author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL T. CLARKE, Defendant-Appellant.
    Second District
    No. 2 — 91—0953
    Opinion filed April 27, 1993.
    Rehearing denied June 1, 1993.

      G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, for appellant.

      Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Gregory L. Slovacek, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Michael T. Clarke, was convicted of aggravated battery (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(a)) for stabbing Larry Mc-Bain on May 5, 1990. For the following reasons, we reverse and remand.

Defendant was indicted for attempted murder (Ill. Rev. Stat. 1989, ch. 38, pars. 8 — 4(a), 9 — 1) and aggravated battery (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(a)) for stabbing McBain on May 5, 1990. The cause proceeded to a jury trial on April 15, 1991. Defendant claimed that he stabbed McBain in self-defense. (Ill. Rev. Stat. 1989, ch. 38, par. 7 — 1.) McBain, however, testified that defendant initiated the incident.

On May 5, 1990, at approximately 3:15 a.m., Donald Runblade was driving north on Alpine Road approaching the intersection of Alpine and Harlem Roads in Loves Park, Illinois. Larry McBain was a passenger in Runblade’s vehicle. Defendant was driving alone. Mc-Bain claims that defendant pulled into the right lane and drove next to Runblade’s vehicle for two or three minutes. When McBain looked toward defendant’s car, defendant allegedly made an obscene gesture and threw liquid on Runblade’s car. Defendant sped ahead of them, stopped his car, approached Runblade’s vehicle, and threw a beer bottle which shattered the windshield. McBain exited the car and confronted defendant. McBain turned back and watched Runblade drive away. When McBain turned around, defendant stabbed him in the left rib. McBain jumped back and raised his fists, not realizing he had been stabbed. Defendant allegedly asked, “Do you want me to stab you again?” When McBain responded, “Yes,” defendant ran to his car and drove away.

To the contrary, defendant claims that McBain was the aggressor. Defendant testified that, while passing Runblade’s vehicle on the right side, McBain made an obscene gesture, referring to defendant with profane language. Defendant contends that he ignored them and continued driving. Runblade would not let him pass and continued to drive alongside defendant’s vehicle. When defendant sped up, Runblade pulled next to his car and told defendant to follow him. When defendant did not follow, Runblade turned around and resumed following defendant. Defendant stopped his car after Runblade allegedly bumped him twice from behind. Runblade stood at the door of his own vehicle, and McBain ran toward defendant. Defendant threw a beer bottle at Runblade’s car. McBain continued to advance and swung at defendant. After warning McBain to leave him alone, defendant produced a pocket knife and threatened to stab McBain. McBain allegedly took another swing, and defendant stabbed him. Defendant ran to his vehicle and drove to the home of Jean Shelton, his girlfriend.

Runblade contacted the police when he discovered defendant’s car parked in Shelton’s driveway later that morning. Shelton admitted the two officers when they arrived at her home at approximately 4:30 a.m. When defendant came forward, the officers stated that they wanted to talk about the stabbing. Defendant resisted, was handcuffed and read Miranda warnings. Runblade identified defendant as the person involved in the stabbing earlier that evening. After securing defendant in the police car, the officers discovered a pocket knife in the folds of the bedspread in Shelton’s room.

McBain suffered a one-inch stab wound to the left upper quadrant, lateral to the midline, just below the rib cage. The doctors at St. Anthony’s Hospital waited a few hours to perform exploratory surgery while the effects of the alcohol McBain consumed that evening dissipated. The surgery revealed a laceration to the left lobe of the liver and perforations to the wall of the stomach and the duodenal wall. The inferior vena cava was also lacerated. After seven days, Mc-Bain was discharged from the hospital against medical advice because he was abusive to hospital personnel.

Defendant’s theory at trial was that he stabbed McBain in self-defense. (Ill. Rev. Stat. 1989, ch. 38, par. 7 — 1.) The jury was given instructions on attempted murder (Ill. Rev. Stat. 1989, ch. 38, pars. 8— 4(a), 9 — 1), aggravated battery (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 4(a), 12 — 4(b)(l)), and reckless conduct (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 5(a)) as a lesser included offense. The jury found defendant guilty of aggravated battery. Defendant was sentenced to a term of three years’ imprisonment, and this appeal followed.

Defendant asserted that he stabbed McBain in self-defense. Thus, he was required to present evidence that he reasonably believed the degree of force used against McBain was necessary to avert the danger of harm. (People v. Turcios (1992), 228 Ill. App. 3d 583, 594.) To raise this defense successfully, defendant was required to present at least some evidence in support of each of the following elements: (1) McBain threatened force against defendant; (2) defendant was not the aggressor; (3) the danger of harm was imminent; (4) the force McBain threatened was unlawful; (5) defendant actually believed that a danger existed, that force was necessary to avert the danger, and that the amount of force defendant used was necessary; and (6) that these beliefs were reasonable. (People v. Chavez (1992), 228 Ill. App. 3d 54, 70; People v. Denny (1991), 221 Ill. App. 3d 298, 301.) Once the defense was raised, a question of fact arose concerning whether defendant’s belief was reasonable, and the burden shifted to the State to prove the defendant’s use of force was not justified. Turcios, 228 Ill. App. 3d at 594; People v. Belpedio (1991), 212 Ill. App. 3d 155,161.

Since defendant raised the theory of self-defense and defendant and McBain gave extremely different versions of the stabbing, evidence of McBain’s aggressive and violent character was relevant and admissible to indicate who was the aggressor. (People v. Lynch (1984), 104 Ill. 2d 194, 200.) To prove that defendant was not the aggressor, Billy Hopper testified about an incident where McBain bumped Hopper’s automobile three times from behind while in a drive-through restaurant line. Deputy Hogshead testified concerning McBain’s violent conduct after the incident when Hogshead arrested him. On Hogshead’s cross-examination, defense counsel elicited information that Hogshead received a call from Glenn Weber, the prosecuting attorney, the previous evening. Defense counsel explained to the court that the purpose of the call was to “soften” Hogshead’s testimony. Weber, however, explained the purpose of the call as an inquiry of whether Hogshead possessed knowledge of other incidents of violence involving McBain. Responding to defendant’s request to present to the jury the telephone call from Weber to Hogshead, the court stated as follows:

“THE COURT: Obviously the witness testified the way [defense counsel] wanted him to and it was, he was not intimidated or anything else and I don’t think it’s appropriate to let the jury start getting into things like that. Then we have to get into all sorts of other things and it takes away from this case. My ruling, I feel, is certainly correct in that regard. If the defense feels that the prosecution made some inappropriate or engaged in some inappropriate conduct it can take whatever action it feels is appropriate, but with regard to this case I feel my ruling is correct.”

Defendant moved for a mistrial on the basis that the court would not allow the defense to introduce evidence concerning the prosecutor’s phone call to Hogshead. To further support his motion for a mistrial, defense counsel asserted that the prosecuting attorney also telephoned Billy Hopper to inform him of plans to impeach Hopper’s testimony by presenting evidence of a pending case against him. The motion for a mistrial was denied. On appeal, defendant contends that he was denied a fair trial because the testimony of Hopper and Hogshead was allegedly curtailed due to prosecutorial intimidation resulting from the telephone calls.

We find defendant’s contention wholly speculative. In denying defendant’s motion for a mistrial, the court advised defendant to preserve the issue of prosecutorial misconduct by filing a post-trial motion and informing the court exactly how the testimony of Hopper and Hogshead was altered. The court suggested that an evidentiary hearing would be held at that time. Defendant did raise the issue of intimidation in his post-trial motion, but did so without specific allegations, argument, affidavits, or testimony by Hopper and Hogshead indicating how the substance of their testimony was altered by the telephone calls.

Due process of law encompasses a defendant’s right to present witnesses in his own behalf to establish a defense. (People v. McKiness (1982), 105 Ill. App. 3d 92, 98.) Substantial governmental interference with a defense witness’ free and unhampered choice to testify violates a defendant’s right to due process of law under the fourteenth amendment. (Webb v. Texas (1972), 409 U.S. 95, 34 L. Ed. 2d 330, 93 S. Ct. 351; People v. Bailey (1985), 132 Ill. App. 3d 399, 407.) We do not condone a prosecuting attorney’s action in contacting witnesses for the defense when it is calculated to intimidate witnesses and dissuade them from testifying. However, we decline to apply a per se rule in this case. As the court stated in United States v. Weddell (5th Cir. 1986), 800 E2d 1404, 1411, the relevant inquiry is whether the prosecutor’s conduct “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” If the witnesses in this case refused to testify or continue testifying, as in United States v. Blackwell (D.C. Cir. 1982), 694 E2d 1325, United States v. Goodwin (5th Cir. 1980), 625 F.2d 693, United States v. Hammond (5th Cir. 1979), 598 F.2d 1008, and McKiness (105 Ill. App. 3d at 92), our result would be different. Without sufficient allegations and proofs indicating how the substance of the witnesses’ testimony was altered by the telephone calls, we are unable to assess the degree of prejudice to defendant, if any. Therefore, we determine that defendant was not deprived of a fair trial by the prosecutor’s actions in contacting the witnesses.

Next, defendant contends that he was deprived of a fair trial due to comments made by the prosecutor in closing argument. The prosecutor commented on the testimony of Hopper and Hogshead concerning the incident where McBain allegedly bumped Hopper’s automobile and became aggressive and violent in the drive-through restaurant line and during his arrest by Hogshead later that evening. First, the prosecuting attorney stated that the defense was “trying to drag [McBain] through the mud by bringing up this irrelevant incident that happened.” Defense counsel objected, and the court informed the jury it would be instructed on the appropriate use of this evidence. Again, the prosecuting attorney referred to the incident and stated that, if the jury considered the incident, it would be “dragging Larry McBain through the mud for no reason because that incident is not probative of what happened [in this case].” Defense counsel objected, and the court again informed the jury that it would receive instructions on the use of evidence of prior acts of violence. Next, the following interchange occurred:

“PROSECUTOR: You don’t think they [the defense] were dragging Larry McBain through the mud. Why do you think they talked about Billy Hopper and his three kids in the back seat [sic] and his wife and gee[,] they are just going over to Hardee’s to get a sandwich and here is Larry McBain ramming the back of his car. You don’t think they are trying to drag him through the mud with that garbage?
DEFENSE COUNSEL: I object to the reference of attacks of [sic] a citizen of the State of Illinois as garbage where a person admitted his guilt and being involved in that garbage.
THE COURT: Mr. Gaziano, you have had your opportunity to argue the case. You can make an objection but not argue or continue your argument. Objection is overruled.”

Defendant contends that the State’s closing argument was improper because the prosecutor misstated the law by informing the jury that evidence of McBain’s prior conduct was irrelevant and had no probative value and because of the State’s reference to the defense theory as “garbage.”

A defendant is entitled to a trial free from improper prosecutorial argument. The State may comment on the evidence presented during trial and draw reasonable inferences from the evidence. (People v. Johnson (1992), 149 Ill. 2d 118, 145.) However, improper remarks will not justify reversal unless, when viewed in the context of the entire record and argument, the remarks were a material factor in the conviction or resulted in substantial prejudice to the defendant, such that the verdict would have been different if the remarks were not made. Johnson, 149 Ill. 2d at 145; People v. Morgan (1991), 142 Ill. 2d 410, cert, granted (1991), 504 U.S. 719, 116 L. Ed. 2d 239, 112 S. Ct. 295; People v. Garcia (1992), 231 Ill. App. 3d 460, 469.

Misstating the law in closing argument can be grounds for reversal. (People v. Eckhardt (1984), 124 Ill. App. 3d 1041, 1043.) As we previously stated, evidence of McBain’s prior violent conduct was admissible for the purpose of assessing the credibility of the witnesses’ disparate versions of the stabbing and aiding the jury in determining who was the aggressor. (Lynch, 104 Ill. 2d at 200.) Therefore, the State erred in stating that the testimony of Hopper and Hogshead concerning McBain’s violent character was irrelevant. However, instructing the jury that comments made during closing argument are not evidence and should be disregarded, if not based on the evidence, tends to cure any prejudice from improper remarks. (People v. Morgan (1986), 112 Ill. 2d 111; Garcia, 231 Ill. App. 3d at 469; People v. Graca (1991), 220 Ill. App. 3d 214, 221.) Our review of the record reveals that the court responded to the State’s comments by informing the jury that it would be instructed on the proper use of the evidence. The record further reveals that the jury was instructed that evidence of prior violent or aggressive behavior may be used only for the limited purpose of determining who was the aggressor. (Non-Illinois Pattern Jury Instruction based on People v. Lynch (1984), 104 Ill. 2d 194.) The jury was also instructed that closing statements are not evidence and any statement or argument made by the attorneys which is not based on the evidence should be disregarded. (Illinois Pattern Jury Instructions, Criminal, No. 1.03 (3d ed. 1992).) Although the State erred in stating that testimony concerning McBain’s violent character was irrelevant and not probative of the issue of self-defense, we find that defendant did not incur substantial prejudice by these improper comments alone, as the jury was instructed on the proper use of this evidence.

• 3 The State’s reference to the theory that McBain was the aggressor as “garbage” was outside the bounds of proper argument. A defendant is entitled to be tried by an unbiased jury and to be judged on the merits of his case. (People v. Bean (1985), 109 Ill. 2d 80, 101, appeal after remand (1990), 137 Ill. 2d 65.) It is improper for the prosecution to suggest, without evidence, that defense counsel fabricated a defense theory. (People v. Emerson (1983), 97 Ill. 2d 487, 497.) It is also improper for the prosecutor to make statements calculated solely to inflame the passions and prejudices of the jury. (People v. Merideth (1987), 152 Ill. App. 3d 304, 321.) The unsubstantiated personal opinion of the prosecutor characterizing the defense theory of self-defense as “garbage” was improper. The trial court erred by failing to sustain defense counsel’s objection to this remark.

Defendant also objects to the State’s characterization of Hopper as a convicted felon during closing argument. Since no objection to this comment was made during trial, defendant has waived the issue. (People v. Enoch (1988), 122 Ill. 2d 176, 186.) However, we will address defendant’s contention on the merits under the plain error rule, as the evidence in this case was closely balanced. 134 Ill. 2d R 615(a).

The record reveals that Hopper had a prior conviction of felony theft which could have impeached his credibility as a witness. The credibility of a witness is a proper subject for closing argument. (People v. Richardson (1988), 123 Ill. 2d 322, 356.) The State may comment on the credibility of a witness during closing argument if it is based on facts in the record or inferences fairly drawn from those facts. (Johnson, 149 Ill. 2d at 145; People v. Epps (1986), 143 Ill. App. 3d 636, 640.) The State was entitled to suggest that Hopper was not a credible witness because his prior conviction of felony theft was part of the record.

Although the verdict may not have been different if one of the errors had not been committed, the cumulative impact of the errors was prejudicial to the defendant. To assert self-defense successfully, defendant was required to produce evidence indicating he was not the aggressor. The State’s comments that McBain’s prior aggressive behavior was “not probative” and irrelevant, coupled with the characterization of the defense as “garbage,” improperly impugned the validity of defendant’s contentions. For these reasons, we determine that the cumulative impact of the State’s errors was substantially prejudicial such that the verdict may have been different if they were not committed.

Finally, defendant contends that the trial court erred by failing to disclose certain police reports revealing prior violent conduct by Mc-Bain and Runblade. The defense issued a subpoena duces tecum to the record keeper of the Winnebago County sheriff for all police reports pertaining to McBain and Runblade. The trial court reviewed the reports in camera and released six of them to the defense. The rest of the reports were impounded. The impounded reports are part of the record on appeal, and defense counsel has reviewed them. Defendant contends that the impounded reports reveal or suggest other instances of violent conduct by McBain and Runblade which should have been disclosed to the defense prior to trial.

Defendant concedes that he failed to object during trial when the reports were impounded or to raise the issue in his post-trial motion for a new trial. Issues raised on appeal are preserved for review by objecting during trial and filing a written post-trial motion which raises the issue of the alleged error. (Enoch, 122 Ill. 2d at 186.) We do not accept the State’s contention that defendant has waived this issue on appeal. The impounded reports became part of the record on appeal, and defense counsel’s first opportunity to review the reports was at this time. The waiver rule does not preclude a defendant from raising issues that defense counsel was unaware of at the trial level.

Since we will reverse and remand for a new trial on the basis of our ruling on the State’s comments during closing argument, we are not required to address this issue. We note, however, that reports concerning McBain’s prior violent conduct were disclosed to the defense. The defense utilized these reports in support of its theory that defendant stabbed McBain in self-defense by calling witnesses who testified regarding specific instances where McBain exhibited violent and aggressive behavior. The trial court’s decision to exclude admissible evidence does not always constitute reversible error. If the jury was adequately apprised of the nature of the defense by introducing evidence reflecting McBain’s violent and aggressive character, any error may have been harmless. See People v. Taylor (1992), 233 Ill. App. 3d 985.

Furthermore, the reports concerning prior violent conduct by Runblade are irrelevant in the present case, as the defense sought to prove McBain was the aggressor. Runblade’s conduct on prior occasions is not probative of whether defendant was the aggressor. Therefore, the reports concerning Runblade’s conduct were properly excluded by the trial court.

For the foregoing reasons, we reverse the judgment of the circuit court of Winnebago County and remand this cause to the trial court for further proceedings in conformance with the opinion of this court.

Reversed and remanded.

BOWMAN and COLWELL, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BOWMAN

license: Public Domain

text:
    THE VILLAGE OF ELK GROVE VILLAGE, Appellant, v. THE ILLINOIS STATE LABOR RELATIONS BOARD et al., Appellees.
    Second District
    No. 2 — 92—0855
    Opinion filed May 3, 1993.

      Robert C. Long, of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago (Anthony B. Byergo, of counsel), for petitioner.
    Roland W. Burris, Attorney General, of Springfield, and Jacalyn Zimmerman, of Illinois State Labor Relations Board, of Chicago (Rosalyn B. Kaplan, Solicitor General, and Susan Frederick Rhodes, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois State Labor Relations Board.
    Joel D’Alba and Anne Wells Clark, both of Asher, Gittler, Greenfield, Cohen & D’Alba, Ltd., of Chicago, for respondent Elk Grove Village Fire Fighters Association.
    Melissa J. Auerbach, of Cornfield & Feldman, of Chicago, for amicus curiae.

   JUSTICE BOWMAN

delivered the opinion of the court:

The Village of Elk Grove Village (Village) seeks administrative review of an order of the Illinois State Labor Relations Board (Board). The order certified the Elk Grove Village Fire Fighters Association, Local No. 3398 (Union), as the exclusive representative of a bargaining unit for purposes of collective bargaining. The bargaining unit consists of all full-time sworn lieutenants, lieutenants/paramedics, fire fighters, fire fighters/paramedics, and probationary fire fighters of the Village fire department. The Village asserts that the Board erred in including the lieutenants in the bargaining unit since the position of lieutenant is supervisory and, as such, is excluded by the Act. We affirm the order of the Board.

This action began when the Union filed a representation and certification petition with the Board, seeking to represent a bargaining unit of fire department employees, including fire fighters and lieutenants. At a hearing on the petition, the following facts were revealed. The Elk Grove Village fire department (Department) has a paramilitary structure. It is headed by a chief who holds ultimate responsibility for the activities of the Department. The chief is assisted by a deputy chief and two administrative captains, a civilian fire inspector, and a civilian training coordinator. All of these personnel work from 9 a.m. to 5 p.m., Monday through Friday, and neither regularly respond to fire calls nor direct the daily activities of the fire station personnel. The remaining sworn personnel consist of 3 captains, 18 lieutenants, and 69 fire fighters.

The fire stations are staffed by three shifts, each shift consisting of 1 captain, 6 lieutenants, and 23 fire fighters. Each shift works 24 consecutive hours and then is off for 48 consecutive hours. The captain serves as shift commander and holds overall responsibility for the shift and the activities of the four fire stations. Shift commanders are not directly involved in the daily, routine activities of the remaining shift personnel. In the captain’s absence, a lieutenant will serve as acting shift commander.

Below the captain, the shift personnel are assigned to one of five companies based in the four fire stations in the Village. A company is a group of workers assigned to a specific apparatus which has a distinct role in the fire service. All of the lieutenants, on their respective shifts, serve in the role of company officer and are in charge of and generally held accountable for the actions and conduct of the fire fighters in their company. Occasionally, a lieutenant who is also a paramedic will be assigned to an ambulance. In this event, the lieutenant is not the company officer, but acts under the command of the assigned company officer.

In order to achieve its general functional goals, the Department maintains an organizational structure based on committee assignments. Most of the sworn personnel serve on either a main committee or a subcommittee designed to facilitate a specific goal. Basically, the committees develop programs, have responsibility for preparing budget packages for their areas of expertise, and act to improve the Department’s efficiency. The lieutenants, who serve as officers in charge, guide and direct the work of the committees and see to it that the committee objectives are carried out.

One of the major functions of the committees is to have input into the budgeting process. The committee members suggest ideas to the officer in charge who, in turn, prioritizes the ideas, completes the necessary forms supplied by the Village, and submits the resulting “decision package” to the officers in charge of the major committees. All decision packages are then submitted to the chief or deputy chief for review and further prioritization as part of the development of a proposed budget for the entire Department. The final approval of a proposed budget must come from the Village’s board of trustees.

With regard to their day-to-day duties, the lieutenants prepare the work schedules, adhering to minimum manning requirements issued by the chief. The manning requirements must be met even when an unscheduled absence occurs. In this event, the lieutenants decide whether a fire fighter can be transferred from another station or whether it is necessary to hold over or hire back the needed personnel. In making these decisions, the lieutenants utilize lists which show employee qualifications or specialties in order to make proper assignments to specific apparatus. They then make a recommendation to the shift captain as to who should fill in the vacant position.

During a typical morning at the stations, the fire fighters will conduct an apparatus check and do the daily maintenance of the station while the lieutenants tend to mail and paperwork and perform general administrative tasks. The lieutenants review the fire fighters’ work and make sure any problems are corrected. This review takes about 20 minutes. Each day, two to three of the afternoon hours are devoted to either training or another specific activity. While the lieutenants keep the company attendance and certification records for emergency medical service (EMS) training, they themselves also attend the sessions for training. The content of the training exercises is determined by the training coordinator, although the lieutenants and fire fighters with specialties develop the actual training drills. The lieutenants select and usually lead the drill to be completed on a given day.

Each month the companies are expected to participate in public education activities and perform inspections of emergency key boxes at businesses in the Village. The lieutenants schedule and oversee these tasks. In addition, the companies conduct a number of different kinds of fire preparedness inspections each month. While the list of sites to be inspected is prepared by a captain, the lieutenants are in charge of the inspections themselves. Either the lieutenant or a fire fighter completes a checklist or other form relative to each inspection. The lieutenant then sends the form to the captain. Also on a recurring basis, the fire fighters perform needed in-depth maintenance of tools and apparatus. The lieutenants assign and review this work.

In the event of an emergency response, the company officers ride on the engine with the fire fighters but stay in communication by radio with the dispatchers and the shift commander. The first company officer to arrive at the scene is designated an “incident commander” and is in charge of all the fire fighters who respond to the emergency. The incident commander decides the actions to be taken, directs the fire fighters, and determines whether to call for backup or to reduce the response. The shift commander, who automatically responds to all structural fire scenes, can choose whether to assume command. The company officers guide their companies in accord with the direction of the incident commander. When the emergency involves a medical service, the company officer is responsible for the overall company response to the incident, both fire engine and ambulance. However, the most senior paramedic is specifically responsible for patient care.

Lieutenant Goss is EMS coordinator for the Department and Lieutenant Goostree is public education officer. In their respective capacities, these lieutenants are in charge of the primary functional activities of the Department, and they report directly to the chief. They are responsible for making recommendations relative to policy and procedure and for the preparation of budget proposals for their special activities. In preparing the budgets, Lieutenants Goss and Goostree receive input from the pertinent subcommittees or directly from fire fighters. Goss must include this input in his budget package. Much of Goostree’s budget is devoted to maintaining or modifying existing programs, although he also implements new programs. The proposed budgets are then forwarded to the deputy chief for consideration in formulating the overall Department budget. Goss and Goostree are also responsible for the proper administration of their respective budget allocations.

Lieutenant Goss has the additional task of maintaining proper stock supplies for the EMS function, which accounts for the second largest portion of the Department’s total budget. Goss is also the Department’s liaison to the Northwest Hospital EMS system. Along with his peers from other villages, Goss has input to the hospital’s policies and procedures for fire department EMS systems.

The fire fighters, including probationary personnel, are evaluated by the lieutenants every six months. The evaluation consists of completing a one-page form by writing comments concerning the particular fire fighter in nine different categories of employee characteristics. The evaluations of probationary fire fighters are sent to the Village’s board of police and fire commissioners (Commission) to aid in the determination of whether to retain such personnel permanently. Also, the shift captain often seeks the views of the lieutenant before recommending for or against the retention of a particular fire fighter. As for promotion of fire fighters to the position of lieutenant, the chief gives a merit and efficiency rating for each applicant. In the process of developing that rating the chief reviews and takes into account the evaluations done by the lieutenants.

With regard to discipline, certain actions are within the discretion of the lieutenants. They can issue oral reprimands and recommend further discipline such as a written reprimand and are authorized to issue emergency suspensions. No lieutenant, however, has ever given an oral reprimand or instituted an emergency suspension. A lieutenant would impose a suspension only if no superior officer was available. In other matters, lieutenants adjust informal grievances and resolve minor disputes among the fire fighters, such as personality conflicts and complaints regarding work assignments. Lieutenants also serve as the first step in the formal grievance process.

Following the hearing, the hearing officer issued a recommended decision and direction of election. The hearing officer concluded that the fire lieutenants were not supervisory employees and the EMS coordinator and the public education officer were not managerial employees under the Illinois Public Labor Relations Act. The hearing officer also found that the fire fighters and lieutenants constituted an appropriate unit. The Board adopted the hearing officer’s recommended decision and issued an order directing an election for representation. After the election the Village filed an objection, alleging that the presence of the fire lieutenants in the bargaining unit tainted the election process due to the lieutenants’ supervisory authority over subordinate bargaining unit members. The executive director of the Board, however, reported that he found no reasonable cause to believe that the result of the election was not fairly and freely chosen by a majority of the employees. The Board ultimately affirmed the executive director’s report, and the Village timely filed its petition for administrative review.

The Village appeals directly to this court pursuant to section 9(i) of the Illinois Public Labor Relations Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 1609(i)). Section 9(i) provides that judicial review of Board action is to be governed by the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 110). According to that law, the findings and conclusions of the Board on questions of fact are considered prima facie true and correct. (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 110.) However, the reviewing court may reverse the agency’s findings of fact when they are against the manifest weight of the evidence and it is clearly evident the agency should have reached an opposite conclusion. (City of Freeport v. Illinois State Labor Relations Board (1990), 135 Ill. 2d 499, 507; Balmoral Racing Club, Inc. v. Illinois Racing Board (1991), 214 Ill. App. 3d 112, 119, rev’d on other grounds (1992), 151 Ill. 2d 367.) Although a reviewing court is not bound by administrative decisions interpreting the legal effect of statutory language, the court will give the agency’s conclusions great weight in arriving at its own statutory construction. (Laborer’s International Union of North America, Local 1280 v. Illinois State Labor Relations Board (1987), 154 Ill. App. 3d 1045, 1057.) The expertise and experience of an administrative agency enable it to make informed judgments on the issues and render the agency’s interpretation of its enabling legislation worthy of great weight and deference. (Illinois Consolidated Telephone Co. v. Illinois Commerce Comm’n (1983), 95 Ill. 2d 142, 152-53; Village of Oak Park v. Illinois State Labor Relations Board (1988), 168 Ill. App. 3d 7, 19.) These principles guide our examination of the issues before us.

The Village contends that the lieutenants are supervisors or managers and that, pursuant to statute, they should have been excluded from the bargaining unit. Section 2 of the Act sets forth the policy that public employees may join unions and be represented by a union for purposes of collective bargaining. (Ill. Rev. Stat. 1989, ch. 48, par. 1602.) In pertinent part the Act defines a “public employee” as follows:

“ ‘Public employee’ or ‘employee’ *** means any individual employed by a public employer, *** excluding all of the following: *** managerial employees; *** and supervisors ***.” (Ill. Rev. Stat. 1989, ch. 48, par. 1603(n).)

With respect to fire fighters the statute adds:

“[I]n new fire fighter units, employees shall consist of fire fighters of the rank of company officer and below; provided, if a company officer otherwise qualifies as a supervisor pursuant to [this statute], he or she shall not be included in the fire fighter unit ***.” (Ill. Rev. Stat. 1989, ch. 48, par. 1603(r).)

Thus, the lieutenants here, who serve as company officers, must be considered employees with the right to be included in an employee bargaining unit, unless they fall within the statutory definition of a supervisor. It is plainly evident that a “supervisor” is not to be included in a bargaining unit made up of “employees.” The Village urges that the lieutenants fit within the “supervisor” exclusion.

Section 3(r) of the Act defines a supervisor as:

“[A]n employee whose principal work is substantially different from that of his subordinates and who has authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, direct, reward, or discipline employees, or to adjust their grievances, or to effectively recommend such action, if the exercise of such authority is not of a merely routine or clerical nature, but requires the consistent use of independent judgment. *** [T]he term ‘supervisor’ includes only those individuals who devote a preponderance of their employment time to exercising such authority ***.” (Ill. Rev. Stat. 1989, ch. 48, par. 1603(r).)

The definition of a “supervisor,” as it appears in the Act, was construed by our supreme court in City of Freeport v. Illinois State Labor Relations Board (1990), 135 Ill. 2d 499. Freeport resolved two consolidated appeals, one of which involved police personnel in the City of Freeport. The other appeal was brought by the Village of Wheeling to determine whether the lieutenants in its fire department were supervisors within the Act. The court found that an employee of the fire department must meet four distinct statutory requirements in order to be a supervisor. The employee must (1) perform principal work which is substantially different from that of his subordinates; (2) have the authority to take one or more of the supervisory actions named in the statute, or to effectively recommend such action, in the interest of the employer; (3) consistently use independent judgment in exercising that authority; and (4) devote a preponderance of employment time to exercising his authority. (Freeport, 135 Ill. 2d at 526-33.) Furthermore, an employee will be considered a supervisor, and thereby be excluded from an employee bargaining unit, only if he meets all applicable parts of the test. Freeport, 135 Ill. 2d at 526-33.

The Board in this case found that the lieutenants met the. first requirement in that their work was substantially different from that of the fire fighters. With regard to the second requirement, the Board found that the lieutenants have the authority to effectively recommend the transfer of fire fighters between stations, to adjust grievances, to discipline and suspend, and to direct the fire fighters. Accordingly, the Board determined that the lieutenants also fulfilled the second part of the Freeport test. As for the third requirement, the Board found that the only areas of supervisory authority requiring the lieutenants consistently to use independent judgment was the authority to discipline and the authority to suspend. After further finding that the authority had never been exercised, the Board concluded that the lieutenants did not spend a preponderance of their employment time exercising their authority. Since the lieutenants could not meet all four parts of the requisite test, the Board concluded they were not supervisors and could properly be included in a bargaining unit with the fire fighters.

The Village claims the Board erred when it found that the lieutenants do not have authority to effectively recommend the hiring or promotion of fire fighters and do not use independent judgment in directing the fire fighters in either day-to-day activities or emergency responses, in transferring fire fighters between stations, or in adjusting the fire fighters’ grievances. The Village then asserts that these erroneous findings led to the mistaken conclusion that the lieutenants do not meet the preponderance prong of the Free-port test. The record does not support the Village’s argument. We note at the outset that our disposition of the issues in this case is informed in large part by Freeport. The facts in Freeport were remarkably similar to the facts of this case, and many of the same issues were raised.

The lieutenants themselves do not actually hire the fire fighters. The authority to hire, promote, discharge and reward fire fighters is vested by statute in the board of fire and police commissioners. (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—1 et seq.) The Village does not dispute this proposition. Rather, it insists that the lieutenants effectively recommend which probationary fire fighters should be given permanent status. However, the record reflects that the lieutenants’ formal input to the hiring process is limited to the evaluation forms they complete on each probationary employee during the 12-month probationary period. The fire and police commission reviews these forms and assesses the information provided by the lieutenants before it decides to hire a probationary fire fighter. Less formal input is garnered verbally from the lieutenants by the chief and captains in addition to what goes into the formal evaluations. The Commission, however, communicates directly with the captains and the chief, not the lieutenants. It is also noteworthy that an evaluation prepared by a lieutenant is subject to review and approval by both the pertinent shift captain and the chief before it is discussed with the fire fighter himself. Too, the higher officers, as well as the Commission, can either accept or reject a lieutenant’s recommendations. All in all, the input the lieutenants have is not persuasive that they have the authority to effectively recommend the hiring of probationary personnel. Thus, we cannot say the Board’s finding on this issue was contrary to the manifest weight of the evidence.

The Village also challenges the Board’s determination that the lieutenants do not have the authority to effectively recommend promotions of subordinate fire fighters. In support, the Village states in its brief that the rules and regulations of the Commission “expressly state that five points [out of 100] toward promotion are based solely on the evaluations conducted by the lieutenants.” Our examination of the record, however, reveals no such statement.

The Board rules state that promotion “shall be on the basis of ascertained merit, seniority of service and examination.” An applicant receives a numerical rating for each factor, and the applicants with the highest overall ratings receive promotions. With particular reference to the merit factor, the rules provide that, for each candidate who has successfully completed the required examinations, the fire chief is to prepare a merit and efficiency rating for the Commission. This rating has a value of 10 points and consists of two parts, each part worth five points.

The first part of the merit and efficiency rating is described as follows:

“Evaluation ratings determined by adding the scores of the last years [sic] regular evaluations ratings conducted by the respective department and dividing by the number of evaluations conducted during said one year period.”

The score derived from this calculation is then to be automatically applied by the Commission’s secretary. The second part of the rating is an evaluation determined by the chief. It is the first part of the test which the Village claims is based solely on the lieutenants’ evaluations. However, as can be seen, the rule does not so state. Moreover, testimony at the hearing indicated that the lieutenants do not give any kind of numerical rating when they evaluate the fire fighters. At best, we find the language the Village relies on to be ambiguous as to the role of the lieutenants in the promotion process.

Too, even if they are worth a maximum of five points, the evaluations done by the lieutenants are not the most significant factor in promotion decisions. According to the Commission rules, the various factors which make up an applicant’s score are weighted as follows: written examination — 40%, oral examination — 40%, merit and efficiency rating — 10%, and seniority credit — 10%. Hence, even assuming the evaluations have numerical value, they pale in importance compared to the weight given to the examinations.

What the lieutenants provide is input regarding a fire fighter’s job performance. This input is one part of a much broader process in which information from a variety of sources is channeled to the Commission, which then sorts through and weighs that information and makes the final decisions. We do not believe a lieutenant’s input to the Commission can be equated with an effective recommendation regarding a fire fighter’s employment status, and the Board’s conclusion in this regard, therefore, is not against the manifest weight of the evidence.

We turn now to the Village’s contention that the Board erred in its findings regarding the third prong of the Freeport test. As noted, the Board found that only the lieutenants’ authority to discipline and suspend required the consistent úse of independent judgment. The Village maintains that independent judgment is also exercised in the day-to-day direction of the fire fighters’ nonemergency activities. In Freeport the exercise of authority to discipline and suspend required the consistent use of independent judgment only because the lieutenants had to “choose between two or more significant courses of action without broad review or approval by the chief.” (Freeport, 135 Ill. 2d at 532.) The lieutenants’ general direction of the fire fighters in this case does not involve the kinds of choices delineated in Freeport.

We note first of all that, while a lieutenant is generally a company officer, he is not the senior officer when he is on duty. On each shift, a captain has the overall responsibility for the fire stations, and the lieutenants look to him for guidance when necessary. Moreover, the lieutenants’ day-to-day direction of the fire fighters is highly routine. The schedules are well established and need only be followed. The same morning tasks, performed according to set standards, are essentially repeated week after week. Afternoon training activities are also scheduled and planned for the lieutenants. While they sometimes lead training exercises, the lieutenants do not control what the training will be. That is up to the training coordinator and the hospital. While it is true the lieutenants are in charge of fire inspections, the inspections themselves are basically repetitive, following a checklist of items to be completed, and do not call for choices between multiple courses of action.

The words used by the Freeport court to characterize certain functions of police officers in that case are also apt here:

“Certain supervisory functions are routine or ministerial in nature and do not generally require the use of independent judgment. The fact that performance of such functions may occasionally require the ranking officer to use discretion or independent judgment is not sufficient to satisfy the third prong of the supervisory definition.” (Freeport, 135 Ill. 2d at 521.)

The discretion and independent judgment which the Village ascribes to the lieutenants’ nonemergency direction of the fire fighters is not of sufficient magnitude to meet the third requirement of the statute, and the Board did not err in so finding.

As for the authority to transfer between stations, hold over, or hire back fire fighters, the lieutenants need exercise very little discretion. These activities are dictated by manning and special skills requirements and are carried out pursuant to standard operating procedures. Similarly, the authority to adjust grievances informally extends to only the most minor and routine matters and does not trigger significant independent judgment. As to formal grievances, the lieutenants serve merely as the first step. Once again, the Board was correct in determining the lieutenants’ authority does not measure up to the requirements of the statute.

In contrast to the structured and routine supervision administered at the fire station, lieutenants must exercise broad discretion and make quick decisions in directing their companies during emergency responses. However, the direction the lieutenants give to fire fighters at a fire scene “is derived from their superior skill, experience and technical expertise and therefore does not require the use of independent judgment ‘in the interest of the employer’ as required by the statute.” (Freeport, 135 Ill. 2d at 532; Village of Downers Grove v. Illinois State Labor Relations Board (1991), 221 Ill. App. 3d 47, 55.) We take this language to mean that, when it comes to fighting a fire, a lieutenant brings to bear all of the experience, all of the specialized training, all of the skills he has acquired, as a fire fighter, rather than as a member of the employer’s management team. His decisions are driven, not by his concern for his employer, but by the nature of the fire itself. Although the Village characterizes it as a perversion of legal authority, we think it accurate to say that a lieutenant’s decisions at a fire scene are tactical, rather than managerial, in nature. As we read Freeport, it is in this sense that, although fire lieutenants certainly exercise discretion and judgment at a fire scene, they do not do so in the interest of the employer as required by the statute. Despite the Village’s attempts to persuade us to the contrary, we find Freeport controlling on this issue.

To summarize, the Board did not err in determining that the exercise of authority by the lieutenants, other than the authority to discipline and suspend, does not require the consistent use of independent judgment. However, the authority to suspend or to issue an oral reprimand has never been exercised by the lieutenants. Accordingly, the Board’s conclusion that the lieutenants do not spend a preponderance of their time exercising supervisory authority is not against the manifest weight of the evidence. The lieutenants do not meet all four parts of the Freeport test for determining supervisory status. Consequently, the Board properly included them in the employee bargaining unit. In light of Freeport, where the court reached the same conclusion on essentially the same facts, we are convinced that our conclusion is correct.

In an argument similar to those just discussed, the Village maintains that the role of the lieutenants on the functional committees and subcommittees renders them managers or combined managers/supervisors. The Village focuses particularly on Lieutenant Goss, the EMS coordinator, and Lieutenant Goostree, the public education officer.

A “[mjanagerial employee” is defined in the statute as “an individual who is engaged predominantly in executive and management functions and is charged with the responsibility of directing the effectuation of such management policies and practices.” (Ill. Rev. Stat. 1989, ch. 48, par. 1603(j).) In City of Evanston v. Illinois State Labor Relations Board (1992), 227 Ill. App. 3d 955, the court applied a two-part test, originally developed by the Board (see State of Illinois (Departments of Central Management Services & Public Aid), 2 Pub. Employee Rep. (Ill.) par. 2019, No. S — UC—46 (ISLRB April 2, 1986); State of Illinois (Department of Central Management Services), 1 Pub. Employee Rep. (Ill.) par. 2014, Nos. S — UC—6, S— UC — 8 (ISLRB July 17, 1985)), for determining managerial status. First, the employee must be engaged predominantly in executive and management functions which specifically relate to running a department and include such activities as formulating department policy, preparing the budget, and assuring efficient and effective operations of the department. Second, the employee must direct the effectuation of management policies and procedures.

The Evanston court applied the test to the division chief of emergency medical services and the assistant fire chiefs, who were the shift commanders. The duties of the shift commanders in Evanston were very similar to those of the lieutenants in this case. Stating that executive functions require more than the exercise of professional discretion and technical expertise, the court found that a managerial employee must possess and exercise sufficient authority and discretion to bring about a department’s goals, or the means of achieving its goals, on a broad scale. Too, an employee is not a manager if his policymaking role is advisory and subordinate since “it is the final responsibility and independent authority to establish and effectuate policy that determines managerial status under the Act.” (Evanston, 227 Ill. App. 3d at 975.) With regard to the second part of the test, the employee must have substantial discretion to determine how and to what extent policies will be implemented and have authority to oversee and direct that implementation. (Freeport, 227 Ill. App. 3d at 975.) The Evanston court held that the shift commanders were not managerial employees under the Act.

The record in this case reflects that, while Lieutenant Goss does prepare the EMS budget, much of that budget is devoted to stock items which must merely be reordered on a recurring basis. Other items are budgeted simply as they are needed. Thus, developing the budget itself is largely mechanical and responsive to the requirements of EMS. Also, like the committee budgets, the EMS budget is reviewed by the chief and subject to revision before being included in the overall Department budget. Thus, Lieutenant Goss’ role in the budget process is essentially advisory. To the extent Goss oversees EMS he certainly has input into Department policies and procedures. However, to a great degree the structure and procedures of EMS are developed and promulgated by the hospital. Goss, who is the Department’s liaison to the hospital, drafts operating directives for EMS, but even those are based significantly on the procedures established by the hospital.

Similarly, Lieutenant Goostree’s role in the budget-making process is highly perfunctory and mainly advisory. Much of the public education budget is concerned with existing programs, and newly budgeted programs are subject to review and possible reprioritization or rejection by superior officers. In addition, Goostree has a very limited role in the area of policy making. He has input to policy changes, but very little say in how policies will be carried out. He also develops new programs, an activity which helps to assure the effectiveness of the public education function. Nevertheless, even collectively, Goostree’s activities cannot be said to impact significantly the formulation of overall Department policy. We conclude, as did the Board, that neither Goss’ nor Goostree’s functions suffice to fulfill either prong of the statutory test for a manager.

We likewise reject the Village’s suggestion that if the committee activities of the other lieutenants, which the Village characterizes as managerial functions, were “tacked” to their supervisory activities, those officers would then meet the preponderance and/or predominance tests and would qualify as supervisors and/or managers. We have already found that Lieutenants Goss and Goostree do not rise to the level of managers even though they direct major functions of the Department. As far as we can tell from the record, none of the other committee assignments are as extensive or significant as those of Goss and Goostree. Hence, even if we were to find that “tacking” was proper, and we do not so find, it would be of no avail. If Goss’ and Goostree’s committee duties do not qualify as managerial, none of the duties of the other lieutenants qualify, either. Absent any “managerial” functions, there is nothing to “tack” to the lieutenants’ limited “supervisory” functions, and the lieutenants still could meet neither of the relevant tests.

The final argument made by the Village is not persuasive. We are urged to reverse the Board’s decision, even if we find the lieutenants are not supervisors or managers, on the ground that the lieutenants cannot be placed in the same bargaining unit as the fire fighters because of the authority the lieutenants exercise over the fire fighters. Calling the lieutenants' authority “extensive,” the Village invokes the principle, articulated in Freeport, that supervisors should be excluded from a bargaining unit of their subordinates in order to avoid a conflict of interest between the employer and the Union. Freeport, 135 Ill. 2d at 507.

The Village’s citation of cases decided under the Federal Labor Relations Act is not helpful since several recent Illinois cases have determined that units made up of employees such as the fire fighters and the lieutenants in this case are proper, despite the authority exercised by one group over the other. (See City of Freeport v. Illinois State Labor Relations Board (1990), 135 Ill. 2d 499; City of Evanston v. Illinois State Labor Relations Board (1992), 227 Ill. App. 3d 955; Village of Downers Grove v. Illinois State Labor Relations Board (1991), 221 Ill. App. 3d 47.) These decisions are in accord with our present statutory scheme. As we have discussed, by its express terms the Act excludes supervisors and managerial personnel from its coverage. If a public employee is not a supervisor or manager, he or she may be included in a collective bargaining unit made up of other public employees. We have determined that the lieutenants are neither supervisors nor managers. Therefore, as public employees, they may be included in the bargaining unit involved here. The Village presents us with no compelling reason to deviate from the statutory provisions and prior authority.

For all of the reasons set forth above, the order of the Board, certifying the Union as the representative of a bargaining unit which includes the lieutenants, is affirmed.

Affirmed.

UNVERZAGT and WOODWARD, JJ., concur.


author: PRESIDING JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROGELIO ASTORGA, Defendant-Appellant. — THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. URBANO ASTORGA, Defendant-Appellant.
    Second District
    Nos. 2 — 92—0110, 2 — 92—0111 cons.
    Opinion filed May 12, 1993.

      Fred M. Morelli, Jr., of Law Offices of Morelli & Cook, of Aurora, and Jesse V. Barrientes and Vincent C. Argento, both of Law Offices of Vincent C. Argento, of Elgin, for appellants.
    David R. Akemann, State’s Attorney, of Geneva, and Raymond L. Beck, of Chicago (William L. Browers, John X. Breslin, and Marshall M. Stevens, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Defendants, Rogelio Astorga and Urbano Astorga, appeal their convictions of unlawful possession of a controlled substance with the intent to deliver (more than 15 but less than 100 grams of a substance containing cocaine) (Ill. Rev. Stat. 1991, ch. 561/2, par. 1401(a)(2)), unlawful possession of more than 500 grams of cannabis with the intent to deliver (Ill. Rev. Stat. 1991, ch. 561/2, par. 705(e)), and unlawful possession of a controlled substance without a tax stamp (Ill. Rev. Stat. 1991, ch. 120, par. 2160). Defendants’ causes were joined in a bench trial. The court sentenced each defendant to concurrent terms of imprisonment of six years, three years and one year, respectively. On defendants’ motions, we consolidated the appeals. Defendants raise two issues for review: (1) whether their prosecutions were barred by double jeopardy principles; and (2) whether their prosecutions violated the compulsory joinder statute.

On March 29, 1991, the Aurora police executed a search warrant at defendants’ home. The police recovered an electronic scale, over $5,000 in currency, a pager, a pistol, 25 grams of cocaine, and 2,950 grams of cannabis. Defendants were charged by complaint with the offenses listed above and the offenses of unlawful possession of a controlled substance (Ill. Rev. Stat. 1991, ch. 561/2, par. 1402(a)(2)), and unlawful possession of more than 500 grams of cannabis (Ill. Rev. Stat. 1991, ch. 561/2, par. 704(e)) (hereinafter referred to collectively as the drug offenses). Subsequently, the State discovered that the electronic scale was stolen property. On April 8, the State charged defendants with the offense of possession of stolen property (Ill. Rev. Stat. 1991, ch. 38, par. 16 — 1(a)(4)) (cause Nos. 91 — CF—540, 91 — CF— 541). The following day, a grand jury indicted defendants for the drug offenses. Defendants pleaded guilty to possession of stolen property and then moved to dismiss the indictments. Defendants argued that prosecution of the drug charges was barred by section 3 — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 3 — 3) and under double jeopardy principles. The court denied the motions and the causes proceeded to a bench trial.

As part of its case, the State introduced the scale into evidence and questioned a police officer about it. The State also presented evidence that a bag containing cocaine with a spoon in it was on top of the scale. The scale was plugged in and turned on when the police executed the search warrant. The State’s expert witness testified that an electronic scale is useful for selling cocaine because of the scale’s accuracy. The expert further opined that a 25-gram bag of cocaine with a spoon in it on top of a scale indicates that the cocaine is being divided up for distribution. In closing argument, the prosecutor asserted that the scale, along with the gun, the pager and two cellular telephones also seized from the apartment, showed intent to deliver controlled substances. Although the court found defendants guilty of all charges, the judge specifically stated that he did not consider the defendants’ guilty pleas to the possession of stolen property offense or the scale as proof of possession with intent to deliver.

Prior to sentencing, defendants raised the issues again in a post-trial motion, which the court denied. Defendants timely appealed.

Defendants first contend that prosecution of the drug offenses violates their rights under the double jeopardy provisions of the Hlinois Constitution (Ill. Const. 1970, art. I, §10) and the United States Constitution (U.S. Const., amend. V). “[T]he double jeopardy clause protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.” (People v. 1988 Mercury Cougar (1992), 154 Ill. 2d 27, 35.) The Blockburger test (Blockburger v. United States (1932), 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180) is the threshold inquiry in a double jeopardy analysis for successive prosecutions. (Grady v. Corbin (1990), 495 U.S. 508, 516, 521, 109 L. Ed. 2d 548, 561, 564, 110 S. Ct. 2084, 2090, 2093; People v. Stefan (1992), 146 Ill. 2d 324, 336.) The Blockburger test entails a comparison of the statutory elements of the offenses. If the offenses have identical statutory elements or one offense is a lesser-included offense of the other, thus not requiring proof of a fact that the other does not, the second prosecution is barred. Blockburger, 284 U.S. at 304, 76 L. Ed. at 309, 52 S. Ct. at 182.

The offenses of possession of stolen property and the drug offenses clearly do not have the same statutory elements, nor is one a lesser included offense of another. (Compare Ill. Rev. Stat. 1991, ch. 38, par. 16 — l(a)(4) with Ill. Rev. Stat. 1991, ch. 561/2, par. 1401; Ill. Rev. Stat. 1991, ch. 561/2, par. 705; Ill. Rev. Stat. 1991, ch. 120, par. 2160.) Thus, the Blockburger test is satisfied.

The question then is whether the State was required to prove the same conduct in both prosecutions. (Grady, 495 U.S. at 521, 109 L. Ed. 2d at 564, 110 S. Ct. at 2093.) This “same conduct” determination is distinct from a “same evidence” or “actual evidence” test, which the Supreme Court has rejected. (495 U.S. at 521, 109 L. Ed. 2d at 564, 110 S. Ct. at 2093.) The Supreme Court revisited this issue in United States v. Felix (1992), 503 U.S. 378, 118 L. Ed. 2d 25, 112 S. Ct. 1377, where the Court noted that Grady is not to be read expansively. In considering the scope of Grady, the Court explained:

“Although the traffic offenses involved in Grady were not technically lesser included offenses of the homicide and assault charges, we analogized the case to the situation we had previously confronted in Illinois v. Vitale, 447 U.S. 410, 65 L. Ed. 2d 228, 100 S. Ct. 2260 (1980). There, the State sought to prosecute the defendant for involuntary manslaughter after a car accident. We stated, in dicta, that if the State found it necessary to rely on a previous failure to reduce speed conviction to sustain the manslaughter charge, the Double Jeopardy Clause might protect the defendant. [Citation.] Despite the fact that neither offense was technically a lesser included offense of the other, we observed that, in such a circumstance, the failure to slow offense might be viewed as a ‘species of lesser-included offense.’ [Citation.] In [Grady,] *** we simply adopted the suggestion we had previously made in dicta in Vitale.” (Felix, 503 U.S. at 389,118 L. Ed. 2d at 35-36,112 S. Ct. at 1384.)

The United States Court of Appeals for the Second Circuit interpreted the phrase “species of lesser-included offense” as “an offense that is a permissible but not a necessary predicate of a greater offense,” which applies in “situations where the prosecution seeks to prove a greater offense by some conduct that formed the entirety of a lesser offense previously prosecuted.” Sharpton v. Turner (2d Cir. 1992), 964 F.2d 1284,1288-89.

However, “the introduction of relevant evidence of particular misconduct in a case is not the same thing as prosecution for that conduct.” (Felix, 503 U.S. at 387, 118 L. Ed. 2d at 34, 112 S. Ct. at 1383.) The United States Court of Appeals for the Eighth Circuit illustrated this concept in McIntyre v. Trickey (8th Cir. 1992), 975 F.2d 437, where the defendant had been convicted of tampering based on the unauthorized use of an automobile, and the government sought to prosecute him for stealing the same automobile. In concluding that the defendant’s double jeopardy rights were violated, the court explained:

“[T]he government relied on conduct for which McIntyre had already been convicted to sustain the later charge. [Citation.] Although it is not necessary to rely on a thief’s unauthorized operation of a car to prove that he stole the car, in this case the government relied on that conduct (which constituted the entirety of the tampering case) to prove that McIntyre stole the car. Thus, the tampering conviction was a ‘species of lesser included offense.’
The final issue raised by Felix is whether the government actually prosecuted McIntyre in his first trial for the activities that were later used to prove the stealing charge. ***
*** The government, to establish essential elements of the stealing charge, proved conduct — operating an automobile without the owner’s consent — for which McIntyre had actually been prosecuted. [Citation.] Unlike Felix, the government here did not introduce conduct pertaining to a separate crime at the first trial simply to help prove an element of the crime charged; rather, the conduct the government proved constituted the entirety of the crime prosecuted at the first trial. Moreover, the same conduct was proved to establish nearly the entirety of the offense charged in the second prosecution.” (Emphasis in original.) (McIntyre, 975 F.2d at 443.)

For double jeopardy to bar a subsequent prosecution, the State must rely on the entirety of the conduct already prosecuted to establish an essential element of the offense in the second prosecution. (State v. Lazaro (1992), 113 Or. App. 330, 332, 832 P.2d 1259, 1260; see also Quinton v. Superior Court (1991), 168 Ariz. 545, 551, 815 P.2d 914, 920; State v. Conley (1991), 77 Ohio App. 3d 453, 461, 602 N.E.2d 725, 730; Ex Parte Ramos (Tex. Cr. App. 1991), 806 S.W.2d 845, 847; State v. Laviollette (1992), 118 Wash. 2d 670, 679, 826 P.2d 684, 689.) Thus, the determination requires a fact-based analysis.

Defendants argue that the conduct at issue in the first prosecution was the act of possession of the scale and that the same conduct was used in the second trial to prove the intent element of the drug offenses. According to defendants, the facts here are analogous to those in United States v. Dixon (D.C. App. 1991), 598 A.2d 724. The defendant Dixon was released on bond in a murder case. A condition of his release was that he refrain from committing any criminal offense. Dixon was arrested and indicted for possession of cocaine. Prior to trial on that charge, Dixon was found in contempt of court for violating the conditions of his pretrial release by committing the offense of possession of cocaine. Dixon then moved to dismiss the cocaine indictment on the basis of double jeopardy. The reviewing court found that the cocaine prosecution would have violated double jeopardy because the conduct which underlay the contempt prosecution consisted of the exact conduct for which the government sought to prosecute Dixon. (Dixon, 598 A.2d at 731.) Such is not the case here.

The conduct at issue in the first prosecution was the possession of stolen property. The essence of that offense was not that defendants possessed a scale, but that they possessed something which they knew was stolen. The conduct the State sought to prove in the second prosecution was possession of controlled substances with the intent to deliver. The scale was relevant to the element of intent, but the fact that the scale was stolen was incidental and irrelevant to the drug offenses. Thus, the conduct involved was not the same, as was the situation in Dixon. Therefore, the possession of stolen property was not a “species of lesser-included offense” of the drug offenses.

The State did prove the entirety of the possession of stolen property offense in the second prosecution. In Laviollette, the State of Washington argued that it could have relied on other evidence to establish the criminal intent for burglary. The supreme court of Washington found, however, that the trial court relied on the prior theft conviction to establish that element of the second prosecution, which violated double jeopardy. (Laviollette, 118 Wash. 2d at 679, 829 P.2d at 689.) If the trial court here had relied on the evidence that the scale was stolen, the State would have put defendants twice in jeopardy for the possession of stolen property. However, the trial court stated that it did not consider or rely on the evidence of the scale or the prior conviction.

In addition, the State did not prosecute defendants for possessing the scale; rather, it used the evidence of the scale as proof of an essential element of the drug offenses, the intent to deliver. Evidence that the scale was stolen was not necessary for the State to prove that defendants had the intent to distribute controlled substances. (See Cotton v. State (Tex. App. 1992), 836 S.W.2d 757, 760.) Moreover, the scale was not the only evidence of the intent to deliver. The testimony of Tim Hines that he went to defendants’ house to purchase drugs, the presence of cellular telephones, a beeper, large amounts of cash stashed throughout the home, and the large quantity of drugs also supported that element of the offense. Thus, the evidence of the possession of the scale was a “mere overlap of proof.” (See Prince v. Lockhart (8th Cir. 1992), 971 F.2d 118, 123.) The drug prosecution was not dependent on the same conduct as the earlier prosecution for possession of the stolen scale. We conclude that double jeopardy did not bar the second prosecution.

The State did not need to introduce any evidence regarding the origin of the scale. That the State did so jeopardized its prosecution. We caution the State, in the future, to choose its evidence carefully to avoid double jeopardy violations.

Defendants next contend that the second prosecution was barred because the drug offenses should have been joined with the theft offense. (See Ill. Rev. Stat. 1991, ch. 38, par. 3 — 4(b)(1).) Section 3 — 3 of the Criminal Code provides in relevant part:

“(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense.
(b) If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, *** if they are based on the same act.” (Ill. Rev. Stat. 1991, ch. 38, pars. 3 — 3(a), (b).)

Under section 3 — 4(b), the prosecution of a different offense is barred if the offense was one for which the defendant could have been convicted in the former prosecution, was based on the same conduct, or should have been charged under section 3 — 3. Ill. Rev. Stat. 1991, ch. 38, par. 3 — 4(b)(l).

We find defendants’ cited authority, People v. Hiatt (1992), 229 Ill. App. 3d 1094, distinguishable. In Hiatt, the police seized photographs and videotapes from the defendant’s home. The defendant was charged with the offense of child pornography based on a videotape depicting one child. Subsequently, the defendant was charged with 20 counts of child pornography based on photos of different children. The defendant argued that the subsequent prosecution was barred by section 3 — 3. The appellate court agreed, finding that the possession of the videotape and the photographs constituted a single act of possession. (Hiatt, 229 Ill. App. 3d at 1097.) The distinguishing feature in Hiatt is that all of the materials were contraband. Here, the controlled substances were contraband, but the scale was not. There was no single act of possession because the possession of the scale was not criminal except in that it was stolen property. We note that the prosecutor was not aware that the scale was stolen when defendants were charged initially by complaint with the drug offenses.

Hiatt also is distinguishable because the offenses there were the same, unlike this case. As our supreme court has stated:

“There is no requirement of joinder where multiple offenses arise from a series of related acts. [Citations.] ‘Section 3 — 3 is not intended to cover the situation in which several offenses *** arise from a series of acts which are closely related with respect to the offender’s single purpose or plan.’ (Ill. Ann. Stat., ch. 38, par. 3 — 3, Committee Comments, at 202 (SmithHurd 1972).) Indeed, the drafters considered and rejected an earlier version of section 3 — 3(b) which would have required a single prosecution when multiple offenses arose from the same ‘conduct.’ ” (People v. Mueller (1985), 109 Ill. 2d 378, 385-86.)

As noted above, the possession of stolen property and the possession of controlled substances with the intent to deliver are not the same conduct and are not lesser-included offenses. The possession of these items constituted two separate, although related, acts. Thus, the statutory compulsory joinder provisions do not apply. We conclude that the court did not err in finding that the second prosecution was not barred.

The judgment of the circuit court is affirmed.

Affirmed.

GEIGER and DOYLE, JJ., concur.