author: JUSTICE SCARIANO

text:
    THE CITY OF CHICAGO, Plaintiff-Appellant, v. MICHIGAN BEACH HOUSING COOPERATIVE et al., Defendants-Appellees.
    First District (2nd Division)
    Nos. 1 — 92—1496, 1—92—1734 cons.
    Opinion filed January 26, 1993.

      Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, Mardell Nereim, and Joan Boman, Assistant Corporation Counsel, of counsel), for appellant.
    Torshen, Schoenfeld & Spreyer, Ltd. (Jerome H. Torshen, of counsel), and Canel, Davis & King (Jay A. Canel, of counsel), both of Chicago, for appellees Jayson Investments, Inc., Michigan Beach Limited Partnership, Michigan Beach Development Corporation, Braden-Jayson Construction, Inc., and Michigan Beach Housing Cooperative.
    McDermott, Will & Emery, of Chicago (Alan S. Rutkoff and Scott W. Ammarell, of counsel), for appellees National Tax Credit Investors II, National Tax Credit, Inc. II, and National Partnership Investments Corporation.
    Fred Foreman, United States Attorney, of Chicago (Linda A. Wawzenski and Nancy K. Needles, Assistant United States Attorneys, of counsel), for appellee Government National Mortgage Association.
    Jones, Day, Reavis & Pogue, of Chicago (James R. Daly and Carol A. Tiesi, of counsel), for appellee Huntoon Paige Associates, Ltd.
    John K. Kallman, of Chicago, for appellees Metropolitan Community Foundation, Inc., Sound, Inc., Zera Construction Co., Inc., Jamerson & Bauwens Electrical Contractors, Inc., Midwest Construction and Development Corporation, Northern Trust Corporation, Title Services, Inc., Leven-feld, Eisenberg, Janger, Glassberg, Samotny & Halper, Gremley & Bieder-mann, Inc., Klayman & Korman, Elliott Dudnik & Associates, and R. Carter Sanders, Jr.
   JUSTICE SCARIANO

delivered the opinion of the court:

The Michigan Beach Apartments (the building) is comprised of 240 units, all of which were rented to low-income families after the building was erected in 1967. It was financed by a federally insured mortgage upon which the building was in default from 1971 until 1984, when the United States Department of Housing and Urban Development (HUD), its sole creditor, finally foreclosed on the obligation. The owner thereupon declared bankruptcy.

In 1986, defendant Jayson Investments, Inc. (Jayson), whose only two shareholders are Jay Canel and Scott Canel (the developers), presented to the bankruptcy court a plan of reorganization which promised to restructure the building as a cooperative, and to which HUD agreed.

Pursuant to the reorganization plan, the developers created defendant Michigan Beach Housing Cooperative (Cooperative), a not-for-profit corporation without assets, which served as the entity through which the developers obtained title to the building from HUD, and through which the residents of the building would manage it. The plan further obligated the developers to hire defendant IGF Development Corporation (IGF) to sell the cooperative units, and the bankruptcy court required that 50% to 70% of them be sold before the plan was to take effect.

In addition to the developers’ sponsorship, the Cooperative obtained two loans. The first was a HUD co-insured $6.4 million first mortgage loan from defendant Cincinnati Mortgage Company (CMC). CMC eventually defaulted on its obligations under the co-insurance program and turned over its portfolio of loans, including the Cooperative loan, to defendant GNMA, which became the senior mortgagee. GNMA later hired defendant Huntoon Paige Associates, Ltd. (Hun-toon), to service the Cooperative loan.

The second loan acquired by the Cooperative was from plaintiff, City of Chicago (the city), in an amount of approximately $3.3 million; in exchange, the Cooperative granted it a security interest in the building and other related assets. The city’s mortgage explicitly stated that it was junior to CMC’s and that all payments due under the note secured by the city’s mortgage were to be made only from “surplus cash” as defined in the senior mortgage. The city’s mortgage also provided that if the Cooperative failed to make its payments on the note, the city could not institute foreclosure proceedings against the building without the consent of the senior mortgagee. The city recorded its mortgage and filed a financing statement with the Illinois Secretary of State.

In April 1989 the developers learned that despite ICF’s assurances to the contrary, less than 20% of the building’s units had been sold prior to closing and that, consequently, the Cooperative was not optimistic about its ability to make future loan payments. The developers thus proposed to the city and to HUD a new plan, one that would involve the Cooperative’s transferring the building to a new limited partnership which would operate the building as a rental complex as opposed to a cooperative. The developers also requested that the city, as well as the State of Illinois, grant the yet-to-be-formed limited partnership low-income housing tax credits so that the interests in the limited partnership could be sold to a syndicator who would in turn sell interests in the partnership to investors.

Throughout 1989 and 1990, the developers negotiated with the city and HUD. The city committed $300,000 worth of income tax credits to the building in June of 1989; subsequently, the developers also obtained $480,000 worth of tax credits from the Illinois Housing Development Authority.

In early 1991, the developers and HUD agreed to a plan that would restructure the ownership of the building as a limited partnership. The city, in a letter dated February 14, 1991, informed the developers and HUD that it rejected the new plan; apparently, the city wanted to maintain the building as a cooperative instead of an apartment complex. Nevertheless, the restructuring plan was completed and executed at a closing, which the city did not attend, on June 12, 1991. The developers, who had earlier repurchased the building from the Cooperative, transferred it and its related assets to a newly created entity, defendant Michigan Beach Limited Partnership (the limited partnership). The limited partnership’s general partners consisted of defendant Michigan Beach Development Corporation (of which the developers were the sole shareholders) and National Tax Credit Inc. II. The major limited partner was the syndicator, defendant National Tax Credit Investors II, a limited partnership with National Tax Credit Inc. II as its general partner (NTC defendants). The NTC defendants, which had given the limited partnership a promissory note for $3,975,000 in January 1991, paid it $2,925,129 toward the balance thereon at the closing, and the limited partnership, pursuant to its agreement with HUD, paid $1,065,600 on the mortgage held by GNMA. In exchange, HUD agreed: (1) not to consent to any attempt by the city to institute foreclosure proceedings; and (2) to allow the limited partnership to remit the remaining syndication funds to creditors as it wished. Accordingly, the limited partnership used the remainder of the syndication funds to pay off accrued debts to certain unsecured creditors (recipient defendants).

On June 19, 1991, the city, unaware that the closing had already taken place, filed a complaint in the circuit court of Cook County against the Cooperative, the limited partnership and CMC, asserting its rights under its mortgage. The city also sought a temporary restraining order to prevent disbursement of syndication funds to the recipient defendants. After the city learned that the syndication had occurred and the funds had been disbursed, it filed a motion for emergency discovery. GNMA, which was not yet a party to the action, but without anyone objecting to the propriety thereof, removed the suit to Federal court, which granted the city’s renewed motion for emergency discovery.

On July 15, 1991, the city filed its first amended complaint against the Cooperative, the limited partnership, CMC, the recipient defendants, the NTC defendants and GNMA. Count I alleges that the city is entitled to recover, under article 9 of the Uniform Commercial Code (111. Rev. Stat. 1991, ch. 26, par. 9 — 101 et seq.) (Article 9), its collateral, namely, the note and the cash already and yet to be paid to the recipient defendants (syndication funds). Count II is a conversion action in which the city seeks to recover the note given by the NTC defendants to the limited partnership on the theory that it is the city’s collateral. Count III is a replevin action against the recipient defendants and alleges that the city is entitled to replevy its collateral, the cash paid on the note, from them. Count IV alleges that the city is entitled to accelerate repayment of its loan because its mortgage is in default. Count V is a claim to recover the syndication funds disbursed to the recipient defendants on the ground that, since the city’s mortgage is in default, they properly belong to the city as “surplus cash.” Count VI is a fraud claim based on the misrepresentations of defendants Ida Fisher, IGF, the Cooperative, and Jayson concerning the requirement that 51% of the Cooperative units be sold. Count VII is a contract claim based on alleged broken commitments to the city regarding certain Federal regulations on the use of loan funds.

The city filed a motion for summary judgment on counts I and II and a motion for a preliminary injunction seeking to require the recip-lent defendants to place the syndication proceeds in an escrow account. While these matters were under advisement, the Federal district court on January 10, 1992, granted the NTC defendants’ motion to remand the cause to the circuit court.

On February 18, 1992, Judge Lester Foreman granted the city’s motion for a temporary restraining order to prevent the limited partnership from disbursing any more syndication funds. On April 8, 1992, Judge Albert Green heard and denied the city’s motions for summary judgment and for a preliminary injunction as well as its motion to stay dissolution of the temporary restraining order pending appeal. On April, 30, 1992, the city filed a notice of interlocutory appeal pursuant to Supreme Court Rule 307(aXl). 134 111. 2d R. 307(aXl).

On May 8, 1992, Judge Green granted the NTC defendants’ and the limited partners’ joint motion to dismiss counts I through V of the city’s complaint pursuant to section 2 — 615 of the Illinois Code of Civil Procedure (111. Rev. Stat. 1991, ch. 110, par. 2 — 615), based on his denial of the city’s motion for a preliminary injunction. The court also made a Rule 304(a) finding that there was no just reason to delay the enforcement or appeal of its dismissal of counts I through V; and on May 13, 1992, the city filed its notice of appeal from that order pursuant to Supreme Court Rule 304(a). 134 111. 2d R. 304(a).

I

As a preliminary matter we must consider whether we have jurisdiction of these appeals under Illinois Supreme Court Rules 304(a) (134 111. 2d R. 304(a)) and 307(aXl) (134 111. 2d R. 307(aXl)). The NTC defendants challenge our jurisdiction over the appeal of the trial court’s dismissal of counts I through V of the complaint under Rule 304(a) because, they allege, the dismissal was pursuant to an agreed order and thus not a proper basis for a Rule 304(a) appeal. (See Kandalepas v. Economou (1989), 191 Ill. App. 3d 51, 53, 547 N.E.2d 496, 498.) The NTC defendants further argue that this court does not have jurisdiction over the interlocutory appeal pursuant to Rule 307(aXl) because no preliminary relief was ever requested against them in the trial court. See Bell v. Yale Development Co. (1981), 102 Ill. App. 3d 108, 112, 429 N.E.2d 894, 897.

Under Supreme Court Rule 304(a) an appeal may be taken from a final judgment as to one or more but less than all of the claims in an action if the trial court makes an express finding that there is no just reason to delay enforcement or appeal of the judgment. (134 111. 2d R. 304(a).) We must, therefore, determine whether the trial court’s order dismissing counts I through V of the city’s complaint was, in fact, final and appealable. Viirre v. Zayre Stores, Inc. (1991), 212 Ill. App. 3d 505, 511-12, 571 N.E.2d 209, 213.

The NTC defendants’ claim that the trial court’s dismissal was based on an agreed order, and thus not final, is groundless. The record clearly establishes that the trial court’s decision to dismiss counts I through V of the complaint was based on its earlier denial of the city’s motion for a preliminary injunction for the reason that the city could not establish any probability of success on the merits. The “agreement” between the parties, made in the interests of judicial economy, was simply that the court would rule the same way on the motion to dismiss as it did on the motion for a preliminary injunction. The court concurred in that “agreement” based on its prior ruling, and accordingly entered an order dismissing counts I through V, adding the appropriate Rule 304(a) certification language. We therefore have jurisdiction over the trial court’s section 2 — 615 dismissal of counts I through V under Supreme Court Rule 304(a).

The NTC defendants’ claim that the city did not seek injunctive relief against it is also without warrant. Supreme Court Rule 307(aXl) grants the appellate court jurisdiction over interlocutory appeals “granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.” (134 111. 2d R. 307(a)(1).) The record clearly establishes that the city requested that its injunction bind the NTC defendants as well as all others. Accordingly, we clearly have jurisdiction over the trial court’s denial and dismissal of the city’s request for injunctive relief.

II

When ruling on a motion to dismiss under section 2 — 615 (111. Rev. Stat. 1991, ch. 110, par. 2 — 615), the trial court should grant such a motion with prejudice only when it is apparent that the plaintiff cannot allege any set of facts that would permit recovery. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 504-05, 565 N.E.2d 654, 657.) On appeal, this court must accept, as was the obligation of the circuit court, all well-pleaded facts as true and draw therefrom all reasonable inferences which are favorable to the moving party. (Burdinie, 139 Ill. 2d at 504-05, 565 N.E.2d at 657; Weil, Freiburg & Thomas, P.C. v. Sara Lee Corp. (1991), 218 Ill. App. 3d 383, 389, 577 N.E.2d 1344, 1355.) The reviewing court should affirm the trial court’s dismissal if it determines that the complaint, so viewed, does not state a claim upon which a relief may be granted. Burdinie, 139 Ill. 2d at 505. 565 N.E.2d at 657.

Counts I through III of the city’s claim are all based on the theory that the syndication funds (the note and/or the cash) are its collateral or, in the alternative, are the cash proceeds of the income tax credits which are collateral covered by the security agreement as represented by the city’s mortgage. The court below disagreed.

Article 9 simply defines “collateral” as “property subject to a security interest” (111. Rev. Stat. 1991, ch. 26, par. 9 — 105(c)); and a security interest is limited to the property described in the security agreement. (Allis-Chalmers Corp. v. Staggs (1983), 117 Ill. App. 3d 428, 432, 453 N.E.2d 145, 148.) The determination of whether a creditor’s security interest encompasses property acquired after the date of the security agreement is governed by the intent of the parties as expressed in the agreement. In re Nightway Transportation Co. (N.D. Ill. 1989), 96 Bankr. 854, 858.

Section 9 — 110 of the Uniform Commercial Code states that “[flor the purposes of this Article any description of personal property or real estate is sufficient whether or not it is specific if it reasonably identifies what is described.” (Emphasis added.) (111. Rev. Stat. 1991, . ch. 26, par. 9 — 110.) In Midkiff Implement Co. v. Worrall (1983), 116 Ill. App. 3d 546, 451 N.E.2d 623, the court, in endorsing the proposition that section 9 — 110 allows for a broad description of collateral in a security agreement, cited favorably the following Illinois Code Comment to that section:

“The test is whether the description ‘reasonably identifies what is described,’ which it will do if it describes the property so as to distinguish it from any other property with which it might be confused.” Midkiff, 116 Ill. App. 3d at 549, 451 N.E.2d at 625, quoting HI. Ann. Stat., ch. 26, par. 9 — 110, Illinois Code Comment, at 85 (Smith-Hurd 1974).

In arguing that its security interest covers the syndication funds, the city points to clause (D) of its security agreement, which states that it has a continuing security interest in all “income, rents, issues, proceeds and profits accruing, and to accrue, from the Real Estate and Improvements.” Applying the “reasonable identification” test, we find that clause (D) does not reasonably identify the syndication funds received by the limited partnership. Those funds were obtained by the limited partnership from the sale of interests in the limited partnership to the syndicator (NTC defendants), which in turn sold such interests to investors, and under no sensible interpretation of clause (D) can this influx of capital into the limited partnership be “reasonably identified” as “income, rents, issues, proceeds [or] profits accruing from the Real Estate” (emphasis added). The only nexus between the real estate and the transaction under discussion is that the limited partnership owns the real estate. Quite simply, the real estate was not sold to the syndicator; thus, the funds could not have accrued from that source. Moreover, title to the realty itself remains unaffected, and the city’s security interest and its rank vis-a-vis other security interests in it remain unchanged. The city’s claim that its security interest “reaches every type of interest of any value to the mortgagor” is plainly incorrect. Had that been its intent, the city could have said so with the same facility with which it now expresses it; but we are not to be understood as implying that the use of such language would have produced a result any different than the one we reach today. Accordingly, we hold that the syndication funds received by the limited partnership and distributed to the recipient defendants do not constitute collateral for the city’s loan.

The city alternatively maintains that the syndication funds are “proceeds” of its collateral which the limited partnership sold, the collateral being the income tax credits. The trial court rejected this argument, finding that the syndication funds were not “identifiable proceeds” of any of the city’s collateral.

Generally, under sections 9 — 306(2) and (3) of Article 9, as long as the creditor has a perfected security interest in the underlying collateral, he will also have a perfected security interest in the identifiable proceeds of the sale of the collateral, even if the term “proceeds” is absent from the security agreement or the financing statement. HI. Rev. Stat. 1991, ch. 26, pars. 9 — 306(2), (3); In re Keneco Financial Group, Inc. (N.D. Ill. 1991), 131 Bankr. 90, 94; Farns Associates, Inc. v. South Side Bank (1981), 93 Ill. App. 3d 766, 769-70, 417 N.E.2d 818, 821.

The city argues that the income tax credits are covered by clause (E) of its security agreement, which states that the city has a security interest in “all *** interests *** in and to all *** personal property of any kind or character now or hereafter owned by Borrower and *** used or useful in connection with the Real Estate and Improvements.” The city maintains that the tax credits are a general intangible personal property interest “used in connection” with the building that qualifies as a type of collateral under Article 9. Therefore, the city reasons, the syndication funds (the note and the cash) are “proceeds” of its collateral (the tax credits).

We agree with the trial court and hold that the city’s security agreement does not cover the income tax credits; we find them at best to be only remotely as well as indirectly “connected” to the building in the sense that only the entity which owns the building can use the tax credits to attract potential investors, a fire too distant to give any warmth to the city. We find, instead, the phrase “used or useful in connection with the real estate” to be indisputably confined to the narrower interpretation which limits the security interest to property that has some physical connection to the building. This becomes especially clear when we consider that clause (G) of the security agreement refers to property “related to the Real Estate,” as opposed to property “connected to” it. The tax credits are not covered by clause (G) either, because it does not contain an after-acquired property clause, and the limited partnership unquestionably acquired the tax credits after the agreement was signed. Consequently, we hold that the city’s security agreement does not implicate the tax credits awarded to the limited partnership.

We find the city’s argument unavailing also because income tax credits cannot be intangible personal property subject to a security in- . terest under Article 9. General intangibles are defined in Article 9 as “any personal property *** other than goods, accounts, chattel paper, documents, instruments, and money.” (Emphasis added.) (111. Rev. Stat. 1991, ch. 26, par. 9 — 106.) Although no court has yet determined whether income tax credits constitute general intangibles for purposes of Article 9, the United States Supreme Court addressed their nature in Randall v. Loftsgaarden (1986), 478 U.S. 647, 92 L. Ed. 2d 525, 106 S. Ct. 3143, and considered whether they were income for purposes of section 12(2) of the Securities Act of 1933 (15 U.S.C. §77a et seq.). In doing so, the court stated:

“The tax benefits attributable to ownership of a security initially take the form of tax deduction credits. These have no value in themselves; the economic benefit to the investor — the true ‘tax benefit’ — arises because the investor may offset tax deductions against income received from other sources or use tax credits to reduce the taxes otherwise payable on account of such income. Unlike payments in cash or property received by virtue of ownership of a security — such as distributions or dividends on stock, interest on bonds, or a limited partner’s distributed share of the partnership’s capital gains or profits — the ‘receipt’ of tax deductions or credits is not itself a taxable event, for the investor has received no money or other ‘income’ within the meaning of the Internal Revenue Code.
* * *
*** Respondents essentially ask us to treat tax benefits as a separate asset that is acquired when a limited partner purchases a share in a tax shelter partnership. But the legal form of the transaction does not reflect this treatment. Petitioners purchased securities, thereby acquiring freely alienable rights to any income that accrued to them by virtue of their ownership. They did not, however, also acquire a separate, freely transferable bundle of tax losses that would have value apart from petitioners’ status as partners. For obvious reasons, tax deductions and tax credits are not, in the absence of a statutory provision to the contrary, freely transferable from one person to another if wholly severed from the property or activity to which they relate ***. [Citation.] Accordingly, we decline to treat these tax losses as so much property created by the promoters of the partnership.” (Emphasis added.) Randall, 478 U.S. at 656-57, 665-66, 92 L. Ed. 2d at 537, 543, 106 S. Ct. at 3149, 3154.

Although Randall was decided in the context of securities regulation, subsequent cases have held that its analysis of tax credits should apply as well beyond the interpretation of securities laws. Bove v. Worlco Data Systems (E.D. Pa. Jan, 21, 1987), No. 86 — 1419, slip op. at 2; accord Federal Deposit Insurance Corp. v. WH Venture (E.D. Pa. June 1,1987), No. 84 — 5673, slip op. at 5.

Applying the Supreme Court’s analysis in Randall to the case at bar, we are led ineluctably to the conclusion that the tax credits at issue cannot serve as collateral because they are not general intangible personal property. Tax credits, as Randall instructs us, have no independent value in and of themselves; instead, they are an incidental benefit that investors receive when they, purchase a security evidencing their interest in a limited partnership. The investors cannot transfer or sell the tax credits separate from the security itself. The limited partnership did not “sell” the tax credits to the investors; the tax credits remain exactly where they resided before the sale of the securities, in the limited partnership. Accordingly, it is clear that the NTC defendants in this case did not purchase and do not own tax credits; instead, they bought and now possess securities which gave them an interest in the Michigan Beach Limited Partnership. The tax credits they received along with their interest in the partnership were incidental benefits of that investment — not separate intangible personal property which could collateralize the city’s loan — and whatever benefit they conferred on the investor renders no comfort to the city.

The cases that the city cites in an attempt to refute the application of Randall do not parse. First, in Rankin Properties, Ltd. v. Woodhollow Estates (S.D. Miss. 1989), 714 F. Supp. 800, 802, the defendant granted Rankin a security interest in all of its partnership interest, including the expected profit from that investment. The court did not reach the issue of whether the tax benefits were part of that security interest. (See Rankin, 714 F. Supp. at 802 (“Rankin has admitted that it does hold a UCC security interest in Woodhollow’s rights in their limited partnership”).) The other cases cited by the defendant stand for the now well-settled proposition that current or expected income tax refunds are general intangible property interests under Article 9. (See, e.g., In re Palmetto Pump & Irrigation, Inc. (M.D. Fla. 1987), 81 Bankr. 109, 111-12; In re Tele/Resources (S.D.N.Y. 1982), 21 Bankr. 358, 362-63; In re Kendrick & King Lumber, Inc. (W.D. Okla. 1981), 14 Bankr. 764, 766.) Surely, however, tax refunds are vastly different than tax credits as defined by Randall. Income tax refunds are quite obviously a property right because they constitute a present or future right to receive money which can be freely transferred after receipt. We reiterate, at the risk of appearing to be didactic, that unlike income tax refunds, tax credits do not constitute a right to a payment of money, have no independent value, and are not freely transferable upon receipt.

In sum, we hold that the city does not have a security interest in the syndication funds; we therefore conclude that the trial court properly dismissed counts I through III of the city’s complaint.

Ill

Counts IV and'V of the city’s complaint allege that its mortgage is now in default under section 3.01 of the mortgage because the Cooperative refinanced the loan, resyndicated the project, and transferred the building and related assets to the limited partnership. The city further contends that although it is prohibited from foreclosing on the mortgage without the senior lender’s consent if it fails to receive payments on its note, that provision does not preclude it from recovering its collateral (the syndication funds) when its loan is refinanced or when the building is transferred. The trial court rejected this argument, holding that the city waived its right to enforce the default provision in question, and even if did not waive it, none of the actions taken by the developers resulted in a default under that provision.

We find the city’s position baseless. First, even if the city had a right to declare a default because the developers resyndicated the project and transferred the building to the limited partnership, it has no right, as discussed above, to the syndication funds because they do not constitute the city’s collateral.

Second, we agree with the trial court and hold that the city waived its right to enforce the default provision when it granted the Cooperative tax credits with knowledge that the Cooperative was going to transfer the building to another entity which would use those credits.

Waiver is a voluntary relinquishment of a known right, claim or privilege. (Vaughn v. Speaker (1988), 126 Ill. 2d 150, 161, 533 N.E.2d 885, 890.) Waiver may be made by an express agreement or it may be implied from conduct inconsistent with an intent to enforce the right by the party who is alleged to have waived that right. (Ryder v. Bank of Hickory Hills (1991), 146 Ill. 2d 98, 105, 585 N.E.2d 46, 49; Wald v. Chicago Shippers Association (1988), 175 Ill. App. 3d 607, 621, 529 N.E.2d 1138, 1147.) Implied waiver requires that an intention to waive be clearly inferred from the circumstances and that the waiving party make a “clear, unequivocal and decisive act.” (Ryder, 146 Ill. 2d at 105, 585 N.E.2d at 49; Kelly v. Economy Fire & Casualty Co. (1990), 196 Ill. App. 3d 337, 341, 553 N.E.2d 412, 414, appeal denied (1990), 132 Ill. 2d 546, 555 N.E.2d 377.) While the question of whether a party has waived its right to accelerate payments under a promissory note is generally one of fact (Ryder, 146 Ill. 2d at 105, 585 N.E.2d at 49), where there is no dispute as to the material facts and only one reasonable inference can be drawn therefrom, the question of whether those facts constitute waiver is one of law. (Wald, 175 Ill. App. 3d at 621, 529 N.E.2d at 1147-48.) Finally, whether waiver has occurred depends on the circumstances of each particular case. Kelly, 196 Ill. App. 3d at 340, 553 N.E.2d at 412.

We hold as a matter of law that the facts in the instant case indicate that the city impliedly waived its right to declare default upon the developers’ reorganization of the project when it granted them tax credits to the building. The fact that the city granted the developers $300,000 in income tax credits upon their request is undisputed. The city reluctantly concedes that by granting the developers tax credits, it knew that some sort of reorganization, including resyndication, refinancing and transfer of the building to a new entity, was a necessary prerequisite to the developers’ use of the credits. The fact that it later objected to the developers’ precise type of reorganization does not negate the fact that the city, by granting the tax credits, consented to some sort of a reorganization that would be inconsonant with the default provision (section 3.01(e)) of its mortgage. Consequently, the circuit court was correct in holding that the city waived its right to enforce the default provision in its mortgage.

The city nevertheless argues that even if it did waive its right to declare a default by granting the tax credits, it revived that right through its letter of February 14, 1991, which stated that it was reserving all of its rights. We disagree. It is a hoary principle of Illinois law that once a ground for forfeiture has been waived, it cannot be revived. Perry v. Waddelow (E.D. Ill. 1956), 145 F. Supp. 349, 350; Sheldon v. Dunbar (1902), 200 Ill. 490, 492-93, 65 N.E. 1095, 1095-96; Garbaczewski v. Vanucci (1950), 342 Ill. App. 367, 369, 96 N.E.2d 653, 654; Elmore Real Estate Improvement Co. v. Olson (1947), 332 Ill. App. 475, 480, 76 N.E.2d 204, 206; see Insurance Corp. of Ireland, Ltd. v. Board of Trustees of Southern Illinois University (7th Cir. 1991), 937 F.2d 331, 337 (under Illinois law, one cannot revive waived right); Tri-City Jewish Center v. Blass Riddick Chilcote (1987) , 159 Ill. App. 3d 436, 440, 512 N.E.2d 363, 366 (“A waiver once made is irrevocable and cannot be revived”), appeal denied (1988) , 118 Ill. 2d 552, 520 N.E .2d 393; Kewanee Production Credit Association v. G. Larson & Sons Farms, Inc. (1986), 146 Ill. App. 3d 301, 306, 496 N.E.2d 531, 534 (“Having waived a known right, defendant may not now attempt to revoke its waiver and revive its rights”).

The city overlooks this rule; instead, it cites cases which stand for an apparent exception to the general rule stated above that a waiver of a “time-of-the-essence clause” may be revived upon a clear intention to do so. (See, e.g., Hart v. Lyons (1982), 106 Ill. App. 3d 803, 806, 436 N.E.2d 723, 725; Margolin v. Franklin (1971), 132 Ill. App. 2d 527, 531-32, 270 N.E.2d 140, 143; but see Perry, 145 F. Supp. at 350 (“The general rule applied to contracts is that any ground for forfeiture once waived cannot be revived.”) (Emphasis added).) Since the case sub judice obviously does not involve a time-of-the-essence clause, the general rule applies; accordingly, the city’s letter of February 14 does not resuscitate its right to declare a default under section 3.01 of its mortgage, which right it had previously waived by allocating the tax credits to the building for the developers’ use. Consequently, we conclude that the trial court properly dismissed counts IV and V of the city’s complaint.

IV

In addition to contending that the trial court erred in dismissing counts I through V of its complaint, the city maintains also that the court erred by denying its motion for a preliminary injunction to prohibit the defendants from dispersing any more of the syndication funds. In order to obtain preliminary injunctive relief, a plaintiff must establish: (1) the existence of a right or interest which may be legally protected; (2) irreparable injury should the injunction be refused; (3) no adequate remedy at law; (4) a likelihood of success on the merits; and (5) that the benefits of granting injunctive relief outweigh any possible injury to defendants as a result thereof. (Agrimerica, Inc. v. Mathes (1988), 170 Ill. App. 3d 1025, 1030-31, 524 N.E.2d 947, 950.) The decision to grant or deny a preliminary injunction is within the trial court’s sound discretion, and its findings will not be disturbed unless they are against the manifest weight of the evidence. Agrimerica, 170 Ill. App. 3d at 1031, 524 N.E.2d at 950.

The trial court denied the city’s motion for a preliminary injunction because it decided that it did not demonstrate a likelihood of success on the merits of its claim. Having held that the trial court was correct in concluding that the city’s claims to the syndication funds are unfounded, we hold that the trial court was correct in denying the city’s request for preliminary injunctive relief.

For all of the foregoing reasons, we affirm the trial court’s dismissal of counts I through V of the city’s complaint as well as its denial of the city’s motion for preliminary injunctive relief.

Affirmed.

McCORMICK, P.J., and DiVITO, J., concur.

      The tax credits at issue derive from Congress’ Tax Reform Act of 1986 (Pub. L. No. 99 — 514 approved Oct. 22, 1986). Each year, State and local agencies are granted low-income housing tax credits by the Federal government. The local entities then award the tax credits to eligible low-income properties. Once awarded, the low-income housing tax credits cannot be transferred from the property to which they were awarded — if they are not used because the property does not become a low-income residence, the Federal government reclaims them. Once tax credits are allocated to a property, the owner can sell limited partnership interests in the property so that investors can take advantage of the tax credits. This is called syndication. See generally I.R.C. §42 (1990 & West Supp. 1991); Treas. Reg. §1.42 (1990).

      The developers, through Jayson, repaid each unit owner the entire amount of his or her investment along with interest; the total repurchase price was approximately $300,000.

      This appeal concerns only counts I through V of the complaint; counts VI and VII are still pending in the trial court.

      Section 3.01 of the city’s mortgage provides:

        “Events of Default:

      The terms ‘Event of Default’ or ‘Events of Default,’ wherever used in this Mortgage, shall mean any one or more of the following events
      * ** *
      (e) The sale, partial sale, refinancing, or resyndication or other disposition of all or part of the Premises, except as expressly permitted under the Note or this Mortgage.”


source: Caselaw Access Project

author: JUSTICE MANNING

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTOPHER CRISP, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 90—1852
    Opinion filed December 28, 1992.

      Dennis M. Doherty, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Barbara Jones, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MANNING

delivered the opinion of the court:

Defendant, Christopher Crisp, was convicted in a jury trial of attempted first degree murder, armed violence, and aggravated battery. He was sentenced to concurrent terms of 28 years for attempted first degree murder, 28 years for armed violence and five years for aggravated battery, to be merged into the Class X sentence.

On appeal, defendant contends that the trial court erred in allowing the State to elicit testimony from the complainant that he had previously seen defendant with a gun and by prohibiting defendant from cross-examining the complainant (1) as to his use of narcotics and (2) about the statement, “Kenny did it,” which he allegedly made at the scene after being shot. He also contends that he was denied a fair trial when the court permitted the State to attempt to elicit post-arrest hearsay statements of witness Kenneth Twyman.

Defendant next maintains that the trial court erred in excluding testimony as to his state of mind and evidence as to the complainant’s state of mind at the time the complainant stabbed Twyman. He contends that the State improperly used other crimes evidence and improperly made gang crime insinuations. Defendant also asserts that his right to due process of law and his right to confront his accusers were violated when the trial court permitted police testimony that defendant possessed narcotics although no proper foundation was laid for the identification of the substances.

Defendant claims that he was deprived of a fair trial due to the prosecutor’s improper and inflammatory closing argument and his misstating of the law. He asserts that the trial court further erred in denying his motion for production of the felony review file and notes relative to the State’s decision not to approve felony charges on conspirator Twyman. Defendant contends that even if individually insufficient to constitute reversible error, the cumulative effect of the foregoing errors mandates a new trial. Finally, defendant contends that the trial court abused its discretion during sentencing by considering factors implicit in the crime as aggravation and by sentencing him to an excessive sentence.

For the following reasons, we affirm. The following evidence was adduced at trial. The complainant, Anthony Banks, had known defendant since childhood and defendant’s companion, Kenneth Twy-man for about a year. During the first week of October 1987, Banks was walking down the street when he was approached by defendant and Twyman in a brown 1987 Cadillac. Defendant allegedly asked Banks if he wanted to sell “powder” and told him in return he would receive drugs, a beeper, and $200 a week. The victim refused. Defendant and Twyman approached Banks in late October and again in November with the same proposal. However, in late October, Twyman threatened Banks, “we’re going to get, you know, popped in your a-.” During the November incident, while Banks was at a friend’s house, defendant was seated in a car nearby with Twyman standing outside. At that time, Twyman yelled, “Come on punk” and “you might as well come on out, punk, you’re going to get it anyway.” Banks left the house after his mother arrived.

According to the testimony of Banks, on November 30, 1987, at approximately 3 p.m., he was on the corner talking to a friend when Twyman and defendant approached on foot. Twyman said, “Punk, we told you don’t come back around here,” and pulled out a gun and tried to hit Banks with it. Banks then grabbed Twyman’s hand and struggled with him for the gun. Banks also reached into his jacket pocket, withdrew a small knife and stabbed Twyman three times before the gun fell to the floor. Defendant then picked up the gun and Banks ran. As Banks ran, defendant fired the gun and shot three times, striking Banks in the legs and lower back. As a result of the shooting, Banks was paralyzed from the waist down.

Officer Darling investigated the shooting. He testified that at the scene, Banks told him he had just been shot by the defendant and Twyman. Detective Caesar testified that he spoke to Twyman at Englewood Hospital. The State rested.

Defendant testified and denied ever threatening Banks. According to his testimony, on November 30, 1987, Banks approached him and Twyman with a knife in his hand. Banks said to Twyman, “What’s up now?” When Banks raised the knife, Twyman pulled out the gun and told Banks, “You can put that knife up.” Banks and Twyman then “went into a tussle” and the gun was knocked from Twyman’s hand and it fell to the ground. Defendant stated that he then saw Banks stab Twyman in the back and, crawling, try to get the gun. Twyman said “get the gun.” Defendant reached the gun first. He testified that Banks got up and started swinging the knife at him. Defendant stepped back, closed his eyes and quickly fired three shots.

On cross-examination, defendant acknowledged that during the police’s initial investigation he told them that he did not know anything about Banks and that he was not at the scene of the crime. He also testified that he was not a drug dealer. However, during rebuttal, the State presented the testimony of police officer Cross, who stated that on July 10, 1987, he saw defendant in his bedroom sitting on the bed with numerous empty plastic bags, plastic bags containing multiple tinfoil packages and one plastic bag containing white powder. The white powder subsequently tested as cocaine and was also found inside the tinfoil packages. Officer Cross also found 89 bags containing marijuana, drug paraphernalia, and cash totalling $1,255 in the bedroom.

The jury found defendant guilty of aggravated battery based on permanent disability, aggravated battery based on use of a deadly weapon, aggravated battery based on great bodily harm, armed violence, and attempted first degree murder. Following a hearing in aggravation and mitigation, the court sentenced defendant on the convictions.

Defendant first contends that the pivotal issue at this trial was whether he acted in self-defense in shooting Banks and that it was undisputed he did not arrive at this encounter armed. Thus, defendant contends that he was denied a fair trial and prejudiced when the trial court allowed evidence implicating him with prior possession of a gun which was in no way connected with the crimes charged. Defendant asserts that the trial court improperly permitted the State to elicit testimony from Banks on redirect examination that he had seen the defendant with a gun before.

Defense counsel initially questioned Banks about a gun. He asked:

“Q. Did you see [defendant] with a gun that day prior to, prior to Twyman pulling a gun?
A. Yes, sir, I did.
Q. On November 30th, 1987? Prior to Twyman pulling the gun in this case?
THE COURT: That same evening?
Q. Same afternoon. Mr. Twyman pulled a pistol on you, correct?
A. That’s right.
Q. Before that occurred, did you see [defendant] with a gun?
A. No, sir.
Q. And [defendant] had never pulled a gun on you before, had he?
A. No, sir.”
On redirect examination, the prosecutor questioned the complainant:
“Q. Were you running towards [defendant] or away from him?
A. Away.
Q. Did you ever threaten [defendant] with that knife?
A. No.
Q. Counsel asked if you were scared of Twyman. Were you?
A. Yes, I was.
Q. Counsel asked if you were scared of [defendant]. Were you?
A. Yes.
Q. Were you scared of [defendant] when he had that gun?
A. Yes, sir.
Q. Have you ever seen [defendant] with a gun before?
A. Yes. I seen him with a gun before.
DEFENSE COUNSEL: Objection. Move to strike that.
THE COURT: Overruled. The answer will stand.”

We believe the trial court properly admitted this testimony on redirect examination when the defendant opened the door on cross-examination. The scope of redirect examination is within the sound discretion of the trial court, and its ruling will not be disturbed on review unless it is a clear abuse of discretion resulting in manifest prejudice to the defendant. People v. Washington (1984), 127 Ill. App. 3d 365, 468 N.E.2d 1285.

Moreover, in light of defendant’s testimony at trial, it is clear that the evidence implicating him in the prior possession of a gun was relevant to the truthfulness of his claim of defense of self and defense of others. Defendant denied ever threatening Banks. He stated that Banks approached him with a knife in his hand and that he fired three shots at Banks only after Banks swung the knife at him. However, defendant’s testimony is directly contradicted by Banks’ testimony. Banks testified that he had been threatened by defendant three times prior to the shooting. Banks also stated that Twyman pointed the gun at him, he stabbed Twyman in an effort to release the gun and defendant picked up the gun and shot him as he ran away.

Neither do we find “intentional misconduct” on the part of the prosecutor here as in the case relied upon by defendant, People v. Harbold (1984), 124 111. App. 3d 363, 464 N.E.2d 734. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would be without such evidence. People v. Johnson (1986), 114 Ill. 2d 170, 499 N.E.2d 1355.

Further, the trial court only admitted this evidence on redirect examination after defendant initiated questioning of Banks regarding defendant’s prior possession of a gun. Accordingly, we hold that the trial court acted properly and within its discretion by allowing the prosecution to present evidence that Banks previously had seen defendant with a gun.

We find no merit in defendant’s contention that the trial court erred in prohibiting him from cross-examining Banks as to the latter’s use of narcotics. During thé trial, the State objected when defense counsel asked Banks: “On November 30th, 1987, you were a user of P.C.P., the drug P.C.P.?” During the ensuing sidebar, defense counsel contended because, “[i]t’s in the hospital report,” purportedly Banks’ “history as a P.C.P. user,” defendant was entitled to cross-examine Banks about his use of narcotics. The court sustained the State’s objection.

The trial court’s determination as to the admissibility of evidence lies within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of that discretion. (People v. Ward (1984), 101 Ill. 2d 443, 463 N.E.2d 696.) Moreover, the latitude to be allowed during cross-examination is a question for the trial judge. {People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) It is well settled that narcotics addiction has an important bearing upon the credibility of a witness, and counsel may use legitimate methods to attack the credibility of such a witness. (People v. Lewis (1962), 25 Ill. 2d 396, 185 N.E.2d 168.) Thus, our supreme court has held that the question of whether a witness is a narcotics addict at the time of testifying or at the time that an event occurred is a proper subject of cross-examination. People v. Strother (1972), 53 Ill. 2d 95, 290 N.E.2d 201.

The record here indicates that defense counsel failed to provide a foundation as to when Banks was a narcotics addict, if at all. The following colloquy occurred between defense counsel and the court during the sidebar:

“MR. DOHERTY [Defense Counsel]: If he used narcotics, I am entitled to cross examine on it.
THE COURT: Do you have any proof?
MR. DOHERTY: I know if he has a history as a RC.P. user, narcotic addict, I am entitled to have him roll his arm sleeve up.
THE COURT: When?
MR. DOHERTY: I don’t know when.
THE COURT: I will sustain the objection.”

Before such cross-examination could be pursued, defense counsel was required to lay a proper foundation showing the witness to be addicted to narcotics. People v. Meares El (1980), 83 Ill. App. 3d 31, 35, 403 N.E.2d 547, 551.

Accordingly, we find that the trial court properly excluded evidence of Banks’ alleged drug addiction. Because defendant did not provide an adequate foundation to show that Banks was a narcotics addict, we find no error in the trial court’s ruling. Moreover, the defense was given ample opportunity to cross-examine Banks to display to the jury whether or not Banks was worthy of belief. We further agree with the State’s argument that the allowance of the evidence reflected on Banks’ medical record would not shed light on his ability to perceive the events, but, to the contrary, would simply “dirty up” Banks in the eyes of the jury. See People v. Henderson (1988), 175 Ill. App. 3d 483, 529 N.E.2d 1051.

Defendant also contends that the trial court erred by limiting the cross-examination of Banks about a purported statement Banks made to a friend after he was shot and lying in the street that “Kenny [Twyman] did it.” Defendant argues that this evidence reflected in the police report was admissible as a prior inconsistent statement which may be introduced to impeach the witness’ trial testimony. (See People v. Gant (1974), 58 Ill. 2d 178, 317 N.E.2d 564.) Defendant also contends that the statement was admissible as evidence that someone other than he may have been responsible for the crime and to corroborate his claim that he acted in self-defense.

We find that defendant has waived this issue by failing to properly object at trial and in his post-trial motion. Where an issue is not raised in a written post-trial motion, it generally constitutes waiver of the issue and cannot be urged as grounds for reversal on review. See People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

Defendant next contends that he was denied a fair trial by the prosecutor’s persistence in asking questions about post-arrest statements made by Twyman. The record demonstrates that the State attempted to elicit from Officer Darling what Twyman had said to the officer and then continually attempted to elicit from Detective Caesar statements Twyman made to Caesar at the hospital. During Caesar’s questioning, the prosecutor made several inquiries, including: (1) “What did [Twyman] indicate to you?” (2) “What did he [Twyman] say to you?” (3) “Did he [Twyman] tell you if anyone was present?” and (4) “Did he [Twyman] ever tell you it was a kitchen knife?” The court sustained defendant’s objection as to what Twyman said to Officer Darling and likewise sustained defendant’s many objections to what Twyman said to Detective Caesar.

Having reviewed the record, we conclude that the State’s questioning was merely an attempt to elicit improper hearsay, which the trial court did not allow. While there may not have been justification for seeking the introduction of post-arrest hearsay statements made by Twyman, any error constitutes harmless error and was cured by the trial court promptly sustaining defense counsel’s objection, striking the answer, if given, from the record and instructing the jury to disregard the same. (See People v. Whitfield, (1986), 140 Ill. App. 3d 433, 488 N.E.2d 1087.) The complained-of questions asked by the State involved matters testified to by Banks or defendant. Both men testified that defendant knew Twyman, that defendant was present at the scene of the crime, and gave a description of the knife used by Banks.

Neither do we believe that the State compounded the error in closing argument when the prosecutor posed to the jury the question, “Where do you think they got the words, large kitchen knife? Mr. Twyman.” Moreover, defendant’s failure to make a timely objection at the time and his failure to specifically preserve the alleged error for review in his written post-trial motion waives this issue on review. See People v. Harris (1990), 196 Ill. App. 3d 663, 554 N.E.2d 367.

Defendant contends that the trial court erroneously refused to permit him to testify about his state of mind at the time he shot Banks. He asserts that where a claim of self-defense rests upon some reasonable basis, exclusion of state-of-mind testimony by a defendant will ordinarily constitute reversible error. (See People v. Kline (1980), 90 Ill. App. 3d 1008, 414 N.E.2d 141.) He maintains that he was arguably prevented from establishing that he did not intend to kill Banks or, alternatively, that he reasonably believed that his own life was jeopardized requiring his resort to deadly force. See People v. Christen (1980), 82 Ill. App. 3d 192, 402 N.E.2d 373.

However, our courts have held that rejection of evidence is not prejudicial where substantially the same evidence is admitted at another stage of the trial. (People v. Owens (1983), 116 Ill. App. 3d 51, 451 N.E.2d 988.) Here, defendant testified that Banks initially approached him and Twyman with a knife in his hand. He also stated that after he shot Banks, he was “scared.” Thus, we believe the trier of fact-was fully apprised of defendant’s defense by his testimony. Accordingly, we conclude that where sufficient evidence supporting defendant’s defense of self and defense of others was presented at some point during the trial, any error in not allowing him to testify directly as to his state of mind must be considered harmless.

Defendant also contends that the trial court erred in excluding evidence of Banks’ state of mind at the time Banks was stabbing Twyman. The record reveals that during cross-examination of Banks, defense counsel asked, “Was it your intention to kill Twyman when you stabbed him[?]” Although the State objected and the court sustained the objection, Banks responded, “No, sir.” Defense counsel at that time neither made a proffer as to his intended line of questioning of Banks nor raised any arguments about the relevancy of Banks’ state of mind. Thus, we need not consider the propriety of this issue now. Nevertheless, we believe Banks’ intention is irrelevant to defendant’s assertion of self-defense and defense of others. The victim’s state of mind is relevant only if it in some way affects the defendant’s state of mind, which is not the case here. Neither do we find defendant’s reliance on declaration cases on point. A declaration may affect a defendant’s state of mind (see, e.g., People v. Newbury (1972), 53 Ill. 2d 228, 290 N.E.2d 592); however, in the present case there was no prior declaration. Accordingly, we find defendant’s contention to be without merit.

Defendant next contends that the trial court erred when it allowed the State to use other crimes evidence. First, defendant asserts that the trial court erroneously overruled his objection to the introduction of evidence that he was found on July 10, 1987, inside his bedroom with 89 packets of marijuana and 23 packets of cocaine. He asserts that any probative value of this evidence was outweighed by its prejudicial value; moreover, the State abandoned its argument that this other crimes evidence was offered solely on the issue of defendant’s motive when it used the evidence to argue defendant was an evil person.

Evidence of other crimes is admissible if it is relevant for any purpose other than to show the defendant’s character or propensity to commit crime. (People v. Stewart (1984), 105 Ill. 2d 22, 473 N.E.2d 840.) In the present case, Banks testified that he feared defendant because of his insistence that Banks sell drugs or otherwise face bodily harm. Defendant denied that he ever made such threats, stated that he was innocently involved in the shootings and that Banks was the aggressor.

Accordingly, we find that other crimes evidence was properly admitted to show motive, knowledge of drugs, absence of an innocent frame of mind and the presence of criminal intent. Further, we find that the prosecutor’s remarks about defendant’s involvement in drugs were based upon testimony presented at trial where repeated references were made during the trial to defendant’s attempts to force Banks to sell drugs.

Defendant also contends that he was denied a fair trial where the court allowed Officer Cross to testify on rebuttal that on July 10, 1987, he went to a house and found defendant there sitting on a bed. When asked what was on the bed, Cross stated, “Narcotics.” Defendant’s objection was overruled and Cross went on to testify that he found packets containing white powder, which were “subsequently tested as cocaine” and 89 packets “containing marijuana.” He argues that no foundation was laid for Cross’ testimony that “cocaine,” “narcotics” and “marijuana” were found in .defendant’s apartment. He also urges that the identification of a given substance as a controlled or illegal drug is generally beyond the common experience and knowledge of juries thus requiring expert testimony in some form.

Defendant cites People v. Park (1978), 72 Ill. 2d 203, 380 N.E.2d 795, for the proposition that police officers may not be presumed to possess the requisite expertise to identify a narcotic substance. In Park, a deputy sheriff testified that a substance in an envelope was marijuana. The court there determined that the sheriff’s testimony was insufficient to convict defendant of possession of cannabis.

In the present case, defendant had been previously found guilty of possession with intent to deliver. In that prior conviction, the substances found in defendant’s apartment were determined to be cocaine and marijuana. Defendant’s prior conviction was properly admitted and a certified copy of the conviction was entered into evidence. In the trial below, Cross testified that certain bags contained marijuana and the other bags containing white powder subsequently tested as cocaine. It was not error for the trial court to allow Cross to testify to facts within his knowledge and recollection. Accordingly, we hold that the trial court properly admitted this evidence.

We find that defendant’s contention that the State’s gang crime insinuations were prejudicial is meritless. On direct examination of Officer Darling by the prosecutor, the following testimony was presented:

“Q. Officer, can you state your name and spell it for the record, please?
A. James Darling. D-A-R-L-I-N-G.
Q. Where are you currently assigned?
A. Gang Crimes South, Chicago Police Department.
Q. How long have you been a Chicago Police Officer?
A. Fourteen years.
Q. And can you tell the ladies and gentlemen of Jury what a gang crimes officer does?
MR. MUNOZ [Defense Counsel]: Objection.
THE COURT: Overruled. He may answer.

A. I am a gang crimes specialist, and our main function is to investigate, follow up and gather intelligence on the gangs and their doings within the City of Chicago.”

Officer Darling also testified that he was assigned to the present case, but merely responded to a call in progress.

In People v. Garrett (1991), 216 Ill. App. 3d 348, 576 N.E.2d 331, the court found no prejudice to the defendant where a sergeant stated during trial that he was assigned to the special prosecutions gang unit. The court there found that the preliminary question regarding the police officer’s assignment was an innocuous part of the foundational requirements. We believe the instant case is on point with Garrett.

A reviewing court will not disturb the trial court’s evidentiary rulings absent an abuse of discretion and a showing of prejudice to the defendant. (See People v. Holman (1987), 157 Ill. App. 3d 764, 510 N.E.2d 1139.) Here, considering that the evidence of defendant’s guilt was overwhelming, the verdict would not have been different had Officer Darling’s reply not been made. Accordingly, we find that Officer Darling’s testimony was merely an explanation of his job title and job function, and even assuming the introduction of such testimony was error, the error was harmless.

Defendant asserts that during closing argument the prosecutor misstated the law by advising the jury that, if defendant is guilty of aggravated battery, he is automatically guilty of armed violence. We agree and find it was error for the prosecutor to so state the law. In addition, the defendant was improperly convicted on the underlying felony of aggravated battery where the physical act was the basis for the battery and armed violence charges. Armed violence and aggravated battery are separate offenses, with separate penalty provisions. Although similar, multiple convictions for both offenses may not stand where based on the same act. (See People v. Decker (1984), 126 Ill. App. 3d 428, 467 N.E.2d 366.) In People v. Baity (1984), 125 Ill. App. 3d 50, 465 N.E.2d 622, the defendant injured the victim by rapidly shooting her three times in succession without any intervening act or event. The court there held that the injuries inflicted constituted part of the same physical act and, thus, vacated the conviction and sentence for armed violence based on aggravated battery.

The factual matrix in the present case is strikingly similar to that in Baity. Accordingly, pursuant to our authority to vacate a criminal sentence (134 111. 2d R. 615(bX4)), we vacate defendant’s conviction and sentence on the armed violence charge; thus, remand is unnecessary. (See People v. Smith (1984), 127 Ill. App. 3d 622, 469 N.E.2d 634.) The convictions and sentences for aggravated battery and attempted first degree murder will stand.

Defendant next contends that the trial court erred in denying his motion for production of a felony review file. Defendant moved for production of the State’s Attorney’s felony review file and notes relative to his decision not to approve felony charges against Twyman. Twyman was charged with a misdemeanor. Essentially, defendant raises a Brady violation (see Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194), in that evidence favorable to his defense was not disclosed. He requests this court to remand for a full hearing on the determination of whether there is material or evidence favorable to him which was withheld or suppressed by the State.

The trial court summarily denied defendant’s motion for production. On appeal, the State contends the denial was proper because the felony review file was privileged work product. The State relies on Supreme Court Rule 201(bX2), which provides, in pertinent part:

“(2) Privilege and Work Product. All matters that are privileged against disclosure on the trial, including privileged communications between a party or his agent and the attorney for the party, are privileged against disclosure through any discovery procedure. Material prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party’s attorney.” (134 111. 2d R. 201(b)(2).)

We believe Rule 201(b)(2) is inapplicable here. There is no attorney-client relationship existing between the State and Twyman as a potential witness or potential defendant. Thus, any information involving Twyman or statements made by him to the State’s Attorney were not privileged communications between a party and the attorney for the party within the meaning of Rule 201(bX2).

Nevertheless, we find no error in the court’s denial of defendant’s motion to produce the felony review folder relevant to Twyman. In Brady v. Maryland, the Supreme Court held that a violation of due process occurs when a prosecutor suppresses evidence material to the issue of the accused’s guilt or innocence after there has been a specific request for its production. To establish a Brady violation, the defendant must demonstrate (1) that the evidence was favorable to him, (2) that the prosecutor failed to disclose the evidence in response to a specific request, and (3) that the evidence was material. (People v. Post (1982), 109 Ill. App. 3d 482, 489, 440 N.E.2d 631.) With regard to the factor of materiality, we have stated that materiality under Brady means evidence that would tend to raise a reasonable doubt of defendant’s guilt. (People v. Ojeda (1980), 91 Ill. App. 3d 723, 728, 414 N.E.2d 1156.) It is not enough that the evidence might have helped the defense (People v. Kosik (1982), 110 Ill. App. 3d 930, 940, 443 N.E.2d 238); to be considered material, the evidence must reasonably be expected to affect the outcome of the case. See People v. Penland (1978), 64 Ill. App. 3d 656, 661, 381 N.E.2d 840.

Although the instant case involves a specific request for information as in Brady, we find that defendant here has failed to show favorableness and materiality as required for a Brady violation. We reject defendant’s contention that evidence material and favorable to him may have been suppressed because the felony review folder on Twyman contained information about the State’s decision not to prosecute Twyman. We have reviewed the record and learned that the State turned over to defendant prior statements made by him which were in the felony review folder. The prosecutor argued that the rest of the material was not Brady material, but work product. He also stated that “there [were] no statements that he was aware of in the folder. The only statements Twy-man made counsel has those and those are in the police reports.” Defendant has not shown how such evidence would have been favorable to him. He merely speculates that he might have been able to use the information about Twyman in some manner. As we have opined previously, “[s]uch speculation does not establish materiality or favorableness in the Brady context.” People v. Velez (1984), 123 Ill. App. 3d 210, 218, 462 N.E.2d 746.

Moreover, Twyman did not testify as a witness during the trial. Neither was he charged in the incident or on trial as a codefendant or co-conspirator. Accordingly, where the State turned over to defendant prior statements made by him and disclosed that there were no statements made by Twyman, inculpatory or exculpatory, we find no showing of a Brady violation and no error in the trial court’s denial of the defendant’s motion to produce the felony review folder. A defendant’s assertion of prejudice must be based on more than “mere conjecture.” See People v. Lewis (1975), 60 Ill. 2d 152,158, 330 N.E.2d 857.

Having reviewed individually the assignments of error raised by defendant on review, we conclude that he is not entitled to a new trial. Neither do we believe the sentences imposed by the trial court on the attempted murder and aggravated battery convictions to be excessive. Sentencing is a matter of judicial discretion, and where the sentence imposed is within the statutory limits, we hesitate to exercise empower to reduce the sentence absent a finding that the trial court abused its discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882.) Moreover, a “rebuttable presumption arises that the sentence imposed was proper and is only overcome by an affirmative showing that the sentence imposed varies greatly from the purposes and spirit of the law or is manifestly violative of constitutional guidelines.” People v. Jenkins (1984), 128 Ill. App. 3d 853, 857, 471 N.E.2d 647.

We have reviewed the record in the present case and find no abuse of discretion on the part of the trial court. The sentences imposed were within the statutory range. Further, the record shows that the trial judge considered factors both in aggravation and mitigation before imposing sentence. Accordingly, we hold that the sentence of 28 years imposed for attempted first degree murder and the sentence imposed of five years for aggravated battery, which is merged into the Class X sentence, are within the discretion of the trial court. However, as mentioned above, we agree with defendant’s contention that the conviction and sentence imposed on the armed violence charge were improper.

For the foregoing reasons, the judgment of the circuit court is affirmed in part and reversed in part. The sentences on the attempted first degree murder and aggravated battery convictions are affirmed and the sentence on the armed violence conviction is vacated.

Affirmed in part; vacated in part.

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


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE SMITH, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 88—0869
    Opinion filed December 28, 1992.
    Rehearing denied March 10, 1993.

      Ambrose & Cushing, P.C., of Chicago (John C. Ambrose, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Noreen M. Daly, Special Assistant State’s Attorney, and Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court.

Following a jury trial, defendant, George Smith, was convicted of involuntary manslaughter (111. Rev. Stat. 1989, ch. 38, par. 9 — 3) in the shooting of his wife, Carolyn Smith, and sentenced to one year of periodic imprisonment and 30 months’ probation with one year of supervision. On appeal, we reversed the conviction on the basis that the State did not prove defendant guilty of involuntary manslaughter beyond a reasonable doubt; one judge dissented. (People v. Smith (1990), 208 111. App. 3d 538, 567 N.E.2d 489.) The supreme court granted the State’s petition for leave to appeal and reversed our decision. (People v. Smith (1992), 149 111. 2d 558.) On remand from the supreme court, we are directed to consider three other issues raised by defendant which we had not previously addressed. These issues are: (1) whether defendant was denied his constitutional right to a fair trial because the State’s opening statement distorted the evidence and prejudiced the jury; (2) whether the trial court erred in allowing a police officer to testify to a prior consistent statement; and (3) whether the trial court erred in denying defendant’s motion to suppress evidence of the gun found at the scene. We affirm.

The detailed facts of this case have been amply reported in both our earlier decision and in the supreme court opinion, and are restated here to the extent necessary to consider and resolve the instant appeal. The record reveals that on the night of the shooting, defendant had been drinking with his wife, Carolyn, and some friends at a bowling alley. At about 11 p.m. defendant and Carolyn went home and began to pack their things, including some guns, for an upcoming move to a new home. Defendant testified that he took Carolyn’s .38-caliber handgun out of her dresser and brought it into the living room for her to unload. Defendant did not notice whether the gun was in a cocked position or not, but testified that Carolyn had left it cocked in the past because she had trouble shooting it otherwise. Defendant stated that Carolyn had trouble unloading the revolver, so he offered to unload it for her. Carolyn was sitting in a chair and he knelt down beside her. While he was trying to release the latch to remove the shells, the gun “just went off.” Defendant denied having his finger on the trigger.

A neighbor testified that he heard a gunshot at 12:14 a.m. on the morning of the shooting. Paramedics testified that defendant reported the shooting at 12:31 a.m., and that defendant’s speech was slurred at that time. While the paramedics were working on Carolyn, defendant was very excited and twice attempted to stop them from inserting a tube into her mouth, by grabbing the tube away from them. When the police arrived, they had to handcuff defendant because he appeared to be out of control.

Officer Schwab testified that when they asked defendant where the gun was, defendant told them he had thrown it under the couch because he was afraid of it. Defendant kept repeating that it was an accident. Officer Schwab stated that he smelled alcohol on defendant’s breath and noticed that his speech was loud and slurred. In Officer Schwab’s opinion, defendant was intoxicated. On cross-examination, Officer Schwab admitted that he had not indicated in his report that defendant had been intoxicated, and in contradiction to his testimony-on direct, stated that he was not certain whether defendant had been intoxicated.

Detective Frank Bozzi testified that he interviewed defendant at the police station on October 10, 1986, at 12:40 a.m. and again at 4:40 a.m. Defendant told Detective Bozzi that he had had approximately eight drinks at the bowling alley that night and explained that the gun had accidentally discharged. Detective Bozzi went to defendant’s apartment and observed the chair in which Carolyn had been sitting, noticed a hole in the headrest area, and retrieved a bullet.

Defendant first contends that the State’s opening statement so distorted the events that it sounded like he had been charged with murder rather than with involuntary manslaughter and prejudiced the jury against him. The State asserts that the alleged errors are waived by defendant’s failure to object at trial to the errors or to mention them in his written motion for a new trial. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

In any event, the scope and latitude of the prosecutor’s opening statement is within the trial court’s discretion. (People v. Rader (1988), 178 Ill. App. 3d 453, 532 N.E.2d 1365.) An opening statement in a criminal trial should outline the facts which the prosecutor in good faith expects to prove, and reversible error occurs only where the impropriety is attributable to the deliberate misconduct of the prosecutor and results in substantial prejudice to the defendant. People v. Graca (1991), 220 Ill. App. 3d 214, 220, 580 N.E.2d 1328.

Defendant alleges that the prosecutor misstated the evidence several times during the opening statement. Defendant first cites the following portion of the opening statement as being unsupported by the testimony at trial:

“The testimony will show you that *** the Defendant wanted to go out *** that his wife told him she didn’t want to go out. After that, the Defendant went in the bedroom of their home and came out with a .38 caliber revolver *** he came back out to his wife. *** At that time, the Defendant had the weapon pointed right at his wife’s face, was handling the gun, fired the gun striking the victim in the right side of the face.”

Defendant contends that this statement misstated the testimony of Detective Bozzi, who testified as to defendant’s post-arrest statement detailing what had happened. A review of the record, however, indicates that the statement accurately reflects the testimony of defendant as to what happened and was not a distortion of the events.

Defendant also objects to the following statement regarding his actions while the paramedics treated Carolyn as unsupported by the record:

“The Defendant in fact was pulling an intubator out of her mouth *** he in fact pulled that intubator out of the victim’s mouth.”

This statement is supported by the testimony of the paramedics at trial, which indicates that defendant, in fact, tried to prevent the paramedics from inserting a tube into Carolyn’s mouth twice by grabbing the tube away from them.

Finally, defendant cites the following statement as a distortion of the facts:

“He was playing with the gun, and the gun is pointed right at her face.”

It is a fundamental principle of trial practice that statements based upon facts in evidence or upon reasonable inferences drawn therefrom are within the scope of proper argument. (Graca, 220 Ill. App. 3d at 220, citing People v. Beier (1963), 29 Ill. 2d 511, 194 N.E.2d 280.) Defendant’s own testimony reveals that he was handling the gun and that Carolyn was shot in the face. Although this remark may have been improper, we find that this statement did not result in “substantial prejudice” to the defendant so as to require a new trial.

Next, defendant contends that the trial court erred in allowing Officer Schwab to testify as to a prior consistent statement he had made in a preliminary hearing. On direct examination, Officer Schwab stated that, in his opinion, defendant had been intoxicated on the night of the shooting. However, during cross-examination, he testified that he did not know whether defendant had been intoxicated or not. Then, on redirect, Officer Schwab testified that at the preliminary hearing, he had stated that defendant had been intoxicated. Defendant argues that the State used Officer Schwab’s consistent statement from the preliminary hearing to improperly bolster the officer’s testimony and that the repetition gave the testimony undue emphasis and credibility.

As a general rule, a witness may not be rehabilitated by admitting former statements consistent with his trial testimony. However, prior consistent statements are admissible to rebut a charge or an inference either that the witness is motivated to testify falsely or that his testimony is of recent fabrication, and such evidence is admissible to show that he told the same story before the time of the alleged fabrication. (People v. Williams (1991), 147 Ill. 2d 173, 227, 588 N.E.2d 983, 1003; People v. Harris (1988), 123 Ill. 2d 113, 139, 526 N.E.2d 335.) When such an inference is created through cross-examination, admission of a prior consistent statement is proper. People v. Shum (1987), 117 Ill. 2d 317, 512 N.E.2d 1183.

In the present case, defense counsel did not expressly charge that Officer Schwab had recently fabricated his testimony as to whether defendant had been intoxicated. However, defense counsel’s query during cross-examination implied a recent fabrication in that Officer Schwab had changed his original uncertainty to a determination of intoxication after he spoke with an assistant State’s Attorney. Accordingly, the exception to the general rule is applicable here. As such, defendant’s reliance on People v. Tidwell (1980), 88 Ill. App. 3d 808, 410 N.E.2d 1163, is misplaced. In that case, no inference was raised that the witness’ in-court statement was a recent fabrication or that he had a motive for testifying falsely.

Lastly, defendant contends that the trial court erred in denying his motion to suppress evidence of the gun acquired at the scene of the shooting. Defendant argues that the police officer’s warrantless search and seizure of his gun from under the couch violated his fourth amendment right to be free from unreasonable searches and seizures. Defendant further contends that the situation surrounding the seizure did not fit into any of the narrowly defined exceptions to the rule that all warrantless searches and seizures are unreasonable. These exceptions arise when the searches and seizures are made by consent, made incident to the arrest, based on probable cause where exigent circumstances make securing a warrant impractical, involve a vehicle, or are made for administrative purposes to satisfy a special governmental need.

At the hearing on the motion to suppress, Officer Schwab testified that he and Officer Battaglia were the first police officers to arrive at the scene and that they arrived separately. At the time Officer Schwab responded to the call that a shooting had occurred, he did not know that a crime had been committed. At the scene, defendant told him that he had tossed the gun under the couch because he was scared of the gun. Officer Schwab lifted the couch and Officer Battag-lia retrieved the gun. Subsequently, Officer Bozzi removed the gun from the apartment.

Pursuant to the well-established “emergency doctrine,” police authorities do not need a search warrant to enter into and to search premises for the purpose of providing aid to persons or property in need thereof. Further, any evidence of a crime discovered as the result of the entry may be legally seized without a warrant. (Mincey v. Arizona (1978), 437 U.S. 385, 57 L. Ed. 2d 290, 98 S. Ct. 2408; People v. Bondi (1984), 130 Ill. App. 3d 536, 474 N.E.2d 733.) The basic elements of the emergency doctrine have been summarized as follows:

“(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance to protect life or property;
(2) The search must not [have been] motivated by an intent to arrest and seize evidence;
(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.” Bondi, 130 Ill. App. 3d at 539.

In the present case, all of the above elements have been satisfied. The police responded to an ambulance call stating that someone had been shot in defendant’s residence. When they asked defendant where the gun was, they did not know whether or not the gunshot wound had been self-inflicted. Further, the fact that Carolyn was lying on the floor, bleeding profusely, provided a reasonable basis for the police to believe that there was an emergency on the premises. Accordingly, the police officers’ warrantless search and seizure of the gun was permissible under the emergency doctrine and the trial court properly denied defendant’s motion to suppress.

Defendant further argues that he was prejudiced by the trial court’s erroneous placement of the burden of proof on him to show that the police officers had made an unreasonable intrusion onto the premises. Defendant predicates this claim on the court’s statement that, “There is no evidence in this case that the officers made any unreasonable intrusion upon the premises of the defendant or the deceased.” Prior to making this statement, the court restated the evidence presented by the State surrounding the circumstances of the search and seizure of the gun, thereby indicating the lack of evidence as to the unreasonableness of the search. We find, therefore, that the court’s statement properly summarized the evidence and did not operate to improperly shift the burden of proof to defendant.

In accordance with the mandate of the supreme court, we vacate our order reversing this cause and affirm the judgment of the trial court.

Affirmed.

BUCKLEY, P.J., and MANNING, J., concur.

      The issue was framed in this manner in the parties’ briefs; however, the word “inconsistent” was mistakenly used in both our prior opinion and in the supreme court opinion.


author: JUSTICE LUND JUSTICE COOK,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DELORES JAMES, Defendant-Appellee.
    Fourth District
    No. 4 — 92—0783
    Opinion filed April 8, 1993.
    COOK, J., dissenting.
    Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Jeffrey K. Davison, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

The State appeals an order of the circuit court of Champaign County suppressing cocaine evidence taken from the purse of defendant Delores James. Defendant was a front-seat passenger in an automobile driven by Ruth Boolman, when the vehicle was stopped to investigate a possible license violation. After determining there was no serious problem with the vehicle license, the officer stated that the area was a high drug-traffic area and the officers were checking vehicles. For purposes of this appeal, we assume Boolman, outside defendant’s presence and without her knowledge, consented to a search of the vehicle for drugs. Officers removed the defendant and three other passengers from the vehicle, at which time defendant left her purse on the front seat. During the search, officers opened the purse and found a pipe and a substance possibly being cocaine. There was no evidence to indicate defendant gave permission for the search of her purse or, for that matter, the automobile.

The State contends the consent to search the automobile for drugs permitted police to search the purse. The trial court agreed that consent to search an auto for drugs would extend to containers, acknowledging Florida v. Jimeno (1991), 500 U.S. 248, 114 L. Ed. 2d 297, IllS. Ct. 1801, and People v. Kelk (1992), 231 Ill. App. 3d 797, 596 N.E.2d 1267. However, the court decided Jimeno and Kelk are different because, here, we have five people in the automobile and, in the words of the trial judge:

“The purse is found where one of those other persons who has not given consent to search the car or container was seated. *** I’m inclined to hold that there was no consent to search that particular purse under all the circumstances here.”

Jimeno and Kelk establish that when a driver consents to the search of a vehicle for drugs, the right to search extends to closed containers. Part of the reason for this rule is that drugs are usually kept in closed containers. With this opinion we go further and say that when a driver consents to a search for drugs, that consent extends to containers — be they purses, wallets, cases, boxes, sacks, or otherwise — left in the vehicle by exiting passengers. This is true regardless of the passenger’s knowledge of the driver’s consent.

The Supreme Court in Jimeno held that a consent to search a vehicle for drugs extended to closed containers. In doing so, it was acknowledged that the “touchstone of the Fourth Amendment is reasonableness,” citing Katz v. United States (1967), 389 U.S. 347, 360, 19 L. Ed. 2d 576, 587, 88 S. Ct. 507, 516. (Jimeno, 500 U.S. at 250, 114 L. Ed. 2d at 302, 111 S. Ct. at 1803.) We are not inclined to say that driver consent to search for drugs extends to closed containers but not those closed containers which may belong to others who have exited the vehicle. We ponder how the searching officers will distinguish between ownership of the various containers in the vehicle. In the search process, such split-second decisions are likely given little thought.

A third party may give legally sufficient consent for a search if he has actual authority over the property shared in common with the defendant. (United States v. Matlock (1974), 415 U.S. 164, 171, 39 L. Ed. 2d 242, 250, 94 S. Ct. 988, 993.) By allowing the driver to exercise authority over a vehicle, a defendant assumes the risk that the driver will allow someone to look inside it. (People v. Miller (1975), 36 Ill. App. 3d 542, 549, 345 N.E.2d 1, 7-8; see also People v. Harris (1990), 199 Ill. App. 3d 1008, 1013, 557 N.E.2d 1277, 1280.) We find no justifiable reason to limit the effect of driver consent to search where a passenger aware or unaware of the consent to search leaves a container in the automobile.

Reversed and remanded.

KNECHT, J., concurs.

JUSTICE COOK,

dissenting:

I respectfully dissent.

Under the majority decision a police officer desiring to search a purse which he finds in a car may choose to ask the driver for consent, even though he knows the purse belongs to a passenger. I cannot agree the rights protected by the fourth amendment can be eroded by such an unrealistic doctrine of apparent authority. See Stoner v. California (1964), 376 U.S. 483, 488, 11 L. Ed. 2d 856, 860, 84 S. Ct. 889, 892.

In People v. Bolar (1990), 205 Ill. App. 3d 597, 563 N.E.2d 1225, a driver authorized the police to search his vehicle. Before exiting the vehicle the defendant passenger placed a Kentucky Fried Chicken box he had been using into an open paper sack standing on the floorboard at his feet, and left the sack in the vehicle. In reversing the suppression of the sack’s contents, the Third District Appellate Court stated:

“The uncontroverted evidence established that Wallace, the driver and owner of the vehicle, consented to a search of the car and its contents. The sack was open and standing in plain view. Moreover, the defendant did not assert a possessory interest in the sack or its contents. Consequently, we find that he did not have a legitimate expectation of privacy in the sack and thus lacked standing to challenge the search.” Bolar, 205 Ill. App. 3d at 599, 563 N.E.2d at 1227.

Applying Bolar to this case it appears that defendant’s purse was not open. It further appears that defendant was never given the opportunity to assert a possessory interest in the purse, as she did not know the driver had consented to a search of the vehicle. Although a defendant may not have a legitimate expectation of privacy in an open sack which he leaves in another’s car, the same cannot be said of a purse. It is difficult to conceive of any item in which a defendant has a more legitimate expectation of privacy than her purse. The purse here was not abandoned or left in the car for a matter of days, but for only a few minutes, after defendant was ordered out of the vehicle, and before any request to search was made.

When the police removed the five occupants from the vehicle, obtained the consent of the driver to a search, and found the purse on the front seat, it is possible that the purse might have belonged to the driver, or the purse might have belonged to a passenger and the driver had authority to consent to its search. The trial court, however, found that a.reasonable officer would have believed that the purse belonged to the passenger who was sitting where it was found and the driver had no authority to consent to its search.

Just as an officer is not always entitled to accept a person’s invitation to enter a premises, an officer is not always entitled to rely on a person’s consent to search personal property.

“Even when the invitation is accompanied by an explicit assertion that the person lives there, the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth and not act upon it without further inquiry. As with othei: factual determinations bearing upon search and seizure, determination of consent to enter must ‘be judged against an objective standard: would the facts available to the officer at the moment . . . “warrant a man of reasonable caution in the belief” ’ that the consenting party had authority over the premises? Terry v. Ohio [(1968), 392 U.S. 1, 21-22, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880]. If not, then warrantless entry without further inquiry is unlawful unless authority actually exists. But if so, the search is valid.” (Illinois v. Rodriguez (1990), 497 U.S. 177, 188-89, 111 L. Ed. 2d 148, 161, 110 S. Ct. 2793, 2801.)

Here the trial court found that a reasonable officer would not have relied upon the driver’s consent but would have inquired further. The trial court’s decision was not contrary to the manifest weight of the evidence.

The apparent authority cases cited by the majority have little relevance to this case. There is no indication the driver and the passenger shared the purse in common here, as the parties shared their bedroom in Matlock. This case is not much like Miller or Harris, where the owner of a vehicle allowed someone else to drive it, and thereby assumed the risk the driver would allow someone to look inside it. Nor, for that matter, is this case much like Rakas v. Illinois (1978), 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421, where a passenger sought to object to a search under the seats of the vehicle and in the glove compartment. This would be a more difficult case, under Bolar and Harris, if the police had asked for the driver’s consent in defendant’s presence, and defendant had remained silent.

I would affirm the order of the circuit court suppressing the evidence.