author: JUSTICE BUCKLEY

text:
    WANDA MEDINA et al., Plaintiffs-Appellants, v. GRAMMER TAYLOR et al., Defendants-Appellees.
    First District (1st Division)
    Nos. 1-88-1366, 1-88-1430 cons.
    Opinion filed June 26, 1989.

      Steck, Spataro & O’Brien, of Chicago (George S. Spataro, of counsel), for appellant Wanda Medina.
    Grubman & Nathan, P.C., of Chicago (Donald S. Nathan and David D. Wilier, of counsel), for appellant Charles J. Fogel.
    Joyce A. Hughes, of Chicago Transit Authority, and P. Scott Neville, Jr., both of Chicago, for appellees.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Wanda Medina and Charles Fogel brought separate negligence actions against Crammer Taylor and Oliver Robertson (defendants), both employee/bus drivers of the Chicago Transit Authority (CTA). The circuit court dismissed their actions for failure to give notice and file suit within the statutory limitations prescribed under the Metropolitan Transit Authority Act (the Act) (Ill. Rev. Stat. 1985, ch. 1112/3, par. 301 et seq.). In this consolidated appeal, Medina and Fogel raise the sole issue of whether the circuit court erred in applying the statutory limitations under the Act.

After Medina’s vehicle was struck from behind by a CTA bus driven by Taylor on July 3, 1984, she filed a notice of claim with the CTA on July 1, 1985, and a civil action against Taylor in the circuit court of Cook County on June 19, 1986. Fogel filed suit against Robertson on September 19, 1985, in the circuit court of Cook County after his vehicle was struck from behind by a CTA bus driven by Robertson on October 8, 1984. Fogel did not, however, notify the CTA of his claim.

Defendants filed motions to dismiss pursuant to section 2 — 619 of the Illinois Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619(aX5)) based on Medina’s and Fogel’s failure to comply with the statutory limitations under section 41 of the Act, which requires notice to be given to the CTA within six months and suit to be filed within one year from the date of injury. (Ill. Rev. Stat. 1985, ch. 1112/s, par. 341.) The circuit court granted defendants’ motions on the grounds that Medina and Fogel failed to give notice of their injuries within six months from the date of injury and Medina failed to file suit within one year from the injury date.

Section 41 of the Act contains limitations provisions for civil actions filed against the “Authority.” It provides:

“No civil action shall be commenced in any court against the Authority by any person for any injury to his person unless it commenced within one year from the date that the injury was received or the cause of action accrued. Within six (6) months from the date that such an injury was received or such cause of action accrued, any person who is about to commence any civil action in any court against the Authority for damages on account of any injury to his person shall file in the office of the secretary of the Board and also in the office of the General Attorney for the Authority *** a statement, in writing ***. *** If the notice provided for by this section is not filed as provided, any such civil action commenced against the Authority shall be dismissed and the person to whom any such cause of action accrued for any personal injury shall be forever barred from further suing.” (Ill. Rev. Stat. 1985, ch. 1112/3, par. 341.)

Thus, to file a civil action against the CTA, a plaintiff must (1) give written notice to the CTA within six months of the accident, and (2) file suit within one year after the accident.

Plaintiffs initially contend that these limitations provisions were intended to apply to the CTA and not to its employees when they are sued in their individual capacities. They maintain that the applicable statute of limitations is the two-year limitation for personal injuries under the Code (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 202). We disagree.

The Illinois Supreme Court has recently held in a case involving the doctrine of respondeat superior that a similar statute of limitations was applicable to both employer and employee for the same tort. (Penkava v. Kasbohm (1987), 117 Ill. 2d 149, 157, 510 N.E.2d 883, 886.) In Penkava, a registered nurse was named as a party-defendant in a medical malpractice action, along with a doctor, a hospital and the administrator of plaintiff’s estate. Each defendant filed a motion to dismiss plaintiff’s complaint on the basis that her claims were barred by the statute of limitations for medical malpractice actions, which expressly addressed physicians, dentists, and hospitals, but did not mention registered nurses. (Ill. Rev. Stat. 1981, ch. 83, par. 22.1; ch. 110, par. 13 — 212.) The appellate court affirmed the circuit court’s dismissal of all defendants except as to the nurse, on the basis that the legislature did not intend her to be encompassed under the statute of limitations provisions for medical malpractice. The Illinois Supreme Court, however, reversed the appellate court, holding that one statute of limitations is applicable to both employer and employee for a single tort. Penkava, 117 Ill. 2d at 157, 510 N.E.2d at 886.

In reaching its conclusion, the supreme court analyzed the intent of the legislature in enacting the statute, noting that intent should be gathered not only from the language used, but also from the reasons for the enactment. (Penkava, 117 Ill. 2d at 154, 510 N.E.2d at 885; Maloney v. Bower (1986), 113 Ill. 2d 473, 479, 498 N.E.2d 1102, 1104.) From its determination that the legislature enacted the provision to ensure continued availability of medical malpractice insurance, the court concluded that the term “hospital,” for purposes of the limitations provisions, embraces a registered nurse when acting within the scope of her employment. (Penkava, 117 Ill. 2d at 155, 510 N.E.2d at 886.) It reasoned that a hospital is more than a building which provides medical treatment, “it is also composed of persons, including nurses, who act on behalf of the hospital in providing treatment for patients.” Penkava, 117 Ill. 2d at 156, 510 N.E.2d at 886.

The instant case is analogous to Penkava. The Act provides for certain limitations for civil actions filed “against the Authority.” Ill. Rev. Stat. 1985, ch. 1112/s, par. 341.

The legislature’s intent as to the term “Authority” may be gathered from the language of the statute and the purpose it seeks to serve. (See People ex rel. Cason v. Ring (1968), 41 Ill. 2d 305, 310, 242 N.E.2d 267, 270.) The purpose of the special limiting requirements in the Act was to allow the CTA the opportunity to make timely investigations, to determine its budget in advance for taxing purposes (King v. Johnson (1970), 47 Ill. 2d 247, 251, 265 N.E.2d 874, 876), and to limit the number of suits against the CTA (Schuman v. Chicago Transit Authority (1950), 407 Ill. 313, 320-21, 95 N.E.2d 447, 451). Since these purposes would be thwarted by, in effect, allowing plaintiffs a longer period of limitations against the CTA by way of subsequent contribution or indemnification actions to reach the “deep pocket” of the CTA, we conclude that the legislature must have intended that the limitations would apply to actions brought against CTA employees as well as the CTA. Moreover, as in Penkava, employees of the CTA are merely an extension of their employer, the CTA.

This position is further buttressed by Illinois case law which deems the CTA and its employees as one unified tortfeasor for purposes of the res judicata effect of a judgment. Muscare v. Voltz (1982), 107 Ill. App. 3d 841, 438 N.E.2d 620; Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 382 N.E.2d 1217; Aldridge v. Fox (1952), 348 Ill. App. 96,108 N.E.2d 139.

We reject plaintiffs’ contention that Penkava is distinguishable from the case at bar because the doctrine of respondeat superior is absent here and the CTA is a mere “stranger” to this case. In response to defendants’ section 2 — 619 motion to dismiss, plaintiffs did not submit affidavits or any other evidence contradicting defendants’ assertion of the respondeat superior doctrine in their motion to dismiss. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(5).) Therefore, the circuit court correctly relied on the facts set forth in defendants’ motion. Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(c).

Plaintiffs’ reliance on Mitsuuchi v. City of Chicago (1987), 164 Ill. App. 3d 815, 518 N.E.2d 313, rev’d (1988), 125 Ill. 2d 489, 532 N.E.2d 830, for the proposition that an employee may seek to recover damages from a co-employee even where the action is time barred as to her employer is misplaced. The Illinois Supreme Court expressly overruled the appellate court’s finding as to this proposition, reasoning that to allow a suit against an employee where the same suit is barred as to the employer under the Pension Code (Ill. Rev. Stat. 1981, ch. lOSVa, pars. 22 — 306, 22 — 307) would contravene the statute by creating an indemnification situation. (Mitsuuchi, 125 Ill. 2d at 497, 532 N.E.2d at 833.) We, too, find that if plaintiffs are permitted to maintain their suits against employees in these circumstances, indemnification claims against the CTA would result, in derogation of the purposes of the Act. Contrary to plaintiffs’ assertions on appeal, Mitsuuchi supports our rationale that plaintiffs’ actions are barred.

Next, plaintiffs contend that the limitations under the Act are unconstitutional because no legitimate State purpose or rational basis exists for such a special statutory classification. This argument has been defeated in Schuman (407 Ill. 313, 95 N.E.2d 447) and Fujimura v. Chicago Transit Authority (1977), 67 Ill. 2d 506, 368 N.E.2d 105. In Schuman, the supreme court found that due to the CTA’s size and the threat of “blind claims,” a rational basis exists for specialized notice and civil action limitations periods. (Schuman, 407 Ill. at 320-21, 95 N.E.2d at 451.) In Fujimura, the court found a legitimate State purpose for the CTA’s limitations provisions because of its unique governmental function and also the high duty of care owed to its passengers, which is nonexistent in other public entities. Fujimura, 67 Ill. 2d at 513, 368 N.E.2d at 108.

Accordingly, we hold that the Act’s limitations provisions extend to an employee of the CTA. We, therefore, affirm the orders of the circuit court of Cook County dismissing defendants from these actions.

Affirmed.

MANNING, P.J., and O’CONNOR, J., concur.

      Seetion 22.1 of “An Act in regard to limitations” states, in pertinent part, as follows:
      “No action for damages for injury or death against any physician, dentist or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date *** of the injury or death ***.” Ill. Rev. Stat. 1981, ch. 83, par. 22.1.
      Subsequently, the statute was amended to include registered nurses. Ill. Rev. Stat. 1985, ch. 110, par. 13-212.

      The court noted that “the legislature in the mid-1970’s was confronted with a medical malpractice insurance problem resulting from an accelerated rise in premiums charged by a number of insurance companies and the withdrawal of other companies from the medical malpractice insurance market.” (Penkava, 117 Ill. 2d at 155, 510 N.E.2d at 885.) As a remedy, the legislature enacted “An Act in regard to limitations,” which limited the time within which a medical malpractice action could be brought. Ill. Rev. Stat. 1981, ch. 83, par. 22.1.

      In nonjury cases, as here, the court may resolve the section 2 — 619 motion to dismiss even where there is a disputed issue of fact, relying on affidavits or any other evidence. Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(c).

        S chuman defines “blind claims” as those not reported to the CTA by its employees. Schuman, 407 Ill. at 320, 95 N.E.2d at 451.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    JOHN L. WOZNIAK, Plaintiff-Appellant, v. FIRST SAVINGS OF AMERICA, Defendant (J. Farrell & Associates, Inc., Defendant-Appellee).
    First District (1st Division)
    No. 1-88-1961
    Opinion filed June 26, 1989.
    Rehearing denied August 16,1989.
    John L. Wozniak, of Orland Park, appellant pro se.

    No brief filed for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff, John Wozniak, appeals from an order of the circuit court of Cook County granting summary judgment to defendant J. Farrell & Associates, Inc. Plaintiff claims that this judgment was erroneous.

In April 1986 plaintiff owned a condominium unit in a development known as the Manorhomes of Somerset Park (Manorhomes). On April 4, 1986, plaintiff applied for a mortgage with First Savings of America (FSA) to refinance the unit at a lower interest rate. On May 13, 1986, defendant responded to an inquiry from FSA by preparing a statement that alleged that the development was still subject to additional phasing or annexation. On June 12, 1986, plaintiff’s mortgage application was rejected by FSA because the property was found unacceptable.

Plaintiff filed a complaint in the circuit court of Cook County alleging that he was denied the mortgage loan solely due to defendant’s statement that the Manorhomes continued to be subject to phasing which, in fact, was not the case. Plaintiff further alleged that defendant breached its fiduciary duty to him by not informing itself of the correct status of the phasing or annexation of the Manorhomes.

Defendant filed a motion for summary judgment alleging that it had only a limited agency relationship with the Manorhomes pursuant to a written management agreement and that the agreement imposed no duty upon defendant to be involved as liaison between the Manorhomes and the developer with respect to phasing or annexation. Plaintiff responded, stating that he had relied on defendant to correctly describe the status of the phasing of the property to FSA, that an article appeared in the Orland Star on April 20, 1986, announcing that the development was not subject to expansion or phasing, and that defendant had contractual obligations to the condominium association by virtue of the property management agreement. The trial court entered an order for summary judgment in favor of defendant. Plaintiff later settled the portion of the case that pertained to FSA.

In plaintiff’s pro se appeal he contends that the trial court erred in awarding summary judgment to defendant because defendant owed a duty personally to plaintiff as well as to the condominium association pursuant to the property management agreement. Plaintiff’s entire brief is devoted to attempting to show that defendant had a duty to plaintiff and that the management agreement existed for his benefit as well as for that of the association.

We find that although plaintiff’s brief is carefully researched and organized, it does not reach the only appealable issue in this case, which is whether defendant had a specific duty under the contract or under the law to inform itself as to the expansion or phasing of the Manorhomes. This court will not prepare and argue a case for an appellant. Consultants & Administrators, Inc. v. Department of Insurance (1982), 103 Ill. App. 3d 920, 431 N.E.2d 1306.

Plaintiff has not demonstrated that defendant owed a duty to him under the law, and we do not find such a duty to be imposed on the defendant by its property management agreement with the condominium association.

Accordingly, we affirm the judgment of the circuit court of Cook County.

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.


author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT TINOCO, Defendant-Appellant.
    First District (2nd Division)
    No. 1-86-1502

    Opinion filed June 27, 1989.

      Randolph T. Stone, Public Defender, of Chicago (Donald Honchell, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Linda Woloshin, Assistant State’s Attorneys, of counsel, and Michael Brychell, Law Student), for the People.

      This case was assigned to the second division on April 10,1989.

   JUSTICE HARTMAN

delivered the opinion of the court:

Defendant’s appeal from his convictions for delivery of a controlled substance raises the issues of whether: (1) the State proved him guilty beyond a reasonable doubt; (2) exclusion of testimony of two defense reputation witnesses constitutes reversible error; (3) contradictions of record regarding the imposed fine warrants remandment for clarification; and (4) defendant’s fine may be offset by time served in prison prior to sentencing.

Following a bench trial, the circuit court found defendant guilty of three counts of delivery of a controlled substance (Ill. Rev. Stat. 1987, ch. SG1^, par. 1401) upon the theory of accountability (Ill. Rev. Stat. 1987, ch. 38, par. 5 — 2(c)), imposed a fine of $3,000, and sentenced defendant to six years in custody of the Department of Corrections.

At trial, Drug Enforcement Administration (DEA) agent Robert Fanter testified to three separate transactions involving defendant and codefendant Gil Cobian.

On August 28, 1984, Fanter telephoned Cobian at the Cedar Hotel in Chicago and asked for a meeting which took place at a McDonald’s restaurant adjacent to the hotel. When Fanter told Cobian that he wanted to buy cocaine, Cobian replied that he would call Fanter after he had “talked to his source.” Cobian called Fanter two days later and said his source was with him; he, Cobian, had an ounce of cocaine for sale; and Fanter should come immediately to the hotel. Following Cobian’s instructions, Fanter and another DEA agent, Anthony Greco, went to the Cedar Hotel. Greco remained in their car as Fanter went into the hotel alone. In Cobian's room, Fanter saw Cobian and defendant, who Cobian referred to as “Joe.” Cobian gave Fanter a clear plastic bag containing white powder, for which Fanter handed him $2,400 in prerecorded, DEA funds. Fanter told defendant that he would be interested in “doing some in the future.” Defendant responded that “it would be possible to do larger amounts in the future.”

When Fanter next contacted Cobian on September 10, 1984, by telephone and asked to purchase two ounces of cocaine later in the week, Cobian said he would “get a hold of his source and make arrangements for the delivery.” Cobian did not identify his source by name. Fanter placed two more phone calls to Cobian on September 12, and twice that day went to the Cedar Hotel to meet Cobian. Greco again accompanied Fanter and again remained in the car. On his second visit, Fanter found both defendant and Cobian in the room. Cobian gave Fanter a clear plastic bag containing white powder. Fanter remarked that he hoped the quality of the cocaine would be better than before. Defendant said “it was better than the time before.” Cobian took $2,400 in prerecorded, DEA bills from Fanter and handed it to defendant, who put it in his front trouser pocket. Defendant also stated that if Fanter purchased larger amounts in the future, “the price would go down.”

Fanter placed another call to Cobian on September 18, 1984, arranged to meet him later that day at the same McDonald’s restaurant and noted that he was interested “in doing larger amounts,” anywhere from 10 ounces to a kilogram. Cobian responded that he’d have to speak to his source, referred to as “Joe.” Fanter telephoned Cobian on September 26 and again on September 27; Cobian informed him the second day that his source had not yet arrived and that Fanter should call one hour later. When Fanter did so, Cobian said his source was with him and that Fanter should “come right over.” Fanter drove with Greco to the hotel and, while Greco waited outside, proceeded alone inside the building.

In Cobian’s room, Fanter again found Cobian and defendant. Cobian handed Fanter two clear plastic bags containing white powder. Defendant assured Fanter that the “two ounces were better than the one ounce [Fanter] purchased earlier.” Fanter examined the cocaine under a light and handed $4,800 in prerecorded bills to Cobian, which he in turn gave to defendant. Defendant placed the bills in a trouser pocket. In response to Fanter’s remark that he “wanted to do larger amounts,” defendant stated that he “could deal more in the future, but he had to get to know [Fanter].” He also told Fanter the price of the narcotics would improve.

Fanter returned to his car and waited with Greco until defendant and Cobian emerged from the hotel. The agents followed the car in which defendant and Cobian drove away from the building; Fanter did not participate in their subsequent arrest.

Following defendants’ arrests that day, Fanter spoke to Sergeant Killackey at the 11th and State police station in Chicago. Killackey told Fanter that defendant wished to speak to Fanter and Killackey alone. In Killackey’s office, Fanter read defendant his constitutional rights, after which defendant said he received cocaine from an individual who owned or had owned an auto body shop at 22nd and Western and that he owed that individual $4,400 for the two ounces Fanter purchased earlier that day. If defendant could pay the $4,400, he could possibly purchase more cocaine. When Fanter refused to give him the money, defendant became upset and declined to speak any more.

On cross-examination, Fanter admitted that “original information” given to him indicated that Cobian and a person named Victor Romo were involved in drug trafficking; during the course of the transactions described above, Fanter at no time heard the name Robert Tinoco; and Cobian never identified “his source” as Robert Tinoco. Fanter did not see Cobian hand any money to defendant on August 30. On September 12, only Cobian, not defendant, pointed out the plastic bag of white powder to Fanter and referred to it as Fanter’s “ounce.” Fanter further conceded that he never saw defendant handle the cocaine bags and that he did not know what time defendant arrived at Cobian’s room on September 12. No trace of defendant’s fingerprints was found on the cocaine bags received on the 12th and 27th of September, nor did defendant tell Fanter at the police station on September 27 that the cocaine seized was his. In a conversation with Cobian on August 8, 1984, Cobian assured Fanter he could deliver large amounts of cocaine to him, but would have to talk to “Joe” to secure them.

Greco’s testimony corroborated Fanter’s description of his activities in connection with the cocaine transaction, specifically stating that on August 30, September 12 and September 27, Fanter and Greco parked their car in front of the hotel; Fanter walked into the hotel for approximately 10 minutes and reappeared carrying plastic bags of white powder, and on each occasion, the agents subjected the powder to a field test, which proved positive for the presence of cocaine. After the final transaction on September 27, Greco and Fanter waited in their car until defendant and Cobian left the hotel, following them once they drove away in their own automobile. In all the times he accompanied Fanter, he never saw where Fanter went once he entered the hotel.

On September 12, DEA agent Donald Imburdino drove with another agent to the Cedar Hotel and parked his car in front of the building. Upon surveillance, Imburdino saw Fanter enter and leave the hotel twice. Shortly after the completion of Fanter’s second visit, Imburdino watched as defendant left the building and entered a nearby, parked white Oldsmobile containing a woman and a small child. Imburdino followed defendant as he drove to a restaurant, an ice cream parlor, a Shell gas station and then “Mechanics Expert Auto Body” on 22nd Street, one half block west of Western Avenue. At the last stop, defendant got out of his car, walked into the building, returned a couple of minutes later and proceeded to a residence on Hermitage Street, which he and his companions entered.

On September 27, Imburdino, again waiting in a parked car, saw Fanter leave the hotel. Shortly thereafter defendant and Cobian emerged and drove away in an “older Buick” to 47th and Aberdeen Streets, where they were arrested by Imburdino and other agents. Imburdino searched defendant incident to his arrest and found $4,500 in his trouser pocket. Other agents recovered $300 from Cobian. Imburdino averred he never met Cobian or defendant before September 27 or saw Fanter and Cobian meet or leave the hotel together. He knew defendant’s name prior to his arrest.

Killackey testified he was present at 11th and State following defendant’s arrest on September 27. Defendant told Killackey he wanted to speak to Fanter and Killackey alone. Once in Killackey’s office, Fanter informed defendant of his constitutional rights. Defendant thereafter told the officers that he owed $4,400 to a man who owned a body shop at 22nd and Western, and if the authorities gave defendant $4,400, he could repay his debt and then “do something good” for Killackey and Fanter. Fanter declined to give any money to defendant and defendant refused to say anything else.

The surveillance team in front of the Cedar Hotel on September 12 included DEA agent Dale Knittel, who swore that when defendant drove away from the hotel, he followed in his own car and concurred with Greco that defendant made several stops that afternoon, including one at an auto body shop at 22nd Street. On September 23, Knit-tel recorded the serial numbers and dates of the currency used in Fanter’s September 26 drug purchase. Knittel also assisted in the arrest of defendant and Cobian at 47th and Aberdeen. He searched Cobian incident to the arrest and found on him three $100 bills with serial numbers matching the numbers Knittel recorded several days before. The 45 $100 bills retrieved by Imburdino from defendant and subsequently delivered to Knittel also matched the numbers recorded previously. Knittel stated that prior to defendant’s arrest, Knittel knew defendant only as “Joe.” Both before and after defendant’s arrest, Knittel averred, Fanter told him the details of the September 27 transaction.

Cobian testified he and defendant were childhood friends and that they saw each other two or three times per month. Because he was “on disability” and “didn’t receive much money,” Cobian borrowed money from defendant “sometime during 1984.” On the three occasions Fanter came to Cobian’s room at the hotel and found defendant with Cobian, defendant was there only to collect money Cobian owed him; Cobian also said he invited defendant to his room because he was afraid of Fanter and “didn’t know what he would do.” Cobian averred he received the cocaine delivered to Fanter from an individual known only as “Oscar” and that he purchased the drugs “on credit.” He admitted introducing defendant to Fanter as “Joe,” but only because defendant’s real identity was “none of [Fanter’s] business.” At no time did defendant bring Cobian drugs, encourage Cobian to sell drugs to Fanter, or assist Cobian in completing such a transaction. Defendant warned him that he “should be careful.”

Cobian denied telling defendant immediately before or after August 30, September 12 or September 27 that he intended to deal drugs with anyone and further denied hearing defendant converse with Fanter and telling Fanter that defendant was his source for narcotics. Cobian insisted he never heard defendant tell Fanter that on August 30 defendant could obtain a kilo of cocaine for him, or on September 12 that he wanted to get to know Fanter better and could deliver larger amounts of cocaine to him, or on September 27 future deliveries would be better than what Fanter received in the past. Cobian never heard defendant make any statements to Fanter concerning price or quantity of the cocaine. When Fanter attempted to speak to defendant regarding the cocaine on September 12, defendant maintained he “[knew] nothing about that,” and that Fanter should “talk to Gil.” Cobian conceded he received money from Fanter, but claimed he kept $200 for himself on August 30 and September 12 and $300 on September 27, and never gave any of that money to defendant in front of Fanter.

After their arrest on September 27, defendant and Cobian travelled in the same car to the police station and were together continuously until Killackey and “somebody else came and got [defendant] from where we were together and took him away” to an unknown destination. Defendant did not ask to speak to Killackey or any other officers prior to their separation at the station.

I

Defendant initially urges reversal of his convictions because the State failed to prove him accountable for Cobian’s delivery of a controlled substance.

Guilt by accountability demands proof beyond a reasonable doubt that defendant: (1) solicited, ordered, abetted, agreed or attempted to aid another in the planning or commission of a crime; (2) participated before or during the commission of the crime; and (3) possessed concurrent, specific intent to promote or facilitate the offense. (People v. Soleras (1987), 153 Ill. App. 3d 449, 454, 505 N.E.2d 1134; People v. Schlig (1983), 120 Ill. App. 3d 561, 570, 458 N.E.2d 544.) Defendant’s mere presence at the crime scene and knowledge of an ongoing offense is not, alone, sufficient to establish accountability (People v. Deatherage (1984), 122 Ill. App. 3d 620, 624, 461 N.E.2d 631; People v. Schlig, 120 Ill. App. 3d at 570); nevertheless, the fact finder may infer defendant’s accountability from his approving presence at the scene of the crime (People v. Fuller (1980), 91 Ill. App. 3d 922, 929, 415 N.E.2d 502), and from evidence of conduct showing a design on defendant’s part to aid in the offense. People v. Schlig, 120 Ill. App. 3d at 570.

The record evidence here demonstrates that defendant’s position transcended that of a mere observer. He was present in Cobian’s room each time Fanter visited Cobian to purchase narcotics. He assured Fanter on September 12 that he had received better quality drugs than before. On August 30, September 12 and September 27, defendant also asserted the quantity of cocaine sold to Fanter would similarly increase. These statements, combined with Fanter’s testimony that Cobian handed the prerecorded • $100 bills directly to defendant in Fanter’s presence, defendant’s insistence that he get to know Fanter better before Fanter could receive greater portions of the drugs, and Cobian’s reference to defendant and his source as “Joe” amply support not only the conclusion that defendant aided and abetted Cobian with the requisite felonious intent, but also that defendant supplied Cobian with the narcotics.

Attempting to portray his presence at the hotel as innocent and inconsequential, defendant relies on Cobian’s testimony that Fanter and defendant never spoke to each other in Cobian’s presence; defendant never supplied Cobian with narcotics or encouraged Cobian to engage in illegal activity; and defendant visited Cobian’s room merely to collect money borrowed by Cobian. The circuit court, however, found the State’s witnesses more credible and that the evidence weighed convincingly in the State’s favor; because no reasonable doubt of guilt emerges from the record, this court must accept the circuit court’s findings. (People v. Berland (1978), 74 Ill. 2d 286, 305-06, 385 N.E.2d 649.) Proof that defendant actively participated in the commission of an overt act constituting the offense, furthermore, is unnecessary. (People v. Bernard (1986), 149 Ill. App. 3d 684, 690, 500 N.E.2d 1074; People v. Schlig, 120 Ill. App. 3d at 570.) The facts related at trial establish defendant’s approving presence at the crime, conduct which the court may consider in combination with other circumstances and conclude that defendant assented to the offense, and thereby aided and abetted it. People v. Bernard, 149 Ill. App. 3d at 691-92.

Additional confirmation of defendant’s accountability may be inferred from defendant’s statements to Fanter and Killackey after defendant’s arrest. Testimony concerning defendant’s remarks in Killackey’s office did not harmonize completely, yet witnesses did concur that defendant drove on September 12 to an auto body shop at 22nd and Western Streets; defendant told the officers on September 27 that he needed $4,400 to pay the owner of an auto body shop at 22nd and Western; and if police supplied him with the money, defendant could do something for them in return. Viewed in a light most favorable to the State, the record evidence would support any rational trier of fact in finding the essential elements of the crime proved beyond a reasonable doubt. People v. Valen (1989), 183 Ill. App. 3d 571, 577.

People v. Valen (1989), 183 Ill. App. 3d 571, 577, reinforces this conclusion. The Valen court affirmed defendant’s conviction for delivery of a controlled substance upon a theory of accountability based on proof that defendant: (1) was present on the two occasions an undercover agent purchased cocaine from a third party; and (2) spoke twice to the officer on the telephone, admonishing him to “be patient” and “hang in there” when the agent expressed concern that a promised delivery of cocaine would not be realized. In the instant case, defendant not only was present when Fanter purchased the cocaine but also, as noted above, directly addressed the quality and quantity of future purchases, collected funds used to buy the drugs and “coincidentally” appeared whenever Cobian told Fanter his “source” was in his room.

We decline defendant’s invitation to follow People v. Deatherage (122 Ill. App. 3d 620). In Deatherage, the court reversed defendant’s conviction for delivery of a controlled substance, ruling that his mere presence at the scene of the drug sale and reference by a third party to the defendant as his “guy,” meaning his source, was insufficient to hold the defendant accountable for illegal activity. Admittedly, Fanter in the instant case testified the Cobian referred to defendant often as “his guy,” yet, unlike Deatherage, the record here also demonstrates that Cobian identified his source on August 8 as “Joe” and on August 30 introduced defendant to Fanter as “Joe.”

II

Defendant next maintains that exclusion by the circuit court of two reputation witnesses because he failed to identify them before trial denied him his constitutional right to compulsory process and thus entitles him to a new trial.

Imposition of sanctions for discovery violations lies within the circuit court’s discretion and will be disturbed only where proven prejudicial to defendant. (People v. Flores (1988), 168 Ill. App. 3d 284, 293, 522 N.E.2d 708.) Our courts express a preference for recess and continuance when defendant tenders evidence not previously disclosed to the State (People v. Carrasquillo (1988), 174 Ill. App. 3d 1023, 1032, 529 N.E.2d 603; People v. Flores, 168 Ill. App. 3d at 293), but will tolerate exclusion in the face of a wilful omission “motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence.” Taylor v. Illinois (1988), 484 U.S. 400, 415, 98 L. Ed. 2d 798, 814, 108 S. Ct. 646, 655; People v. Carrasquillo, 174 Ill. App. 3d at 1031.

At bar, defense counsel asked the circuit court, at the close of the State’s case, to allow the presentation of two reputation "witnesses, Ben Balmares and Soleded Vasquez, who defendant asserted in his offer of proof would testify as to his reputation in the community for lack of involvement with narcotics. The court denied defendant’s request, yet allowed Cobian’s attorney to introduce testimony of an occurrence witness, whose existence Cobian’s counsel brought to the court’s attention the same day defendant moved to amend his own answer to discovery.

Defendant notes nearly one month elapsed between his motion to amend his answer to discovery and when defendant actually began presentation of his case, providing ample time in which to interview the proposed witnesses and prepare for their testimony. This court previously has found the sanction of exclusion an abuse of the circuit court’s discretion where the State had “ample opportunity” to interview the proposed witnesses (see People v. Flores, 168 Ill. App. 3d at 293); however, the nature of the witnesses defendant here asked to introduce and the timing of his request weigh in favor of exclusion.

In Taylor v. Illinois, the United States Supreme Court approved the exclusion of an occurrence witness whom defense counsel brought to the court’s attention on the second day of the State’s case. Defendant’s offer of proof concerning the witness’ testimony demonstrated the witness: (1) did not see the incident in question, but rather saw the defendant and his victim immediately before the crime; and (2) had never actually met the defendant until after commission of the alleged crime. (Taylor v. Illinois, 484 U.S. at 404, 98 L. Ed. 2d at 807-08, 108 S. Ct. at 650.) Here, defendant waited until the end of the State’s evidence to raise the existence of the character witnesses, one of whom was defendant’s neighbor and the other a friend acquainted with defendant since childhood, which recalls the Taylor court’s conclusion that “there is something suspect about a defense witness who is not identified until after the eleventh hour has passed.” (Taylor v. Illinois, 484 U.S. at 414, 98 L. Ed. 2d at 814, 108 S. Ct. at 655.) Defendant’s defense in the case sub judice turns on the theory that his presence in Cobian’s hotel room, his receipt of DEA currency and statements he made concerning the cocaine were entirely inculpable acts misconstrued by the State as evidence of illegal activity; nevertheless, having heard the State’s evidence in full, defendant’s belated production of witnesses willing to provide testimony filling the contours of this theory is, at the very least, suspicious and demonstrates a wilful disregard for rules governing discovery. See 107 Ill. 2d R. 415.

Defendant argues that uncertainty surrounding the character witnesses’ willingness to appear in court precluded earlier disclosure of their names. In Taylor, however, the Supreme Court rejected defendant’s insistence that his inability to locate his witnesses made disclosure of their names impossible and implicitly accepted instead the circuit court’s assertion that defendant knew the witnesses’ names and therefore should have revealed that information to the State, even if their addresses were unknown. See Taylor v. Illinois, 484 U.S. at 404, 98 L. Ed. 2d at 807,108 S. Ct. at 650.

At bar, defendant’s response to the State’s discovery request listed Cobian, defendant, and defendant’s wife as potential witnesses and further stated “Investigation continues.” Representations of defense counsel to the court, however, suggest Raimares and Vasquez were known to defendant at an earlier date: “[W]e were *** talking to a lot of people finding out whether they were willing to come forward. Some people, although it doesn’t affect them adversely, the fact they were coming into the courtroom. [Sic] We were finally able to from [sic] our discussions in talking to these people, were able to leam at least two of the people were agreeable to come into court.” Given the alleged length of the witnesses’ acquaintance with defendant, defense counsel easily could have revealed their names in his answer to the State’s request for discovery, even if ultimately they proved too reluctant to testify. See Taylor v. Illinois, 484 U.S. at 414, 98 L. Ed. 2d at 815,108 S. Ct. at 656.

Defendant neglects to identify the prejudice, if any, visited upon him as a result of the court’s ruling. The court below offered no comment on defendant’s offer of proof regarding Balmares’ and Vasquez’ testimony; however, its exclusion of these witnesses, while permitting Cobian’s newly found occurrence witness to testify, implies the court heard nothing in the offer of proof which, even if accepted as true, would dissuade it from its conclusion of defendant’s guilt beyond a reasonable doubt. (People v. Falconer (1988), 168 Ill. App. 3d 618, 624, 522 N.E.2d 903; People v. Flores, 168 Ill. App. 3d at 294.) We note further that no offer was made as to defendant’s good reputation that would have supported testimony of his lack of reputation for narcotics activities. (People v. Partee (1974), 17 Ill. App. 3d 166, 179, 308 N.E.2d 18; People v. Thornton (1978), 61 Ill. App. 3d 530, 534, 378 N.E.2d 198.) The circuit court did not err in excluding defendant’s character witnesses.

Ill

Defendant insists that, should this court affirm his convictions, this cause must be remanded to the circuit court to correct an ambiguity of record regarding the fine entered against him.

The order entered on May 8, 1986, in the instant case noted a $3,000 fine imposed on defendant. The order comports with a statement made twice by the court that it would impose a $3,000 fine on defendant “as representative of the street value” of the cocaine; however, on the same transcript page appears the court’s statement, “Fine of $2000.” The State contends that the circuit court intended a $3,000 fine and that the record suffers only from a “lack of clarity.” We agree.

IV

Defendant lastly contends that he is entitled to a credit of $5 per day for each day spent in custody prior to the entry of his sentence, provided this court affirms his convictions. Citing People v. Seidel (1985), 138 Ill. App. 3d 616, 621, 495 N.E.2d 1330, the State agrees that defendant’s fine must be so reduced. (See Ill. Rev. Stat. 1987, ch. 38, par. 110 — 14.) The cause therefore must be remanded for the purpose of reducing the fine by $1,180, reflecting defendant’s 236 days in custody.

For the foregoing reasons, we affirm defendant’s convictions and remand for adjustment of the fine entered against him.

Affirmed and remanded with directions.

SCARIANO and DiVITO, JJ., concur.

      Cobian too was charged with three counts of delivery of a controlled substance. Defendant successfully moved for severance, and the court conducted concurrent but separate trials.


author: JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. J.L. HOUSTON, Defendant-Appellant.
    First District (2nd Division)
    No. 1-86-2444
    Opinion filed June 27, 1989.

      Paul P. Biebel, Jr., Public Defender, of Chicago (James N. Perlman, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and James E. Tyrrell, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendant J.L. Houston was convicted by a jury for the murder of Ronald Bell and was sentenced to 35 years in the custody of the Department of Corrections. He now appeals his conviction and presents the following issues for review: (1) whether he was proved guilty beyond a reasonable doubt; (2) whether the trial court properly allowed the jury to view his weight-lifting belt, which was found in his car immediately after the murder; (3) whether the arresting officer’s testimony regarding his search for defendant was proper; (4) whether the State’s closing arguments were proper; and (5) whether the prosecution at all times acted properly during his trial.

Ronald Bell was shot 15 times at close range at about 7:20 p.m. on June 18, 1983, near the intersection of 88th Street and Harvard Avenue in Chicago. The car identified by witnesses as being used in the crime was a 1973 brown Buick Electra, which was later found to be registered to defendant.

Larry Baker testified that he resides at 451 West 87th Street, less than two blocks from the scene of the murder, and across the street from the Concorde Gas Station where Bell was employed. He and his wife were returning home in their car from grocery shopping at about 6 p.m. on the evening of the murder, when Baker noticed a brown car parked directly in front of his house. As he pulled up to his residence, Baker drove past the brown car and parked directly in front of it. As he drove past the car, and while adjacent to it, he glanced inside and saw three men he had never seen before; two men were sitting in the front seat, ánd one was in the back seat. After Baker parked his car, he got out and reached into the back seat to remove his grocery bags, and as he did so, he looked through the back window of his car and into the brown car parked behind his. He again saw all three men, including the driver, who this time was keeping his head down, and defendant, who was in the back seat resting his head on either the back of the seat, or a stick of some kind. Defendant looked away when Baker looked at him. After Baker picked up his groceries, he passed between the two cars on his way into his home. When Baker reached the fence gate in front of his house, and once more looked into the car, all three men were looking across the street in the direction of the Concorde Gas Station; consequently, Baker could see only the backs of their heads. Baker then went into his house to obtain his gun, but by the time he returned outside, the brown car had pulled away and parked farther down the block on 87th Street.

A little after 7 p.m., Bell’s fellow employee, Charles Anderson, was driving to his girlfriend’s house at 89th and Eggleston. On 88th Street between Harvard and Eggleston, Anderson saw Bell walking, so he pulled his car over to the side of the road in order to speak with him. As they were talking, Anderson noticed a brown car which had stopped. Two men, who were dressed in work clothes and wore gloves, exited the car and walked east on 88th to Harvard; a third man remained in the car in the driver’s seat. After talking with Anderson, Bell continued walking in the direction of his home — east on 88th Street toward the intersection at Harvard Avenue.

A few minutes later, at about 7:10 p.m., Verdist Poindexter was in the kitchen of his house located at the corner of 88th and Harvard. When he heard gunshots, Poindexter threw himself on the floor, crawled to a corner window facing 88th Street, looked out and saw a man run up to Bell and shoot him several times. A second man, who was down the street, yelled out, “Come on, let’s go.” The two men then got into a brown Buick, which proceeded west on 88th Street and continued past the viaduct there.

About an hour after he first saw the brown Buick, Baker was sitting in his dining room, when he again saw the same car return and park in front of his house. The same three men he had seen earlier got out of the car, two of whom exited from the passenger side and ran east on 87th Street. He then saw the defendant get out of the car on the driver’s side, lock the car, and activate the vehicle’s burglar alarm before he followed the other two men.

The police arrived within minutes of the murder. When Officers Charles Williams and Marshall Massey reached the intersection of 88th and Parnell, they found Bell’s body in the street. There they spoke with Poindexter, who provided a description of the car referred to by Baker and Anderson in their testimony. Officer Marshall then toured the area and discovered the brown Brack parked in front of Baker’s house. When Officer Massey accompanied Poindexter to the car, the young man identified it as the one used in the murder.

At Officer Massey’s request, evidence technicians investigated the auto and ran a registration check of its license plate. As already noted, the Brack proved to be registered to the defendant, and from it, the evidence technicians recovered three automatic weapons, two of which had empty ammunition clips inside, while the third gun was loaded. It was later determined that the bullets which slew Bell were fired from the empty weapons found in the car. Also recovered from the car was a brown leather weight-lifter’s belt containing the inscription “Off. Ekuha El,” which Sergeant Brannigan later testified was defendant’s street name. The evidence technicians also recovered 10 fingerprints from the inside of the vehicle, including one of the defendant’s prints from the rear view mirror. The weapons were also dusted for fingerprints, but none were found on any of them. The evidence technicians also determined that the car’s driving column had not been tampered with. Police records also show that at approximately 11 p.m. of the day of the crime, a Mr. Houston reported that the Brack had been stolen.

Immediately after learning that the car was registered to defendant, Detective Joseph Danzl proceeded to his residence. Danzl did not locate defendant at this time, but took defendant’s brother Elton Houston into custody; another codefendant, Robert M. Brown, was apprehended later. Subsequently, a stop order was placed on defendant and a nationwide warrant was issued for his arrest.

For two years after the murder, the Chicago police department attempted to locate defendant. On May 10, 1985, he was arrested in a raid in East Cleveland, Ohio, and brought back to Chicago on May 17, 1985, When he was told that he would be put in a lineup, defendant requested permission to remove the braids from his hair; and after removing his braids, he was identified by Baker.

Defendant’s jury trial was held in July of 1986, at which defendant’s attorney presented a motion in limine to preclude the State’s witness, Detective Brannigan, from testifying as to a motive for the shooting, defendant’s participation in the El Rukn street gang, and the recovery of defendant’s weight-lifting belt which was inscribed with his street name. Defendant also sought to exclude evidence that Detective Brannigan knew defendant well enough to know his street name and evidence of the detective’s investigation which led to defendant’s arrest. The court precluded the State from raising evidence of motive or defendant’s involvement with the El Rukns, but allowed the introduction of the weight-lifter’s belt. The court also held that the detective could testify about knowing defendant’s nickname, and the State would be entitled to show that the Chicago police department conducted some investigation between the time of the murder and defendant’s arrest two years later.

As previously noted, the jury found defendant guilty and he was sentenced to 35 years in prison. This appeal followed.

I

Defendant claims that he was not proved guilty beyond a reasonable doubt, asserting that the only testimony regarding his identification consisted of Baker’s testimony that he “looked like” one of the men involved in Bell’s murder, and that while the identification testimony of a single witness, if positive and credible, is sufficient to convict a defendant, a conviction cannot be sustained where the testimony of the identifying witness is doubtful, vague and uncertain. (People v. Fiorita (1930), 339 Ill. 78, 85, 170 N.E. 690; People v. Washington (1970), 121 Ill. App. 2d 174, 179, 257 N.E.2d 190.) Defendant points out that, as with any element of a criminal offense, the prosecution bears the burden of proving identity beyond a reasonable doubt (People v. Washington, 121 Ill. App. 2d at 179), and where the witness’ identification of the defendant is doubtful, vague and uncertain, the prosecution must provide some additional fact or circumstance which aids the fact finder in determining the weight to be given to the identification testimony. People v. Washington, 121 Ill. App. 2d at 179.

Defendant further contends that Baker did not provide a meaningful description of the man he first saw in the backseat of the car, as all he could say was that the man had braided hair and a beard, a description that would fit thousands of black men in the City of Chicago. In addition, defendant complains, Baker’s opportunity to observe the man was limited: Baker had never seen the man before; during his first opportunity to observe the man, Baker was able only to get a slight glimpse of the man in the backseat as he was removing groceries from his car; and when Baker saw the man locking the car, the instance was short-lived and the distance between Baker and the car was at least 70 feet. Defendant points to the fact that two years before Baker’s testimony in the case at bar, he testified at the trial of codefendants that he did not know if the man in the backseat was the same man who locked the car door and set the burglar alarm an hour later. Defendant argues that the earlier testimony is entitled to more weight because it was given only nine months, as opposed to over two years, after the murder. Defendant concludes that since Baker’s identification was similar to those offered in Fiorita and Washington, it requires the prosecution to provide additional factors which prove guilt.

Illinois courts have uniformly and consistently held that the positive and credible testimony of a single witness identifying the defendant as the offender is sufficient to support a conviction provided that he observed the defendant under conditions which would allow a positive identification to be made (People v. McNutt (1986), 146 Ill. App. 3d 357, 365, 496 N.E.2d 1089), and that such a finding cannot be disturbed on review unless the evidence itself is so improbable or unsatisfactory as to create a reasonable doubt of defendant’s guilt. (McNutt, 146 Ill. App. 3d at 366.) Here, Baker observed defendant more than once in broad daylight under favorable conditions: before the murder, he observed defendant from his car, as he drove past the Buick while preparing to park; another time through the back window of his car; and at least once more after he had parked directly in front of defendant’s vehicle. After the murder, he observed defendant from his house as he watched the occupants of the car return, at which time he saw defendant emerge from the Buick on the driver’s side, lock the car, and activate the car’s burglar alarm before he followed the other two men who were running east on 87th Street. In addition, he identified defendant in a lineup, and thrice in open court, where he stated during one such identification, that, “Yes. It looks like the gentleman seated over there,” correctly noting that at the time of the killing, the defendant’s hair had been braided and that he had worn facial hair.

Both Fiorita and Washington are distinguishable. In People v. Fiorita (339 Ill. 78, 170 N.E. 690), two of the three eyewitnesses candidly admitted that they had seen only the backs of the murderers’ heads, and their testimony that the Fiorita defendant “looked like” one of the killers was based on such limited observation. In the case at bar, Baker observed defendant several times under extremely favorable conditions, to the extent that he was able to particularize defendant’s changed appearance, and his locking the car and setting the burglar alarm after the murder. Moreover, the third eyewitness in Fiorita stated that he observed the murder from a distance of 200 feet, could not describe the murderer’s appearance, and was dazed because the murder came as a surprise to him. Such is clearly not the situation here.

In People v. Washington (121 Ill. App. 2d 174, 178, 357 N.E.2d 190), the identification of defendant by complainant was doubtful, vague and uncertain, the complainant being able to say only that defendant “looked like one of them that pulled me in the thing. That is all that I can say, that he looked like him.” The complainant could not identify what type of clothing defendant wore, nor could she say that the defendant hit her or was otherwise involved in a most brutal attack. The only other evidence was defendant’s flight. In contrast to Washington, Baker positively identified defendant three times in open court and once in a lineup, accurately specified that defendant had changed his grooming since the murder, and established his presence in the car used in connection with the crime immediately before and immediately after it was committed. All of the claims defendant makes as to the evidence and the arguments he deduces therefrom were made to the jury, and as the trier of fact, they were obviously not persuaded thereby. Nor are we.

Accordingly, we find that Baker positively and credibly identified defendant and that the evidence was not so improbable or unsatisfactory as to create a reasonable doubt of defendant’s guilt.

II

Defendant contends that the weight-lifter’s belt, which had his street name, “Off. Ekuha El,” written on it, was in no way connected or relevant to the offense charged as it was not used in the crime, or identified by a witness as having been worn by anybody involved in the murder; hence, because it suggested that he was a gang member, it was improper to have brought it to the attention of the jury.

In his motion in limine to preclude the prosecution from introducing his belt into evidence, defendant stated that it would be quite possible for a juror to draw the conclusion that he was a gang member, specifically an El Rukn, from the Moslem name “Ekuha El” written on the belt. Defendant maintains that the introduction of the belt weighed heavily upon what must have been the jury’s deep, bitter, and widespread fear of street gangs (People v. Rivera (1986), 145 Ill. App. 3d 609, 617-18, 495 N.E.2d 1088; People v. Parrott (1976), 40 Ill. App. 3d 328, 331, 352 N.E.2d 299), and further asserts that any juror who has lived or has grown up on Chicago’s south side would most likely have some knowledge of street gangs and the El Rukns. Three jurors, in fact, fit this category; therefore, defendant reasons, given the nature of the crime, it would be quite plausible for a juror during deliberations to offer his own speculation as to motive and in doing so suggest the possibility of defendant’s being a member of the El Rukns based on the inscription on the belt. This is precisely the type of inference, defendant argues, not permitted by Rivera and Parrott; thus, defendant adds, admission of the belt was inconsistent with the trial court’s concomitant ruling barring references to gangs. Considering the fact that the belt had absolutely no evidentiary value, defendant concludes, its prejudicial effect perforce outweighs its relevancy.

The exercise of the trial court’s discretion regarding the admission of evidence will not be interfered with where the record establishes a sufficient basis for the court’s decision unless there has been an abuse resulting in prejudice to the defendant. People v. Jones (1982), 108 Ill. App. 3d 880, 884, 439 N.E.2d 1011.

In allowing the State to introduce the belt into evidence, the court reasoned:

“As you say there can be additional evidence of a point, the point here being that the defendant owns the car. You have a certified — This isn’t the only evidence of the fact that he owns the car but that he, perhaps, possessed it and had — was recently in it, what ever inferences may be drawn from that.”

“[Pjhysical evidence may be admitted where there is evidence (either direct or circumstantial) to connect the evidence to defendant and the crime.” (People v. Mathes (1981), 101 Ill. App. 3d 205, 221, 427 N.E.2d 1269; People v. Rogers (1976), 42 Ill. App. 3d 499, 356 N.E.2d 413.) Here, the defendant’s ownership of the car used in the crime, his presence therein, and his ownership of the belt found in the back seat of the car are all part of a set of circumstances combining to occur at the same time and in the same place, i.e., immediately before and immediately after the commission of the crime and within a very short distance from the place where it was committed. At bottom, the only reason advanced by defendant for segregating any one of these established facts from the others is the prejudicial effect to the defendant resulting from their natural cohesion. That is not the law. Where the information is relevant, it is admissible despite the detriment redounding to the accused from its disclosure. (People v. Deacon (1985), 130 Ill. App. 3d 280, 291, 473 N.E.2d 1354.) The presence of defendant’s belt in the backseat of the car used in the crime just before and just after its commission, together with his presence at that time and place, and the car being his, was all incontestably relevant evidence, and its probative value far outweighed any possible prejudicial impact. Moreover, defendant cites no authority for the proposition that a Moslem name necessarily suggests gang membership.

III

Defendant next argues that the arresting officer’s testimony regarding his search for defendant was improperly admitted because either direct or indirect references by the prosecution or one of its witnesses to defendant’s prior criminal conduct, or that a police officer was acquainted with the defendant, constitute error. (People v. Butler (1974), 58 Ill. 2d 45, 49, 317 N.E.2d 35, 37; People v. Spiezio (1982), 105 Ill. App. 3d 769, 773, 434 N.E.2d 837; People v. Stover (1982), 89 Ill. 2d 189, 192-93, 196, 432 N.E.2d 262.) Defendant contends that in the case at bar, the trial court fixed the boundaries for the trial testimony of Sergeant Brannigan in response to his motion in limine when it ruled that although Brannigan could say that he knew defendant, he could testify only that the actions he took during his investigation were not based on any prior knowledge of defendant’s activities, but were the result of what he learned during the investigation of this particular case. Defendant claims that the following exceeded the guidelines set by the trial court judge:

“Q. [State’s Attorney]: And what would you.do to attempt to locate him?
A. [Brannigan]: I would stop at various locations that I knew he had frequented in the past. I would talk to people he associated with and I would contact informants and see if they had any knowledge of his whereabouts.
Q. Did you have knowledge as to what his whereabouts were prior to June 18th of 1983?
A. I knew of one location where he was staying and I would see him occasionally on the street.”

We hold that defendant’s failure to object to this testimony of Sergeant Brannigan constitutes a waiver of this issue on review. As we have previously noted, in his motion in limine defendant sought to preclude the State from questioning the witness on the events leading to his arrest, arguing that the police investigation was irrelevant and prejudicial. The court held that the State should be allowed to show that the police conducted some activity regarding the investigation for the purpose of explaining the time gap before defendant’s arrest. Defendant now contends that the State, in presenting its case through the testimony of Sergeant Brannigan, went beyond the boundaries set by the court. At the time of trial, however, defendant failed to object to this testimony, although he did include the issue in his post-trial motion.

It is a fundamental concept of our adversary system that unless errors at trial are objected to at that time, a defendant waives the right to raise the issue in later proceedings. (People v. Roberts (1979), 75 Ill. 2d 1, 10, 387 N.E.2d 331.) Moreover, in order to preserve an error for review, a party must not only make an objection at trial, but he must also include the issue in a post-trial motion (People v. Banks (1985), 138 Ill. App. 3d 994, 1009, 486 N.E.2d 953, citing People v. Pearson (1981), 88 Ill. 2d 210, 217, 430 N.E.2d 990; see also People v. Whitehead (1966), 35 Ill. 2d 501, 221 N.E.2d 256), unless the result is so prejudicial as to amount to the defendant’s not receiving a fair trial, or is so flagrant as to threaten deterioration of the judicial process. People v. Banks, 138 Ill. App. 3d at 1009.

In the case sub judiee, the defendant failed to preserve the matter in the record when he did not object at trial; the inclusion of the error in the post-trial motion is therefore insufficient to raise the matter for our review. In any case, we do not find the testimony of Sergeant Brannigan, as set forth above, to have prejudiced defendant’s right to a fair trial, nor did it threaten the deterioration of the judicial process.

Defendant also argues that since the court heard a motion in limine on the matter, it had two opportunities to review this issue; therefore, his failure to object should not be fatal. (People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695; People v. Ocasio (1986), 148 Ill. App. 3d 418, 503 N.E.2d 1059.) However, the cases defendant cites as authority do not support him in his argument. In People v. Montgomery, our supreme court mentions only in passing, and then only in the fact section of the opinion, that the defendant did not object when certain evidence was offered, but that the issue was raised in the defendant’s post-trial motion. No point of law involving the failure to object or the curative effect, if any, of raising the issue in a post-trial motion appears to be raised by the parties nor is it discussed by the court. In People v. Ocasio, the court ruled that “the issues on appeal stem from the trial court’s denial of pre-trial motions to quash arrest and suppress evidence as well as to suppress statements. Defendant was tried by the court and does not raise issues regarding trial errors in his appeal. Therefore, we find no necessity for a post-trial motion.” (Ocasio, 148 Ill. App. 3d at 422.) Clearly, neither case addresses the issue raised by defendant in the case at bar.

We also find defendant’s contention that his motion in limine preserved the issue for our review to be without merit. A motion in limine does not preserve evidentiary questions for review. People v. Escobar (1988), 168 Ill. App. 3d 30, 44, 522 N.E.2d 191; People v. Armstrong (1983), 111 Ill. App. 3d 471, 478-79, 444 N.E.2d 276.

IV

Defendant’s next argument is that the State’s closing arguments were improper because they characterized him as a professional criminal when the evidence did not support such a conclusion. (People v. Natoli (1979), 70 Ill. App. 3d 131, 136, 387 N.E.2d 1096, People v. Thomas (1974), 22 Ill. App. 3d 854, 856-57, 318 N.E.2d 342.) Defendant points out that twice during the State’s closing argument, it referred to Bell’s murderers as professional killers, and that this theme was renewed in the State’s rebuttal argument in which defendant was referred to as a “hitman who drives around in his car.” Also in rebuttal, the State said “You get your car back, you can use it. Again for some other murder and you got the guns [sic].” Defendant asserts that all of these comments were designed to convince the jury that he was a habitual criminal, more specifically, a professional murderer. He claims that there was not one scintilla of evidence that he was a professional killer or hit man, and that under the authority of Natoli and Thomas, these statements constitute reversible error.

Defendant also alleges that the State made arguments not based on evidence in its rebuttal argument. He refers in particular to the State’s suggestion that the Mr. Houston who called the police and reported the car stolen was in fact defendant, and that the defense in this case began when defendant learned that his car had been recovered by the police. He asserts that since there is no support in the trial testimony for these arguments, they are improper. Thomas, 22 Ill. App. 3d at 857.

We hold, however, that defendant waived this issue by failing to object to any of the above-cited allegations of error at trial. Consequently, any possible error resulting from these statements has been waived. People v. Lyles (1985), 106 Ill. 2d 373, 392, 478 N.E.2d 291, cert. denied (1985), 474 U.S. 859, 88 L. Ed. 2d 141, 106 S. Ct. 171; People v. Gacy (1984), 103 Ill. 2d 1, 88, 468 N.E.2d 1171, cert. denied (1985), 470 U.S. 1037, 84 L. Ed. 2d 799, 105 S. Ct. 1410.

V

Defendant’s final argument is that the prosecution acted in such a manner as to deny him his right to a fair trial. Defendant advances the theory that the claims of error he raises in the previous three sections of this opinion demonstrate that the State was possessed of a singular purpose in this case: to prejudice the jury against him, not for what he may or may not have done on June 18, 1983, but for what the State believed him to be — a habitual criminal and gang member. Defendant claims that such repeated, cumulative and singular conduct denied him his right to a fair trial, citing People v. Rivera (145 Ill. App. 3d 609, 495 N.E.2d 1088):

“The question and arguments described above bespeak more than a mere overzealousness on the part of the State; rather, these actions carry a quality of purposefulness in the way facts were insinuated in cross-examination and then asserted as true in summation. These ‘foul blows’ cannot be countenanced consistent with the State’s duty to assure a fair trial.” Rivera, 145 Ill. App. 3d at 622.

We find defendant’s assumptions to be unsupported by the record. Moreover, defendant’s argument here has been fully considered previously; he advances no new reasons or authorities here. Accordingly, we fail to perceive how these alleged errors cumulatively deprived him of a fair trial any more than they did individually.

Consequently, for all of the above-stated reasons, the judgment of the circuit court is affirmed.

Affirmed.

BILANDIC, P.J., and HARTMAN, J., concur.