text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELVIN L. ROGERS, Defendant-Appellant.
    Fourth District
    No. 4—91—0915
    Opinion filed July 16, 1992.

      Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender’s Office, of Springfield, for appellant.
    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.
   JUSTICE STEIGMANN

delivered the opinion of the court:

In July 1991, defendant, Melvin L. Rogers, was charged with possession with intent to deliver a controlled substance (more than 5 grams but less than 15 grams of a substance containing cocaine) (Ill. Rev. Stat. 1989, ch. 56V2, par. 1401(c)(2)). Defendant filed a pretrial motion to suppress the evidence taken from him at the time of his arrest in February 1991, that provided the basis of the charge against him. In September 1991, the trial court conducted a hearing on the motion and denied it. Defendant then waived a jury trial, and at a stipulated bench trial, the court found defendant guilty and sentenced him to four years in prison. Defendant appeals, arguing that the trial court erred by denying his motion to suppress. We affirm.

I. Facts

At the hearing on defendant’s motion to suppress, defendant and police officers Scott Swan and John Murphy testified. Defendant’s testimony essentially was that on February 21, 1991, about 8:30 p.m. he was a passenger in a vehicle driven by Kelvin Connerly in Champaign. A police officer pulled that vehicle over, told defendant to get out, and placed him under arrest. Defendant maintained that neither he nor Connerly had been doing anything illegal at the time. Later, at the police station, when officers told defendant they were going to search him, defendant removed a plastic bag from his underwear; it contained the cocaine which constituted the basis of the charge against him.

Deputy Swan testified that he was employed by the Champaign County sheriff’s department and had been assigned to the Inter-Agency Task Force, a special connty-wide unit concerned with enforcement of drug laws. Swan was one of the officers involved in the arrest of defendant on February 21, 1991. Three days earlier, on February 18, Swan was working with a confidential source (CS) in an attempt to purchase cocaine from defendant. Swan had worked with that CS on at least three different occasions prior to February 18. Based on information from those earlier cases, Swan had obtained one arrest warrant and one search warrant.

On February 18 at about 8:30 p.m., Swan was present when the CS ordered some cocaine from Connerly by phone. The CS told Swan that Connerly worked the drug trade with Anglo Marrissette and defendant. Swan also knew from his independent information that these three individuals worked together. After the CS ordered cocaine from Connerly, the CS informed Swan that Connerly would be sending someone over to make the delivery. Swan and Detective Murphy then searched the CS, found no cocaine on him, and Swan left the residence to position himself outside to watch the residence from the street.

About 15 minutes after the CS called Connerly, Marrissette and Rogers drove up to the CS’s residence and went inside. From Swan’s vantage point, he could see the three of them talking but could not see if any transaction took place. After several minutes, Marrissette and defendant left the residence, got in their vehicle, and left.

John Murphy testified that he was a detective employed by the Champaign police department and assigned to the Inter-Agency Task Force. He also participated in defendant’s arrest on February 21. Murphy’s testimony regarding the events of February 18 at the CS’s residence was substantially the same as that of Swan. Murphy had also worked with that CS in the past and determined that he had provided reliable information on three earlier occasions. On one occasion, Murphy used that information to get an arrest warrant.

Murphy testified that on the evening of February 18, 1991, the CS was searched before the arrival of Marrissette and defendant to insure that the CS did not have any other money, drugs, or contraband on his person. Murphy then provided the CS with some “official task force buy money.”

Murphy hid himself within the CS’s residence, and when Marrissette and defendant conversed with the CS inside the residence, Murphy could hear their voices but could not understand what they were saying. When the talking stopped and Murphy heard the door to the residence close, he immediately came out from hiding, spoke with the CS, and received from him a quantity of what Murphy field-tested to be cocaine. The CS told Murphy that he got the cocaine from defendant. Murphy also searched the CS for any of the task force “buy money” and found none.

On February 21, 1991, the same CS told Murphy that he had ordered more cocaine from Connerly and that Connerly and defendant were going to deliver it that night. The CS told Murphy that Connerly and defendant would be leaving the area of the Country Brook apartments, located on the far west end of the City of Champaign, around 8 p.m. to make the delivery.

After receiving this information, Murphy went to that location prior to 8 p.m. to watch for Connerly and defendant. Murphy saw a vehicle he recognized as Connerly’s and later recognized its two occupants as Connerly and defendant. Murphy watched as the vehicle proceeded in a direction toward the CS’s residence. At that point, Murphy ordered the vehicle stopped, and the police arrested both Connerly and defendant. Murphy testified that based upon the information he received on February 21 from the CS, Connerly and defendant were “absolutely” in the right time frame for the cocaine delivery to take place.

On cross-examination, Swan testified that as of February 21, 1991, Connerly was not cooperating with any police authorities. Further, Swan suspected Connerly of being a criminal and did not regard him as a reliable source. Murphy testified that on February 21, Connerly was not a police informant and not reliable; instead, Murphy considered Connerly a criminal involved in illegal drug transactions.

After hearing this evidence, the trial court denied defendant’s motion to suppress the evidence seized on February 21 from defendant. The court confined its analysis to the question of whether the police had probable cause on February 21 to arrest defendant, and stated the following:

“The test is the totality of all the circumstances and all the information known to the police at the time that the arrest was made here. They know what occurred on the 18th. They know how the buy was set up, and they know that it was obtained in fact from the defendant. It was set up at the same or similar scenario for the 21st and everything is following the happening that’s described will happen.
Taking all the circumstances together, I believe that the officers had good probable cause on the 21st for that arrest; and accordingly, the Motion to Quash the arrest to suppress the evidence is denied.”

II. Analysis

On this record, defendant argues that under the totality of the evidence before the court, the police did not have probable cause to arrest him. In so arguing, defendant places great emphasis on the fact that neither officer considered Connerly a reliable source. Defendant argues that because the essential information known to the police was based upon hearsay statements from Connerly to the CS, the trial court erred in crediting those statements.

The State responds by asserting that the controlled buy on February 18 and the setup for the sale on February 21 both served to establish the reliability and veracity of the CS, as did the previous information he supplied to the police. Thus, the State claims that its case is not entirely dependant upon information supplied by Connerly to the CS.

Both parties agree that People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147, disposes of the issues before this court, but they disagree as to how Tisler applies. Tisler, like the present case, involved the use of a confidential informant who supplied the police with information about illegal drug trafficking. (Tisler, 103 Ill. 2d at 231, 469 N.E.2d at 150.) The Tisler court held that “[w]hether probable cause exists in a particular case turns on the ‘totality of the circumstances and facts known to the officers and court when the warrant is applied for.’ ” (Tisler, 103 Ill. 2d at 236, 469 N.E.2d at 152, quoting People v. Free (1983), 94 Ill. 2d 378, 400, 447 N.E.2d 218, 228.) Because Tisler, again like the present case, involved a warrantless arrest, the court addressed the probable cause standard in that context and wrote the following:

“The probability of criminal activity, rather than proof beyond a reasonable doubt, is the standard for determining whether probable cause is present. [Citations.] Whether the necessary probability exists is governed not by technical legal rules, but rather by common-sense considerations that are factual and practical. [Citations.]
When a police officer has proceeded without a warrant to search, seize evidence, or arrest a person, the trial court making a probable-cause determination is to apply standards at least as stringent as those that guide a magistrate in deciding whether to issue a warrant. ***
To determine whether a warrantless arrest meets the reasonable-grounds/probable-cause requirement, the trial court must decide whether ‘a reasonable and prudent man, having the knowledge possessed by the officer at the time of the arrest, would believe the defendant committed the offense.’ ” Tisler, 103 Ill. 2d at 236-37, 469 N.E.2d at 152-53, quoting People v. Wright (1968), 41 Ill. 2d 170, 174, 242 N.E.2d 180, 183.

The Tisler court cited the then-recent decision of the United States Supreme Court in Illinois v. Gates (1983), 462 U.S. 213, 230-31 n.6, 76 L. Ed. 2d 527, 543 n.6, 103 S. Ct. 2317, 2328 n.6, as reaffirming “that the reliability of hearsay statements, as measured by the informant’s veracity and basis of knowledge, is highly relevant to the existence of probable cause. Scrutiny of these factors *** is to guide a magistrate who must make a probable-cause determination.” Tisler, 103 Ill. 2d at 238, 469 N.E.2d at 153.

The court in Tisler also discussed what Gates had to say about informer’s tips as follows:

“The Gates court also reaffirmed other methods established in its prior opinions for evaluating a tip. The court again emphasized the value of independent police investigation that corroborates the details of an informant’s story. [Citation.] When a tip is proved accurate on some counts, the court explained, the informant is more likely correct about other details, including the alleged illegal activity. [Citation.] Corroboration operates in this way to reduce the risk that an informant’s tip stems from an inaccurate rumor or a fabricated story.” Tisler, 103 Ill. 2d at 238, 469 N.E.2d at 154.

In accordance with these guidelines from Tisler, we have evaluated the evidence presented to the trial court and its findings and conclusions based thereon. We conclude that the trial court’s decision, finding the presence of probable cause to arrest defendant on February 21, 1989, is not contrary to the manifest weight of the evidence. In so holding, we note that in Tisler the supreme court agreed with the concurrence of Justice White in Gates that the question is not whether the events observed by the police were innocent or incriminating. “Instead, the proper focus is ‘whether the actions of the suspects, whatever their nature, give rise to an inference that the informant is credible and that he obtained his information in a reliable manner.’ ” (Tisler, 103 Ill. 2d at 251, 469 N.E.2d at 160, quoting Gates, 462 U.S. at 269, 76 L. Ed. 2d at 568, 103 S. Ct. at 2349 (White, J., concurring).) In our judgment, the facts in the present case, “giv[ing] rise to an inference that the informant is credible and that he obtained his information in a reliable manner,” are considerably stronger than the facts supporting that inference in Tisler.

For the reasons stated, we affirm the judgment of the circuit court.

Affirmed.

McCULLOUGH and LUND, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE GREEN

license: Public Domain

text:
    RANDALL EUGENE SANK, Adm’r of the Estate of Leslie J. Sank, Deceased, on Behalf of the Heirs of Leslie J. Sank, Plaintiff-Appellant, v. PAUL J. POOLE et al., Defendants-Appellees.
    Fourth District
    No. 4—91—0870
    Opinion filed June 29, 1992.

      Patrick J. O’Hara, of Petersburg, for appellant.
    Judge & James, Ltd., of Park Ridge (Jay S. Judge and Kristine A. Karlin, of counsel), for appellees.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On May 5, 1989, plaintiff Randall Eugene Sank, as administrator of the estate of Leslie J. Sank, deceased, filed an action in the circuit court of Logan County against defendants Paul J. Poole and the Village of Middletown (Village). Plaintiff sought damages for the wrongful death of Leslie Sank which occurred after decedent’s automobile left the road and rolled over at a curve. A first-amended complaint alleged Poole, acting as the Village police chief, was guilty of negligence and wilful and wanton conduct in attempting to stop decedent’s automobile and then pursuing her just prior to the time her vehicle overturned, and the Village was negligent in hiring and retaining the police chief.

Defendants moved for summary judgments maintaining (1) proof was lacking that any conduct attributable to defendants was a proximate cause of the decedent’s loss of control of the automobile she was driving; (2) defendants are immune from liability for any conduct shown by virtue of section 4 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (Ill. Rev. Stat. 1989, ch. 85, par. 4—102); (3) Poole was not shown to be guilty of any wilful and wanton misconduct which was a proximate cause of the decedent’s death and thus was immune from liability by the terms of sections 2 — 202 and 2 — 204 of the Act (Ill. Rev. Stat. 1989, ch. 85, pars. 2—202, 2—204).

On October 21, 1991, the court granted defendants’ motion for summary judgments on the basis that the documents before the court negated, as a matter of law, any determination that Poole’s conduct was a proximate cause of the overturning of decedent’s car. Plaintiff has appealed. A judgment of the circuit court may be sustained on review on any ground justified by the record. (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 457 N.E.2d 9.) We hold that the record showed conclusively that defendants were immune under various provisions of the Act from any liability otherwise shown. Accordingly, we need not decide whether a sufficient showing of proximate cause was made. We affirm.

The evidence presented at the hearing on the motion for summary judgments consisted of the affidavit and deposition testimony of defendant Poole and various witnesses to a pursuit by Poole of Leslie Sank’s automobile through the streets of the Village of Middletown. There were no witnesses to the Sank vehicle leaving the road. Expert testimony by deposition concerning proper police procedures was presented.

Paul Poole indicated the following in a deposition: (1) he was the police chief of the Village on January 21, 1989, the date of the accident; (2) on that date, at approximately 9 p.m. Poole observed decedent driving her automobile near where he was parked in an unmarked squad car; (3) he observed sparks coming from underneath the vehicle, heard a dragging noise and noted the vehicle was being driven approximately nine miles over the speed limit; (4) he pulled out and began to follow the Sank vehicle, about a half block behind, without activating his lights or siren; (5) he intended to advise the driver about the muffler dragging and sparking; (6) the Sank vehicle made a right turn, Poole followed, and after the turn, the Sank vehicle accelerated; (7) Poole then accelerated and activated his lights and siren; (8) as he came closer to the Sank vehicle, with his emergency lights and siren on, the Sank vehicle accelerated rather than slowed; (9) the two cars circled a city block twice; and (10) he was 21/2 car lengths behind and traveling 35 miles per hour when he contacted Logan County by radio that he was involved in a chase-pursuit.

Poole said that when he rounded the comer, he pulled the squad car next to the Sank vehicle, and the two cars collided. He said he stopped and got out of his car, and the Sank vehicle backed up and went around him. Poole returned to his car and continued the pursuit but noticed he was getting a flat tire. He said they went around the block a third time, but the Sank vehicle was pulling away, because of the flat tire. Poole indicated he stopped his car at the edge of town because his car became completely disabled due to the flat tire, and the Sank vehicle kept going down a country road, known as the “New Holland blacktop” road, Poole said he glanced in the direction the other car was headed, but he did not see anything unusual happen to the car. He did not see the car leave the road where the road curved sharply to the right. He was subsequently picked up by William Jones, an auxiliary police officer for Logan County and part-time officer in the Village of Niantic. Poole said he was wearing a police uniform, but he could not remember if he was wearing a black leather jacket at the time of the pursuit. He said the jacket did not have a police insignia on it.

William Jones testified in a deposition that he had been listening to his police scanner radio in his home on the night of January 21, 1989, and he heard that Poole was involved in a pursuit and his car had been “rammed.” He said he was concerned about Poole’s safety and went looking for him. He found Poole with his disabled squad car at the edge of the Village. Jones said they discussed the “high rate” of speed of the Sank vehicle and questioned whether the vehicle would have been able to negotiate a curve in the road that was three-quarters of a mile away. At that time, he did not know the car had overturned at that location, and they could not see the curve from where Poole was stopped. Jones indicated he and Poole drove to the curve in the road and observed the Sank vehicle overturned with smoke coming from the underside of the car.

Several of the pre-occurrence witnesses who observed the pursuit through the Village indicated the cars were traveling at a high rate of speed and circled a city block at least twice. Those witnesses said Poole had his siren and lights on, and the Sank vehicle was driving erratically. They said the cars did not stop at stop signs. One witness, however, said the Sank vehicle was not going very fast, and was driving safely, including using turn signals, but that the squad car was being driven erratically.

In addition to details about the pursuit and the overturning of the decedent’s vehicle, Poole’s discovery deposition revealed the following: (1) the Village is approximately 13 blocks in area; (2) prior to becoming chief of police, Poole was the mayor of the Village and president of the Village board of trustees; (3) as mayor, he and the trustees determined that the Village needed a police officer; (4) Poole resigned as mayor approximately five months before the accident, and the board of trustees appointed him the chief of police; (5) the job was part-time, and Poole was the Village’s only police officer; (6) he had no formal police training, but he had firearms and military training; (7) the Village purchased a new, unmarked police squad car for Poole to use; and (8) the Village made a formal decision not to have a marked police car, but it was equipped with a siren and flashing police or emergency lights. Poole also admitted he had been convicted of a felony for delivery of a controlled substance in 1976 and was sentenced to a term of one to four years’ incarceration.

The evidence was undisputed that the decedent’s vehicle overturned while negotiating a curve on the New Holland Road which was three-quarters of a mile from where Poole had stopped the squad car.

“If [as here] what is contained in the papers on file would constitute all of the evidence before a court and would be insufficient to go to a jury [a summary judgment is required]. (Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587[, 272 N.E.2d 497, 500].)” (Pyne v. Witmer (1989), 129 Ill. 2d 351, 358, 543 N.E.2d 1304, 1308.) Based upon the papers presented here we hold (1) defendant Poole could be liable only if his conduct was wilful and wanton; (2) no evidence presented created an inference that Poole’s conduct was wilful and wanton; (3) defendant Village could only be vicariously liable if Poole was liable; and (4) the Village was immune from liability in regard to hiring Poole.

Plaintiff makes contentions that Poole was not properly appointed, but in count III to his first-amended complaint, plaintiff alleges the Village “hired and retained” Poole as a police officer although he was not eligible for such an appointment. This allegation was not made in the alternative. (See Ill. Rev. Stat. 1989, ch. 110, par. 2—613(b).) He was, at least, a de facto officer. (City of West Frankfort v. Industrial Comm’n (1950), 406 Ill. 452, 94 N.E.2d 413.) Thus, Poole was entitled to such immunity as is given to a public employee. Section 2 — 202 of the Act states that “[a] public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 85, par. 2—202.) The requirement that the conduct occur “in the execution or enforcement of any law” must be considered in the light of the limited applicability placed on that phrase by the supreme court in Aikens v. Morris (1991), 145 Ill. 2d 273, 583 N.E.2d 487.

In Aikens, a plaintiff recovered a judgment against a police officer for injuries she received when a squad car driven by the police officer struck her automobile while the squad car was transporting prisoners. Only negligence was charged against the officer. The thrust of the decision was that a police officer is not executing or enforcing a law merely because he is on duty performing such routine functions as involved there. The court noted that its decision in Arnolt v. City of Highland Park (1972), 52 Ill. 2d 27, 282 N.E.2d 144, and various appellate decisions were consistent with its holding. The Aikens court distinguished the situation there from the facts in Fitzpatrick v. City of Chicago (1986), 112 Ill. 2d 211, 492 N.E.2d 1292, and Thompson v. City of Chicago (1985), 108 Ill. 2d 429, 484 N.E.2d 1086, where police officers were held to have been acting to execute or enforce the law and thus subject to section 2 — 202 immunity.

In Fitzpatrick, the defendant police officer came upon a traffic collision on the Stevenson Expressway in the City of Chicago. One of the vehicles came to rest partially on a median strip between the traffic lanes of the highway. The officer parked his squad car behind that car, with emergency lights on, but possibly slightly within a lane of traffic. The plaintiff was injured when an oncoming vehicle hit the squad car. In Thompson, the officer had been directed to drive to the International Amphitheater, where a break-in appeared imminent. Upon arrival, the officer found a large crowd had gathered and proceeded slowly through it. Upon being pelted with rocks, he decided to withdraw and, while backing up, the squad car hit a pedestrian. Here, the conduct of defendant Poole was even less routine than that in Fitzpatrick or Thompson because, however minor the misconduct of the decedent might have been, Poole was clearly executing and enforcing the law in attempting a stop or arrest.

The record conclusively showed that under section 2 — 202 of the Act, defendant Poole was entitled to immunity unless his conduct was wilful and wanton. In Laco v. City of Chicago (1987), 154 Ill. App. 3d 498, 507 N.E.2d 64, and Breck v. Cortez (1986), 141 Ill. App. 3d 351, 490 N.E.2d 88, the reviewing courts affirmed awards of summary judgment to police officers charged with wilful and wanton misconduct in engaging in high-speed chases which resulted in injuries to persons injured by the fleeing vehicle. In Laco, the car being chased turned out to be stolen and the driver eventually drove very recklessly. However, when initiating the chase, the officer did so only because he had seen the vehicle driving the wrong way on a one-way street. In Breck, the chase was initiated after the officer had witnessed very reckless driving by the driver being chased. In both cases, the chases took place in areas much more crowded than the Village here.

The foregoing decisions were rendered prior to the decision in Loitz v. Remington Arms Co. (1990), 138 Ill. 2d 404, 563 N.E.2d 397, which placed strict requirements upon the proof necessary to establish wilful and wanton misconduct. There, in a products liability case, a plaintiff had recovered against a gun manufacturer (1) compensatory damages on a count charging negligence, and (2) punitive damages on a count charging wilful and wanton misconduct. The injuries arose when a shotgun manufactured by the defendant exploded. The evidence indicated the manufacturer was aware of some 94 prior barrel explosions of that type of gun amounting to an explosion in the barrel of .003% of those guns sold. The supreme court upheld the judgment of compensatory damages on the negligence count but reversed the judgment on the wilful and wanton count upon which punitive damages were awarded.

In explaining the Loitz decision, the court stated:

“The present action was submitted to the jury on allegations of both negligence and willful and wanton misconduct. It must be recognized, however, that ‘[njegligence is not the same as wantonness’ (Quad County Distributing Co. v. Burroughs Corp. (1979), 68 Ill. App. 3d 163, 166, and that ‘[pjunitive damages are not awarded for mere inadvertence, mistake, errors of judgment and the like, which constitute ordinary negligence’ (Restatement (Second) of Torts §908, comment b, at 465 (1979)). ‘Since the purpose of punitive damages is not compensation of the plaintiff but punishment of the defendant and deterrence, these damages can be awarded only for conduct for which this remedy is appropriate — which is to say, conduct involving some element of outrage similar to that usually found in crime. The conduct must be outrageous, either because the defendant’s acts are done with an evil motive or because they are done with reckless indifference to the rights of others.’ (Restatement (Second) of Torts §908, comment b, at 464-65 (1979).) In this context, willful and wanton misconduct ‘ “approaches the degree of moral blame attached to intentional harm, since the defendant deliberately inflicts a highly unreasonable risk of harm upon others in conscious disregard of it.” ’ Bresland v. Ideal Roller & Graphics Co. (1986), 150 Ill. App. 3d 445, 457.” Loitz, 138 Ill. 2d at 415-16, 563 N.E.2d at 402.

Particularly in view of the strict requirements of wilful and wanton conduct set forth in Loitz, we do not find any aspect of Poole’s conduct, which could have been a proximate cause of the decedent’s overturning her car, was wilful and wanton. He saw that the decedent had something dragging from her vehicle and she was driving quite fast. He tried to stop her but a chase ensued. Because of the minor nature of the decedent’s misconduct, a chase through and around the Village may have been unwise. Indeed, Poole’s conduct was severely criticized in the deposition of Thomas Walton, a City of Chicago police captain who was listed as an expert by plaintiff.

Captain Walton testified he had over 20 years’ experience in law enforcement, a master’s degree in labor relations, and a certificate as a police science instructor which he said was issued by “the Cook County Superintendent of Education’s Office.” He stated that the accepted policy on the question of whether a law enforcement officer should engage in an automobile chase of a suspected offender is that a chase is justified only when the need of apprehension outweighs the danger to the suspect or others. He expressed an opinion that, here, the dangers involved far outweighed the need for apprehension of one who was only speeding and driving an impaired automobile.

Walton concluded from the information given him that Poole had bumped the decedent’s vehicle. He deemed this a very bad practice. He also stated that Poole had been in error in not using a loud speaker to ask the decedent to stop before he turned his lights upon her. Walton concluded that Poole had scared the decedent and thus caused her to speed away. He also concluded that Poole had not given the decedent sufficient indication that he was a police officer. He described Poole’s conduct as showing “a conscious indifference and utter disregard for the safety of [the decedent] and that he was willful in doing so and wanton.”

We cannot accept Walton’s testimony as describing wilful and wanton conduct within the requirements of Loitz. Undisputedly, Poole had flashed his red light. Neither his decision to chase her nor the manner in which he did so can be said to approach the infliction of “deliberate harm” nor do they indicate “a reckless indifference to the rights of” the decedent. One witness testified that as the chase developed, Poole was driving erratically as he drove behind the decedent, but that would not have been a reason why she refused to stop and continued to flee.

The conclusive showing that Poole was not guilty of any wilful and wanton misconduct which was a proximate cause of the decedent’s death grants him immunity from liability pursuant to section 2 — 202 of the Act. Section 2 — 109 of the Act provides that “[a] local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 85, par. 2—109.) Thus, the Village is not liable for any conduct of Poole in chasing the decedent.

Finally, we face plaintiff’s claim in count III of his amended complaint that the Village is liable for negligence in hiring or retaining Poole. The liability sought here is not vicarious arising from the doctrine of respondeat superior. However, the immunity granted a local public entity by section 2 — 109 of the Act is not limited to such vicarious liability. (Melbourne Corp. v. City of Chicago (1979), 76 Ill. App. 3d 595, 604, 394 N.E.2d 1291, 1298.) Any injuries to the decedent resulting from the Village’s hiring or retaining Poole “result[ed] from an act or omission” of Poole even though the liability claimed is not vicarious. Thus, section 2 — 109 of the Act grants the Village immunity under count III as well as the other counts.

Accordingly, we hold the entry of summary judgment for the two defendants was properly granted. We affirm that judgment.

Affirmed.

STEIGMANN and LUND, JJ., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARL A. “BUTCH” LOWRY, Defendant-Appellant.
    Fourth District
    No. 4—91—0760
    Opinion filed June 29, 1992.

      Daniel D. Yuhas and M. Jeffrey Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Norbert J. Goetten, Robert J. Biderman, and David E. Mannehen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Defendant Carl A. “Butch” Lowry appeals his conviction for the offense of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1989, ch. 56V2, par. 1401(d)), following a jury trial in the circuit court of Adams County. Defendant was sentenced to a term of eight years’ imprisonment, to be served concurrently with a three-year term imposed on a conviction for unlawful delivery of cannabis. (Ill. Rev. Stat. 1989, ch. 56V2, par. 705(c).) These sentences were ordered to run consecutively with a sentence already being served on a conviction for violation of bail bond.

At issue is testimony regarding a prior criminal act by defendant which was admitted for the purpose of showing defendant’s knowledge, intent, and identity. Defendant claims the prejudicial effect of the testimony greatly outweighed its probative value and thereby deprived him of a fair trial. Defendant also claims (1) there was insufficient proof of chain of custody in the admission of the cocaine into evidence; (2) the State’s material misrepresentation of the law during closing argument entitles him to a new trial; (3) his sentences should be modified so as to run concurrent to the sentence for bail bond violation and, if so modified, credit for 151 days served on the bail bond violation should be applied to the convictions for unlawful delivery; and (4) the street-value fine should be reduced to reflect the actual value of the substance delivered, rather than the amount paid for it. In the alternative, the court should order that the street-value fine is satisfied by operation of section 110 — 14 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 110 — 14), which provides for a credit of $5 for each day of incarceration on a bailable offense.

Facts

Undercover officers Randy Jackson and Robert Power first met defendant on October 2, 1990, while trying to purchase cannabis from Carl Brown. The officers testified that defendant provided them with an ounce of cannabis and, in response to their request, told the officers that he could provide a gram of cocaine for $100. On cross-examination, the defense attorney elicited the fact that after being paid, defendant grabbed the bag and ran away with the cannabis. He returned a few minutes later and apologized, saying he thought he recognized Randy Jackson as a police officer. He handed the cannabis to Carl Brown, who returned it to the officers. Defendant testified that at this time he knew without doubt that Randy Jackson was a police officer. He also testified that when asked if he could get cocaine, he told them that he could not.

Later, defendant obtained Power’s telephone number from Brown and called him to ask if he would still like to buy cocaine. His plan, as he explained it, was to “scam” some money from Power by convincing him to pay for drugs in advance and then to leave town without supplying the cocaine. When he met Power in a parking lot that evening, he was accompanied by Sam Dyer who, upon seeing Power, identified him as a police officer. After talking with Power for a short time, defendant also became convinced that he was dealing with a police officer. He told Power to meet him later that night in the same place. After several meetings with Power, and another phone call, defendant returned to the parking lot, this time in another car driven by his codefendant John Cain. It was at this time that defendant first asked Power to pay for the cocaine in advance, but Power refused. Cain and the defendant left, telling Power they would return later. At the next meeting, after some negotiation and going back and forth between Cain’s and Power’s cars, defendant testified that Cain told him he wanted to talk directly with Power. Cain pulled the car around so that his window was next to Power’s, whereupon, to defendant’s surprise, he gave him cocaine and accepted cash in return. Defendant claims he never knew that Cain possessed any cocaine and thought that Cain was planning to rob Power instead of actually selling him drugs.

Testimony of Cain differed markedly from that of defendant. He claimed defendant called him at his home and told him that he had arranged to buy some cocaine, but needed a ride to pick it up. In return for driving him, defendant would give him some of the cocaine. They first drove to the parking lot, where defendant tried to convince Power to pay in advance. When he refused they drove to another location, picked up the cocaine, and returned to the parking lot. Defendant allegedly told Cain that he would try to “short” Power, but he did not want Power to know that he was responsible. Defendant divided the cocaine, putting some in a separate package. He then gave one package to Cain, and Cain pulled the car around and completed the transaction with Power.

Also relevant is defendant’s testimony, elicited by defense counsel, that in 1987 undercover officers had used defendant to set up drug purchases. They gave him money to purchase drugs, but he stole the money and left for California without making a purchase. Defendant claims he knew he would be arrested soon for the October 2, 1990, cannabis sale and hoped to “scam” some money from them again before leaving town. He claims he never planned or intended to sell cocaine to anyone.

Analysis

Defendant claims the court erred in allowing testimony regarding the prior sale of cannabis. Evidence of collateral crimes is inadmissible if relevant merely to establish the defendant’s propensity to commit crimes. (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.) Evidence of the commission of other crimes is admissible, however, when such evidence is relevant to prove modus operandi, intent, identity, motive, or absence of mistake. Our supreme court has held that the enumeration of these exceptions should not be considered exclusive.

“Considerable difficulty arises when counsel attempts to fit the facts of the case into these specific exceptions. *** [E]vidence of other crimes committed by defendant may be admitted if relevant to establish any material question other than the propensity of the defendant to commit a crime. [Citations.]
*** [I]t is incumbent upon the trial judge to weigh the relevance of the evidence to establish the purpose for which it is offered against the prejudicial effect the introduction of such evidence may have upon the defendant.” (Emphasis added.) People v. Stewart (1984), 105 Ill. 2d 22, 62, 473 N.E.2d 840, 860.

At trial, the State argued that it was offering evidence of the prior sale of cannabis to show identity, intent, and guilty knowledge. Defendant argues that each of these elements could be proved adequately without any mention of the cannabis sale. Power established defendant’s identity when he testified to five separate meetings and two phone calls from defendant. Although intent and knowledge can be shown in the prior cannabis sale through defendant’s alleged statement that he could provide cocaine, this same statement was repeated numerous times during his negotiations with Power. Defendant argues that these facts eliminate any need for testimony of the prior cannabis sale.

On appeal, the State argues that evidence of the sale of cannabis was relevant because it established the relationship between the two men and explained how the defendant had acquired the officer’s phone number. The prior sale set the background for the initial phone call and gave the jury a more complete picture of the crime charged. The State relies on People v. Cole (1963), 29 Ill. 2d 501, 194 N.E.2d 269, for the notion that prior criminal acts may be used to set the background for a sale of drugs. In Cole, defendant appealed his conviction for the sale of narcotics, claiming that the trial court erred in admitting evidence of two prior drug sales. The supreme court upheld the admission of the evidence, stating:

“Considering the stealth with which narcotics transactions are conducted, it is not likely that agent Cook could have merely walked up to defendant, asked for a spoon of heroin, given him $120 *** and had defendant give him the heroin. *** This account becomes plausible, however, when it is explained that *** a special employee introduced Cook to defendant. *** These prior transactions explain and lend credence to the otherwise unrealistic ease with which the Federal agent managed the controlled sale ***.” Cole, 29 Ill. 2d at 504-05, 194 N.E.2d at 271.

See also People v. Vazquez (1989), 180 Ill. App. 3d 270, 535 N.E.2d 981; People v. Borawski (1978), 61 Ill. App. 3d 774, 378 N.E.2d 255.

Defendant attempts to distinguish these cases, saying that the undercover officers had no contact prior to the transaction for which the defendant was being charged, other than the previous drug sales. In the present case, defendant met with Power several times on the same evening before the transaction was actually complete. The rule in Cole is directed toward establishing the plausibility of an initial meeting for a drug sale by showing evidence of prior drug sales. The fact that the parties in the present case required numerous meetings before closing their deal does not change the fact that evidence providing background to their initial meeting is still relevant.

Defendant also asserts that the waiver rule applies to the State as well as the defense. Defendant asks that we forbid the State from offering one basis for the admission of evidence at trial, and a different basis for admission on appeal. No case is cited in support of his argument and we decline to apply his rule here on the basis of this bald assertion. When a party receives a favorable ruling, he or she should not be forced to continue listing additional grounds upon which to admit the evidence.

Next, defendant contends that even if evidence of the prior sale is admissible, it was presented in far too great detail. As such, the prejudicial impact greatly outweighed its probative value. Defendant relies on People v. Bartall (1983), 98 Ill. 2d 294, 315, 456 N.E.2d 59, 69, for the notion that a trial court should carefully limit evidence of another crime to that which is relevant to the issue on which the other crime is admitted. The holding in Bartall is based on People v. McKibbins (1983), 96 Ill. 2d 176, 186-87, 449 N.E.2d 821, 826, wherein the court advised against conducting minitrials on other offenses and, for the sake of judicial economy, advised against admitting such detail.

No “minitrial” was conducted in the case at hand. On the contrary, initial testimony regarding the prior sale of cannabis was limited to a bare summary of the facts leading to the final transaction. In fact, a significant amount of detail was left out of the testimony. It was only upon cross-examination by defense counsel that these details were elicited and, while we cannot blame defense counsel for taking advantage of any positive use of the prior sale, neither can we fault the State for detail that only became excessive on defense counsel’s cross-examination.

Perhaps the most persuasive argument for allowing evidence of the prior sale is derived from defendant’s statements to the court at the very outset of trial. Defendant called for a change of defense attorney and, in arguing his motion, explained that he was, in effect, a mere bystander to the drug sale, i.e., his sole intent was to “scam” money from Power and the appearance of actual cocaine was a complete surprise. An essential element of the State’s case was proof that defendant intended to facilitate the sale of cocaine, despite the fact that he did not personally hand over the drugs or accept the money. After defendant had explained his intended defense in open court, the State had little choice but to anticipate that the same defense would be raised before the jury. In this sense, evidence of the prior sale of cannabis is both relevant and probative of defendant’s intent and knowledge.

Defendant next argues a lack of foundation in the admission of the physical evidence of cocaine. Specifically, defendant claims the State did not prove chain of custody. Defendant did not object at trial, nor was the issue raised in post-trial motion. Defendant’s objection to the sufficiency of the foundation for identification of the substance as cocaine may not be raised for the first time on appeal. People v. Trefonas (1956), 9 Ill. 2d 92, 136 N.E.2d 817.

Defendant also claims he is entitled to a new trial because the State made a material misrepresentation of the law during closing argument. The specific statement reads in relevant part:

“So, based on the defendant’s own testimony, even if he isn’t the one that gave the packet of cocaine to John Cain, he is — he still assisted John Cain in completing that delivery. So even if you take the defendant’s testimony by itself, he is accountable, he is responsible for John Cain’s delivery that night of October 17th.”

Section 5 — 2(c) of the Criminal Code of 1961 (Criminal Code), in relevant part, defines the crime of accountability for the conduct of another as when:

“Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” (Ill. Rev. Stat. 1989, ch. 38, par. 5—2(c).)

Our supreme court construed section 5 — 2(c) of the Criminal Code as incorporating the long-established “common-design rule” and interpreted the statute as holding defendant accountable for the conduct of the person he aids. The court defined “conduct” to encompass any criminal act committed with the intent to promote or facilitate the commission of a crime. (People v. Terry (1984), 99 Ill. 2d 508, 514-15, 460 N.E.2d 746, 749.) We find no error in the State’s representation of the law. Under the “common-design rule,” if defendant in the present case knowingly aided Cain in the commission of an offense, he is accountable for any criminal act that arises from this aid, regardless of any intent to actually sell cocaine. Defendant’s testimony on cross-examination provides the necessary elements to support the State’s application of the “common-design rule”:

“Q. [By the prosecutor:] So Cain knew Power was out there trying to buy cocaine—
A. [By Lowry:] Yeah.
Q. (continuing) — from you giving him that information, right?
A. Yes.
Q. And essentially you made the connection] between Power and Cain for that deal to be completed; is that a fair statement?
A. I guess, yes.”

Whether defendant ultimately intended to deliver cocaine to the undercover officer is irrelevant — his intent was to aid his codefendant in the commission of an offense, a “scam,” and he is legally accountable for the criminal acts that arose from this aid.

Defendant next argues that his sentence should be modified to run concurrently with the sentence he was already serving for violation of bail bond. He claims the trial court failed to specify that a consecutive term was necessary for the protection of the public. Section 5 — 8—4(b) of the Unified Code of Corrections (Unified Code) states:

“The court shall not impose a consecutive sentence except as provided for in subsection (a) unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—4(b).

The trial court is not required to recite the language of the statute in reaching its sentencing determination. Rather, the record must show only that the sentencing court is of the opinion that a consecutive term is necessary for the protection of the public. (People v. Hicks (1984), 101 Ill. 2d 366, 375, 462 N.E.2d 473, 477.) The trial court is ordinarily best situated to tailor a sentence to the needs of the case and the exercise of this discretion should not be altered upon review, absent an abuse of that discretion. (Hicks, 101 Ill. 2d at 375, 462 N.E.2d at 477.) As in Hicks, the record clearly shows that after reviewing a number of factors, the trial court was convinced a consecutive term was necessary for the protection of the public. We find the trial court fully complied with the statute.

Had we agreed with defendant and ordered the sentences to run concurrently with the sentence already being served for bail bond violation, then defendant would have us grant sentence credit of 151 days toward the sentences in the present case. As we have affirmed the trial court’s decision to have the sentences run consecutively, there is no need to address this issue.

Defendant next argues that his “street-value fine” should be reduced to reflect the actual amount of cocaine seized. Although the parties contracted to sell 1.5 grams of cocaine for $200, the undercover officer spilled most of it in the car and only 0.1 gram of cocaine was recovered. Section 5 — 9—1.1 of the Unified Code (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 9—1.1) provides for a minimum “street-value” fine, but does not specify any maximum amount. The trial court acted within its discretion in setting the “street-value” fine at the same amount as was paid for the cocaine.

In the alternative, defendant argues that the street-value fine is satisfied by operation of section 110 — 14 of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 110—14), which provides for a credit of $5 for each day spent incarcerated on a bailable offense. Defendant was incarcerated for a parole violation stemming from a prior conviction for violation of bail bond. As the prior conviction is totally unrelated to the case at hand, no credit for time served under that conviction may be applied toward the street-value fine in the present case. People v. Leggans (1986), 140 Ill. App. 3d 268, 488 N.E.2d 614.

Affirmed.

GREEN, P.J., and McCULLOUGH, J., concur.


author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOHN P. KELK, Defendant-Appellee.
    Fourth District
    No. 4—90—0383
    Opinion filed July 9, 1992.

      John Turner, State’s Attorney, of Lincoln (Norbert J. Goetten, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Adam N. Stillo, Jr., of Stillo & Pechter, Ltd., of Oak Lawn, and Thomas J. Skryd & Associates, of Cicero, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

On December 28, 1989, the defendant, John P. Kelk, was charged with possession of between 30 and 500 grams of cannabis in violation of section 4(d) of the Cannabis Control Act (Act) (Ill. Rev. Stat. 1989, ch. 561/2, par. 704(d)) and possession with the intent to deliver between 30 and 500 grams of cannabis in violation of section 5(d) of the Act (Ill. Rev. Stat. 1989, ch. 56V2, par. 705(d)). Defendant filed a motion to quash the arrest and suppress evidence, and a hearing on the motion to suppress was held March 22, 1990. On March 23, 1990, the trial court allowed the defendant’s motion to suppress, and the prosecutor’s motion to reconsider was denied on May 16, 1990. The issue on appeal was whether the defendant’s consent to look in the car extended to a search of a duffel bag in the passenger compartment.

On January 29, 1991, an opinion was filed by this court affirming the trial court’s order which granted defendant’s motion to suppress evidence. (People v. Kelk (1991), 208 Ill. App. 3d 313, 566 N.E.2d 835.) We found the trial court’s determination that the search of defendant’s duffel bag located in the passenger side of his car exceeded the defendant’s consent to “look in the car” was not against the manifest weight of the evidence.

This cause was appealed to the United States Supreme Court and the United States Supreme Court, referring only to its decision in Florida v. Jimeno (1991), 500 U.S. 248, 114 L. Ed. 2d 297, Ill S. Ct. 1801, remanded this cause for further consideration.

The defendant was stopped by State Police Officer Tim Becker for loud muffler and wrong lane usage. Two witnesses were presented by the defendant at the motion to suppress, the defendant and the arresting officer. The actions taken by the officer which are the subject of the motion are that he opened the passenger side of the vehicle and began to look in the defendant’s duffel bag, finding cannabis.

Both the officer and defendant testified that the officer asked the defendant “if there were any drugs or weapons in the vehicle,” and the defendant’s response was “No.” Defendant was asked, “Did you have a conversation with him?” The defendant responded, “He asked if he could — would—if I would — if I cared if he looked in my car.” The defendant responded, “I told him no.” The defendant was then asked whether the officer asked permission to search the duffel bag or the defendant’s personal belongings and the defendant responded, “No.”

In Jimeno, the United States Supreme Court stated:

“In this case we decide whether a criminal suspect’s Fourth Amendment right to be free from unreasonable searches is violated when, after he gives a police officer permission to search his automobile, the officer opens a closed container found within the car that might reasonably hold the object of the search. We find that it is not. The Fourth Amendment is satisfied when, under the circumstances, it is objectively reasonable for the officer to believe that the scope of the suspect’s consent permitted him to open a particular container within the automobile.” Jimeno, 500 U.S. at 249, 114 L. Ed. 2d at 301, Ill S. Ct. at 1803.

Although Jimeno involved a police officer seeing a brown paper bag on the floorboard of the car, the Supreme Court, as indicated by its statements above, considered the container to be closed. The Supreme Court further stated the following:

“We think that it was objectively reasonable for the police to conclude that the general consent to search respondent’s car included consent to search containers within that car which might bear drugs. A reasonable person may be expected to know that narcotics are generally carried in some form of a container. ‘Contraband goods rarely are strewn across the trunk or floor of a car.’ [United States v. Ross (1982), 456 U.S. 798, 820, 72 L. Ed. 2d 572, 591, 102 S. Ct. 2157, 2170]. ***
* * *
*** A suspect may of course delimit as he chooses the scope of the search to which he consents. But if his consent would reasonably be understood to extend to a particular container, the Fourth Amendment provides no grounds for requiring a more explicit authorization. ‘[T]he community has a real interest in encouraging consent, for the resulting search may yield necessary evidence for the solution and prosecution of crime, evidence that may ensure that a wholly innocent person is not wrongly charged with a criminal offense.’ Schneckloth v. Bustamonte [(1973), 412 U.S. 218, 243, 36 L. Ed. 2d 854, 872, 93 S. Ct. 2041, 2056].” Jimeno, 500 U.S. at 251-52, 114 L. Ed. 2d at 303, 111 S. Ct. at 1804.

The Supreme Court in Jimeno referred to United States v. Ross (1982), 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157. For purposes of establishing the scope of the search in consent cases, it is helpful to consider the rationale on the scope of searches in the context of warrantless searches based on probable cause. As the Supreme Court stated in Ross: “If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” (Ross, 456 U.S. at 825, 72 L. Ed. 2d at 594, 102 S. Ct. at 2173.) Ross involved a closed paper bag and a zippered leather pouch. The object of the search in Ross as here was for drugs.

Although Jimeno involved a brown paper bag, the Supreme Court does not differentiate in its decision whether the container was closed or open. Jimeno clearly refers to closed containers.

The facts of the present case do differ from those in Jimeno because of the language used by the respective police officers. In Jimeno, the officer specifically requested permission to search the car, and the defendant gave him permission to search. (Jimeno, 500 U.S. at 251, 114 L. Ed. 2d at 302, 111 S. Ct. at 1803.) In the present case, the testimony concerning the officer’s request was that he asked defendant if defendant “cared if [the officer] looked in my car.” When defendant responded no, the officer proceeded to search the car and the duffel bag located therein.

In Jimeno, the supreme court wrote the following:

“The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Jimeno, 500 U.S. at 251, 114 L. Ed. 2d at 302, 111 S. Ct. at 1803-04.

The request by a police officer to look in a suspect’s car might reasonably be understood as meaning no more than just that— only to look. The person addressed by the officer might reasonably believe from that request that a police officer would seek further and additional authority from the suspect if the officer wished to search objects he found when he looked in the car. Here, the police officer asked the defendant, immediately prior to his request to “look in the car,” if there were any drugs or weapons in the vehicle. The context of that question sufficiently informed the suspect of what the officer intended to do, and, under those circumstances, the officer could reasonably consider the defendant’s statement — that he did not care if the officer looked in his car — to be a general consent to a search of that car, including contents thereof, as the Supreme Court held in Jimeno.

Upon reconsideration as directed by the United States Supreme Court and in line with Jimeno and Ross, it was error for the circuit court of Logan County to grant the motion to suppress. Accordingly, the circuit court of Logan County is reversed. The order granting the motion to suppress is vacated and the cause is remanded for further proceedings.

Reversed and remanded.

STEIGMANN and LUND, JJ., concur.


author: JUSTICE COOK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS JACKSON, JR., a/k/a Thomas Junior Jackson, Defendant-Appellant.
    Fourth District
    No. 4—91—0519
    Opinion filed June 30, 1992.

      Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Norbert J. Goetten, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COOK

delivered the opinion of the court:

Defendant, Thomas J. Jackson, was charged by information in Vermilion County case No. 90 — CF—155 with one count of unlawful communication with a witness and one count of bribery. (Ill. Rev. Stat. 1989, ch. 38, pars. 32 — 4(b), 33 — 1(a).) The trial court granted a directed verdict on the charge of communicating with a witness, based on People v. Robinson (1989), 186 Ill. App. 3d 1, 541 N.E.2d 1336. Robinson held that communicating with a witness requires an intent to deter a witness from testifying truthfully, and a request that the witness simply not appear at trial did not involve the necessary intent. Robinson suggested the proper charge would have been compounding a crime (Ill. Rev. Stat. 1989, ch. 38, par. 32— 1(a)), which prohibits offering consideration for a promise not to “aid in the prosecution of an offender.” The trial court here ruled that Robinson did not apply to the bribery charge, and the jury found defendant guilty of bribery, a Class 2 felony (Ill. Rev. Stat. 1989, ch. 38, par. 33— 1(f)). Defendant was sentenced to three years of imprisonment. Defendant appeals on the basis that the State failed to prove all the elements of bribery beyond a reasonable doubt. We affirm.

Eric Johnston was scheduled to appear at 9 a.m. on May 8, 1990, as complaining witness in a case where he was alleged to have been the victim of an attack by defendant’s wife, Diane Jackson. After Johnston was informed that the case was continued until 1:30 p.m., he went to the National Liquors store where he was employed to speak with his boss, Jeff Scott, and to use the phone. While Johnston was in the store, defendant and a companion entered and approached him. Scott and several customers were nearby. Johnston claims defendant began talking about Diane Jackson’s case and the fact that Johnston was going to be a witness against her. Defendant asked Johnston to drop the charges against Diane Jackson because defendant wanted to get the $300 back he had surrendered for her release on bond. Defendant stated that the only way for him to get the $300 back was if Johnston would drop the charges against her. Defendant then told Johnston he would give Johnston $25 in return for Johnston dropping the charges against Diane Jackson. Johnston simply shook his head and made no response. Defendant repeated this offer to Johnston two or three times until someone in the store told defendant he should keep quiet. After defendant left Johnston reported the incident to the police.

Scott indicated that he was standing close to Johnston and defendant, and he overheard their conversation. Scott’s testimony corroborated Johnston’s, that defendant offered Johnston $25 to drop the charges against Diane Jackson.

At trial defendant related a different version. According to defendant, he and Johnston talked about the football game on television and about the fact Johnston thought defendant had been responsible for puncturing a tire on Johnston’s car. After defendant denied puncturing Johnston’s tire, Johnston told defendant he did not believe defendant and he wanted defendant to get out of the store. Both defendant and Diane Jackson had previously been barred from the store; defendant claimed that Johnston did not like him. Defendant denied offering $25 to Johnston to get Johnston to drop the charges against Diane Jackson, and claimed that he and Johnston did not discuss the case on May 8. Defendant testified that he and his brother-in-law had shared two bottles of Wild Irish Rose and two quarts of beer before his conversation with Johnston. According to defendant, he and Johnston had on several occasions discussed the case against defendant’s wife, and Johnston had told him that Johnston did not want Diane Jackson to go to jail.

Section 33 — 1(a) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 33 — 1(a)) provides that a person commits the Class 2 felony of bribery when:

“(a) With intent to influence the performance of any act related to the employment or function of any public officer, public employee, juror or witness, he promises or tenders to that person any property or personal advantage which he is not authorized by law to accept.”

In 1977 the bribery statute was amended to add the language that influencing a “witness” is bribery. (Pub. Act 80 — 922 §1, eff. October 1, 1977 (1977 Ill. Laws 2673).) In 1978 the legislature increased the degree of the offense of bribery from a Class 3 felony to a Class 2 felony. (Pub. Act 80 — 1099 §1, eff. February 1, 1978 (1977 Ill. Laws 3264).) The statutory scheme which emerged was one whereunder bribery specifically included influencing a witness, while communicating with a witness and compounding a crime (Ill. Rev. Stat. 1989, ch. 38, par. 32 — 1(a)) remained separate, distinct, and less serious offenses.

At issue is whether the offer by defendant to pay $25 to Johnston, if Johnston dropped the charges against Diane Jackson, is “intent to influence the performance” of a witness as required for a conviction of bribery. (Ill. Rev. Stat. 1989, ch. 38, par. 33 — 1(a).) Of course Johnston did not have the power to “drop” the charges against Diane Jackson. Only the State’s Attorney had the power to do that. In People v. Scribner (1982), 108 Ill. App. 3d 1138, 440 N.E.2d 160, defendant offered to pay a complaining witness if he would go to the State’s Attorney’s office to request that charges be dropped. The court held defendant could not on those facts be convicted of communicating with a witness, which required an attempt to prevent a witness from “testifying freely, fully and truthfully” (see Ill. Rev. Stat. 1979, ch. 38, par. 32— 4(b)), but defendant could have been convicted of compounding a crime, which involved payment “for a promise not to prosecute or aid in the prosecution” (see Ill. Rev. Stat. 1979, ch. 38, par. 32— 1(a)). In contrast, in People v. Powell (1978), 72 Ill. 2d 50, 55, 377 N.E.2d 803, 805, defendant offered a policeman money if he could get the complaining witness to “ ‘drop the charges.’ ” The supreme court upheld a conviction for bribery, stating that the idea that payment to a police officer to persuade a witness to withdraw a complaint was not intended to influence the performance of the officer’s duties (investigating crimes and identifying and securing witnesses) “does not merit further discussion.” (Powell, 72 Ill. 2d at 62, 377 N.E.2d at 807.) Powell went on to quote from People v. Clemons (1962), 26 Ill. 2d 481, 483, 187 N.E.2d 260, 261:

“ ‘The essence of the crime of bribery is the giving to, and receiving or acceptance by, a public officer of something of value to influence him in the performance of his official duty, whether [the duty] be termed general or specific.’ ” Powell, 72 Ill. 2d at 62, 377 N.E.2d at 808.

In the case at bar Johnston was not a policeman, but a complaining witness, and defendant argues the payment was not to influence his performance as a witness; rather, the payment was designed to get him to do something apart from his duties as a witness — -to speak to the State’s Attorney. The harm comes when defendant promises some payment which the witness has no right to accept. It is not clear how defendant expected Johnston to go about dropping the charges, which distinguishes this case from Scribner on its facts, but in our view the jury could reasonably have found that defendant intended to influence the performance of an act related to the function of a witness when he offered Johnston money to “drop the charges” against Diane Jackson.

Defendant argues that offering money to the complaining witness to drop the charges constitutes the petty offense of compounding a crime. (Scribner, 108 Ill. App. 3d at 1143, 440 N.E.2d at 164; Robinson, 186 Ill. App. 3d at 3, 541 N.E.2d at 1338.) It is irrelevant that defendant could have been charged with the offense of compounding a crime based on the decisions in Robinson and Scribner. In Scribner and Robinson it was held that the legislature did not intend for communicating with a witness to duplicate the offense of compounding a crime, thereby making the latter offense superfluous. In the present case it is clear the legislature intended for the bribery statute to include bribery of witnesses, even though the same conduct may be punishable as compounding a crime or communicating with a witness. That legislative intent is clear from the legislature’s amendment of the bribery statute in 1977 to include bribing of a “witness” within the offense.

Whether to prosecute and what charges to file are decisions that generally rest in the prosecutor’s discretion. (United States v. Batchelder (1979), 442 U.S. 114, 124, 60 L. Ed. 2d 755, 765, 99 S. Ct. 2198, 2204.) The presumption is that any prosecution for violation of the criminal law is undertaken in good faith. (People v. Brandstetter (1982), 103 Ill. App. 3d 259, 270, 430 N.E.2d 731, 739-40.) While the prosecutor may be influenced by the penalties available upon conviction, this fact standing alone does not give rise to an equal protection or due process violation. (Batchelder, 442 U.S. at 125, 60 L. Ed. 2d at 765, 99 S. Ct. at 2205.) In the case at bar, defendant has not presented any evidence tending to show an equal protection violation other than some overlap between the bribery, compounding a crime, and communicating with a witness statutes. Such evidence does not establish an equal protection violation. See generally Batchelder, 442 U.S. 114, 60 L. Ed. 2d 755, 99 S. Ct. 2198.

Defendant also argues that the evidence did not show that he was guilty of bribery beyond a reasonable doubt. The relevant question is whether, if after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) It is not our function to reweigh the credibility of witnesses, and accordingly, we will not disturb the jury’s determination that the State’s witnesses were to be believed in the circumstances of this case. (People v. Novotny (1968), 41 Ill. 2d 401, 411-12, 244 N.E.2d 182, 188.) The evidence which the jury found most credible showed that Johnston was a witness and that defendant promised money to Johnston if Johnston would drop the charges against Diane Jackson. We find that the State sufficiently proved all the elements of bribery.

Affirmed.

McCULLOUGH and LUND, JJ., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HENRY E. SPEIRS, Defendant-Appellant.
    Fourth District
    No. 4—91—0790
    Opinion filed July 9, 1992.
    Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Norbert J. Goetten, Robert J. Biderman, and Peter C. Drummond, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant Henry E. Speirs appeals from his conviction after a jury trial in Adams County for aggravated battery (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 4(b)(8)). He argues reversible error occurred when he was ordered to remove his jacket to reveal tattoos on his arms. He also contends the trial court’s order requiring him to pay restitution must be vacated because he was not mandated to pay it within the statutory period of five years. No error occurred when the defendant was required to reveal the tattoos on his arms. However, we remand the case to the trial court to enter an appropriate restitution order.

An incident which occurred outside a tavern called “the Forum” in Quincy, Illinois, the evening of February 23, 1991, gave rise to the aggravated battery charge. The victim of Speirs’ alleged aggravated battery was Steven Ebersohl. Ebersohl testified he drank two beers at a party before arriving at the Forum at approximately 11 p.m. He met Carrie Clancy there. His girlfriend, Kelly Hook, previously agreed to pick him up from the tavern at approximately 2 a.m. He consumed five more beers while at the tavern.

At approximately 2 a.m. Ebersohl exited the tavern’s back door and met Hook outside in the alley. He had seen an ex-boyfriend of Hook’s and he and Hook argued about him. According to Ebersohl, they were not raising their voices and there was no physical violence involved. During their argument, Ebersohl heard someone, whom he later identified as defendant, telling him to leave Hook alone. Ebersohl saw Speirs 10 or 15 feet away. Speirs asked Ebersohl whether he wanted to fight. Ebersohl responded he wanted no trouble and he turned back toward Hook. When Ebersohl turned slightly, Speirs hit him in the face. He could not recall anything that occurred after he was struck other than later talking to the police. He sustained seven stitches above his left eye. Ebersohl did not know Speirs before this incident.

A week after the incident, Ebersohl was in the Forum again with Clancy and Hook. He did not recall drinking that evening. He recognized Speirs from approximately 20 feet away as the one who struck him during the earlier incident. He told Clancy and directed her to the area where Speirs was standing. A few days later Ebersohl identified Speirs in a photo array.

Ebersohl also testified that on the night of the incident, he saw a tattoo on Speirs’ right arm. He described the tattoo as going in an upward angle in two separate directions. Over defense counsel’s objection, the trial judge ordered Speirs to remove his jacket and display his arms to the jury. Speirs’ right arm contained a tattoo of a girl and a small design similar to a skull. His left arm had a larger tattoo which the prosecutor described as the “grim reaper.” Upon the trial judge’s inquiry, defense counsel responded he had no objection to this characterization.

Ebersohl described the lighting outside the tavern as good because of a streetlight. The light was off the alley about 5 to 10 feet. Ebersohl also identified the person depicted in the State’s exhibit No. 1 as a photograph of a man who was with Speirs the night of the incident.

Clancy consumed approximately three beers before arriving at the Forum. She met Ebersohl there and consumed two more beers and a “kamikaze.” She saw Ebersohl exit the back entrance. She followed a short time later and saw Ebersohl and Hook talking. She stood near the alley about 14 feet away from them. She identified Speirs as a person she saw interrupt Ebersohl’s conversation with Hook and ask him if he wanted to fight. Ebersohl responded no, and Speirs punched him in the nose. According to Clancy, Hook began kicking Speirs. Ebersohl was down on the ground. He got up, however, and Speirs hit him in the face a second time. She could not recall what Speirs was wearing the night of the incident.

Clancy also testified that approximately a week later she saw Speirs in the Forum while she was there with Ebersohl. Ebersohl told her he saw Speirs and directed her attention to several men who were along the bar. She recognized Speirs. She stated she consumed approximately six beers before she saw Speirs. On cross-examination, she denied Ebersohl suggested Speirs was the man who struck him approximately a week prior. She later identified Speirs in a photo array.

Hook testified that on the night the incident occurred, she arrived at the Forum at approximately 2 a.m. She had previously consumed two beers. While she and Ebersohl were talking, she heard a person behind them tell Ebersohl to leave her alone. She stated Speirs was approximately 10 feet away from them. Ebersohl responded he did not want to fight and Hook turned around with her back toward Speirs. She heard Speirs repeatedly asking Ebersohl if he wanted to fight. She turned toward Speirs as he reached over and hit Ebersohl in the face. She kicked Speirs and he hit Ebersohl again in the face. She, too, identified the State’s exhibit No. 1 as a photograph of the man who accompanied Speirs the night the incident occurred.

Quincy police officer Kathy Martin testified she interviewed Ebersohl the night of the incident. Although Ebersohl was bleeding, he was alert and able to talk with her. She also opined the lighting in the alley behind the Forum is good.

Speirs testified that on the night of the incident he was at the Forum with his ex-wife, Deanna Speirs, and friends Jason Colvin and Kim Gooding. He arrived at approximately 1 a.m. and left around 3 a.m. While there, he consumed beer from a pitcher. He denied any altercation with Ebersohl and stated he left without incident.

He recalled talking to a police officer about a week later while at the Forum. On cross-examination, Spiers stated he had two to four beers before arriving at the Forum the night of the incident. Speirs introduced evidence that he was previously convicted of burglary in 1981 and 1982 and of robbery in 1985.

Colvin testified he accompanied defendant, Deanna Speirs and Kim Gooding to the Forum the night of the incident. He stated they had consumed several drinks and left the tavern at approximately 3 a.m. without incident. Nothing unusual occurred that night. On cross-examination, Colvin recalled defendant had consumed several beers at the Forum. Colvin was not drinking alcohol. He identified the State’s exhibit No. 1 as a picture of himself.

Deanna Speirs testified she and defendant were reunited. They were again living together with their children. She remembered the weekend of the occurrence because that was when defendant and she began seeing each other again. She also recalled the weekend when the police came into the Forum to talk with defendant. She stated defendant was not involved in an altercation with Ebersohl and she did not recognize any of the people who were accusing defendant of the altercation.

The jury returned a verdict of guilty of aggravated battery against defendant. (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 4(b)(8).) After a sentencing hearing, the trial judge imposed a five-year prison term with 43 days’ credit for time served. He also ordered defendant to pay $735.25 in restitution to Ebersohl and $190 to Ebersohl’s insurance company. The restitution was to be paid from Speirs’ bond and within one year of his release from the Department of Corrections.

Speirs initially argues reversible error occurred when he was ordered to remove his jacket and expose his arms to the jury after the State introduced Ebersohl’s testimony to the effect that he thought he observed a tattoo on Speirs’ right arm the night of the incident. He contends this exposure demeaned and ridiculed him in the presence of the jury and this information should have been obtained through discovery procedures. (See 134 Ill. 2d R. 413.) He also argues this evidence was improperly admitted because it was irrelevant and inflammatory.

Although he concedes he did not file a post-trial objection raising this issue, he contends it is plain error. The plain error rule applies in criminal actions when the defendant did not properly preserve an issue for appeal but the evidence was closely balanced or the error adversely affected the defendant’s right to a fair trial. People v. Mullen (1990), 141 Ill. 2d 394, 401-02, 566 N.E.2d 222, 226; People v. Carlson (1980), 79 Ill. 2d 564, 576-77, 404 N.E.2d 233, 238.

The State initially argues the presence of tattoos on Speirs’ arms was relevant to Ebersohl’s identification of Speirs as the person who struck him. As the State notes, Ebersohl would only know Speirs had a tattoo from observing it the night of the incident. The State also argues Speirs improperly asserts tattoos are demeaning and somehow inflammatory.

It was not error to require Speirs to expose his arms to the jury. Evidentiary rulings are within the trial court’s discretion and should not be overruled absent an abuse of discretion. (People v. Franklin (1990), 135 Ill. 2d 78, 96, 552 N.E.2d 743, 751; People v. Boclair (1989), 129 Ill. 2d 458, 476, 544 N.E.2d 715, 723.) Speirs’ tattoos were relevant evidence. Relevant evidence is evidence which makes the existence of any fact that is important to the outcome of the case more probable than it would be without the admission of the evidence. Boclair, 129 Ill. 2d at 477, 544 N.E.2d at 723; People v. Monroe (1977), 66 Ill. 2d 317, 322, 362 N.E.2d 295, 297.

Speirs argues the evidence of his tattoos was submitted merely to suggest he was of bad character or questionable integrity. The cases he cites as support are distinct because evidence of previous crimes or immoral behavior was at issue. People v. Lewis (1962), 25 Ill. 2d 442, 445, 185 N.E.2d 254, 256; People v. Paull (1988), 176 Ill. App. 3d 960, 964, 531 N.E.2d 1008, 1010.

The Illinois Supreme Court has concluded no error occurs when a defendant is required to model clothing allegedly worn by an assailant. It reasoned this was relevant because the fit of clothing was at issue. (People v. Warmack (1980), 83 Ill. 2d 112, 127, 413 N.E.2d 1254, 1261.) Compelling a defendant to model eye glasses in evidence has also been approved. People v. Tomaszek (1964), 54 Ill. App. 2d 254, 263, 204 N.E.2d 30, 34.

Whether Speirs had a tattoo on his right arm was relevant. A demonstration that Speirs had a tattoo similar to the type described by Ebersohl was of probative value to the jury. All probative evidence is likely to be prejudicial to a defendant. It was not unfair to require the demonstration.

Speirs also argues the prosecutor’s remarks in his closing argument were inflammatory and prejudicial. The prosecutor indicated Speirs had tattoos on both arms. He also stated “[w]ell, of course, the defendant is here in long sleeves and so you can’t — [Ebersohl] couldn’t see exactly what [the tattoo] looked like, but when the defendant was required to now expose those arms.” He also indicated that aside from the tattoos on Speirs’ right arm, the arm which Ebersohl testified he saw a tattoo, Speirs also had a grim reaper on his left arm.

Speirs’ argument that the prosecutor’s statement about him wearing a long-sleeve shirt was prejudicial misconstrues the prosecutor’s discussion. It could have been offered to explain why Ebersohl would not have known earlier whether Speirs had a tattoo on his right forearm. The statement indicating Speirs also had a grim reaper tattoo on his left arm was not necessary, but does not require reversal. We also note defendant did not object to this characterization during the closing arguments or in a post-trial motion. We affirm the introduction of the evidence related to Speirs’ tattoos.

Speirs also argues the trial judge erred by not ordering him to make restitution within five years. The State agrees error occurred. It contends we should not vacate the order, but rather remand it for modification. The trial judge erred by not complying with section 5 — 5—6(f) of the Unified Code of Corrections (Code), which requires the sentencing judge to “fix a period of time not in excess of 5 years within which payment of restitution is to be paid in full.” Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—6(f).

His order that restitution be paid within one year after Speirs’ release from his five-year prison term might extend beyond the mandated five-year period in which restitution must be paid. Although this was error, it does not require the trial judge’s order be vacated.

We addressed a similar question in People v. Stinson (1990), 200 Ill. App. 3d 223, 558 N.E.2d 642. Although the error regarding restitution in Stinson was that the court reserved deciding whether restitution would be ordered, the remedy for that error is also appropriate here. See Stinson, 200 Ill. App. 3d at 224-25, 558 N.E.2d at 643-44.

Speirs cites People v. White (1986), 146 Ill. App. 3d 998, 497 N.E.2d 888, in which we vacated a restitution order and did not remand it for modification. White, however, presented a special situation because we previously remanded the restitution order to the trial court for it to specify the amount of restitution and the time period during which restitution had to be paid. (White, 146 Ill. App. 3d at 1004, 497 N.E.2d at 892.) We further discussed this ruling in Stinson in which we concluded the better practice is to vacate an improper restitution order and remand for entry of a proper order. Our reversal in White without remanding the order to the trial court occurred because the court did not follow our directions the first time the case was remanded. Stinson, 200 Ill. App. 3d at 225, 558 N.E.2d at 643-44.

We vacate the trial court’s restitution order and remand the case for the court to comply with the provisions of section 5 — 5—6(f) of the Code. Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—6(f).

Affirmed in part; vacated in part and remanded.

STEIGMANN and McCULLOUGH, JJ., concur.