author: PRESIDING JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICKY BELL et al., Defendants-Appellants.
    First District (3rd Division)
    No. 1-86-1750
    Opinion filed January 30, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Karen E. Tietz, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Kathleen Warnick, Special Assistant State’s Attorney, and Renee Goldfarb, Assistant State’s Attorney, of counsel), for the People.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

The defendant, Ricky Bell, was convicted for the murder and armed robbery of Robert Stewart, the attempted murder and armed robbery of William Rayburn, and the attempted murder of Troy Stewart, for his participation in the 1977 robbery at the Stewart residence located at 6952 South Michigan in Chicago. The defendant was sentenced on June 2, 1979, to serve concurrent sentences of not less than 25 nor more than 40 years for the murder of Robert Stewart, not less than 20 nor more than 40 years for the attempted murder of Troy Stewart, not less than 20 nor more than 40 years for the attempted murder of William Rayburn, and not less than 15 nor more than 25 years for each of the armed robberies of Robert Stéwart and William Rayburn. A codefendant, Terrance Smith, was convicted for the same crimes and sentenced to a term of 200 to 300 years for each charge, the sentences to run concurrently. No appeal was taken by the defendant Bell. Smith appealed, however, and succeeded in obtaining a new trial on the ground that the trial judge erred in refusing to tender a voluntary manslaughter instruction. People v. Smith (1981), 94 Ill. App. 3d 969, 972-73, 419 N.E.2d 404.

On December 3, 1985, the defendant filed a petition for relief pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.), alleging ineffective assistance of appellate counsel. In his petition, and during the post-conviction proceeding, the defendant relied upon the reversal of his codefendant’s conviction to establish the required prejudice needed to obtain relief. In 1986, the trial court granted the defendant permission to file a late notice of appeal and that appeal is now before us. On appeal, however, the defendant has abandoned the instruction issue upon which his codefendant obtained a new trial. Instead, the defendant argues that: (1) the State failed to prove him guilty of armed robbery beyond a reasonable doubt because it failed to prove he took any property or that he intended to aid, abet, or facilitate the taking of any property; (2) the State failed to prove him guilty of attempt (murder) beyond a reasonable doubt because he did not have the specific intent to aid, abet, or facilitate the attempted murders of Troy Stewart or William Rayburn; and (3) the State failed to prove him guilty of murder beyond a reasonable doubt because it failed to prove that he had the specific intent to aid, abet, or facilitate the murder of Robert Stewart or that he committed the underlying felony. The defendant further contends that his sentences are excessive. The propriety of the circuit court’s order granting permission to file a late appeal is not before us.

The evidence produced at trial reveals that the defendant, Smith, and a third man visited the Stewart residence on the evening of March 4, 1977. Robert Stewart, William Rayburn, Theresa Perry, and Stewart’s 15-year-old nephew, Troy Stewart, were present at the time. Perry testified she had a short conversation with Smith and that Smith asked her if she had any money. Perry stated that she had met Smith through a co-worker named Glenna Smith. Perry further testified that she had recently received $3,200 in compensation for an injury she had sustained on the job, a fact she had communicated to Glenna Smith. Perry gave Smith $3, and the three men left.

A few minutes later, there was another knock at the door and Rayburn answered the door after hearing a voice reply “Terrance.” Rayburn permitted the defendant, Smith and the third man to enter. As soon as the door closed, Smith pointed a nickel-plated handgun at Rayburn’s head. Defendant and the third man had their hands in their coat pockets as if they had guns. Smith searched Rayburn and took his money. He then ordered Rayburn to call Perry, who was upstairs. After Perry returned to the first floor, Smith asked who else was upstairs, and Perry replied that a friend was upstairs. Smith escorted Perry upstairs with his gun in her back whereupon the defendant took control of Rayburn, holding him against the wall with his hand in his pocket as if he were holding a gun.

Once upstairs, Smith ordered Robert Stewart to stand against the wall with his hands up. Smith searched Stewart and took between $150 and $200. The defendant decided to go upstairs, and he took Rayburn with him. When Rayburn arrived at the second floor, he saw Robert Stewart standing in the hallway against a closet door with a handgun in his mouth. Smith asked if there were any drugs or money in the house. After Rayburn answered no, Smith told Rayburn and Stewart to lie facedown on the floor in Mrs. Stewart’s bedroom. The defendant and the third man began searching Robert’s bedroom across the hall, and Rayburn observed the defendant pull drawers out from the dresser and throw their contents on the bed. Defendant and the third man then searched Mrs. Stewart’s bedroom, and they found a butcher knife inside a dresser. They then searched Troy’s bedroom. Troy had been sleeping, but was awakened when he heard voices at the foot of his bed. He observed the third man search his room while the defendant looked around. They found empty bullet shells on Troy’s dresser and asked him where the gun was. Troy explained that the shells were left over from a New Year’s Eve party and that there was no gun in the house. Defendant and the third man returned to Mrs. Stewart’s bedroom and asked Robert Stewart and Rayburn about the gun and if they could call someone for drugs. Rayburn answered no, and Smith suggested that they might find the gun if the defendant stabbed Rayburn in the hand. Defendant leaned over Rayburn and cut the telephone line beside him.

Rayburn then heard a discussion near the entrance to the room. Smith stated that he was “going to take everybody out.” When Theresa started to cry, Smith told her to stop or else she would be the first. The defendant said it was not worth it and suggested they leave because they had been there too long. Smith asked what time it was, and the defendant responded that it was 11:50 p.m. When Smith again stated that he did not want any witnesses left behind, defendant said, “[I]ts not worth it to kill them for what we got.” Smith then responded that he was not going to leave anybody living to call the police, and the defendant replied that they had been there too long and said, “Lets go, if your [sic] going to, go on and do it.” Smith began firing at Rayburn and Robert Stewart. Stewart and Rayburn immediately jumped up and ran through a walk-through closet leading to Troy’s room. Perry ran into a bathroom and closed the door. Smith chased Stewart and Rayburn into Troy’s room, where Stewart and Rayburn leaped through the windows in Troy’s room. Stewart sustained fatal injuries in the fall, and Rayburn managed to escape with only a sprained ankle. Smith then shot Troy as he attempted to leave. Smith then approached Troy, who had fallen on the floor in Mrs. Stewart’s bedroom, and pointed the gun at Troy’s head. Smith pulled the trigger twice, but the gun was empty.

Perry went to a police station around 3 a.m. where she viewed six photographs and made a positive identification of Smith and the defendant. The police arrested the defendant at his home and recovered a nickel-plated pistol. At 9 a.m. Perry again identified the defendant and Smith in a lineup. Ballistics tests confirmed that the handgun found in defendant’s possession was the weapon used in the robbery.

Before reaching the merits of the defendant’s appeal, we must first consider the State’s contention that the issues now raised by the defendant are not properly before us. It is well settled that a claim of ineffective assistance of counsel on appeal is cognizable under the Post-Conviction Hearing Act (People v. Scott (1986), 143 Ill. App. 3d 540, 541, 493 N.E.2d 27; People v. Perez (1983), 115 Ill. App. 3d 446, 450, 450 N.E.2d 870; People v. Frank (1971), 48 Ill. 2d 500, 504, 272 N.E.2d 25), and that permission to file a late notice of appeal is an appropriate remedy where appellate counsel fails to perfect an appeal. (Perez, 115 Ill. App. 3d at 451.) The State contends, however, that the issues now raised by the defendant are not properly before this court on the ground that the defendant waived these issues by failing to raise them in his petition for post-conviction relief. Relying upon recent decisions which have held that a post-conviction petitioner must satisfy the two-pronged Strickland standard in order to receive a late appeal (People v. Jackson (1987), 161 Ill. App. 3d 573, 581-82, 515 N.E.2d 219, citing People v. Weger (1987), 154 Ill. App. 3d 706, 506 N.E.2d 1072), the State urges this court to hold that a petitioner must meet the Strickland test for each issue the petitioner seeks to litigate on appeal. The reasons prompting the State to advance this contention appear to be twofold.

First, the State maintains that absent such a requirement, petitioners seeking late appeals under the Post-Conviction Hearing Act could bypass the Strickland test and litigate unmeritorious issues on appeal. In support thereof, the State points out that Smith received a new trial on an instruction issue and that the defendant relied upon that reversal in his petition to satisfy the prejudice component of the Strickland standard. Now, the defendant has abandoned that issue and instead is raising the issues described above without first showing a reasonable probability that the result would have been different had these issues been raised on a timely appeal. Second, the State also points out that the Post-Conviction Hearing Act is limited to constitutional issues and does not provide for the redetermination of guilt or innocence. (People v. Derengowski (1970), 44 Ill. 2d 476, 479, 256 N.E.2d 455.) The State therefore feels that the defendant is circumventing the Act by challenging the adequacy of the proof without first meeting the Strickland test in the post-conviction proceeding.

If we comply with the State’s request, then a post-conviction petitioner who has been deprived of his first appeal will have to raise every issue that could have been raised on that appeal and meet the Strickland test for each issue in order to raise them on a late appeal. Any issues not raised in the petition would be deemed waived when the petitioner finally gets his first appeal. We decline to so hold. When a defendant is deprived of his first appeal, which in Illinois is a matter of right, he has been denied a constitutional right if he can satisfy the Strickland test. (Evitts v. Lucey (1985), 469 U.S. 387, 395-400, 83 L. Ed. 2d 821, 829-32, 105 S. Ct. 830, 835-38.) We see no reason why a defendant should not be able to add additional issues on a late appeal after successfully meeting the Strickland test for at least one issue in the prior post-conviction hearing. The perception that the Post-Conviction Hearing Act is being circumvented here would not exist had the defendant not abandoned on his late appeal the very issue that he relied upon to show the prejudice necessary to obtain his late appeal in the first place. The State cites no authority for this procedural requirement it seeks to impose. Therefore, we hold that once a post-conviction petitioner succeeds in obtaining a late appeal, he may raise any issues he could have raised had he not been deprived of his first appeal. We now turn our attention to the merits of the defendant’s appeal.

The defendant contends first that the evidence produced at trial fails to prove beyond a reasonable doubt that he intended to aid or abet Smith in the robberies of William Rayburn and Robert Stewart. In order to hold an individual accountable for the conduct of another, the State must prove beyond a reasonable doubt that: (1) the defendant solicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of the offense; (2) this conduct took place either before or during commission of the offense; and (3) the defendant engaged in such conduct with the concurrent specific intent to promote or facilitate the commission of the offense. (People v. Cooper (1987), 164 Ill. App. 3d 734, 738, 518 N.E.2d 260.) Ordinarily, mere presence at the scene of the crime or mere acquiescence in the other’s actions are not sufficient to hold one accountable. (People v. Watts (1988), 170 Ill. App. 3d 815, 825, 525 N.E.2d 233.) On the other hand, however, the State does not have to prove that the defendant actively participated in the overt acts which constituted the offense. (Cooper, 164 Ill. App. 3d at 738.) If the evidence shows that the defendant was present at the scene of the crime without disapproving or opposing the crime, the trier of fact may consider that conduct along with other circumstances and conclude that the defendant lent his countenance and approval and thereby aided or abetted the actor. People v. Kessler (1974), 57 Ill. 2d 493, 498, 315 N.E.2d 29.

In evaluating the sufficiency of the proof, the reviewing court will not set aside a conviction unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (Watts, 170 Ill. App. 3d at 824.) The defendant asserts that the State used circumstantial evidence in its attempt to prove him guilty and that, therefore, the defendant’s conviction cannot be upheld unless it can be shown that the jury precluded every reasonable theory of innocence. But the reasonable hypothesis of innocence standard of review is no longer viable, and the reasonable doubt test is applied to all criminal cases whether the evidence is direct or circumstantial. People v. Pintos (1989), 133 Ill. 2d 286, 291, 549 N.E.2d 344.

The defendant maintains that he went with Smith to the Stewart residence to collect a drug debt and did not intend to participate in an armed robbery. The defendant further asserts that there is nothing in the record to indicate that he had the specific intent to aid Smith in armed robbery. Contrary to the defendant’s assertions, there is ample evidence supporting the jury’s verdict. The evidence shows more than mere presence or acquiescence. During the commission of the offenses, the defendant placed his hand in his coat pocket in an outstretched manner as if he had a gun concealed in his coat. He took control of Rayburn when Smith escorted Perry upstairs, and he participated in searching the house. He informed Smith of the time and advised him that they had been in the house too long just before the shooting began. Bell also aided in the robberies when he used a knife to sever the telephone line in Mrs. Stewart’s bedroom.

Moreover, although a defendant’s assistance must occur either prior to or during the commission of the offense, such assistance may be inferred from conduct occurring after the event. (People v. Young (1983), 116 Ill. App. 3d 984, 994, 452 N.E.2d 718.) In this case, the defendant did .not report the incident to the authorities (Watts, 170 Ill. App. 3d at 825), and he had possession of the weapon used in the robberies when he was arrested. Bell also gave conflicting accounts of his whereabouts on the night of the crime when interviewed following his arrest. Therefore, we conclude that the evidence was sufficient to prove beyond a reasonable doubt that the defendant aided Smith in committing the armed robberies of Robert Stewart and William Rayburn.

The defendant next contends that the evidence produced at trial fails to prove beyond a reasonable doubt that he possessed the concurrent specific intent to aid or abet Smith in the attempted murders of Rayburn and Troy and in the murder of Stewart. This contention is without merit, however, as the State did not have to prove that he had the specific intent to aid Smith in the commission of those crimes. All the State had to prove was that the defendant aided Smith in the commission of the armed robberies. Under section 5 — 2(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 5 — 2(c)), one who aids another in the commission of an offense is legally accountable for the conduct of the other, and the word “conduct” includes any criminal act done in furtherance of the intended act. (People v. Terry (1984), 99 Ill. 2d 508, 515, 460 N.E.2d 746; Watts, 170 Ill. App. 3d at 825.) Having aided Smith in the robberies of Robert Stewart and William Rayburn, Bell is accountable for the attempted murders of Troy Stewart and William Rayburn . and the murder of Robert Stewart, which were committed in furtherance of the robberies.

The defendant next argues that his sentences are excessive. He urges this court to reduce his sentences on the grounds that he was only 19 years old at the time of the robbery, he did not bring a weapon with him to the Stewart residence, and he tried to dissuade Smith from shooting Stewart and Rayburn. He further asserts that he left before Smith attempted to shoot Troy in the head. The defendant also maintains that his criminal history is light: one conviction for possession of marijuana and one conviction for aggravated battery.

Although a reviewing court has authority to reduce a defendant’s sentence (107 Ill. 2d R. 615(b)(4)), a reviewing court cannot reduce a sentence unless the trial judge has abused his discretion. (People v. La Pointe (1981), 88 Ill. 2d 482, 492, 431 N.E.2d 344.) The court finds that the trial judge did not abuse his discretion.

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

Judgment affirmed.

WHITE and RIZZI, JJ., concur.

      A determination that a defendant has been denied his right to effective assistance of counsel will be made if the defendant can show that: (1) his counsel’s representation fell below an objective standard of reasonableness; and (2) a reasonable probability that, but for counsel’s errors, the result would have been different. Strickland v. Washington (1984), 466 U.S. 668, 688, 694, 80 L. Ed. 2d 674, 693-94, 697-98, 104 S. Ct. 2052, 2064-65, 2068; People v. Albanese (1984), 104 Ill. 2d 504, 526-27, 473 N.E.2d 1246.

       Justice Freeman heard the oral argument in this case, and following his election to the supreme court, Justice Rizzi was substituted, he listened to the tape of oral argument and read the briefs and record.


source: Caselaw Access Project

license: Public Domain

text:
    THE CITY OF EVANSTON et al., Plaintiffs-Appellants, v. REGIONAL TRANSPORTATION AUTHORITY et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1-88-1787
    Opinion filed January 30, 1991.

      Jack M. Siegel, of Chicago, for appellants.
    Clifford L. Weaver and Robert C. Newman, both of Burke, Bosselman & Weaver, of Chicago, for appellees.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Plaintiffs, City of Evanston, Joan W. Barr, Ann Rainey and Norris Larson (collectively referred to as Evanston), filed a complaint against defendants Regional Transportation Authority (RTA), Suburban Bus Division of the RTA (PACE), National Steel Service Center, Inc. (National), and Urban Mass Transportation Administration (UMTA) which sought a declaratory judgment concerning the rights of the parties under an agreement to sell National’s Evanston property to PACE, which had applied for an UMTA grant to develop a bus garage facility on the property. Evanston argues on appeal that the trial court erred in determining that National was a necessary party, in dismissing the complaint because of National’s absence, and in not permitting Evanston to file a first amended complaint. Defendants argue in their cross-appeal that the trial court erred in not finding that Evanston’s claim concerning the purchase price of the property was barred by res judicata.

Plaintiff Barr was the mayor of Evanston, and plaintiffs Rainey and Larson were Evanston aldermen. National owned property located at 2424 Oakton Street in Evanston in the M-4 Manufacturing zone. PACE applied to UMTA for a grant for the purpose of acquiring National’s property for use as a “bus garage facility” operated by Nortran, which was a transportation provider under contract with PACE. Use of the property as “a bus garage maintenance and service and inspection facility” was not permitted by Evanston’s zoning laws, and a special use permit would be required for such a use.

Evanston alleged the following in the complaint. The court had jurisdiction by virtue of the potential violation of “certain state and federal laws and regulations, and by virtue of the direct threat to the public health, safety and welfare” caused by the improper actions of defendants.

Evanston further alleged that under the Urban Mass Transportation Act (UMTA Act) (49 U.S.C. §1602(d) (1982)), no application for a grant to finance the acquisition or construction of facilities that would substantially affect the community would be granted without public hearings and without notice in a newspaper of general circulation in the geographic area to be served. The application had to include a certification that the applicant had: (1) afforded adequate opportunity for public hearings pursuant to adequate prior notice; (2) considered the economic, social, and environmental effects of the project; and (3) found that the project was consistent with official plans for the comprehensive development of the urban area.

Evanston further alleged that pursuant to the National Environmental Policy Act (NEPA) (42 U.S.C. §4332(1)(C) (1988)), Federal government agencies had to include in every recommendation or report on proposals for major Federal actions significantly affecting the quality of the human environment a detailed statement on: (1) the environmental impact; (2) any adverse environmental effects which could not be avoided if the proposal were implemented; (3) alternatives; (4) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity; and (5) any irreversible and irretrievable commitments of resources which would be involved.

Evanston further alleged that notice was not given to it directly but instead was published in the Chicago Defender and Chicago Sun-Times newspapers. No certification was made concerning the economic, social, and environmental effects or the consistency with official development plans. The project was not consistent with such plans, and no environmental impact study was made. PACE did not apply for a special use permit and thereby bypassed all the notice and other requirements of the Evanston zoning ordinance. Evanston requested UMTA to provide an environmental impact study and statement, but UMTA took the position with which Evanston disagreed that the project came under an exclusion. UMTA’s refusal to provide the statement rendered the proposed grant void.

Evanston further alleged that on March 27, 1986, the Northeastern Illinois Planning Commission (NIPC) conducted a hearing on the acquisition of the property and the construction of the garage facility at a cost of $2,352,620. The NIPC review was a condition precedent to the implementation of a grant. PACE purported by amendment to authorize its executive director to negotiate with National to purchase the property. PACE’s board of directors adopted the ordinance without further action and did not specifically approve the purchase price in violation of RTA’s statutory duties, and therefore the sales agreement was void.

Evanston further alleged that an appraisal it ordered valued the property at $1,425 million so that a purchase price of $2.65 million was unreasonable. The location of the facility would be detrimental because it would: (1) increase congestion on overburdened public streets; (2) deprive Evanston of the highest and best use of the property for a tax-paying manufacturing facility; (3) violate Evanston’s zoning laws and comprehensive plan by allowing an inharmonious land use to be located within the corporate limits; (4) depreciate surrounding property values; and (5) interfere with the use and enjoyment of nearby residential properties.

Count I of the complaint alleged that the sales agreement was unreasonable, invalid, and against public policy because it was an abuse of discretion to pay greater than a million dollars in excess of the fair cash market value and because PACE’s board of directors failed to approve the specific purchase price. Count II alleged that: (1) the sales agreement was void because of the lack of proper notice of public hearings on the acquisition of the property and because Evanston was not directly given notice of the hearings; and (2) the NIPC review was invalid because the notice of the hearing understated the amount of money involved in acquiring the property. Count III alleged that: (1) UMTA failed to provide the environmental impact statement required by NEPA (42 U.S.C. §4332(1)(C) (1988)), and the project did not come under exceptions to the environmental impact statement requirement; (2) the location of the proposed facility would be highly detrimental to the environment, the public health, and the safety of plaintiffs; and (3) UMTA’s approval of the grant without consideration of the environmental impact, the traffic conditions, the comprehensive plan, and Evanston’s zoning laws, was arbitrary, unreasonable, and contrary to law.

Evanston sought a declaratory judgment that: (1) the sales agreement was void; (2) if consummated, the sale of the property was void and title remained with National; (3) PACE’s and UMTA’s agreement to pay $2.65 million for the property was arbitrary, unreasonable, and void as against public policy; (4) the failure to provide an environmental impact statement was unlawful and rendered the sales agreement void; (5) UMTA and NIPC did not give proper notice of the review and the approval of the grant; and (6) the location and planned use of the proposed facility would be highly detrimental to the environment, public health, and the safety of plaintiffs.

Evanston also sought: (1) the temporary restraining of defendants from taking any steps to consummate the transaction including the disbursement of money; (2) upon hearing, a preliminary injunction enjoining defendants from proceeding to consummate the transaction, and, upon a full hearing, a permanent injunction; (3) if the sale occurred, a declaration that the transfer of title was void and that National had the title; and (4) if the sale was declared valid, a permanent injunction enjoining National from using the property for any purpose related to the sale.

RTA and PACE moved to dismiss the complaint on the basis of res judicata because the Federal district court for the Northern District of Illinois, Eastern Division, had dismissed a Federal complaint filed by Evanston on June 3, 1986, that involved the same parties and the same cause of action. The Federal complaint had named RTA, PACE, National, and UMTA as defendants, and it was substantively similar to the State complaint except that it stated that the action arose under the UMTA Act (49 U.S.C. §1601 et seq. (1982)) and NEPA (42 U.S.C. §4321 et seq. (1988)). The Federal complaint had been dismissed on the basis that plaintiffs failed to allege the requisite standing to invoke jurisdiction, and the United States Court of Appeals for the Seventh Circuit had affirmed (City of Evanston v. Regional Transportation Authority (7th Cir. 1987), 825 F.2d 1121).

Prior to a ruling being made on the motion to dismiss, National moved to remove the State action to the United States District Court for the Northern District of Illinois. The motion was granted. In addition, a stipulation to dismiss National and UMTA with prejudice was “granted” by the Federal court. The action was remanded to the circuit court of Cook County about one year later. After the remand, PACE filed an amended motion to dismiss the complaint on the bases that it was barred by res judicata and that the allegedly necessary parties National and UMTA were absent.

Evanston filed a motion for leave to file a first amended complaint. Evanston argued that the circumstances surrounding the filing of the complaint had materially changed and that an amended complaint was required for the purpose of appropriately stating the present facts which gave rise to the cause of action.

UMTA and National were not defendants in the first amended complaint. The first amended complaint also differed from the complaint in the following respects: (1) it alleged that PACE had applied for a special use permit, that the Evanston Zoning Board of Appeals recommended that the application be denied, that the City Council of Evanston concurred in the denial, and that therefore PACE had no lawful authority to use the property as a bus garage and maintenance facility; (2) it alleged that the property was located close to a residential area; (3) it alleged that the proposed use was inconsistent with Evanston’s comprehensive plan; (4) it omitted the allegation of the complaint concerning the required environmental impact statement; (5) it omitted the allegation of the complaint that the failure of the board of directors to specifically approve the purchase price rendered void the execution of the sales agreement; (6) it alleged that the expenditure of the funds was beyond the scope of defendants’ lawful authority and violated the fiduciary relationship owed to the individual plaintiffs as residents and taxpayers of Evanston and of the “area of the RTA,” and that the individual plaintiffs had standing to bring the action for breach of fiduciary duty owed by defendants to them as taxpayers; and (7) the prayer for relief was for: (a) a declaratory judgment that defendants’ purchase was beyond their scope of authority and was a breach of the fiduciary duty owed by them to plaintiffs; (b) an order directing defendants to take appropriate action to reconvey the property to its previous owner and to recover the funds expended for the purchase or, in the alternative, to offer the property for sale to the highest responsible bidder at a sale that was conditioned upon the use of the property for a lawful purpose permitted by Evanston's zoning laws; and (c) an order enjoining defendants from using the property as a bus garage and maintenance facility.

The trial court orally ruled that res judicata did not bar the claim in count I concerning the high purchase price, and it dismissed with prejudice the remainder of the complaint for failure to join National as an indispensable party. The trial court ruled that counts II and III were barred by res judicata and could not be cured by the first amended complaint. The trial court noted that the first amended complaint dropped the three-count approach but that its substance was essentially the same as the complaint. The trial court stated that National was a necessary party to both complaints because it would be materially affected by a judgment and because the purchase money would have to be obtained from National if the contract were voided.

In a written order, the trial court granted the motion to dismiss the complaint with prejudice, denied plaintiffs’ motion for leave to file the first amended complaint, and, pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), made an express finding that there was no just reason for delaying an appeal from the dismissal with prejudice of the complaint.

Evanston first argues on appeal that the trial court erred in dismissing the complaint and requests that the action be reinstated and that Evanston be permitted to file the first amended complaint. Evanston argues that National was not a necessary party because: (1) no relief was sought in the first amended complaint from National; (2) National had been before the court and had sought and obtained its dismissal from the case; and (3) a judgment could be rendered without necessarily affecting National’s rights, i.e., the alternative request for relief for a resale of the property would not affect National’s interests.

Defendants respond that: (1) National was a necessary party because the complaint sought: (a) to invalidate the sales agreement; (b) to have the property returned to National; and (c) to have the money returned; (2) dismissal may be warranted in the case of the absence of a necessary party who had been dismissed; (3) an order adverse to National could not be entered even though National acquiesced in its dismissal because a court does not have jurisdiction to enter an order or judgment which affects a nonparty’s right or interest; and (4) the first amended complaint was not significantly different than the complaint and the complaint’s “defect” was not cured by the alternative request for relief because plaintiffs did not have standing “to ask the court to require acts injurious to the public fisc.”

Section 2 — 405 of the Illinois Code of Civil Procedure (the Code) provides in part:

“(a) Any person may be made a defendant who *** is alleged to have or claim an interest in the controversy, or in any part thereof, or in the transaction or series of transactions out of which the controversy arose, or whom it is necessary to make a party for the complete determination or settlement of any question involved therein ***.
(b) It is not necessary that each defendant be interested as to all the relief prayed for ***.” Ill. Rev. Stat. 1989, ch. 110, par. 2 — 405.

Section 2 — 407 of the Code provides in part:

“No action shall be dismissed for misjoinder of parties, or dismissed for nonjoinder of necessary parties without first affording reasonable opportunity to add them as parties.” Ill. Rev. Stat. 1989, ch. 110, par. 2-407.

Section 2 — 616(a) of the Code provides:

“At any time before final judgment amendments may be allowed on just and reasonable terms, *** changing the cause of action *** or adding new causes of action *** and in any matter, either of form or substance, in any *** pleading *** which may enable the plaintiff to sustain the claim for which it was intended to be brought ***.” Ill. Rev. Stat. 1989, ch. 110, par. 2 — 616(a).

All persons with an interest in the lawsuit should be joined to allow the court to dispose of the entire controversy (Feen v. Ray (1985), 109 Ill. 2d 339, 347, 487 N.E.2d 619, citing Oglesby v. Springfield Marine Bank (1944), 385 Ill. 414, 423, 52 N.E.2d 1000), and an absent party would not be bound by a judgment entered in the lawsuit (Feen, 109 Ill. 2d at 348). The relevant inquiry in determining whether a person is a necessary and indispensable party is whether the person might claim a substantial and present interest. (People ex rel. Sheppard v. Money (1988), 124 Ill. 2d 265, 281, 529 N.E.2d 542.) Although the failure to join an indispensable party does not deprive the court of jurisdiction over the parties properly before it (Just Pants v. Bank of Ravenswood (1985), 136 Ill. App. 3d 543, 546, 483 N.E.2d 331), a court should not proceed to a decision on the merits when an indispensable party is absent (Feen, 109 Ill. 2d at 348). The action should be dismissed where an indispensable party is absent due to his dismissal pursuant to voluntary stipulation. Feen, 109 Ill. 2d at 348.

In Feen (109 Ill. 2d 339), Stuart Feen, a taxpayer, filed a complaint on behalf of Zion-Benton Township High School District 126, alleging that Fred Ray and Zion State Bank and Trust Company fraudulently deprived the district of interest on district funds. Ray, a former member of the board of education of the school district, was also an officer of the bank in which most of the district’s funds were kept. Subsequent to the dismissal of plaintiff taxpayer’s original complaint and three amended complaints, plaintiff stipulated to the dismissal of the defendant school district from the lawsuit. Plaintiff then filed his fourth amended complaint, omitting the school district as a defendant. Defendants Fred Ray and Zion State Bank then moved to dismiss the fourth amended complaint, contending that the school district was an indispensable party, without which the case cannot proceed. The court held that because the school district was absent, the court would be unable to dispose of the entire controversy before it and the judgment in the present case would have no binding effect upon the school district. (Feen, 109 Ill. 2d at 347.) The district was held to be a necessary party. (Feen, 109 Ill. 2d at 344-45.) Unlike Lerner v. Zipperman (1982), 104 Ill. App. 3d 1098, 433 N.E.2d 1072, in which a former defendant was held not to be a necessary party because he stated that he was unconcerned with the outcome of the lawsuit, the school district could not separate its interests from the lawsuit. (Feen, 109 Ill. 2d at 347.) In Burt v. Board of Education of Coal City Community Unit School District No. 1 (1985), 132 Ill. App. 3d 393, 477 N.E.2d 247, a bus company that had made the lowest bid for a transportation contract with defendant board of education filed an action which sought: (1) an injunction against defendant from entering into the contract with a company (Broadway); and (2) a writ of mandamus requiring the board to award the contract to plaintiff. The court enjoined defendant from performing the contract with Broadway and ordered it to award the contract to plaintiff. Broadway later filed a breach of contract action against defendant who moved to vacate the trial court’s order granting relief in the first lawsuit to plaintiff on the basis that Broadway had been a necessary and indispensable party to the first lawsuit.

The appellate court held that Broadway was a necessary and indispensable party under the definition given in Consolidated Cable Utilities, Inc. v. City of Aurora (1982), 108 Ill. App. 3d 1035, 1039, 439 N.E.2d 1272:

“ ‘A necessary party is one whose presence in the suit is required for any of three reasons: (1) to protect an interest which the absentee has in the subject matter of the controversy which would be materially affected by a judgment entered in his absence *** (2) to reach a decision which will protect the interests of those who are before the court *** or (3) to enable the court to make a complete determination of the controversy ***.’ ” (Burt, 132 Ill. App. 3d at 395-96.)

Broadway was held to fall within all of the three categories of necessary and indispensable party because if the court held that defendant could not perform the contract with Broadway, Broadway’s rights would certainly be materially affected. (Burt, 132 Ill. App. 3d at 396.) In addition, it was held that Broadway’s presence would protect defendant’s interests and would enable the court to make a complete determination of the controversy. Burt, 132 Ill. App. 3d at 396.

National was a necessary party to the original complaint because all the relief sought would have affected National’s interests as the seller of the property: a temporary restraining order and a preliminary injunction against consummating the sale, a declaratory judgment that a transfer of title was void and that National had the title, and a permanent injunction against National from using the property for any purposes related to the sale. The original complaint was therefore properly dismissed.

National was also a necessary party to the first amended complaint. Under People ex rel. Sheppard v. Money (1988), 124 Ill. 2d 265, 281, 529 N.E.2d 542, the test is not whether relief could possibly be granted without affecting the person’s interests but whether the person might claim a substantial and present interest. Naturally, National would have a substantial and present interest in the lawsuit which sought, inter alia, to void the sales agreement to which National was a party. The trial court therefore properly denied plaintiffs’ motion for leave to file the first amended complaint.

We do not reach defendants’ additional arguments in support of the refusal to permit the filing of the first amended complaint that UMTA was also a necessary party, that res judicata barred the first amended complaint’s allegation that the proper use of the property violated Evanston zoning laws, and that the request for an injunction was premature.

Defendants argue in their cross-appeal that the trial court erred in finding that Evanston’s claim in count I challenging the purchase price was not barred by res judicata. But one may not cross-appeal from a judgment that was not adverse (People ex rel. Jones v. Adams (1976), 40 Ill. App. 3d 189, 193, 350 N.E.2d 767; People v. Bradford (1939), 372 Ill. 63, 65, 22 N.E.2d 691; Bullman v. Cooper (1936), 362 Ill. 469, 471-72, 200 N.E. 173); it is the judgment rather than the reasoning of the court that is to be reviewed on appeal (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9).

The judgment of the circuit court is affirmed.

Affirmed.

RIZZI and WHITE, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS PEREZ, Defendant-Appellant.
    First District (3rd Division)
    No. 1-88-2518
    Opinion filed January 30, 1991.

      Ryan, Miller & Trafalet, of Chicago (Mary Ellen Dienes, of counsel), for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James Fitzgerald, and Kevin T. Noonan, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Following a jury trial, the defendant, Dennis Perez, was convicted of delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. 56x/2, par. 1401(a)(2)) and of calculated drug conspiracy (Ill. Rev. Stat. 1985, ch. 561lz, par. 1405). He was sentenced to two concurrent terms of nine years’ imprisonment and fined $11,500. At trial, the defendant relied on the affirmative defense of entrapment. On appeal, the defendant contends that: (1) he was denied his right to a speedy trial; (2) he was denied a fair trial because he was not allowed to present any character witnesses in his behalf; (3) he was denied a fair trial because he was not allowed to testify as to his state of mind while a State witness was allowed to testify to hearsay evidence; (4) he was denied a fair trial because the State did not comply with discovery requests concerning the government informant stating that they would not call the informant as a witness, but later the informant was allowed to testify without compelling the State to provide the discovery materials for impeachment purposes; (5) he was denied a fair trial when the trial court did not allow cross-examination of the State’s informant witness about possible bias, interest, or motive to testify falsely; (6) he was denied a fair trial when the court did not allow him to call a witness in surrebuttal to impeach the testimony of the State’s informant witness; (7) he was denied a fair trial when the court demonstrated hostility toward his attorney in the jury’s presence; (8) the trial court erred in refusing to give certain jury instructions; (9) he was denied effective assistance of counsel; and (10) he was improperly convicted of a lesser included offense.

On October 28, 1986, the defendant was arrested for selling 220.51 grams of cocaine to undercover Drug Enforcement Agency (DEA) Agent Ludowig. Prior to the arrest, there were three drug transactions, on October 8, 16, and 28, 1986, arranged by Johnny Davis, a government-paid informant, acting on the instructions of Agent Ludo-wig. The DEA agent’s investigation had been centered on Primitivo Rivera, who was originally a codefendant. Gabriel and Virginia Talayera, the alleged drug suppliers, were also codefendants. The case, however, was severed before trial.

At trial, Agent Ludowig testified that on October 8, 1986, he instructed informant Davis to purchase a one-ounce sample of cocaine from Primitivo Rivera. The agent and informant drove to 2206 North California Avenue in Chicago, where the informant went into the Montana Realty Company, which was owned by the defendant, and came back out with Rivera and the defendant. After the three men conversed, the informant went back to the DEA agent’s car and told him that there would be a delay in obtaining the drugs. The agent left, and when he returned, he saw Rivera and the defendant meet with the informant on the street. A conversation occurred among the three, and the defendant walked up the street where he met Gabriel and Virginia Talavera. There was an exchange between Virginia Talavera and the defendant. Then, the defendant, the informant, and Rivera walked to the agent’s car and got in. The agent drove to a side street where the defendant gave him the cocaine package. At the defendant’s request, the informant sampled the powder. The agent then paid the defendant the agreed upon $1,900, and the defendant told Agent Ludowig to deal only with Primitivo Rivera in the future.

Subsequently, Agent Ludowig instructed the informant to arrange a second one-ounce purchase of cocaine for $1,800 on October 16, 1986. When the agent and informant drove into the White Castle parking lot to make the purchase, the defendant and Rivera were standing next to the Talayeras’ car. The defendant and Rivera entered the agent’s car, and the defendant handed a package of cocaine to the agent, who gave the defendant $1,800 in cash. The defendant asked the informant and the agent to sample the powder. Davis sampled the cocaine, and the agent pretended to sample it. Again, the defendant told the agent to speak with Rivera concerning any future deals.

Pursuant to Agent Ludowig’s directions, the informant arranged for a one-pound sale of cocaine for $23,000, to occur on October 28, 1986. An arrest was to be made at that time. The agent and informant met Rivera and the defendant in a Dunkin Donuts parking lot. According to Agent Ludowig’s testimony, the defendant told the agent that the package would arrive shortly, that the transaction would be eight ounces at a time, and he wanted to cut out the informant and Rivera to deal only with Ludowig in the future. The agent left and, eventually, the transaction occurred in a Jewel parking lot. The informant met with the defendant and both returned to the agent’s car. The defendant handed the informant a brown bag containing eight one-ounce plastic bags of cocaine, totalling 220.51 grams. The informant then handed the bag to the agent. At that point, the agent signaled to other DEA agents, who arrested the defendant, Rivera, and the Talaveras. Also at that time, the agents pretended to arrest the informant. The defendant was taken to DEA headquarters. He then gave a statement admitting his participation in the three drug transactions.

The defendant testified that he lived above his realty company with his wife and four children. He met Primitivo Rivera, a licensed real estate salesman, in May 1986 and hired him in July 1986. The defendant met the Talaveras in July 1986 when they became tenants in an apartment building owned by the defendant. Gabriel Talavera owed the defendant money for an unpaid portion of the security deposit for the apartment. The defendant made an offer of proof that Talavera had offered to give cocaine to the defendant in exchange for the security deposit, but the defendant declined. The trial court did not allow the defendant to testify about the offer on the basis that it was hearsay even though the defendant sought to have it admitted for the effect of the statement on his state of mind.

The defendant further testified that he fired Primitivo Rivera on October 2, 1986, because he was not performing well as a salesman and the defendant was concerned about “what [Rivera] asked.” The trial court did not allow the defendant to testify about the content of his conversation with Rivera. The defendant further testified that the informant began coming to the real estate office to see Primitivo Rivera in late July or early August 1986, visiting two or three times a week. On October 3, 1986, the informant came to the office looking for Rivera. After he found out that Rivera had been fired, he told the defendant that Rivera was a murderer and a “torch,” and that he had murdered his wife by cutting her throat. He also said that the defendant was getting in the way of “their” economy. When the defendant told the informant to leave the office, the informant responded that the defendant was going to have to deal with him and Rivera and then left.

The next day, the informant and Rivera came to the office. The informant told the defendant that “a lot of bad things can happen” and that he knew the defendant had a handicapped daughter. He then warned the defendant that he would start doing business with them whether he liked it or not. The defendant asked them to leave and they did. The defendant then called Gabriel Talavera and asked him if he had an ounce of cocaine.

On October 6, 1986, the informant and Rivera returned to the defendant’s office and asked if the deal was set up. The defendant testified that he was scared and that the informant again threatened his • family. After the informant left the office, the defendant called Talavera and told him that he would forgive the $400 debt for the security deposit in exchange for the cocaine. The defendant’s testimony about the first two transactions was substantially the same as Agent Ludowig’s testimony, except that the defendant testified that he not only told the agent to deal with Rivera in the future, but also that he did not want to be involved in the drug transactions and that he was scared. The trial court sustained as inadmissible hearsay the State’s objections to defendant’s testimony about his conversations with the informant and Rivera concerning his state of mind.

The defendant testified that, on October 15 or 16, 1986, the informant and Rivera came to the defendant’s office wanting to buy a pound of cocaine. The defendant told them he would see what he could do, but did nothing. The next day, the informant returned. Finding out that the deal was not set up, he again threatened the defendant’s family. The defendant contacted Talavera and set up the third transaction. On October 28, 1986, the third transaction occurred and the arrest followed.

The trial court, stating that the defendant’s character was not an issue, did not allow the defendant to present any character witnesses. On rebuttal, the State called the informant, Johnny Davis, who denied ever threatening the defendant or his family, denied even knowing that the defendant had a family, and denied telling the defendant that Rivera had murdered his wife. The informant further testified that he met the defendant on October 8, 1986. He agreed that the defendant told him that he did not want to be involved in any more drug deals, but did not remember when that was said. The trial court did not allow the defense counsel to question the informant about any arrests that were pending during the time of the three drug transactions, including a September 1986 charge of possession of a controlled substance that was later nol-prossed. The defense counsel argued that the arrest just prior to the first drug transaction and the later dismissal of those charges were relevant to the informant’s bias and interest to testify against the defendant in this case. Prior to the rebuttal witness testifying, the defendant had objected to the testimony based on the State’s refusal to give background information about the witness and the quashing of two subpoenas for that information.

The defendant then attempted to call a surrebuttal witness for the purpose of impeaching the informant, but the trial court did not allow the testimony. Finally, the trial court did not allow an instruction on the informant witness’ credibility. The defendant offered the instruction as a modification of Blinois Pattern Jury Instructions, Criminal, No. 3.17 (2d ed. 1981) (hereinafter IPI Criminal 2d), which is an instruction on accomplice witnesses. Instead, an IPI credibility of witnesses instruction was given.

The defendant’s argument that the State failed to bring him to trial within the 160-day statutory period is without merit. The speedy trial act (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5(b)) requires a defendant on bail to be tried within 160 days from the date he demands trial. The defendant, who was on bail awaiting trial, filed a written demand for trial on February 3, 1988, and a second written demand for trial on April 18, 1988. The 160-day term would have terminated on July 12, 1988, but the trial began on June 15, 1988, which was within the required 160 days.

The defendant next argues that he was denied a fair trial because he was not allowed to present character witnesses in his behalf. The defendant relied on the affirmative defense of entrapment, which occurs when the defendant’s conduct is incited or induced by a public officer or employee, or agent of either. (Ill. Rev. Stat. 1985, ch. 38, par. 7 — 12.) For the entrapment defense to be used, the idea must not originate with the defendant, the agents must actively encourage the defendant to act, and the purpose of the encouragement must be for evidence to prosecute the defendant. (Sorrells v. United States (1932), 287 U.S. 435, 451, 77 L. Ed. 413, 422, 53 S. Ct. 210, 216; People v. Fisher (1979), 74 Ill. App. 3d 330, 333-34, 392 N.E.2d 975.) Once the defendant presents some evidence of entrapment, the burden shifts to the State to prove beyond a reasonable doubt that the defendant had a predisposition to commit the crime. (People v. Jensen (1976), 37 Ill. App. 3d 1010, 1014, 347 N.E.2d 371.) Under Sorrells, predisposition and criminal design are relevant to the entrapment defense. If the issues raised are pertinent to whether the defendant would be innocent except for the inducement by government officials, the Supreme Court explained, common justice requires that the accused be permitted to prove it. A searching inquiry into the defendant’s conduct and predisposition is, therefore, appropriate. Sorrells, 287 U.S. at 451-52, 77 L. Ed. at 422, 53 S. Ct. at 216.

In order to establish that his character traits are inconsistent with the commission of the crime charged, the defendant may introduce evidence of his good character and general reputation for the specific character trait. (People v. Flax (1986), 147 Ill. App. 3d 943, 951, 498 N.E.2d 667.) When the defendant attempted to call three character witnesses, the trial court disallowed the witnesses, stating that the defendant’s character was not at issue. The defendant’s character, however, is directly at issue in an entrapment defense. Although the trial court has considerable leeway in limiting testimony if it is cumulative, this testimony was not cumulative. The defendant was not allowed to call any witnesses except himself. Character witnesses should be allowed to testify to facts that could lead the jury to conclude that there was no predisposition. The defendant attempted to call three character witnesses to testify to his good reputation in the community as a law-abiding citizen. By not allowing the defendant to call these character witnesses, the trial court hampered his ability to present a defense of lack of predisposition to sell drugs. Thus, the trial court committed error.

The defendant then asserts that the trial court erred by not allowing him to testify fully about his state of mind after the informant’s repeated threats and after Talavera’s offer of cocaine to pay the security deposit. The defendant attempted numerous times to testify to out-of-court statements that influenced his state of mind. Although the defendant was allowed to testify to some of these statements, the trial court sustained many of the State’s objections on the basis that they were hearsay evidence. However, an out-of-court statement used for purposes other than establishing the truth of the matter asserted may be admissible to show state of mind of the recipient after hearing the statement. People v. Davis (1984), 130 Ill. App. 3d 41, 53, 473 N.E.2d 387.

Where the intention, motive or belief of the accused is material to the issue, he should be allowed to testify directly to that fact, and to have the circumstances surrounding the act considered in connection with his testimony. (People v. Graves (1978), 61 Ill. App. 3d 732, 741, 378 N.E.2d 293.) In Graves, the defendant, who claimed self-defense, was not allowed to testify to his state of mind during events that led up to the shooting. The court stated that the excluded testimony went directly to the crucial issue of the defendant’s intent, motive, and belief. Therefore, if the jury believed the defendant’s testimony, the court explained, it could have adequately explained the defendant’s reasons for his actions prior to the shooting and might have provided a justification for the defendant’s firing a second shot. Consequently, the court concluded, the jury should have had the benefit of that evidence in its deliberations. 61 Ill. App. 3d at 741.

Here, the motive of the defendant was material to the issue of a lack of predisposition, which is an essential element of entrapment. (People v. Boalbey (1986), 143 Ill. App. 3d 362, 364, 493 N.E.2d 369.) Therefore, the trial court committed error in not allowing him to testify to his state of mind after the informant’s repeated threats and the offer of drugs made by his tenant, Talavera, in lieu of his security deposit.

The defendant next asserts that he was denied a fair trial when the State did not comply with requests for discovery about the government informant. The State represented to the court that they would not call the informant as a witness, but later were allowed to call the informant to testify without being compelled to provide the discovery materials for impeachment purposes.

During the pretrial, defense counsel filed a motion for discovery and two subpoenas for background information concerning the confidential government informant, who arranged the drug transactions. Repeatedly, the defense counsel attempted to get discovery on the informant, and repeatedly, the assistant State’s Attorney claimed that they would not call the informant as a witness, even stating “He’s not going to take the stand unless [defense] counsel calls him.” Based on the assistant State’s Attorney’s misrepresentations, the trial judge quashed two subpoenas for discovery on the witness.

Later, when the State called the informant as a rebuttal witness, they argued that their previous representations to the court only referred to their case in chief. They stated that they could not know for certain whether they would call a rebuttal witness until after the defendant’s case was presented. The State did know, however, that the defendant was presenting an entrapment defense. The informant, who had been an integral part of the DEA’s drug operation, was the only State witness able to testify to the defendant’s predisposition to commit the crime. Such testimony is crucial under the entrapment theory because once the defendant presents some evidence of entrapment, the burden shifts to the State to prove beyond a reasonable doubt that the defendant was predisposed to commit the crime; that is, whether he was ready and willing to commit the crime without persuasion. Boalbey, 143 Ill. App. 3d at 365, 493 N.E.2d 369.

Predisposition can be shown in numerous ways, including (1) assessing the character or reputation of the defendant; (2) whether the suggested criminal activity was made by the government; (3) whether the defendant was engaged in criminal activity for profit; (4) whether the defendant expressed reluctance to commit the offense which was overcome only by repeated government inducement or persuasion; (5) the nature of the inducement or persuasion applied by the government (United States v. Perez-Leon (7th Cir. 1985), 757 F.2d 866, 871; United States v. Lazcano (7th Cir. 1989), 881 F.2d 402, 406); (6) the defendant’s ready access to a source (People v. Dempsey (1980), 82 Ill. App. 3d 699, 702, 402 N.E.2d 924, citing People v. McSmith (1961), 23 Ill. 2d 87, 89); (7) the defendant’s prior connection with the crime (Boalbey, 143 Ill. App. 3d at 365); (8) the defendant’s previous criminal record (Boalbey, 143 Ill. App. 3d at 365); (9) the defendant’s familiarity with drugs (Dempsey, 82 Ill. App. 3d at 702, citing McSmith, 23 Ill. 2d at 89-90); and (10) his willingness to accommodate those who wanted to obtain drugs (Dempsey, 82 Ill. App. 3d at 702). The DEA agent did not have any independent knowledge of those factors. Only the informant did.

The defendant relies on People v. Jones (1966), 73 Ill. App. 2d 55, 58, 219 N.E.2d 12, to argue that, where the crucial elements of the State’s case depend upon the work of an informant, he must be called upon to controvert the testimony of the defendant tending to prove entrapment. However, Jones was decided when there was a per se rule that entrapment existed if a police agent provided the defendant with the narcotics. Although this may not still be good law, recent case law states that if there is an unexplained failure to call a participating informant, an unfavorable inference against the State may arise. (People v. Johnson (1989), 191 Ill. App. 3d 940, 945, 548 N.E.2d 433.) The State argues that they were not required to call the informant and that such evidence could have been obtained on cross-examination of the defendant. Even if that were true, it seems unlikely that the State would allow an unfavorable inference to be made. The informant, who was under the State’s control, was not unavailable to testify as evidenced by the State making him available for an interview on May 16, 1986.

The defendant further argues that the subpoenaed information concerning the informant was necessary for the preparation of his defense. The United States Supreme Court in Roviaro v. United States (1957), 353 U.S. 53, 60-61, 1 L. Ed. 2d 639, 645, 77 S. Ct. 623, 628, ruled that the informant privilege must give way to the defendant’s need for disclosure in preparing his defense if an undisclosed informant took an active role in the crime and might be a material State witness during trial. Numerous factors are considered by Illinois courts in determining whether the defendant’s constitutional right to intelligently prepare a defense and to receive a fair trial necessitates disclosure of information regarding the informant’s identity and/or the contents of his communications to law-enforcement officials. (People v. Raess (1986), 146 Ill. App. 3d 384, 390, 496 N.E.2d 1186.) These factors include (1) whether the informant played an active role in the criminal act by participating in and/or witnessing the offense, or (2) whether the informant assisted in setting up its commission as opposed to being merely a tipster. Raess, 146 Ill. App. 3d at 390.

Here, the informant clearly played an active role in the criminal acts. He set up and participated in all three drug transactions. He was a crucial witness for the State. It would be reasonable to conclude that the State anticipated calling the informant as a rebuttal witness. Therefore, the defendant was entitled to the discovery information he requested in his subpoenas.

The State complied with some discovery requests. They made the informant available to the defense counsel to be interviewed on May 16, 1988, but he refused to speak with the defense counsel. Also, the State tendered to the defendant vouchers and expenses for October 1986, the Bureau of Investigation records, and the Chicago rapsheet. However, the defendant’s requests for vouchers previous to October 1986 and the informant’s Federal rapsheet were denied.

The defendant relies on Raess (146 Ill. App. 3d 384, 496 N.E.2d 1186) to support his argument for full disclosure. While it is true, as the State argues, that the State in Raess did not disclose even the name of the informant, the court did not limit its discussion to that aspect. It ruled that the defendant was entitled to disclosure of information regarding the informant for the purpose of preparing a defense founded on the entrapment theory. 146 Ill. App. 3d at 392.

Besides the rules for disclosure of an informant and pertinent information, the State was also obligated under Supreme Court Rule 412(a) (107 Ill. 2d R. 412(a)) to give the defendant certain information about a rebuttal witness. The State first argues that they cannot know for certain if a witness will be called in rebuttal until the defense testimony is heard. They then argue that they substantially complied with Rule 412(a) by disclosing the name of the informant and certain DEA payment vouchers made to him. Rule 412(a), however, is not limited to disclosure of the informant’s name and selected discovery that the State decides is important to the defendant. Supreme Court Rule 412(a) (107 Ill. 2d R. 412(a)) states:

“If the State has obtained from the defendant *** information regarding defenses the defendant intends to make, it shall provide to defendant not less than 7 days before the date set for the hearing or trial, or at such other time as the court may direct, the names and addresses of witnesses the State intends to call in rebuttal, together with the information required to be disclosed in connection with other witnesses by subdivisions (i), (iii), and (vi), above, and a specific statement as to the substance of the testimony such witnesses will give at the trial of the cause.”

Although the trial court relied on the State’s misrepresentations in quashing the two subpoenas, it erred in allowing the informant to testify as a rebuttal witness without the requested discovery documents being tendered. The State turned over selected voucher payments, a Chicago rapsheet, an Illinois State rapsheet, and made the informant available for an interview by the defense counsel. However, the State was allowed to withhold the informant’s Federal rapsheet as well as vouchers and other DEA informant communications that existed prior to October 1986.

Although the trial court has discretion in allowing the rebuttal witness’ testimony even without strict compliance with the discovery rule (People v. Galindo (1981), 95 Ill. App. 3d 927, 933, 420 N.E.2d 773), abuse of discretion is reversible error if it prejudices the defendant. Alone, this may not have prejudiced the defendant, but combined with the other trial errors, it was reversible error.

The defendant next asserts that he was denied a fair trial because the trial court refused to allow him to extensively cross-examine the informant about possible bias, interest, or motive to testify falsely. Although the defendant was allowed to cross-examine the informant about his payments from the DEA, he was not allowed to question him about his September 1986 arrest prior to the drug transactions involving the defendant and the dismissal of those charges by the State.

The sixth amendment to the United States Constitution protects the defendant’s right of cross-examination. (Davis v. Alaska (1974), 415 U.S. 308, 315-16, 39 L. Ed. 2d 347, 353, 94 S. Ct 1105, 1110.) The exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. (Davis, 415 U.S. at 316-17, 39 L. Ed. 2d at 353-54, 94 S. Ct. at 1110-11.) While the scope of the cross-examination rests largely in the discretion of the trial court (People v. Owens (1984), 102 Ill. 2d 88, 103), that discretion must be exercised in such a way as to allow the defendant wide latitude in establishing bias, motive or interest by the witness. (People v. Wilkerson (1981), 87 Ill. 2d 151, 156; People v. Adams (1984), 129 Ill. App. 3d 202, 208, 472 N.E.2d 135; People v. Pizzi (1981), 94 Ill. App. 3d 415, 420, 418 N.E.2d 1024.) The fact that a witness has been arrested or charged with an offense may be inquired into to show that his testimony might be influenced by bias, interest, or a motive to testify falsely. (Adams, 129 Ill. App. 3d at 207.) In Adams, the appellate court rejected the State’s argument that the defense counsel were on a fishing expedition and had no factual basis for the inquiry they sought to make. The court ruled that it was error for the cross-examination to have been so restricted that the defense was unable to explore the possibility that the witness may have been biased or be testifying falsely. 129 Ill. App. 3d at 207.

The defense counsel is not required to show beforehand that any promises of leniency have been made or any expectations of special favor exist in the mind of the witness. Defense counsel is entitled to inquire into such promises or expectations whether based on fact or imaginary. (People v. Freeman (1981), 100 Ill. App. 3d 478, 481, 426 N.E.2d 1220.) In Freeman, the defendant was allowed only to inquire whether the witness had been promised anything in return for his testimony, but not to probe deeper. The court rejected the State’s argument that the defendant must establish that the State had a deal with the witness before a more thorough cross-examination could be permitted. (100 Ill. App. 3d at 481.) Here, as in Freeman, the trial court erred by not allowing the defense counsel to inquire more fully into the informant’s possible bias, motive or interest in falsely testifying.

When a trial error affects a Federal constitutional right, it is reversible error unless it is harmless beyond a reasonable doubt. (Owens, 102 Ill. 2d at 104; Freeman, 100 Ill. App. 3d at 481.) In determining whether the error was harmless, the sufficiency of the evidence proving guilt beyond a reasonable doubt must be considered. (People v. Pizzi (1981), 94 Ill. App. 3d 415, 421, 418 N.E.2d 1024.) In Pizzi, the sufficiency of the case was based on the credibility of the State’s witnesses. Although the State’s evidence was sufficient to sustain a conviction, the case against the defendant was not overwhelming. It was a close case that turned on a determination of the credibility of the witnesses. Therefore, the court ruled that it was reversible error to prohibit the defense from presenting relevant impeachment of crucial prosecution witnesses. 94 Ill. App. 3d at 422.

Here, as in Pizzi, the credibility of the informant was crucial to the State’s case. The defendant was allowed to cross-examine the informant witness about his employment as a paid informant, but not to probe deeper. The only witnesses to testify to the defendant’s predisposition or lack of predisposition were the informant and the defendant. The informant testified to the defendant’s apparent ease in obtaining the drugs while the defendant was not allowed to testify that he knew the Talayeras had access to cocaine because Gabriel Talavera had previously offered cocaine to the defendant in lieu of his security deposit. There was some testimony from the agent, the informant, and the defendant that the defendant had said he did not want to be involved in the drug transactions in the future.

There was no testimony about any previous criminal record involving drugs. The only prior arrest was for a sexual assault that was not charged. There was no testimony that the defendant used drugs or had previously sold drugs. There was no testimony as to his familiarity with drugs, except that he asked the informant and agent to test the drugs. There was no evidence that the defendant had a profit motive. There was evidence that the criminal activity was initiated by the government. Because the evidence of the defendant’s guilt was not overwhelming and he was not allowed to fully present a defense, the abuse of discretion was not harmless beyond a reasonable doubt, but was reversible error.

Next, the defendant asserts that the trial court erred in refusing to allow him to present surrebuttal evidence to impeach the informant’s testimony. Where the prosecution in rebuttal is permitted to introduce new evidence, the defendant must be permitted to introduce evidence in surrebuttal. People v. Lott (1975), 33 Ill. App. 3d 779, 787-88, 338 N.E.2d 434, aff'd (1977), 66 Ill. 2d 290.

Although the State argues that the testimony would be merely cumulative, the informant introduced new evidence when he testified that he did not meet the defendant until October 8, 1986, and that he did not know that defendant had a family. The defendant, therefore, was entitled to present a surrebuttal witness to impeach the credibility of the informant. The defendant made an offer of proof that Allan Kirshner, a lawyer who rented space in the defendant’s office, would testify that the defendant’s children were in the office everyday and inevitably the informant would have seen the children. He also would have testified that the informant began coming to the office in July or August 1986.

The State also argues that the defendant was not prejudiced even if there was error because there was overwhelming evidence of the defendant’s guilt. However, as explained earlier, there was not overwhelming evidence of defendant’s guilt, especially about the defendant’s predisposition to commit the crime. Consequently, the defendant was prejudiced by the trial court’s error in not allowing his surrebuttal evidence.

The defendant’s convictions are reversed and remanded to the trial court for a new trial. The above issues are dispositive, so we will not reach a decision on the other issues raised by the defendant.

Reversed and remanded.

RIZZI and WHITE, JJ., concur.

      Justice Freeman heard the oral argument in this case, and following his election to the supreme court, Justice White was substituted, he listened to the tape of oral argument and read the briefs and record.