice then testified regarding admissions made by defendant after the typed confession was taken. Defendant told him that he had obtained the shotgun from his sister’s boyfriend and that Sullivan shot Constantine as she came down the hall towards him and Sullivan. Defendant also told Rice the location of a dumpster where he and Sullivan had placed the pants they wore at the time of the shootings. The pants were later retrieved from the dumpster.

Other trial testimony revealed that defendant and Sullivan were at the Manhattan Club a few hours before the shootings. They met Mark Cox, who lived with defendant’s sister and her boyfriend, Antoine Goodwin. According to Cox, defendant asked Cox if he could use a sawed-off shotgun that Cox and Goodwin kept at their apartment. Cox agreed to supply defendant and Sullivan with a gun and phoned Goodwin to tell him defendant was coming over to get the weapon. Defendant and Sullivan left the Manhattan Club together around 12:30 or 1 a.m.

Defendant and Sullivan arrived at Goodwin’s apartment 5 or 10 minutes after Goodwin spoke with Cox. According to Goodwin’s testimony, Cox had told him there was going to be trouble at the Manhattan Club and he needed a gun. Goodwin placed the shotgun and some shells in a gym bag and gave the bag to defendant. At that time defendant was at the apartment for only two or three minutes, just long enough to pick up the gun. However, around 3 a.m. that morning defendant and Sullivan again came to Goodwin’s apartment, arriving in a small tan or beige car. Goodwin testified that he did not know if “it was an Escort or what.” Both defendant and Sullivan had blood on their pants. When Goodwin asked what happened, Sullivan responded that “[s]he woke up and I just started blasting.” Goodwin told the two men they had to leave.

Additional testimony about the night of the shootings, and evidence gathered afterwards, completed the State’s case against defendant. Barbara Cox, Sullivan’s girlfriend, testified that Sullivan was with her, at her home, the evening before the shootings. Around 10:30 defendant telephoned and spoke with Sullivan. Shortly after-wards, Sullivan left in Barbara Cox’s tan Omni. He did not return the car. Brian DuBrock remembered that he was walking toward his home on Fitzgerald Road when two black men in a car stopped and asked him if he needed a ride. He heard them ask for his wallet. The next thing he recalled was getting shot. He guessed that Sullivan, the guy with “kinky hair,” had shot him. DuBrock’s driver’s license was found in the glove box of the car Sullivan and defendant had used the night of the shootings. The key Charlotte Meyers found on her front porch worked the lock of the glove compartment of the Omni. Finally, the fibers in the piece of black cloth found on Meyers’ porch were consistent with the fabric of the jeans Sullivan had discarded in the dumpster the morning of the shootings.

Defendant testified in his own behalf. He had become reacquainted with Sullivan, who had only recently been released from prison, one or two days before the shootings. During that time defendant and Sullivan visited with each other and with defendant’s brother, sister, and other friends. The evening before the shooting incidents, at defendant’s invitation, Sullivan picked up defendant and two girls and drove to the Manhattan Club. Sullivan was driving Barbara Cox’s Omni.

At the Manhattan Club defendant and Sullivan drank beer and whiskey. Sullivan told defendant to come with him “to make some money,” meaning to do a burglary. At first defendant ignored Sullivan because he did not want to go with him. They then saw Mark Cox. Contrary to Cox’s testimony that defendant asked about the gun, defendant testified that Sullivan told Cox he needed a gun, and Cox made the call to Antoine Goodwin. Defendant went into Goodwin’s apartment to get the gun while Sullivan waited in the car. Defendant then returned to the car and handed the gym bag containing the gun to Sullivan, who placed it on the back floor of the car. Defendant, who was feeling drunk, fell asleep as they were riding in the car.

Defendant next testified essentially that, at Sullivan’s direction, he followed Sullivan into Constantine’s house. He followed because he was scared Sullivan might hurt him, and he did not want to get Sullivan upset. Once inside the house defendant started to dismantle a stereo set. However, he heard a scream so he dropped the stereo and started running. As he was going out the door he heard a gunshot. Back in the car, Sullivan told him that he had not shot anybody. According to defendant, he did not know Constantine had been shot until the police asked him if he had done it.

About half an hour later Sullivan stopped for a hitchhiker. The man got in the backseat behind Sullivan. Shortly thereafter Sullivan pulled the car over, pointed the gun at the man, and demanded his money. When the man tried to get out the back door of the car, Sullivan shot him. The man ran away screaming. Defendant said nothing to Sullivan, as he was scared. Defendant did not take the man’s billfold or driver’s license from him, did not see Sullivan do so, and did not know how any of DuBrock’s personal property got into the Omni. When asked why he did not try to get out of the car and leave when he saw Sullivan pointing the gun at DuBrock, defendant said he was scared Sullivan might hurt him, and he did not know where he was or how far he was from home.

On cross-examination defendant admitted that, although he knew Sullivan was a bad person, he had not been afraid to invite him to visit with his brother and sister. Defendant explained that Sullivan was a friend of defendant’s brother and used to like defendant’s sister, and he had wanted to see both of them. Defendant was not afraid, either, to invite Sullivan to drink and smoke with him at his friend’s apartment. Sullivan left with defendant a phone number where he could be reached, and defendant called him at that number. Defendant made no protest when Sullivan allegedly asked Mark Cox about a gun. He said he went with Sullivan to get the gun because he was scared, even though Sullivan did not threaten him or force him in any way to leave the Manhattan Club. After picking up the gun at Goodwin’s apartment, defendant was tired and drunk but did not ask Sullivan to take him home. He was scared Sullivan would hurt him if he refused to go with him. Defendant admitted that he knew he and Sullivan were going into Constantine’s home to steal some of her property but again claimed he was scared of Sullivan because he knew what type of person he was.

During closing arguments the State told the jury that defendant was guilty of the offense charged, under the law of accountability. Defense counsel responded that defendant should not be held accountable for Sullivan’s actions over which he had no control. Counsel urged the jury not to convict defendant with Sullivan’s vicious acts and stressed that defendant went along only because he was afraid of Sullivan. He further asserted that justice would not be served by convicting defendant of murdering someone he did not murder.

During the jury instruction conference defense counsel objected to an instruction on accountability. He also objected to the first degree murder instruction, insisting that, “A person is not guilty [of murder] just simply because he's present in committing [the] offense,” When the State argued that felony murder is one of the definitions of first degree murder and that participation in the underlying felony makes an accomplice guilty of any resulting murder, counsel insisted that, “I don’t believe that you have to be accountable for the actual breaking in of a home. And then naturally flows that you’re guilty of a murder precipitated at the hands of another individual.” Defense counsel further objected to the State’s issues instructions for first degree murder, stating:

“I don’t believe that the State under the indictment should be able to prove this case, first degree murder, by accountability.

* * *

This is not a murder case under what they told the jury. They’re going for accountability.”

Finally, defense counsel sought an instruction on the defense of compulsion. The State contended that the compulsion defense was not available when the charge was murder and that, even if it was available, no evidence had been presented to support such a defense. The court refused defendant’s tendered instruction. Defendant was ultimately convicted and sentenced and now appeals.

Defendant first posits that he was not proved guilty beyond a reasonable doubt of felony murder. He argues that the murder count was predicated on the felony of burglary, but the State’s evidence showed he committed residential burglary rather than burglary. Residential burglary and burglary, according to defendant, are completely separate and distinct offenses, mutually exclusive of one another. Defendant’s argument is meant to show that burglary is not a lesser included offense of residential burglary and the State’s proof of residential burglary, therefore, did not prove defendant committed burglary. At oral argument defense counsel went one step further and steadfastly maintained that, even though they are separate crimes, defendant could not be charged with or convicted of burglary when the facts proved by the State reflected residential burglary. Defendant concludes that, since the State did not prove the underlying felony of burglary, the felony murder conviction cannot stand. The State recognizes that the facts proved at trial could establish residential burglary but urges that burglary is an included offense of residential burglary and that the facts, therefore, also established burglary. In our opinion, we do not need to decide the lesser included offense issue in order to resolve this case.

We note at the outset that section 9 — 1 of the Criminal Code of 1961 provides for felony murder as follows:

“A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death:

* * *

(3) He is attempting or committing a forcible felony other than second degree murder.” (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(3).)

“Forcible felony” is defined by a list of offenses which includes burglary, but not residential burglary. (See Ill. Rev. Stat. 1989, ch. 38, par. 2 — 8.) Accordingly, the State based the felony murder charge against defendant on the underlying offense of burglary rather than residential burglary.

Defendant bases his position that he should have been charged with residential rather than regular burglary primarily on the statutory definitions of the two offenses involved here. The burglary statute provides:

“A person commits burglary when without authority he knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle as defined in The Illinois Vehicle Code, railroad car, or any part thereof, with intent to commit therein a felony or theft. This offense shall not include the offenses set out in Section 4 — 102 of The Illinois Vehicle Code, nor the offense of residential burglary as defined in Section 19 — 3 hereof.” (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1.)

The offense of residential burglary is defined as follows:

“A person commits residential burglary who knowingly and without authority enters the dwelling place of another with the intent to commit therein a felony or theft.” (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 3.)

With regard to a “dwelling place,” the statute provides:

“(a) Except as otherwise provided in subsection (b) of this Section, ‘dwelling’ means a building or portion thereof, a tent, a vehicle, or other enclosed space which is used or intended for use as a human habitation, home or residence.
(b) For the purposes of Section 19 — 3 of this Code, ‘dwelling’ means a house, apartment, mobile home, trailer, or other living quarters in which at the time of the alleged offense the owners or occupants actually reside or in their absence intend within a reasonable period of time to reside.” Ill. Rev. Stat. 1989, ch. 38, par. 2 — 6.

The offense of residential burglary was severed from the burglary statute in 1982. (See Pub. Act 82 — 238, eff. January 1, 1982 (adding ch. 38, par. 19 — 3); People v. Thomas (1990), 137 Ill. 2d 500, 519.) At the same time, the burglary statute was amended to indicate that burglary “shall not include” the offense of residential burglary. (See Pub. Act 82 — 238, eff. January 1, 1982 (amending Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1).) In 1987 the legislature added subsection (b) to the definition of “dwelling” (see Pub. Act 84 — 1289, eff. January 1, 1987) (amending Ill. Rev. Stat. 1985, ch. 38, par. 2 — 6)), thus providing a definition of the word “dwelling” specifically for the residential burglary statute. Defendant contends that all of these statutory changes reflect a legislative intent that burglary and residential burglary are mutually exclusive offenses. He concludes that just as unlawful entry into a structure not a dwelling is not residential burglary, unlawful entry into the dwelling place of another is not “ ‘a burglary’ ” as that crime is now defined. We agree with defendant to the extent he asserts that burglary and residential burglary are different offenses. We do not agree that the statutory scheme precluded a charge of burglary here merely because the unlawful entry was to a residence.

In People v. Bales (1985), 108 Ill. 2d 182, our supreme court upheld the residential burglary statute against both due process and equal protection challenges. At the time Bales was decided the statutory definition of “dwelling” consisted only of what is now subsection (a) of the definition of dwelling, as set forth above. In reaching the conclusion that the residential burglary statute was not impermissibly vague, even though it did not define “dwelling place of another,” the court noted the “shall not include” language of the burglary statute and focused on the statue’s purpose:

“It is apparent that the legislature, in the residential-burglary statute, attempted to [make] this crime *** an offense against a particular type of structure or enclosure, that is, a structure or enclosure which is used for habitation purposes, and to make residential burglary a more serious offense than the ordinary illegal invasion of other types of structures or enclosures.” Bales, 108 Ill. 2d at 191.

The equal protection argument in Bales was based on defendant’s contention that there was no difference between residential burglary and burglary and, thus, there was no rational justification for classifying residential burglary as a Class 1 felony and burglary as a Class 2 felony. Nevertheless, the court found the statutory classification to have a reasonable basis because the residential burglary statute was aimed specifically at protecting the privacy and sanctity of the home and because of the greater danger and potential for serious harm from burglary of a home as opposed to burglary of a business. (Bales, 108 Ill. 2d at 193.) In a later case, People v. Thomas (1990), 137 Ill. 2d 500, 519, the court cited Bales for the holding that the residential burglary statute is constitutional because it is distinct from the crime of burglary. Bales and Thomas clearly teach that burglary and residential burglary are different crimes.

That they are different, however, does not mean, as defendant appears to insist, that the State was precluded from charging him with burglary and instead required to charge him, if at all, with residential burglary. The burglary statute says that a person commits burglary when he unlawfully enters, among other structures, a “building” (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1). While the home of Claire Constantine falls within the definition of a “dwelling” as that word is used in the residential burglary statute (see Ill. Rev. Stat. 1989, ch. 38, par. 19 — 3), it also obviously was a building in the ordinary sense of the word. Hence, the burglary statute would seem to apply to defendant’s conduct.

As we have already discussed, the “shall not include” language in the burglary statute is an expression of legislative intent that burglary and residential burglary should be treated as different crimes. The overall legislative scheme evidences an intent to make clear that an offender may not be charged with residential burglary — a crime with a more severe penalty — when he unlawfully entered a structure that was not a “dwelling place of another.” (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 3.) The question remains whether the statute works the other way, i.e., whether the “shall not include” language precludes a charge of burglary when the offender unlawfully entered a building which was the dwelling of another. In People v. Johnson (1984), 129 Ill. App. 3d 399, 401, the court pointed out that the statutory provision that burglary “shall not include” the offense of residential burglary did not mean that burglary could not be a lesser included offense of the crime of residential burglary. The court then added regarding the “shall not include” provision:

“Rather, such language seems to indicate no more than an admonition that when a dwelling unit is involved, the appropriate charge is residential burglary.” Johnson, 129 Ill. App. 3d at 401.

In a vein similar, though not identical, to Johnson, we perceive the language as an admonition that when a dwelling unit is involved, residential burglary may properly be charged as an independent offense without reference to burglary. We can find nothing in the specific language of the burglary statute, or in the overall statutory scheme for the offenses of burglary and residential burglary, to indicate that the legislature intended to prohibit the State from charging a defendant with burglary simply because the “building” entered happened to be a dwelling place. Since burglary and residential burglary are distinct and different crimes, we believe the prosecutor had the authority to charge defendant with either one.

The State’s Attorney, as a representative of the People, has the duty to prosecute all criminal actions. (Ill. Rev. Stat. 1989, ch. 34, par. 3 — 9005; People ex rel. Daley v. Suria (1986), 112 Ill. 2d 26, 37.) It is his sole responsibility to evaluate the evidence and other relevant factors to determine what offenses can and should properly be charged. (In re J.J. (1991), 142 Ill. 2d 1, 7; People ex rel. Daley v. Moran (1983), 94 Ill. 2d 41, 51.) It is within the exclusive discretion of the State’s Attorney to choose which of several charges to bring against a defendant, or whether to prosecute at all. (In re J.J., 142 Ill. 2d at 6-7; Moran, 94 Ill. 2d at 45-46.) Our supreme court has repeatedly rejected arguments that challenge the asserted unbridled discretion of the prosecutor in charging a felony or misdemeanor, where the defendant’s conduct comprises either offense. (See People v. Coleman (1990), 205 Ill. App. 3d 567, 577, citing People v. Brooks (1976), 65 Ill. 2d 343, 349; People v. McCollough (1974), 57 Ill. 2d 440, 444; People v. Keegan (1971), 52 Ill. 2d 147, 153; People v. Rhodes (1967), 38 Ill. 2d 389, 396.) That the prosecutor may be influenced by the respective penalties available under multiple applicable statutes does not, standing alone, give rise to a constitutional violation. People v. Jackson (1992), 231 Ill. App. 3d 801, 806, citing United States v. Batchelder (1979), 442 U.S. 114, 125, 60 L. Ed. 2d 755, 765, 99 S. Ct. 2198, 2205.

As we see this case, defendant unlawfully entered a building, which happened also to be Claire Constantine’s dwelling place, with the intent to commit a felony. On these facts, defendant’s conduct could have been prosecuted as burglary or residential burglary. Upon evaluating the evidence and other pertinent factors, the prosecutor acted within his discretion in choosing to charge defendant with burglary rather than the separate and different offense of residential burglary. It is of no consequence that the burglary served as a basis for a charge of felony murder. In sum, defendant’s contention that he was not proved guilty of felony murder based on burglary, because the State was precluded from charging and proving burglary, is of no avail.

Having concluded that defendant was properly charged with and tried for burglary, we turn to defendant’s claim that he received ineffective assistance of counsel. Defendant maintains that counsel either misunderstood or ignored the principles of felony murder and accountability. He points out that counsel acknowledged defendant’s participation in the burglary that served as a predicate for the felony murder charge while, at the same time, pursuing the theory that, since defendant did not actually inflict the fatal wound, he could not be held accountable for murder — a theory that the State agrees was not supported by the weight of authority. Defendant further claims that, inasmuch as a compulsion defense is not available to an accused charged with murder, counsel failed him when he proposed that defendant’s participation in the crimes was motivated by fear of Sullivan. Defendant concludes that he was left defenseless and the prosecution’s case, therefore, was not subjected to meaningful adversarial testing, thus necessitating a new trial.

To prevail on a claim of ineffective assistance of counsel a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s substandard representation so prejudiced the defense as to deny the defendant a fair trial. (People v. Pitsonbarger (1990), 142 Ill. 2d 353, 397; People v. Albanese (1984), 104 Ill. 2d 504, 525, citing Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) The court may proceed directly to the second part of the Strickland test and, if it does not find the requisite prejudice, may decide the claim without analyzing the effectiveness of counsel’s representation. (People v. Enoch (1991), 146 Ill. 2d 44, 56-57; Pitsonbarger, 142 Ill. 2d at 397.) To show actual prejudice defendant must establish that, except for counsel’s errors, there is a reasonable probability that the result of the proceeding would have been different. (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) A reasonable probability is a probability sufficient to undermine confidence in the result. (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) The defendant bears the burden of showing that, absent counsel’s errors, the fact finder would have had a reasonable doubt respecting the defendant’s guilt. (People v. Edwards (1991), 218 Ill. App. 3d 184, 197-98.) After reviewing the record in its entirety, we cannot say that defendant was so prejudiced by counsel’s representation that he was denied a fair trial.

Although, as defendant points out, compulsion is not available as a defense to a murder charge (see People v. Gleckler (1980), 82 Ill. 2d 145, 155-57; People v. Doss (1991), 214 Ill. App. 3d 1051, 1056), in this particular case counsel’s urging to the contrary could not have significantly prejudiced defendant. The record is devoid of evidence which might have corroborated defendant’s claim that he acted out of fear. Nowhere is there any indication that defendant was at any time threatened, forced, or coerced by Sullivan. On the other hand, the record is replete with evidence, including his own evidence, that defendant acted on his volition throughout the hours he and Sullivan went on their violent rampage. Thus, the jury was presented with a compulsion argument based only on defendant’s self-serving testimony-testimony which was contradicted by voluminous evidence that defendant was not afraid. Under these circumstances it is not reasonably probable that the trial would have turned out differently if it had not been for counsel’s misplaced reliance on a compulsion defense. Defendant has not shown ineffective assistance of counsel on this basis.

Nor, in our opinion, did counsel’s trial tactics — acknowledging the burglary but rejecting accountability for felony murder — sufficiently prejudice defendant to require a reversal and new trial. The proof that defendant committed burglary was overwhelming. The State introduced evidence of both written and oral statements defendant made to police shortly after the shootings, in which he admitted the burglary. He also admitted he had procured the shotgun and told police where to find not only the gun but also his and Sullivan’s pants. Much of defendant’s statements to police was extensively corroborated by other witnesses, such as Mark Cox and Antoine Goodwin. Barbara Cox loaned Sullivan her tan Omni a few hours before the incidents, and Goodwin said defendant and Sullivan arrived at his apartment at 3 a.m. in a tan car, possibly an Escort. The glove compartment key of the Omni was found on a porch near Constantine’s house. Fibers also found on the porch were consistent with the jeans retrieved from the dumpster described by defendant.

In the face of this mountain of evidence against defendant, it would have made no sense to deny or ignore his part in the burglary. What defendant refers to as counsel’s concession of his guilt was, in actuality, nothing more than stating the .obvious. Consequently, even if counsel had not acknowledged the burglary, the jury would have had all it needed to convict defendant of felony murder based on accountability. We do not believe that, absent counsel’s acknowledgment, the jury would have had a reasonable doubt that defendant participated in the predicate offense. If anything, counsel’s recognition of defendant’s role in the burglary was merely cumulative. As such, it is difficult to see how it prejudiced defendant with regard to his murder conviction.

Too, counsel's attacks on the State’s use of accountability to charge defendant with felony murder may not, in fact, have been totally out of place. The jury apparently took the argument into account when it acquitted defendant of the attempted murder of Brian Du-Brock. In any event, we again do not think that, but for counsel’s misstatements, there is so great a probability the trial would have turned out differently that our confidence in the actual outcome is shaken. (See Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) Hence, defendant has not shown that he was so prejudiced that he was denied a fair trial, and he cannot prevail on his claim of ineffective assistance of counsel.

For all of the reasons set forth above, the verdict, judgment of conviction, and sentence entered by the circuit court of Winnebago County are affirmed.

Affirmed.

INGLIS, P.J., and GEIGER, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE McCUSKEY

license: Public Domain

text:
    CLARENCE H. PETERS, Plaintiff-Appellant, v. MILKS GROVE SPECIAL DRAINAGE DISTRICT No. 1, Defendant-Appellee.
    Third District
    No. 3 — 92—0413
    Opinion filed April 1, 1993.
    Rehearing denied May 3, 1993.

      Petersen, Deck, Ruch & Baron, of Kankakee (Charles E. Ruch, Jr., of counsel), for appellant.
    Terry D. Hamrick, of Urbana, for appellee.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

The plaintiff, Clarence Peters (Peters), appeals from the judgment of the circuit court of Iroquois County denying his motions for a preliminary and permanent injunction enjoining Milks Grove Special Drainage District (the District) from enlarging its easement across his property and for an order requiring the District to repair a bridge located on his property.

The District dredged its drainage ditch which crossed Peters’ property. As a result of the dredging, the District deposited newly excavated soil beyond the boundaries of the District’s old spoil bank. The District failed to prove the location or width of its easement. Accordingly, we hold that, absent a written grant defining the location and width of the District’s easement across Peters’ property, the easement was limited to the extent of the District’s prior actual use. We find that the District has exceeded the prior actual use of its easement and has taken 1.65 acres of Peters’ land for public use without paying just compensation. Peters’ land was valued at $2,500 per acre. Consequently, the District must pay Peters $4,125.

Next, we examine the condition of the bridge which spans the District’s drainage ditch. We find that the District has an absolute duty to maintain the bridge in a good state of repair. The Illinois Drainage Code (Drainage Code) (Ill. Rev. Stat. 1991, ch. 42, par. 12 — 5) requires the District to maintain the bridge which spans the drainage ditch because it was the sole means of access from one landlocked portion of Peters’ property to the other portion of the farm. We conclude that the adjoining landowners’ grant of an easement, which was not accepted by Peters, did not relieve the District of its legal obligation to maintain the bridge.

Therefore, for reasons which follow, the judgment of the circuit court of Iroquois County is reversed in part, affirmed in part, and judgment is hereby entered in favor of Peters and against the District in the amount of $4,125.

Peters and his family have farmed the land in question for over 50 years. The District has an easement for a drainage ditch which runs generally in an east-west direction across Peters’ property. For the past 50 years, the District has never cleaned the ditch which crosses Peters’ property. The berm of the ditch became forested over the years and was generally used as a wildlife preserve. Peters testified that even following a heavy rain, the ditch cleared within a day or two and never overflowed its banks. Peters said he never observed any flooding which would require the District to clean the drainage ditch.

In 1990, the District embarked on a major dredging program. Before the dredging began, Peters asked one of the District’s commissioners not to do any dredging on his land and at the very least not to remove any trees located on the south bank of the ditch. That spring, Peters discovered dredging equipment on his property. Edward Hackl, Jr., was the District’s dredging contractor. Hackl used a drag line to dredge the ditch and clearcut the berm. He testified that the District’s commissioners told him they had a 200-foot-wide easement across Peters’ land. Hackl said the commissioners led him to believe that he could use whatever area was necessary to complete the work on Peters’ property.

Before Hackl completed the work, Peters filed a motion for preliminary injunction to prevent further dredging on his land. On May 18, 1990, the trial court granted Peters only part of the injunctive relief he sought. The court limited the District to using only that portion of Peters’ property which was located next to the ditch. The court further limited the District to use only as much of the land as was reasonably necessary to complete the cleaning and dredging.

Ultimately, Hackl removed and burned over 2,000 trees, and cleared all brush and grass from the north and south banks. He hauled silt from the drainage ditch and put it on Peters’ property. Hackl dumped and spread the silt on land which was being farmed by Peters. Following the dredging, the slopes of the ditch, which previously were stabilized by vegetation, eroded badly. Peters and David Noble, a licensed civil engineer, testified that the District’s spoil bank was expanded on both sides of the old spoil bank. Noble testified that the north spoil bank was expanded an average width of nine feet and the south spoil bank was expanded an average width of 17.5 feet. Noble used a survey to show how the District had taken 1.65 acres of Peters’ property. Noble’s testimony was uncontradicted, and his survey was admitted into evidence.

The powers and duties of drainage districts and their commissioners are found in the Drainage Code (Ill. Rev. Stat. 1991, ch. 42, par. 1 — 1 et seq.). The commissioners are under the general supervision of the circuit courts of the county in which the district is organized. (Ill. Rev. Stat. 1991, ch. 42, pars. 4 — 19 through 4 — 24, 4 — 27 through 4— 29, 4 — 32.) The circuit court has the power to settle disputes between the commissioners and any landowner of the district concerning: (1) the nature and extent of the drainage system; (2) the commissioners’ duty to provide drainage to district lands; (3) protecting landowners from overflow; and (4) keeping the drainage system in repair. Either the landowner or the commissioners may petition the circuit court to specify and define the commissioners’ duties and obligations. Ill. Rev. Stat. 1991, ch. 42, par. 4 — 26.

Commissioners have broad powers to carry out a district’s purposes, among them: to do all acts needed to survey, construct, alter, enlarge, protect, repair and maintain its drainage works; to go upon, examine and survey lands within or outside the district in connection with its work, “doing no more damage than the occasion may require”; and after constructing drainage works, to enter onto those lands “forever thereafter” to protect, maintain and repair them. Ill. Rev. Stat. 1991, ch. 42, par. 4 — 14.

The commissioners may “without prior authorization of the court, use corporate funds of the district for the repair, maintenance, operation or improvement of drains, levees, pumping plants and other works of the district when such repair, maintenance, operation or improvement does not involve any substantial or material alteration, enlargement or extension.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 42, par. 4 — 15.

Also, the commissioners are bound to protect environmental values. “[T]he commissioners shall use all practicable means and measures, including consideration of alternative methods of providing the necessary drainage, to protect such environmental values as trees and fish and wildlife habitat, and to avoid erosion and pollution of the land, water or air.” Ill. Rev. Stat. 1991, ch. 42, par. 4 — 15.1.

In Wessels v. Colebank (1898), 174 Ill. 618, 51 N.E. 639, the supreme court construed the original Farm Drainage Act. The court held that the right to have a drainage ditch maintained and to have water flow through it unobstructed is a permanent one, binding upon the owners of the land and their grantees. The supreme court further held “the common law annexes to the easement of a drain in another’s land the right to go upon such land and clean out or repair such drain without doing unnecessary injury to the land.” Wessels, 174 Ill. at 625.

It is undisputed that the District’s easement across Peters’ property dates to 1885, when the commissioners paid the prior owners for the easement. It is the extent of the District’s easement that is at issue here. The District claims its easement is 200 feet wide because that is the width of the District’s recorded easements. While the District presented evidence concerning the scope of its recorded easements, we find no evidence introduced concerning the actual dimensions of the easement across Peters’ property. We can only conclude, based on the record, that the deed conveying the District’s easement was either lost or not recorded.

Peters argues that the District must prove the location and width of its easement because it restricts his fee simple rights. We agree. Peters asserts that the District’s easement is limited to the extent of its prior actual use because the District did not prove the dimensions of its easement. Again, we agree.

Vallas v. Johnson (1979), 72 Ill. App. 3d 281, 390 N.E.2d 939, concerns a recorded easement lacking in defined width. In Valias, we concluded that the width of an easement is confined to the dimensions which are reasonably necessary for the purposes for which it is created, as established by actual use. Therefore, where an easement granted by deed is undefined as to its location and width, the dimensions depend upon the intent of the parties, which can be shown by the extent of the actual use. Consequently, “ ‘[w]hen the character of [the] easement is once fixed, no material alterations can be made by either the servient or easement owner without the other’s consent.’ ” Vallas, 72 Ill. App. 3d at 284, 390 N.E.2d at 942, quoting 25 Am. Jur. 2d Easements §87 (1966).

Our decision in In re Onarga, Douglas & Danforth Drainage District (1989), 179 Ill. App. 3d 493, 534 N.E.2d 226, is precedent for deciding the issue before this court. In Onarga, the district sought to enlarge drainage tile across land where its easement arose by prescription. In the instant appeal, we have found that the District enlarged its easement by spreading newly excavated soil from the dredging beyond the boundaries of the existing spoil bank. In Onarga, we concluded that the drainage district could not unilaterally and without the landowner’s consent increase the burden of an easement on the servient tenement. We held in Onarga that the district’s easement was restricted to the extent of its actual use. In Onarga, we reasoned as'follows:

“[C]ourts of review in our State have been loath to increase the usage to which an easement is put even [though] the proposed use is relative to the original purpose of a constituted easement. [Citations.]
*** This court has held that *** the extent of the *** use defines the easement.” Onarga, 179 Ill. App. 3d at 494-95, 534 N.E.2d at 228, citing Vallas, 72 Ill. App. 3d 281, 390 N.E.2d 939.

In this case, the trial court determined that the District’s contractor conducted himself in a reasonable manner and found there was no credible evidence to sustain an award of damages. We find the trial court’s determination was contrary to the manifest weight of the evidence. The trial court erroneously ruled that “the right-of-way must be co-extensive with the District’s obligations to clean and maintain the ditch.” We hold that our decisions in Vallas and Onarga control. Accordingly, the District’s easement was limited to the extent of the prior actual use. Since the District is a public agency, it is prohibited by the fifth amendment of the United States Constitution from taking private property for public use without paying just compensation.

The fifth amendment was recently examined by the United States Supreme Court in Lucas v. South Carolina Coastal Council (1992), 505 U.S___ 120 L. Ed. 2d 798, 112 S. Ct. 2886. While the Lucas decision concentrates on regulatory takings, the Supreme Court set forth standards for compensation in any case where private property is taken for public use. Situations in which just compensation is required to be paid include direct physical appropriation of property and “regulations that compel the property owner to suffer a physical ‘invasion’ of his property. In general (at least with regard to permanent invasions), no matter how minute the intrusion, and no matter how weighty the public purpose behind it, we have required compensation.” (Lucas, 505 U.S. at_, 120 L. Ed. 2d at 812, 112 S. Ct. at 2893.) The Supreme Court also noted that the impairment of certain noneconomic interests in land, such as the interest in excluding strangers from one’s land, “will invite exceedingly close scrutiny under the Takings Clause.” Lucas, 505 U.S. at_n.8, 120 L. Ed. 2d at 815 n.8, 112 S. Ct. at 2895 n.8.

Based on the Lucas standard, Peters is entitled to just compensation from the District. Peters has been deprived of 1.65 acres of land which was taken by a public agency for public use. We find uncontradicted evidence that Peters’ property was worth approximately $2,500 per acre. Therefore, we fix Peters’ just compensation at $4,125.

Peters also testified that Hackl’s heavy equipment compacted the soil near the drainage ditch and reduced his crop productivity. His son, Larry Peters, estimated that the compaction caused an average loss of nine bushels per acre. However, Peters maintained no records to support his estimate. Also, Peters offered no expert testimony on the issue. Therefore, we affirm the trial court’s finding that Peters’ testimony was too speculative to support an award of damages for crop loss.

Jeffrey Sniadach of the United States Army Corps of Engineers testified that he inspected the ditch following the dredging. He noticed significant erosion along the sides of the ditch. We note that severe erosion is apparent from the photographs admitted into evidence. The erosion, caused by the dredging, indicates a cavalier attitude toward the District’s statutory duty to protect environmental values and avoid erosion of the land. (Ill. Rev. Stat. 1991, ch. 42, par. 4 — 15.1.) However, we find that Peters presently does not have a legal remedy to stop the erosion. The interior banks of the drainage ditch are unquestionably within the boundaries of the District’s easement. Therefore, since the erosion is currently only on District property, Peters has suffered no actual damage to his property.

The final issue on appeal is whether the District must maintain a bridge across the ditch in order to provide Peters access to a landlocked portion of his property. When Peters filed his complaint, the bridge was his only means of access to approximately 17 acres of land located north of the ditch. As a result of the District’s failure to perform routine maintenance, the bridge became unsound. Additionally, there was testimony indicating that dredging the ditch caused damage to the bridge’s footings and foundation. Photographic evidence indicates that parts of the bridge’s footings and foundation have either washed away or broken off as a result of erosion. Also, Larry Peters testified that the center portion of the bridge is swaybacked and unsafe. The evidence was clear that the bridge is unsafe.

After the litigation was filed in the trial court, adjoining landowners granted a purported easement to Peters for access across their property to the landlocked portion of his farm. Marilyn Rosenboom, one of the grantors, is also a District commissioner. The easement was recorded on October 21, 1991, nine months after Peters filed suit. Mrs. Rosenboom admitted that the District paid her and her family consideration for executing the easement. Under the terms of the easement, Peters was required to maintain the right of way granted by the easement. Peters refused to accept the easement after he learned of its existence.

An easement may be created by grant, by prescription or by agreement or contract. (D.M. Goodwillie Co. v. Commonwealth Electric Co. (1909), 241 Ill. 42, 72, 89 N.E. 272; Harris Trust & Savings Bank v. Chicago Title & Trust Co. (1980), 84 Ill. App. 3d 280, 283, 405 N.E .2d 411, 414.) Such agreements, however, must be construed to carry out the plain intent of the parties. (Barber v. Allen (1904), 212 Ill. 125, 131, 72 N.E. 33; Chicago Title & Trust Co. v. Wabash-Randolph Corp. (1943), 384 Ill. 78, 85, 51 N.E.2d 132; The Fair v. Evergreen Park Shopping Plaza of Delaware, Inc. (1954), 4 Ill. App. 2d 454, 466, 124 N.E.2d 649.) Where an easement is created by express terms, the parties’ rights must be ascertained from the language of the grant. Also, surrounding circumstances may be considered in order to determine the intent of the parties when they made the grant. (See Louisville & Nashville R.R. Co. v. Koelle (1882), 104 Ill. 455, 460; Chicago Title & Trust, 384 Ill. at 84-85.) “The law must give a common sense construction to grants, and consider the state of things, and the considerations in view of the parties at the time the grant is made, which moves them to its execution and acceptance.” Hadden v. Shoutz (1854), 15 Ill. 581, 582.

The Rosenbooms drafted and recorded the purported easement without Peters’ knowledge or consent. It is hornbook law that a contract or agreement is a consensual undertaking. To be valid, it requires consideration, an offer and an acceptance. We hold that neither the District’s commissioners nor the circuit court can force Peters to accept the maintenance obligations of the Rosenboom easement.

Here, the trial court found the District had “provided plaintiff with access to the small landlocked acreage lying north of the ditch.” The court said that maintenance of the bridge could be expensive for the District and would also present an “unmentioned potential to small drainage districts for liability for injury to person or property.” The trial court further stated:

“[T]he District has a right to provide alternative access to the landlocked area and, as a matter of fiscal prudence, have [sic] an obligation to do so. Furthermore, the bridge was built for far different equipment than is now generally used in farming operations, and the District has no obligation to enlarge the bridge to accommodate these changes. This Court chooses to confirm the sensible alternative provided.”

The trial court cited no authority, and we find none, for its conclusion that the District can evade its statutory obligation to maintain the bridge due to financial expense. The District is empowered to levy assessments for repairs, including emergency repairs. (Ill. Rev. Stat. 1991, ch. 42, pars. 4 — 18(a), (e).) Furthermore, we do not agree with the trial court’s holding that the District can avoid its duty to maintain the bridge as a result of the Rosenboom easement. We have clearly noted that the Rosenboom easement was not executed until after Peters filed this litigation. Also, we have found that the Rosenboom easement and its maintenance obligations were never accepted by Peters.

There is no dispute that the following statute controls our determination concerning the bridge. The record shows that the District was organized prior to June 28, 1919, and the bridge at issue was constructed prior to January 1, 1956. The controlling statute reads in pertinent part:

“In districts organized prior to June 28, 1919, under the Farm Drainage Act, the districts shall continue to be liable for the construction, reconstruction and maintenance of at least one bridge or proper passageway over each open ditch constructed or ordered constructed prior to the effective date of this Act [effective January 1, 1956] where the same crosses any enclosed tract or parcel of land in such a manner that a portion thereof is landlocked and has no access from any public highway other than by a bridge or passageway over the ditch. The cost of constructing, reconstructing and maintaining such bridge or crossing shall be paid by the district, except that the commissioners may contract with the owner of any land crossed by the ditch for such owner to construct, reconstruct and maintain any such bridge or crossing, or they may enter into any other agreement with such owner by which the district may be relieved of or released from such liability.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 42, par. 12 — 5.

The record clearly shows that there has been no agreement between Peters and the District which would release the District from its legal duty to maintain the bridge. Accordingly, we hold that pursuant to the statute in question, the District is legally liable to maintain the bridge in a safe condition so that Peters can use the bridge for access to the landlocked portion of his farm.

For the reasons indicated, the judgment of the circuit court of Iroquois County is reversed in part and affirmed in part. Finally, judgment is entered against the District and in favor of Peters in the amount of $4,125.

Affirmed in part; reversed in part.

STOUDER and BRESLIN, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONNA G. ALBERT, Defendant-Appellant.
    Second District
    No. 2—91—0376
    Opinion filed April 2, 1993.

      G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Thomas F. Baker, State’s Attorney, of Woodstock (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

After a jury trial, defendant, Donna G. Albert, was convicted of disorderly conduct (Ill. Rev. Stat. 1989, ch. 38, par. 26 — 1(a)(1)), sentenced to 20 days’ incarceration, and ordered to pay a $250 fine, $200 for the cost of representation by the public defender, and court costs. On appeal, defendant argues that (1) she was not proved guilty beyond a reasonable doubt; and (2) the fine, public defender fee, and certain costs were improperly imposed. We affirm the defendant’s conviction, modify the sentence in certain respects, and remand for clarification of certain fees assessed defendant.

At the time of the incident on which defendant’s conviction is based, she lived with her husband, Mark Albert, at 503 West Washington Street in Harvard, Illinois. On August 1, 1990, Cindy Swanson, who lived directly across the street at 502 West Washington Street, signed a criminal complaint alleging that, at about 1:56 a.m. on August 1, 1990, defendant yelled at the top of her voice from her front lawn in such an unreasonable manner as to disturb Swanson and provoke a breach of the peace. The trial court appointed the public defender to represent defendant after it determined defendant was indigent, and the cause proceeded to trial.

Cindy Swanson testified that, on Tuesday, July 31, 1991, she and her husband went to bed at about 11 p.m. Swanson planned to get up at her normal time of 5:30 a.m. to go to work. At about 2 a.m., Swanson and her husband awoke to the sound of “a lot of yelling and screaming” from across the street. Swanson and her husband got up and looked out the window for about two minutes. Defendant was standing out on the porch at 503 West Washington. Defendant was alone and did not appear in any danger, although Swanson was aware that defendant and Mark Albert had had some sort of confrontation several hours before. Defendant’s screaming lasted a total of about 8 to 10 minutes. Swanson could make out some obscenities and the word “help” from time to time; otherwise, she could not distinguish what defendant was saying.

Swanson called the police, whom she saw arrive at defendant’s house a short time later. Swanson testified that defendant’s screaming disturbed her and made her feel angry, particularly as she had to get up early the next morning to go to work.

Sergeant Dale Langston of the Harvard police department testified that, early in the morning of August 1, 1990, he was dispatched to 503 West Washington Street to deal with a reported disturbance. He did not talk to Cindy Swanson beforehand. When Langston and two other officers arrived at the scene, they found the porch quiet and unoccupied. They knocked on the door. Defendant answered and showed the officers some marks on her wrist. In a loud, hysterical, and apparently intoxicated manner, she explained that her husband had at some earlier time inflicted the harm to her wrists. Mark Albert was in the background and said little. The officers did not arrest him.

The jury found defendant guilty of disorderly conduct. At the sentencing hearing on December 4, 1991, the trial court noted defendant’s substantial criminal history and observed that defendant was not “getting the message.” The court sentenced defendant to 20 days’ incarceration, a $250 fine, a $200 charge for the services of the public defender, and court costs. The court required defendant to pay the fines and costs by June 4, 1992. The costs assessed against defendant include, inter alia, a $28 police training fee and two court automation fees, one for $3 and the other for $28.

Defendant moved to reconsider the sentence. At the hearing on the motion, defendant argued that supervision was a more appropriate disposition than incarceration. Defendant’s counsel noted defendant’s contrition and her enrollment in family counseling. In arguing for supervision, defense counsel stated that “[pjocketbook punishment fits this crime, or public service, not incarceration.” At no time did defendant argue that she was unable to afford the fine and other charges. The court denied the motion to reconsider, and this court granted defendant leave to file a late notice of appeal.

Defendant argues first that she was not proved guilty beyond a reasonable doubt of disorderly conduct. To obtain a conviction of disorderly conduct, the State was required to prove that defendant knowingly did any act in such an unreasonable manner as to alarm or disturb another and to provoke a breach of the peace. (Ill. Rev. Stat. 1991, ch. 38, par. 26 — 1(a)(1).) Defendant asserts that the State proved only that she used vulgar language and that, although this may have caused her neighbors some annoyance, such conduct fell short of causing a breach of the peace. Defendant relies on several opinions holding, in her view, that annoying language in itself cannot amount to disorderly conduct. The State replies that the evidence proved that defendant acted unreasonably inasmuch as she shouted loudly and for several minutes in a residential neighborhood at a time when most people (including the complaining witness) had a reasonable expectation of peace and quiet. The State argues that such disturbing noise is among the types of conduct that a State or municipality may punish under the exercise of its police power. We agree with the State.

When assessing the sufficiency of the evidence of a criminal offense, a court of review must ask whether the evidence, viewed in the light most favorable to the prosecution, is sufficient to convince any rational trier of fact that the elements of the offense have been proved beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261.) We believe that the evidence here sufficed to uphold defendant’s conviction.

The activity that may constitute disorderly conduct

“is so varied and contingent upon surrounding circumstances as to almost defy definition. Some of the general classes of conduct which have traditionally been regarded as disorderly are here listed as examples: the creation or maintenance of loud and raucous noises of all sorts; unseemly, boisterous [sic] or foolish behavior induced by drunkenness ***. In addition, the task of defining disorderly conduct is further complicated by the fact that the type of conduct alone is not determinative, but rather culpability is equally dependent upon the surrounding circumstances. *** [SJhouting, waving and drinking beer may be permissible at the ball park, but not at a funeral.” (Emphasis added.) Ill. Ann. Stat., ch. 38, par. 26 — 1, Committee Comments, at 149 (Smith-Hurd 1977).

We believe the evidence, viewed most favorably to the prosecution, establishes that defendant was guilty of disorderly conduct. She performed her shouting knowingly and also knew or should have known that such noise likely would disturb people such as the complainant. Defendant’s conduct interrupted the complainant’s sleep at about 2 a.m. on a workday. Considering the time, manner, and place of defendant’s self-expression, the jury was altogether within its prerogative in finding that her behavior was unreasonable. Defendant’s conduct is within the types of behavior on which the above-quoted legislative history focuses. This case illustrates perfectly the importance of the surrounding circumstances to a determination that certain conduct is disorderly. As our supreme court has recognized, “[t]he creation and maintenance of loud and raucous noises has always been thought to be within the common-law definition [of disorderly conduct], but it is not the decibel level of the utterance *** alone that is determinative.” City of Chicago v. Wender (1970), 46 Ill. 2d 20, 23-24.

Although the parties concede that they have found no Illinois cases with facts similar to this case, courts here and elsewhere have long recognized" that the police power includes the ability to protect citizens, particularly in residential areas, from unwanted disturbance resulting from unreasonable noise. See Ward v. Rock Against Racism (1989), 491 U.S. 781, 790-91, 105 L. Ed. 661, 675, 109 S. Ct. 2746, 2753 (excessive noise from concert in public park); Kovacs v. Cooper (1949), 336 U.S. 77, 93 L. Ed. 513, 69 S. Ct. 448 (disturbance of neighborhood by sound truck); Noe v. People (1866), 39 Ill. 96 (disturbance of a single individual, who was home asleep, by firing pistols in the vicinity of her window); Eanes v. State (1990), 318 Md. 436, 569 A.2d 604, cert, denied (1990), 496 U.S. 938, 110 L. Ed. 2d 665, 110 S. Ct. 3218 (affirming conviction of protester who violated statute outlawing the willful disturbance of any neighborhood by “loud and unseemly noises”); Blanco v. State (Tex. Ct. App. 1988), 761 S.W.2d 38 (holding that defendant who played stereo at high volume was properly convicted of disorderly conduct based on unreasonable noise).

Defendant relies on several opinions that reversed convictions of disorderly conduct. We find these cases distinguishable. In People v. Bradshaw (1983), 116 Ill. App. 3d 421, the State’s evidence showed only that the defendant left a tavern, stood outside, and called the manager a variety of obscene names for 10 or 15 minutes. No bar patrons left as a result. The appellate court concluded that the defendant’s conduct was “nothing more than annoying.” (Bradshaw, 116 Ill. App. 3d at 422.) In People v. Kellstedt (1975), 29 Ill. App. 3d 83, the appellate court held that a complaint did not.allege disorderly conduct merely because it alleged that the defendant, while standing on a public street, directed loud, abusive language toward the complainant. The appellate court reasoned that the complaint did not sufficiently allege any danger to the public order from the defendant’s conduct. In People v. Douglas (1975), 29 Ill. App. 3d 738, the defendant yelled and screamed at police officers who had driven onto his property. Although there was a small group of people nearby, the evidence showed only that some of these people looked in the direction of the incident to satisfy their curiosity. The appellate court held that without any evidence that the defendant’s conduct provoked disorder or even had any unusual effect upon the onlookers, the defendant’s conviction could not stand.

The situation here is materially different from those presented by the previous cases. Here, defendant did not cause mere annoyance or curiosity among the public, but forcibly disturbed the peace and quiet of people asleep in their homes. We believe that this behavior amounts to disorderly conduct.

Defendant next challenges various aspects of her sentence. She argues first that the trial court abused its discretion in imposing a $250 fine and ordering her to reimburse the public defender $200 without any consideration of her ability to pay the fine or reimbursement. We agree with the State that defendant has waived these issues by failing to raise them in her motion to reconsider the sentence. (See People v. Fort (1992), 229 Ill. App. 3d 336, 339-40.) Indeed, defendant’s counsel told the court that “pocketbook punishment” would be appropriate. The presentence investigation provided the court with evidence of defendant’s ability to pay the fine and reimbursement. We decline to consider the propriety of these measures over a year after the trial court imposed them.

However, we do modify the judgment in certain respects, as to which the State concedes error. First, we agree with defendant that she is entitled to a $5 credit against her fine for the one day she was incarcerated prior to trial. (See Ill. Rev. Stat. 1991, ch. 38, par. 110 — 14; People v. Hare (1988), 119 Ill. 2d 441.) Second, we agree that the $28 “court automation fee” is void and must be vacated, as it exceeds what counties are authorized to charge. (Ill. Rev. Stat. 1991, ch. 25, par. 27.3a.) Finally, we agree that the circuit clerk lacked the authority to impose the $28 “police training fee” and that the cause must be remanded for proper imposition of the fines by the court. Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 9 — 1; People v. Wisotzke (1990), 204 Ill. App. 3d 44, 50.

Defendant’s conviction of disorderly conduct is affirmed. Defendant is to receive a $5 credit for pretrial incarceration, and the $28 court automation fee is vacated. Finally, the cause is remanded for. proper imposition of the “police training fee.”

Affirmed as modified and remanded.

WOODWARD and QUETSCH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY LEE, Defendant-Appellant.
    Second District
    No. 2—91—0101
    Opinion filed April 2, 1993.

      G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender’s Office, of Elgin, and David W. Devinger, of Woodstock, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan, and Daniel J. Walsh, of Johnson, Frank, Frederick & Walsh, of Urbana (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Following a jury trial, defendant, Anthony Lee, was found guilty of robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 1(a)) and unlawful possession of a stolen vehicle (Ill. Rev. Stat. 1989, ch. 951/2, par. 4— 103(a)(1)). The court sentenced defendant to concurrent seven-year terms of imprisonment. Defendant appeals, contending that the State failed to prove defendant’s guilt of either offense beyond a reasonable doubt because the evidence showed only that defendant was merely present at the crime scene when two other individuals took the victim’s money and automobile.

The victim, Andre Wallace, testified that he finished work at the Great Lakes Naval Base at 7 p.m. on October 4, 1990. Wallace then went to the apartment of Danielle, a friend, arriving between 7:30 and 8 o’clock. Wallace was introduced to two females and two males, “Blue” and “Daddy.” Wallace identified defendant as “Daddy” and Mark Grashen as “Blue.” Wallace was told that defendant was Danielle’s cousin.

Wallace played cards for approximately 21k to 3 hours. During the game, defendant asked Wallace for a ride to a girlfriend’s house and offered Wallace $5 for gas. Wallace agreed, reached into his shirt pocket, and gave defendant $5 change from a $10 bill. Shortly before midnight Wallace stated that he had to be leaving. Wallace asked defendant if Grashen was coming along and defendant said, “Yes.” Grashen climbed into the backseat of Wallace’s car, and Wallace and defendant occupied the front seats with Wallace driving. Both defendant and Grashen directed Wallace to the Utica Street projects in Waukegan, where Wallace parked the car.

Grashen exited the car and walked approximately 15 feet where he met another individual, named Eddie. When Wallace asked defendant if the Utica Street projects were the intended destination, defendant replied that Grashen was just talking to a friend for a second and that he would be right back. Shortly thereafter, defendant got out of the car and joined the others. Defendant then called Wallace requesting that he join the group and meet Eddie. Wallace exited the car and either Grashen or defendant introduced Wallace to Eddie. As Wallace proceeded to shake Eddie’s hand, Grashen grabbed Wallace from behind, placed his arm in a choke hold around Wallace’s neck, and said repeatedly, “you are going to go to sleep.” Wallace then reached in his front shirt pocket, pulled out $13 and handed it toward Eddie. Eddie took the money from Wallace’s hand. Defendant and Eddie were walking toward Wallace before Wallace lost consciousness.

When Wallace regained consciousness, he found himself on the hood of his car. As he climbed off the hood, he noticed the three individuals talking on the driver’s side of the vehicle. Defendant was sitting in the driver’s seat with the keys in the ignition. Wallace pleaded with the group to return his identification because he needed it to get back to the naval base. Eddie and Grashen stated that they did not believe Wallace had given them everything that he had. Wallace then unbuttoned his shirt and pulled his pockets inside out to show that he had nothing else. Defendant then looked on the floor and seats for Wallace’s identification. The group then stated that they had not seen Wallace’s identification.

Wallace then attempted to get into the car to leave, but defendant made “a motion like get back.” Wallace testified that defendant did not touch Wallace, but “was motioning me as to get away.” Grashen and Eddie also told Wallace “push along, push on, push on.” As Wallace walked away, he noticed the driver’s door close and Grashen climb into the backseat. Wallace walked until he was out of sight and then ran until he reached a pay phone.

On cross-examination, Wallace testified that defendant originally requested a ride only for defendant and that defendant never told Wallace the exact location of defendant’s girlfriend’s house. Wallace did not know if defendant saw how much money Wallace had while at Danielle’s apartment. Wallace admitted that he never saw his vehicle leave the scene and never saw defendant driving it. Wallace stated that only Grashen and Eddie told Wallace that they believed Wallace had more money in his possession and that Wallace gave the $13 to Eddie, not to defendant. Wallace further testified that defendant never stopped any of Grashen’s or Eddie’s actions, nor did Wallace ever see defendant call the police.

Officer Trent Truby arrived a couple of minutes after Wallace phoned for help. Truby testified that he and Wallace drove to 565 South Utica, where Wallace said his car had been stolen. Truby and Wallace checked the parking lot, but could not locate the car. Truby then reported the information concerning Wallace’s car to the Illinois State Police emergency network.

Truby and Wallace then drove to Danielle’s apartment, where Wallace had originally met defendant and Grashen. There was no answer at the door so Officer Truby and Wallace drove back to the naval base. Before finishing his work shift, Truby entered a description of Wallace’s car into the law enforcement agency data system.

On October 5, Waukegan Detective Donald Meadie was assigned to the Wallace case. Meadie testified that he received a phone call from the Chicago police department on October 6. Meadie was informed that Grashen and defendant were being held in custody in connection with the Wallace case. Wallace’s car was also at the Chicago police department. Meadie and another officer then drove to the Chicago police department station, picked up defendant and Grashen and Wallace’s car and brought them back to Waukegan.

The State rested following Detective Meadie’s testimony. After defendant’s motion for a directed verdict was denied, defendant was found guilty of robbery and unlawful possession of a stolen motor vehicle.

Defendant appeals, contending that the State failed to prove his guilt of the offenses beyond a reasonable doubt. Specifically, defendant contends that he was merely present when Wallace’s money and automobile were taken by Grashen and Eddie. Moreover, defendant contends that he was not seen driving or possessing Wallace’s car. Therefore, defendant argues, the State did not prove beyond a reasonable doubt that defendant was accountable for the offenses of robbery and unlawful possession of a stolen motor vehicle.

The trier of fact is not required to search out a series of potential explanations compatible with innocence and then raise them to the status of reasonable doubt. (People v. Ware (1980), 82 Ill. App. 3d 297, 302.) Nor must each link in the circumstances relied upon to establish guilt individually constitute proof beyond a reasonable doubt. (People v. Foster (1979), 76 Ill. 2d 365, 374.) Conflicting evidence alone will not justify the reversal of a conviction; rather, reviewing courts will set aside a guilty finding only if the evidence is palpably contrary to the finding or so unreasonable, improbable, or unsatisfactory as to leave a reasonable doubt about the accused’s guilt. People v. Palmer (1984), 125 Ill. App. 3d 703, 709.

We note initially that defendant is correct in stating that a person’s mere presence at the crime scene, even with knowledge that a crime has been committed, is insufficient to establish accountability for the crime. (People v. Nugara (1968), 39 Ill. 2d 482, 487; People v. Perruquet (1988), 173 Ill. App. 3d 1054, 1063.) Section 5 — 2(c) of the Criminal Code of 1961 provides in pertinent part:

“A person is legally accountable for the conduct of another when:

* * *

(c) Either 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).)

The State’s proof must establish beyond a reasonable doubt that whatever conduct facilitated the later offense was with the intent that such offense be committed. {People v. Ware (1980), 82 Ill. App. 3d 297, 306.) Moreover, proof that a person was present at the commission of a crime without disapproving or opposing the crime may be considered along with other circumstances, such as the fact that defendant later maintained a close affiliation with his or her companions (People v. Grice (1980), 87 Ill. App. 3d 718) and failed to report the crime (People v. Bailey (1985), 132 Ill. App. 3d 399; People v. Watson (1982), 106 Ill. App. 3d 315). Indeed, a person’s assistance prior to or during the commission of the crime which amounts to accountability can be inferred from the conduct which occurs after the event. People v. Young (1983), 116 Ill. App. 3d 984, 994.

Defendant contends that the evidence did not establish sufficiently that he should be held legally accountable for the conduct of Grashen and Eddie. Defendant contends that, when viewed in a circumspect manner, the facts presented at trial do not establish beyond a reasonable doubt that defendant intended to aid, facilitate, or participate in the crimes for which he was charged. (See Ill. Rev. Stat. 1989, ch. 38, par. 5 — 2(c).) Defendant contends that it was Grashen who directed Wallace to the Utica Street projects where Wallace was eventually robbed. Although defendant admits that defendant also gave directions to Wallace, defendant argues that there is no indication that his doing so was part of some preconceived plan to set Wallace up. Defendant asserts that although Grashen may have had a hidden agenda prior to leaving Danielle’s apartment, this should not be imputed to defendant. Defendant contends that, for all he knew, Grashen simply wished to meet someone at the Utica Street projects and defendant innocently helped Wallace to find that location. Defendant contends that the events which ensued upon reaching the Utica Street projects “abysmally failed to show any nexus between the crimes and the defendant.”

Additionally, defendant maintains that his actions at the scene did not evince any knowledge of Grashen’s apparent robbery attempt. Defendant contends that his movement towards Wallace before Wallace lost consciousness could easily be attributed to defendant’s surprise at Grashen’s actions in choking Wallace, coupled with a “half-hearted attempt to aid Wallace,” who evidently was about to black out. Defendant asserts that it is mere speculation to charge defendant with knowledge or intent to participate in Grashen’s ill-conceived plan.

Defendant also points to the period following Wallace’s regaining consciousness on the hood of the car. Wallace climbed off the hood and noticed the group talking. Defendant points out that Wallace, upon noticing that his identification holder was missing, asked the group if they would return it. Defendant stresses that, in response, Grashen and Eddie, but not defendant, thereupon approached Wallace and told him they did not believe that Wallace had given them everything. Defendant contends that rather than press Wallace for more property as Grashen and Eddie had done, defendant remained in the driver’s seat of Wallace’s car and looked on the floor and seats for the identification card. Defendant also relies on the fact that when Wallace attempted to reapproach the car, defendant made a motion to Wallace “to like get back.” Defendant asserts that, while his signal to Wallace to “get back” certainly raises a question regarding his participation in the offense, it can be easily said that this action was designed to prevent Wallace from further harm. According to defendant, defendant’s actions served as a warning to Wallace that it would be in Wallace’s best interest simply to walk away while he still was able to do so.

In summary, defendant contends that, looking at the entire sequence of events, defendant’s actions constituted mere acquiescence in Grashen’s and Eddie’s conduct, which is not a crime. People v. Nugara (1968), 39 Ill. 2d 482, 487; People v. Jones (1990), 196 Ill. App. 3d 937, 964.

Defendant relies heavily on Jones, attempting to distinguish its facts from those in this case. It is true that Jones involved evidence which more clearly supports an accountability theory than do the facts here. The defendant in Jones agreed to act as a police lookout, followed the victim upstairs and remained out of sight, was aware friends intended to murder the victim, took food from the victim’s bicycle after the murder, and failed to report the crime to anyone. However, merely because defendant’s accountability may not be as obvious as that of the defendant in Jones, it does not automatically follow that defendant cannot be held guilty under an accountability theory under the facts presented here.

To the contrary, we believe that, in viewing the continual sequence of events, defendant’s participation rose to a level above mere presence at the crime scene and constituted more than mere acquiescence in Grashen’s and Eddie’s actions. Even if the jury did not believe defendant actively participated in the physical attack on Wallace or the physical taking of Wallace’s vehicle, there was sufficient evidence which, if believed by the jury, established beyond a reasonable doubt that defendant was accountable for these offenses.

The evidence showed that defendant was at the scene of the crime while Wallace was being robbed. According to Wallace, defendant was facing Wallace while the robbery took place and did nothing to aid Wallace against his assailants. Defendant also paid Wallace for the ride and gave him directions to the Utica Street projects where Wallace was robbed and his car was stolen. While defendant argues that his paying Wallace for the ride was evidence of defendant’s good intentions, such payment could also be inferred as a ploy to get Wallace to an out-of-the-way place in order to rob him and steal his car.

Regarding defendant’s contentions that his actions were mere “acquiescence,” we note that when Wallace regained consciousness on the hood of his car, defendant was sitting in the driver’s seat of the car with the keys in the ignition. Although defendant helped Wallace to look for Wallace’s identification card, this was not enough to exonerate defendant from the crimes. Additionally, although defendant’s gesture to Wallace to “get back” when Wallace reapproached the car may have been for Wallace’s protection, the jury could also infer that such action was designed to keep Wallace from entering his own car in order to facilitate it being stolen.

While it is true that one’s mere presence at a crime scene is not enough to sustain a conviction under section 5 — 2(c) of the Criminal Code of 1961, one may be found guilty of aiding or abetting without actively participating in the overt act. (People v. Reid (1990), 136 Ill. 2d 27, 61.) A person’s accountability for a crime may be inferred from his conduct after the event. (Reid, 136 Ill. 2d at 62.) The factors which may sustain a conviction for aiding and abetting a crime when one does not participate in the overt act are: presence at the crime scene without disapproving or opposing the crime, maintaining a close affiliation with companions after the perpetration of the crime, and failure to report the offense to the police. Reid, 136 Ill. 2d at 62; People v. Scherzer (1989), 179 Ill. App. 3d 624, 639.

The evidence here supports all three factors allowing for a conviction of defendant on an accountability theory. Wallace testified that defendant was present at the crime scene and did not oppose the robbery or confiscation of Wallace’s car. Wallace testified that defendant did not attempt to intervene at all to prevent Wallace from being injured. Wallace also testified that defendant did not leave the area when Grashen was knocking Wallace unconscious, nor did defendant stop any of Grashen’s or Eddie’s actions.

The second factor, which requires defendant to maintain close affiliation with the perpetrators, was also satisfied. When Wallace awakened on the hood of his car, he saw defendant in the driver’s seat. Defendant remained with the two other perpetrators and continued to sit in the driver’s seat of the car during the time between when Wallace woke up and when Wallace eventually left the area. Later, defendant was arrested in Chicago, where Grashen was also arrested and where Wallace’s car was recovered. Defendant correctly points out that the State failed to bring in the arresting officers to testify, nor did the State establish the exact locations in Chicago where defendant, Grashen, and the automobile were found. Nevertheless, the evidence was sufficient to support a finding that defendant was still with the perpetrators of the crime. Defendant had not returned to or remained in Waukegan but was in Chicago, where Grashen and the stolen vehicle were found.

The third and final factor to support a convictionuñder an accountability theory, whether defendant made an attempt to contact the police or anyone else about the crime, was also satisfied. No evidence was given which would establish that defendant contacted the police about the crimes in question. The only testimony offered on this subject was given by Wallace, who testified that he did not see defendant call the police. It is well settled that, in determining whether accountability has been established, the trier of fact may consider a defendant’s failure to report the incident to or confide in anyone about it. People v. Green (1988), 179 Ill. App. 3d 1, 16.

We believe that all of the evidence, as set forth above, provided a sufficient basis for the jury to conclude beyond a reasonable doubt that defendant was guilty of robbery and unlawful possession of a stolen motor vehicle, under an accountability theory.

For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

WOODWARD and BOWMAN, JJ., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DEMETRIOS GIOKARIS, Defendant-Appellee.
    Second District
    No. 2 — 91—0836
    Opinion filed April 2, 1993.
    James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

      Michael A. Pedicone, of Chicago, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Demetrios Giokaris, was charged by indictment with five counts of theft and one count of attempted theft. Defendant filed a motion to dismiss based on his previous receipt of immunity from the State. Following argument, the trial court granted defendant’s motion. The State appeals, contending the dismissal was improper because it is possible to give a defendant limited immunity rather than full transactional immunity. We affirm.

On or about February 20, 1990, defendant was served a grand jury subpoena duces tecum requesting 46 of his patients’ records and other records. Following a hearing on defendant’s motion to quash based upon physician-patient privilege, Judge Bowman entered an order conferring immunity upon defendant at the prosecutor’s request. Judge Bowman’s order stated:

“[T]hat pursuant to the motion of the People under Ill. Rev. Stat. ch. 38, section 106, the petitioner is granted act of production immunity; further, the witness is hereby released from all liability to be prosecuted or punished on account of his act of producing the documents and the compelled testimonial statements that accompany the production of the described documents.”

Defendant subsequently appeared on June 22 and August 31, 1990, before the grand jury in response to the subpoena and immunity order, produced certain documents concerning his patients’ records and provided certain testimony as requested.

Defendant was charged by indictment with six offenses related to his grand jury appearance. Defendant was charged with three counts of theft: (1) relating to cashing checks for services allegedly not rendered but billed; (2) two counts of attempted theft, relating to issuing a bill for services allegedly not rendered, and allegedly double billing for services rendered; and (3) one count of conspiracy to commit theft for allegedly double billing for services rendered. Count VI, charging attempted theft for allegedly double billing for services rendered, was dismissed upon the State’s motion to nol-pros. Defendant’s motion to dismiss count IV charging attempted theft was granted on statute of limitations grounds.

Defendant eventually filed a motion to dismiss the remaining counts of the indictment on the ground that he had previously been granted transactional immunity, “the effect of which was to have released him from all liability to be prosecuted or punished on account of his production of his records and his testimony concerning his records produced in response to the subpoena.” The State responded that the decision in In re January 1986 Grand Jury No. 217 (1987), 155 Ill. App. 3d 445, recognized the possibility of giving defendant limited “production” immunity which would not release defendant from liability in this case.

After several discussions and formal arguments, the trial judge dismissed the indictment after determining (1) that the Illinois Supreme Court opinion People ex rel. Cruz v. Fitzgerald (1977), 66 Ill. 2d 546, controls over the decision of the Appellate Court, First District, in In re January 1986 Grand Jury No. 217 and (2) that even if the supreme court endorsed the In re January 1986 Grand Jury No. 217 case, the prosecutor’s questioning before the grand jury exceeded the limited questioning that might have been permitted. Consequently, dismissal of the indictment was proper. The State appeals, contending that In re January 1986 Grand Jury No. 217 applies here because it allows a grant of immunity limited to the testimonial aspects of the act of producing subpoenaed documents.

Specifically, the State contends that In re January 1986 Grand Jury No. 217 presented an issue essentially identical to the one in this case. The State contends that in that case defendants were granted “production immunity” for admitting that certain documents were in existence and for producing them, but not with respect to any crimes the documents might reveal were committed. Defendants continued to assert their fifth amendment privilege claiming that the limited grant of immunity did not adequately protect that privilege. The defendants were held in contempt for refusing to produce the subpoenaed documents. In discussing the scope of the immunity to which the defendants were entitled, the court first noted that article I, section 10, of the Illinois Constitution (Ill. Const. 1970, art. I, §10) creates a privilege identical to the fifth amendment and that Illinois courts will follow decisions of the United States Supreme Court on identical State and Federal constitutional provisions. The court then noted that the scope of the fifth amendment protection afforded to voluntarily kept documents was analyzed in United States v. Doe (1984), 465 U.S. 605, 79 L. Ed. 2d 552, 104 S. Ct. 1237, wherein it was held that the contents of such documents were not privileged, but the act of producing the documents, i.e., admitting that the documents (1) exist, (2) are the documents sought by the subpoena, and (3) are in the defendant’s custody, may be privileged. The Appellate Court, First District, therefore concluded that in order to compel production of records the State was required to grant the defendants immunity for the act of producing the documents and compelled testimonial statements that accompany that production.

Like the defendant here, the defendants in In re January 1986 Grand Jury No. 217 argued that the transactional immunity granted by section 106 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1991, ch. 38, par. 106 — 1) cannot be transmuted into anything less than full transactional immunity. The court rejected this argument, stating:

“We agree with the Bernsteins that transactional immunity may not be transmuted into anything short of a prohibition against the prosecution for all offenses to which the compelled evidence relates. [Citations.] The compelled testimony for which the State has offered immunity is that the records sought exist, are in the Bernsteins’ possession, and are the records sought by the subpoena. The Bernsteins maintain that even this testimony ‘relates’ to the crimes of State income and sales tax fraud which the State seeks to pursue. We believe, however, that compelled testimony that the records exist and are in the Bernsteins’ possession does not relate to the crimes of tax fraud. Immunity for the act of production is narrow and protects the Bernsteins only from prosecution for any crimes which are revealed by the existence or possession of the requested records.
Moreover, pursuant to Doe, the contents of the records are not protected. Any evidence revealed by the contents of the documents which would aid the State in its prosecution can be used. The immunity order issued by the trial court is in accordance with these findings. We therefore find that the immunity order was proper and we refuse to issue the requested writ of prohibition sought by the Bernsteins prohibiting the State from continuing its investigation and prosecution.” (Emphasis added.) In re January 1986 Grand Jury No. 217, 155 Ill. App. 3d at 451.

Consequently, the State here contends that In re January 1986 Grand Jury No. 217 conclusively demonstrates that it is possible to grant the type of “production” immunity given to the defendant here without violating section 106 — 1 or the holding of People ex rel. Cruz v. Fitzgerald. Specifically, the State contends that the evidence revealed in the documents produced by defendant may be used to prosecute defendant, even though defendant’s act of producing the documents and his testimony concerning their contents may not be used against him. Consequently, the State urges this court to reverse the dismissal of the indictment, based on In re January 1986 Grand Jury No. 217.

We disagree. Section 106 — 1 of the Code of Criminal Procedure provides:

“In any investigation before a Grand Jury, or trial in any court, the court on motion of the State may order that any material witness be released from all liability to be prosecuted or punished on account of any testimony or other evidence he may be required to produce.” (Ill. Rev. Stat. 1989, ch. 38, par. 106 — 1.)

Section 106 — 2 of the Code of Criminal Procedure sets forth the effect of the immunity:

“Such order of immunity shall forever be a bar to prosecution against the witness for any offense shown in whole or in part by such testimony or other evidence except for perjury committed in the giving of such testimony.” Ill. Rev. Stat. 1989, ch. 38, par. 106 — 2.

As defendant correctly points out, the immunity provided for in sections 106 — 1 and 106 — 2 is transactional and not use immunity. Our supreme court made this clear in People ex rel. Cruz v. Fitzgerald (1977), 66 Ill. 2d 546, when it stated:

“We deem it clear that the language of sections 106 — 1 and 106 — 2 of the Code of Criminal Procedure of 1963 [citation] provides for a grant of transactional immunity.” (66 Ill. 2d at 550.)

Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony (production) relates, affords the witness considerably broader protection than does the use and derivative use immunity or fifth amendment privilege. (See Kastigar v. United States (1972), 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653; People v. Gaines (1989), 188 Ill. App. 3d 451.) This precedent has been followed uniformly by our State’s appellate court. (See Gaines, 188 Ill. App. 3d 451; People v. Goodwin (1986), 148 Ill. App. 3d 56; In re R.L. W. (1979), 78 Ill. App. 3d 521.) Moreover, a grant of immunity under statutory authority must be in strict compliance with the terms of the statute. People v. Hamm (1985), 136 Ill. App. 3d 11, 23.

Defendant correctly points out that the Illinois Supreme Court decision in People ex rel. Cruz v. Fitzgerald is controlling. The defendant in Cruz was indicted by a Du Page County grand jury for theft. He was subsequently subpoenaed before a Cook County grand jury investigating a homicide, and an order of immunity in Cook County was entered. Defendant testified before the Cook County grand jury to matters that related to his Du Page County indictments. The defendant’s motion to dismiss his Du Page County charges on the basis of his receipt of immunity was denied, and he filed an application for writ of prohibition to prevent the Du Page County judges from presiding over the trial and for a mandamus to prohibit the Du Page County State’s Attorney from prosecuting him. The supreme court rejected the State’s arguments that the Cook County grand jury immunity would be treated as use immunity:

“It [the statute] does not provide in any manner for the transmutation of that transactional immunity into use immunity in prosecutions initiated under the local authority of another State’s Attorney. We agree that the legislative failure to address this issue may have mischievous results when a grant of transactional immunity in one proceeding serves to wholly immunize a subject from prosecution in a second jurisdiction where the prosecutor may have completed the investigation and be ready to proceed to trial. However, where, as here, the statutory language is clear and unambiguous, there is no occasion for judicial construction. The statute’s plain language must be given effect. Any correction of this result must come from the legislature.” (66 Ill. 2d at 550-51.)

Consequently, nonlegislative attempts by the prosecution to transmute the transactional immunity granted under section 106 — 1 are ineffective, and the immunity remains transactional. (People ex rel. Scott v. Walsh (1980), 89 Ill. App. 3d 831, 833.) As defendant here correctly asserts, Cruz was decided 16 years ago, and the legislature has not since amended either section 106 — 1 or section 106 — 2.

Similarly, in a case decided by the Appellate Court, Fourth District, involving an apparently agreed order, the court rejected the State’s arguments that immunity conferred upon a juvenile could be limited to immunity from the use of his testimony. (In re R.L.W., 78 Ill. App. 3d 521.) While admitting that the statutory provisions create transactional immunity, the State argued that they do not preclude the parties with the consent of the court from agreeing on a more limited form of immunity. The court disagreed, noting that the trial court has no inherent power to grant immunity but may only do so by virtue of statutory authority. (78 Ill. App. 3d at 524, citing People v. Rockola (1930), 339 Ill. 474, People v. English (1964), 31 Ill. 2d 301, People ex rel. Kunce v. Hogan (1976), 37 Ill. App. 3d 673.) Relying on the Illinois Supreme Court’s decision in Cruz, the court in In re R.L.W. noted that “the statutory provisions in sections 106 — 1 and 106 — 2 provide transactional immunity” (78 Ill. App. 3d at 524), and the language of the statutes “ ‘does not provide in any manner for the transmutation of that transactional immunity into use immunity’ ” (78 Ill. App. 3d at 524, quoting Cruz, 66 Ill. 2d at 550). The court concluded that, because the language of the statute provided full transactional immunity, the defendant was released from all further prosecution or punishment.

We note that the sole case relied upon by the State, In re January 1986 Grand Jury No. 217, has not been approved by any published decision in Illinois. Additionally, it is clear that one district of the State appellate court is not always bound to follow the decisions of other districts. (In re May 1991 Will County Grand Jury (1992), 152 Ill. 2d 381, 398.) Moreover, as explained above, we find that In re January 1986 Grand Jury No. 217 conflicts directly with the supreme court decision in Cruz and contravenes the language in sections 106 — 1 and 106 — 2 of the Code of Criminal Procedure of 1963.

For the above reasons, the order of the circuit court of Du Page County dismissing the indictment against defendant is affirmed.

Affirmed.

INGLISj P.J., and QUETSCH, J., concur.