author: PRESIDING JUSTICE McCORMICK

text:
    CHICAGO TRANSIT AUTHORITY, Plaintiff-Appellee, v. AMALGAMATED TRANSIT UNION LOCAL 308, Defendant-Appellant.
    First District (2nd Division)
    No. 1 — 91—0431
    Opinion filed March 16,1993.

      Jacobs, Burns, Sugarman & Orlove, of Chicago (Marisel A. Hernandez, of counsel), for appellant.
    Laner, Muchin, Dombrow, Becker, Levin & Tominberg, Ltd., of Chicago (James J. Convery, of counsel), for appellee.
   PRESIDING JUSTICE McCORMICK

delivered the opinion of the court:

The Chicago Transit Authority (CTA) and Amalgamated Transit Union Local 308 agreed to arbitration of their dispute concerning the CTA’s discharge of union member Lorain Tolliver. The arbitrator decided in favor of the union and Tolliver. The trial court vacated the arbitrator’s award, and the union appeals. We reverse the trial court and reinstate the arbitrator’s award because the CTA did not show that the arbitrator exceeded his authority within the standards for limited judicial review of the arbitrator’s award.

On February 8, 1988, the CTA suspended its employee, Lorain Tolliver, for 29 days because she damaged two “el” cars by coupling them improperly. She submitted a written grievance claiming her suspension was unjust. On April 14, 1988, the CTA indefinitely suspended Tolliver because she drove an empty train past a danger signal. The CTA discharged her on April 28, 1988, and she again submitted a written grievance. The union represented Tolliver in disciplinary hearings. Since the union and the CTA were unable to negotiate a satisfactory resolution of Tolliver’s grievances, the parties agreed to arbitrate the dispute pursuant to article 15 of their collective bargaining agreement. That article provides that the arbitrator’s decision “shall be final, binding and conclusive” on the parties.

The CTA and the union agreed to appoint George Larney as arbitrator. The parties stipulated that Larney was to decide on the merits the following issues:

“Issue 1
Was the Grievant, Lorain Tolliver, suspended for just cause on February 8,1988?
If so, was the discipline proper?
If not, what shall be the proper remedy?
Issue 2
Was the Grievant, Lorain Tolliver, discharged for just cause on April 28, 1988?
If not, should she be reinstated and upon what terms?”

After hearing testimony from both parties on April 6, 1989, the arbitrator found that Tolliver was responsible for the improper coupling incident which led to her suspension on February 8, 1988, and that the coupling provided just cause for her 29-day suspension. The arbitrator also found that Tolliver drove her train past the danger signal as the CTA alleged, but he found that, because of mitigating factors, that violation did not provide just cause for discharging her. He found that the CTA should have taken into account Tolliver’s emotional problems which stemmed from a 1986 incident which occurred while Tolliver was working for the CTA. He ordered the CTA to reinstate Tolliver on inactive status, enroll her in the Employee Assistance Program (EAP) for therapy, and pay her regular wages for as long as she remained in the EAP, up to the 15 months’ time she lost due to the unjust discharge, unless she was declared fit to return to active duty before the 15 months ended.

The CTA sued to vacate the arbitration award because the arbitrator exceeded his authority and considered immaterial evidence. The union and the CTA filed cross-motions for summary judgment on the complaint. The trial court read the entire record of proceedings before the arbitrator, and at the hearing on the motions explained its reasoning:

“Now it seems to me the arbitrator’s function here is first to decide if there’s merit to the claims for discharge; in other words, did she do the things that they claim that she did ***. * * *
The next question is do these things merit discharge. * * * Sounds to me like a train thing is serious. These are the kinds of the things that cause accidents. ***
So these little mistakes when you are dealing with this expensive equipment and people’s lives are very important. So I have to conclude that the arbitrator[’]s conclusion here should have been that there was cause for discharge ***.
I don’t think it’s any of his business how they run their employee assistance. * * *
He would put her [on] inactive status, cure her, and then put her back. His only power was to put her back on active status. * * * I have to say the arbitrator did exceed his authority in this case.”

The trial court found that the arbitrator should not have considered Tolliver’s emotional difficulties to determine whether the CTA had just cause to discharge her, because “there is no testimony of [her difficulties] except her testimony. There is no medical testimony or anything else.” The trial court elaborated: “There was no medical testimony that [her traumatic experiences] would definitely affect a person. I can’t reach the conclusion because I’m not a doctor, neither is the arbitrator.”

When defense counsel objected that the court was engaging in de novo review of the arbitrator’s decision, the court responded:

“I’m limiting [review] to whether [the arbitrator] did act within the confines of the agreement.
I just don’t see that he has any authority under the agreement to do anything but determine whether the party was guilty of the conduct and whether the conduct was sufficiently serious to merit discharge^] Extenuating circumstances I don’t think are any of his business. ***
*** He has a right to order reinstatement, but he doesn’t have *** the right to put her on some other status than what she had.”

On appeal, the union argues that the trial court engaged in too strict a review of the arbitrator’s award. We first confront the issue of the proper standard for judicial review of arbitration awards in grievance proceedings under a collective bargaining agreement covering public employees. The parties agree that this court is to apply the common law standard for judicial review of arbitration awards under collective bargaining agreements. We raise on our own the objection that application of this standard renders meaningless a specific provision of the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1989, ch. 48, par. 1601 et seq.). We reject our own objection and find that the common law standard of review applies here.

The Uniform Arbitration Act, as drafted by the National Conference of Commissioners on Uniform Laws, applies to all written agreements to submit controversies to arbitration, except that collective bargaining agreements can, by express provision, avoid application of the Act. (7 U.L.A. 5 (1985).) When the Illinois legislature adopted the uniform act, it deleted the provision permitting collective bargaining agreements to avoid the Act. (Ill. Rev. Stat. 1989, ch. 10, par. 101.) Thus, the Illinois Uniform Arbitration Act applies to all written agreements to arbitrate, even those appearing in collective bargaining agreements, unless a statute specifically provides for an exception to the application of the Illinois Uniform Arbitration Act. See, e.g., Ill. Rev. Stat. 1989, ch. 48, par. 1712.

Instead of allowing parties to a collective bargaining agreement to avoid the Illinois Uniform Arbitration Act altogether, the Illinois legislature exempted collective bargaining agreements from judicial review under the statutory standards for such review. Sections 12 and 13 of the uniform act establish standards for judicial vacation or modification of arbitration awards; the Illinois legislature added subsection 12(e), which states: Since subsection 12(e) provides the only exception in the Illinois Uniform Arbitration Act for collective bargaining agreements, all arbitration procedures established by the Illinois Uniform Arbitration Act apply to arbitration under collective bargaining agreements not exempted by other statutes, but arbitration awards are subject to review under common law standards rather than the specific standards stated in the Uniform Arbitration Act (Board of Education v. Chicago Teachers Union, Local No. 1 (1981), 86 Ill. 2d 469, 474, 427 N.E.2d 1199).

“Nothing in this Section or any other Section of this Act shall apply to the vacating, modifying, or correcting of any award entered as a result of an arbitration agreement which is a part of or pursuant to a collective bargaining agreement; and the grounds for vacating, modifying, or correcting such an award shall be those which existed prior to the enactment of this Act.” (Ill. Rev. Stat. 1989, ch. 10, par. 112(e).)

Our supreme court explained that subsection 12(e) indicates a policy of greater deference to arbitrators, and a lesser role for the courts, in judicial review of arbitration awards under collective bargaining agreements than for other arbitration awards reviewable under the Illinois Uniform Arbitration Act standards. (Board of Trustees of Community College District No. 508 v. Cook County College Teachers Union, Local 1600 (1979), 74 Ill. 2d 412, 418-19, 386 N.E.2d 47.) The courts should engage in less probing review and should be more reluctant to disturb arbitration awards under collective bargaining agreements than awards reviewable under the Illinois Uniform Arbitration Act. Lehman v. Eugene Matanky & Associates, Inc. (1982), 107 Ill. App. 3d 985, 988-89, 438 N.E.2d 614.

In 1983, the Illinois legislature enacted the Illinois Public Labor Relations Act, which specifically provides in section 8 that for agreements between public employers and employees, “[t]he grievance and arbitration provisions of any collective bargaining agreement shall be subject to” the Illinois Uniform Arbitration Act. (Ill. Rev. Stat. 1989, ch. 48, par. 1608.) All provisions of the Illinois Uniform Arbitration Act, except the standards for judicial review, applied to arbitration under collective bargaining agreements without this specific provision in the Illinois Public Labor Relations Act. Also, in the absence of section 8, an arbitration award under a proceeding pursuant to a collective bargaining agreement covering public employees is subject to judicial review under the common law standard by the express language of subsection 12(e) of the Illinois Uniform Arbitration Act. Therefore, if the provision in section 8 of the Illinois Public Labor Relations Act making the Illinois Uniform Arbitration Act applicable did not subject grievance arbitration under collective bargaining agreements covering public employees to the greater judicial scrutiny available under the Illinois Uniform Arbitration Act, it apparently has no effect.

The Illinois legislature enacted the Illinois Educational Labor Relations Act (Ill. Rev. Stat. 1989, ch. 48, par. 1701 et seq.) at the same time as the Illinois Public Labor Relations Act. The Illinois Educational Labor Relations Act divests courts of jurisdiction to review arbitration awards and grants the Illinois Educational Labor Relations Board exclusive jurisdiction over such awards. (Chicago Board of Education v. Chicago Teachers Union (1986), 142 Ill. App. 3d 527, 530-32, 491 N.E.2d 1259.) We find that the provision in section 8 of the Illinois Public Labor Relations Act making the Illinois Uniform Arbitration Act apply to proceedings under that act serves to clarify this procedural distinction between the Illinois Public Labor Relations Act and the Illinois Educational Labor Relations Act, which together “establish a comprehensive regulatory scheme for public sector collective bargaining in Illinois.” (Chicago Board of Education, 142 Ill. App. 3d at 530; see also Perkovich and Stein, Challenges to Arbitration Under Illinois Public Sector Labor Relations Statutes, 7 Hofstra Lab. L.J. 191, 210 (1989).) Therefore, the clause in section 8 of the Illinois Public Labor Relations Act making the Illinois Uniform Arbitration Act applicable does not show that the legislature intended to change the basic policy of exceptional judicial deference to all arbitration pursuant to collective bargaining agreements.

Our supreme court has stated that the Illinois Public Labor Relations Act makes section 12 of the Illinois Uniform Arbitration Act applicable in actions to enforce arbitration awards. (Board of Education of Community School District No. 1 v. Compton (1988), 123 Ill. 2d 216, 221-22, 526 N.E.2d 149.) The court subsequently applied the common law standard, rather than the statutory standard, for judicial review of an arbitration award in a proceeding under a collective bargaining agreement covering public employees. (American Federation of State, County & Municipal Employees v. State (1988), 124 Ill. 2d 246, 254-55, 529 N.E.2d 534 (AFSCME).) In City of De Kalb v. International Association of Fire Fighters, Local 1236 (1989), 182 Ill. App. 3d 367, 371, 538 N.E.2d 867, the appellate court applied section 12 of the Illinois Uniform Arbitration Act to judicial review of the arbitration award, but the court found that section 12(e), which makes sections 12(a) through (d) inapplicable to collective bargaining agreements, required review under common law standards rather than statutory standards. Although those courts did not address the specific argument we raise, we too find that the exceptional deference to arbitrators’ awards in proceedings under collective bargaining agreements still applies to collective bargaining agreements covering public employees.

Our supreme court has established that under the common law standard, the courts cannot disturb an arbitration award under a collective bargaining agreement as exceeding the arbitrator’s authority unless the award does not “draw its essence” from the contract. This test has proven somewhat difficult for courts to apply, as the United States Court of Appeals for the Seventh Circuit explained:

“The problem with the expression, ‘draws its essence from the collective bargaining agreement,’ is that it invites the kind of error that the district judge fell into in this case, of setting aside an arbitration award because the judge is not satisfied that the award has a basis in a particular provision of the contract.
Whenever an arbitrator misreads a contract, it is possible to say that his award fails to draw its essence from the contract; that the ground of the award is not the contract but the arbitrator’s misreading.” (Ethyl Corp. v. United Steelworkers of America (7th Cir. 1985), 768 F.2d 180, 184.)

The court then clarified that courts which have so scrutinized the contracts have misunderstood the standard of review, and an arbitrator’s construction of his contractual authority does not provide grounds for disturbing the arbitrator’s award, even when the construction was “highly improbable.” (Ethyl, 768 F.2d at 184.) Under the common law standard for judicial review of arbitration awards, “the issue *** is not whether the arbitrator’s interpretation of the contract was correct but whether it was a bona fide interpretation of the contract.” (Ethyl, 768 F.2d at 187.) Our supreme court has similarly clarified that under the common law standard proper for arbitration under collective bargaining agreements, the court will “inquire into the merits of the arbitrator’s interpretation *** only *** to prevent a manifest disregard of the agreement between the parties.” Board of Trustees v. College Teachers Union, 74 Ill. 2d at 421.

Courts are to apply the common law test in a manner consistent with the legislature’s intention of providing lesser judicial scrutiny, and a minimal judicial role, in cases involving arbitration under collective bargaining agreements. When the common law test is properly understood, it cannot provide a basis for disturbing an arbitrator’s award when there is no such basis under the statutory test. Our supreme court recently restated the statutory standards for judicial review of arbitration awards under the Illinois Uniform Arbitration Act. Under the Illinois Uniform Arbitration Act standard, the courts should vacate an arbitrator’s award as exceeding contractual authority only if no “ ‘fair and reasonable mind[ ] would agree that the construction of the contract *** [was] possible under a fair interpretation of the contract.’ ” Rauh v. Rockford Products Corp. (1991), 143 Ill. 2d 377, 392, 574 N.E.2d 636, quoting Pirsig, Some Comments on Arbi tration Legislation & the Uniform Act, 10 Vand. L. Rev. 685, 706 (1957).

Since common law review of arbitration awards in proceedings under collective bargaining agreements is more deferential than statutory review, this court cannot disturb an award under common law review where it could not disturb the award under statutory review. Thus, if any fair and reasonable mind could agree with the arbitrator’s construction of his authority in this case, we cannot disturb the award. Since we owe this arbitrator the greater deference of common law review, we may not be able to disturb the award even if no fair and reasonable mind would agree with his construction of his authority, as long as his construction “drew its essence” from the collective bargaining agreement. Where any fair and reasonable mind could make the interpretation of the contract which the arbitrator made, we cannot say that the arbitrator manifestly disregarded the contract, so as to justify our intervention.

Even under the more probing review available under the Illinois Uniform Arbitration Act, the trial court should not search the record of arbitration proceedings for errors of law or fact: “Gross errors of judgment in law or a gross mistake of fact are not grounds for vacating an award unless the mistakes or errors are apparent upon the face of the award.” (Rauh, 143 Ill. 2d at 393.) The trial court’s comments in this case show that it inappropriately reviewed the entire record to determine whether the arbitrator reached the correct decision. The trial court believed that Tolliver’s violations were serious, so it found that “the arbitrator[’]s conclusion here should have been that there was cause for discharge.” The court also reviewed the arbitrator’s weighing of the evidence, holding that the evidence could not support his finding that Tolliver’s emotional difficulties contributed to her poor job performance because there was no medical testimony to support the finding. Even if we agree with the trial court’s assessment of what the arbitrator’s decision “should have been,” we must conclude that the trial court’s review of the record was more intrusive than is permissible for arbitration awards under collective bargaining agreements, under either the Illinois Uniform Arbitration Act standard or the common law standard applicable here.

The trial court’s improper review has no effect on this court’s review of the case. The question presented to the trial court, whether the arbitrator exceeded his authority, was strictly an issue of law, since the arbitrator’s award showed what he did and what authority he had for those acts. This court does not defer to the trial court on issues of law. In re Marriage of Skinner (1986), 149 Ill. App. 3d 788, 791, 501 N.E.2d 311.

The CTA contends first that the arbitrator exceeded his authority when he exempted Tolliver from discharge. The arbitrator nowhere stated that Tolliver was exempt from discharge, nor did the arbitrator state or imply that the CTA would have needed to keep Tolliver on regardless of the extent of her misconduct. The arbitrator decided only that the actual violation, under the actual extenuating circumstances of the case, did not provide just cause for her discharge. In reaching this determination, the arbitrator confined himself to deciding the exact issue the parties agreed to present: “Was *** Tolliver[ ] discharged for just cause ***?”

The arbitrator acknowledged that under the CTA’s normal procedures it would generally discharge an employee who committed a third major moving violation within a year, as Tolliver did. The arbitrator interpreted the contract to permit, but not require, discharge after a third major moving violation, and the arbitrator found that he and the CTA should consider extenuating circumstances in deciding whether to discharge an employee following such a violation. The CTA and the trial court interpret the contract to require discharge after a third major moving violation within a year, but neither the court nor the CTA indicates where in the contract they find this requirement. Cf. Contico International, Inc. v. Local 160 (E.D. Mo. 1990), 738 E Supp. 1262, 1264 (company rule provided “automatic termination” for employees found sleeping on the job).

The arbitrator found that the CTA could not discharge Tolliver unless it had “just cause” in light of all the circumstances of the case. Since the contract uses the phrase “just cause” without defining it, the arbitrator reasoned that he and the CTA could take into account extenuating circumstances, including Tolliver’s emotional problems and her efforts to deal with those problems in the EAR The trial court found that extenuating circumstances were not any of the arbitrator’s business, again without citing a specific source in the contract for that conclusion. The CTA has not shown that all fair minds would agree that the arbitrator could not consider extenuating circumstances, including an employee’s emotional problems, in deciding whether the CTA had “just cause” to discharge an employee who committed three major moving violations.

The CTA argues that the arbitrator could not consider participation in the EAR as an extenuating circumstance because the contract provides:

“If an employee is on active status after E.A.P. treatment and fails to maintain satisfactory work performance *** he or she will be subject to normal disciplinary procedures, up to and including discharge.”

The arbitrator may have interpreted the clause to mean that the CTA could, under certain circumstances, discharge an employee who had returned to active status following completion of an EAP, if the employee’s misconduct were sufficiently severe even in light of the extenuating circumstance of the employee’s difficulties and consequent participation in the EAP. The contract contains no provision which expressly precludes the arbitrator or the CTA from considering emotional difficulties, or participation in an EAP, as mitigating factors when considering whether to discharge an employee.

The clause upon which the CTA relies may not apply to Tolliver since she was still in an EAP when she was discharged; the arbitrator could have decided that the clause applied only to employees who had completed an EAP, not to those who were still in EAPs. The clause does not expressly provide that participants in an EAP must be discharged for conduct for which they would probably be discharged if they were not in the EAP. The clause says only that such employees are “subject to” normal discipline. In AFSCME an employment rule similarly stated that employees mistreating service recipients were “subject to discharge.” (AFSCME, 124 Ill. 2d at 257.) Our supreme court noted: “While *** the collective-bargaining agreement could have provided that any employee found guilty of any mistreatment of a service recipient mandated discharge, it did not.” AFSCME, 124 Ill. 2d at 258.

The CTA has failed to establish that the arbitrator’s interpretation of the contract does not draw its essence from the collective bargaining agreement. A fair and reasonable mind could find that the collective bargaining agreement permitted the CTA and the arbitrator to take participation in an EAP into account as a mitigating factor when deciding whether there is just cause to discharge an employee. Since the CTA cannot meet the applicable test for statutory review of arbitration awards, it cannot, perforce, meet the more deferential common law standard.

The CTA also argues that the arbitrator exceeded his authority when he sought evidence concerning a November 1986 incident which led to Tolliver’s emotional problems. The parties agreed that the arbitrator was to decide whether the CTA discharged Tolliver for just cause. Nothing in the issue or the contract prohibits the arbitrator from looking to the causes of the misconduct for which the CTA discharged Tolliver. The arbitrator interpreted the issue and his authority broadly, while the CTA contends that he should have confined himself to deciding whether Tolliver was guilty of misconduct, not why. Again, the CTA does not show that the arbitrator’s reading of the issues presented and the contract to permit him to look to causes of the misconduct at issue did not draw its essence from the collective bargaining agreement.

The CTA claims that the arbitrator, without authority, awarded Tolliver compensation for her 1986 injuries. The arbitrator purported to award Tolliver compensation for her unjust discharge, and the arbitrator found that problems arising from the 1986 incident provided an extenuating circumstance which made the discharge unjust. “Whenever possible a court must construe an award so as to uphold its validity.” (Garver v. Ferguson (1979), 76 Ill. 2d 1, 10, 389 N.E.2d 1181.) We find that the award can be construed as compensation for unjust discharge, and therefore, the arbitrator’s award is valid.

The CTA contends that the award conflicts with Illinois worker’s compensation law. To support this contention, the CTA presented to the trial court a settlement agreement concerning Tolliver’s worker’s compensation claim. The settlement was not part of the record before the arbitrator. Since there is no mention of worker’s compensation on the face of the arbitrator’s award, the alleged conflict with worker’s compensation law cannot be more than a “gross error[ ] of judgment in law *** [not] apparent upon the face of the award,” and therefore, it “will not serve to vitiate [the] award.” (Garver, 76 Ill. 2d at 10-11.) Here, too, the CTA's argument fails.

The CTA also argues that the arbitrator exceeded his authority by fashioning this particular award. The CTA construes the award to require it to pay Tolliver regular wages for time she spends on inactive status, in conflict with contractual limitation of the pay available for inactive employees. The contract provides:

“If the [CTA] determines that the employee must be temporarily removed from service to participate in a treatment program, the employee *** will be allowed to utilize available vacation time or personal leave of absence for such a purpose.”

The arbitrator stated in his award:

“1. Grievant is to be reinstated immediately but placed on inactive status.
2. Grievant is to be enrolled at once in the Employee Assistance Program where she is to receive the best psychotherapy she can obtain to address her emotional problems.
3. Grievant is to be compensated at a rate of pay she would have begun to earn had she been restored to active duty. Such earnings shall be paid to her while she is enrolled in EAP. Said compensation shall continue to be paid to Grievant for up to fifteen (15) months, equivalent to the time she has lost from work during the period of her discharge or for as long as she remains in the EAP program until she is declared fit to return to duty, whichever comes first. * * *
7. If, for any reason, the Grievant should decide on her own volition to end her enrollment in the EAP program prior to a determination she is fit to return to duty, all liability on the part of the CTA shall cease.”

Even under the more probing review permitted by the Illinois Uniform Arbitration Act, this court must construe the award to uphold its validity if possible. (Rauh, 143 Ill. 2d at 386.) The arbitrator had authority to order the CTA to reinstate and reimburse Tolliver for all time lost from the unjust discharge. No specific contract provision precludes the arbitrator or the CTA from reinstating an employee to inactive status.

The arbitrator awarded Tolliver pay for time lost, but he made the award payable in installments which could cease for any of several specified reasons before the CTA had fully reimbursed her for time lost. Payments for time lost stop when Tolliver is declared fit to return to active duty. Payments also stop if Tolliver voluntarily ends her enrollment in the EAP. Finally, payments stop after 15 months even if Tolliver remains in the EAP and unfit for active duty, because by that time the CTA will have compensated her fully for her time lost. Thus, the award is a permissible award of reimbursement for time lost, with certain conditions which would allow the CTA to reimburse Tolliver less than fully for her lost time. The CTA has not shown that all reasonable minds would agree that the arbitrator did not have contractual authority to render this award of payments.

At oral argument, we suggested that the arbitration award could be vacated because it contravenes public policy favoring safety for users of public transportation. (See Board of Trustees v. College Teachers Union, 74 ILL. 2d at 423-24.) Counsel for the CTA correctly observed that the arbitrator’s award in this case does not adversely affect passenger safety because the arbitrator did not order the CTA to place Tolliver on active status. Tolliver will not drive another train unless the CTA, through its EAP, determines that Tolliver is fit to return to duty.

We emphasize that we do not find the trial court’s interpretation of the contract incorrect, and we do not disagree with the trial court’s appraisal of the evidence. We find only that the trial court should not have appraised the evidence, and it should not have interpreted the contract. The court is not to decide what the contract means; the court should decide only whether the arbitrator’s award draws its essence from the contract. If any fair and reasonable mind could interpret the contract in a way that supports the arbitrator’s award, the arbitrator’s award draws its essence from the contract. We hold that the trial court could not properly vacate the award because the arbitrator’s award here draws its essence from the collective bargaining agreement.

The parties here bargained for this arbitrator’s decision concerning whether the CTA had just cause to discharge Tolliver, and if not, whether she should be reinstated and upon what terms. The arbitrator decided just those issues. Since the parties have received the benefit of their bargain, they should not now be heard to complain.

Accordingly, we reverse the trial court and remand for confirmation of the arbitrator’s award.

Reversed and remanded with directions.

SCARIANO and DiVITO, JJ., concur.


source: Caselaw Access Project

author: JUSTICE EGAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RANDALL ROSS, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 91—1783
    Opinion filed March 19, 1993.

      Rita A. Fry, Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Janet Ma-honey, and Leslie A. Quade, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

The defendant, Randall Ross (Ross), was indicted for the first degree murder of Stacey Bennett (Bennett). After a bench trial, he was convicted of second degree murder and sentenced to 10 years’ imprisonment. The defendant first argues that the evidence, as a matter of law, did not overcome his claim of self-defense or, alternatively, that the evidence supported only a conviction for involuntary manslaughter rather than second degree murder.

Janet Jones was the girl friend of the deceased, Stacey Bennett, who was Ross’ best friend. She had known Ross and Bennett for almost three years. On July 4, 1990, she was in a group which included Bennett, Ross, Shawntha Robinson (Robinson) and Orsen Johnson (Johnson), who was Ross’ cousin. The group was at the “point” on the shore of Lake Michigan near the Museum of Science and Industry. They drank beer, but no one appeared to be drunk.

The car they were riding in was owned by Robinson’s mother. The defendant was driving. They stopped at a gas station; Ross and Johnson pumped gas, and Bennett left the car to use the washroom. Jones testified that she heard the defendant tell Bennett that if Bennett was not back by the time Ross got through pumping gas, Ross was going to leave without him. Bennett did not return to the car before Ross was finished pumping gas, and Ross left without Bennett. They drove to their apartment at 831 East 100th Street in Chicago, and Ross and Johnson exited the car. Before Jones and Robinson drove away, Ross told Robinson, “Don’t go back to the gas station and pick [Bennett] up.”

Jones had seen Ross and Bennett fighting approximately four or five times in the past. There was no winner or loser in any of the fights, which Jones said were not serious and she described as just “pushing” with “maybe a few punches taken.” Neither man was ever injured in the fights. Bennett suffered from a recurring shoulder dislocation problem that caused his shoulder to “pop out of place.” Ross and Bennett used a “kiss-and-make-up” procedure for ending fights; the procedure was a kiss on the forehead.

She testified that Ross and Bennett had consumed several beers. The gas station where Ross left Bennett was two or three blocks from the apartment.

Lisa Perkins was 18 years old at the time of trial. She lived a short distance away from Bennett, Ross and Johnson. She and her mother had come home early in the morning of July 5, 1990. Her mother called her into the bedroom to look out the window facing the area in front of the building where Ross and Bennett were fighting. She saw three people outside; she recognized two of the three as Ross and Bennett. She could also hear their voices. When she first saw them Bennett was on top of Ross on the ground. She heard Bennett tell Ross he was “tired of paying all the rent and the money was all coming from him *** and he was walking around with holes in his shoes while [Ross] had new shoes.” She saw Bennett hit Ross once or twice with his fists. That part of the fight lasted about four or five minutes. Ross asked Bennett to stop, and Johnson told Ross and Bennett to stop fighting. Perkins saw Ross and Bennett get up from the ground and stand facing each other approximately three feet apart. Bennett had his arms down at his sides. Perkins turned away from the window for “[a]bout one or two seconds” to talk to her mother. When she turned back toward the window, Bennett was in approximately the same position he was in before she turned away. She saw Ross “pull something from like his waist area” and raise his arm to the level of his chest; then she heard a shot. Bennett grabbed his chest and fell forward. Ross stood over Bennett for a minute and then ran away.

Orsen Johnson testified that Bennett started yelling at Ross as he approached the apartment. Ross and Bennett fought for a short time; Bennett stopped for a minute and took off his shoes. Bennett got Ross down and hit him in the face. Then Ross got Bennett down and hit him in the face. Ross kissed him on the forehead to try to “make it like a joke so they could stop the fight, but that wouldn’t work.” Ross let Bennett up and Bennett told Ross, “When you let me up, I’m going to beat the shit out of you as soon as I get my shoulder in place.” Bennett’s shoulder had dislocated sometime during the fight. This had happened on other occasions. Johnson had seen Ross and Bennett fight before, but never this violently.

Johnson broke up the fight two or three times. Ross told Bennett “I quit, man” and, “You won.” Johnson intervened because Ross asked him to make Bennett stop after Bennett pulled Ross’ face into Bennett’s knee five or six times causing Ross’ face to bleed. Ross said that he only wanted to get his clothes and leave. When Johnson intervened, he saw Ross pull out a gun. Johnson pushed the gun to Ross’ side and told him to leave.

Ross began walking away, but Bennett ran up, “started it all back over again,” and “popped [Ross] in his face.” Ross hit Bennett once or twice in the face with the gun. Johnson again tried to break up the fight, but Bennett “kept on fighting” Ross. Johnson was in between the two men when Ross “reached over and shot” Bennett. Each man had a hand on the other when the gun went off, and Ross appeared to be aiming at Bennett’s shoulder.

Ross and Bennett were approximately one or two feet apart when the shot was fired; Johnson jumped out of the way when the slightly shorter Ross put the gun over Johnson’s shoulder. After the shot was fired, Ross “paced over” Bennett. Johnson went to a neighbor’s apartment to call an ambulance; Ross was gone when Johnson returned.

Johnson denied that Ross tried to fire the gun a second time. He admitted that he had told the police that he heard the gun hammer click a second time but that no second bullet was fired. He said that when he was questioned by the police he was still high from smoking POP and drinking beer and had only one half-hour of sleep before he made the statement to the police.

He testified that Ross and Bennett were arguing about rent money and that Bennett was angry because Ross left him at the gas station. He thought Ross had the gun with him all evening. He admitted that he had told the police that after they left the gas station, Ross entered the apartment and “went upstairs and got his gun.” Johnson believed that Ross usually carried a gun. When Ross reached over Johnson with the gun, Ross said, “Fuck it,” while pulling the trigger.

Chicago police officer Conway was called to the scene of the shooting on July 5, 1990. He determined that Bennett was dead and noted that Bennett had small cuts under his left eye and on his left lip.

It was established by stipulation that Bennett died from a gunshot wound to the chest. The alcohol level in Bennett’s blood was .146.

Thomas Hickey, an investigator from the public defender’s office, was assigned to holiday court on July 7, 1990, and took a picture of Ross in court that day. He noticed that Ross had a cut under his left eye, two puffy eyes, a swollen nose and a swollen left jaw.

At the time of trial, Shawntha Robinson had known Ross for approximately two years and was the mother of his child. She was eight months pregnant when the group went to the “point” on July 4, 1990. They were all traveling in her mother’s car.

Once they reached the gas station, Bennett initially remained in the car to ask Jones if she would spend the night at his apartment. Jones told Bennett she wanted to go home and did not want to spend the night at his apartment. Bennett then left the car to use the washroom. Robinson told Ross that she wanted to go home to use her own washroom.

The defendant, who was 23 years old at the time of trial, .testified that he had been friends with Bennett for eight or nine years. Bennett was his best friend; their families knew each other. During the course of their friendship Ross and Bennett had physical fights but had never hurt each other.

Ross, Bennett and Johnson rented their townhouse from Bennett’s mother. All three paid rent but each roommate occasionally paid more than his share when another roommate was unable to pay.

The group arrived at the lake between 7:30 and 8 p.m. and began drinking. Ross had a .22-caliber gun in his underwear. He and Bennett owned the gun. Bennett previously had the gun and at one time gave it to Jones to keep at her house “because we got into some trouble in March and we got a lecture about guns.” On July 4 Ross was taking the gun to Robinson’s house because he “didn’t want it in the house.”

He told Bennett he would leave him at the gas station if Bennett was not ready to go when Ross was done pumping the gas; he told Bennett he had to leave because Robinson needed to go home. Bennett did not seem upset by this and just told Ross to leave without him. Ross saw Bennett enter the restroom before he drove away. Bennett, Johnson and Ross had planned to go out together once the women went home.

Ross did not remember going into the apartment. Johnson alerted Ross that Bennett was walking towards them, and Johnson then closed the apartment door. Bennett asked him why they had left him at the gas station. Ross told him that he left him because Robinson needed to use the washroom and because Bennett told him to leave.

Bennett grabbed Ross in a “full-nelson,” but Ross “didn’t think anything of it at first, [Bennett] could have been playing.” Both men fell to the ground. Ross was on top of Bennett holding Bennett’s

arms. Bennett yelled that he was tired of Ross and threatened to “kick [Ross’] ass.” Ross then kissed Bennett on the forehead and tickled him. That procedure usually calmed Bennett enough that he would stop fighting and explain what upset him. Instead of stopping, however, Bennett told Ross “[t]hat shit’s not going to work this time.” He kneed Ross in the face. When Ross got up he realized his lip was ripped, he was bleeding from his nose and mouth and his chin hurt. Ross told Bennett that he had injured Ross’ face; Ross bent over to wipe blood from his face with his shirt. Bennett hit him again. Johnson was trying to hold Bennett away from Ross, but Bennett kept trying to break loose, and “ran up on [Ross] again and was hitting [Ross].” Ross felt “dazed” or dizzy. Johnson broke the two men apart several times during the argument. At one point Johnson had control of Bennett, but Bennett was trying to come around Johnson toward Ross. Ross told Johnson to just give him his “stuff” and he would leave. Each time Johnson held Bennett, Bennett tried to break free and chase Ross.

Ross did start to leave and saw Bennett trying “to rip away” from Johnson by grabbing and pulling Johnson to the side. Ross was backing up from Bennett and was about five feet away from him. As he was backing away, Ross pulled the gun from his underwear and held it in his right hand. He pulled out the gun to scare Bennett because he had never seen Bennett “coming like that” before and because Bennett never kneed him in the face or made him bleed before. After he pulled out the gun, Ross again asked Johnson to give him his belongings so he could leave.

He heard Bennett say “something to the effect that he would kick [Ross’] ass” or get him before he left. Bennett then “ran up on” Ross, grabbed him with one arm, and swung at him with the other arm. The gun was still in Ross’ right hand. Johnson got between them. When Johnson got between them they were all locked onto each other. Ross was falling backward because he was backing up. He went to grab onto something, and the gun went off. Ross panicked and walked to a neighbor’s house. The walk took between 2 and 2V2 hours because he could not see well out of one eye, had a headache, felt pain in his leg and either passed out or fell asleep on the way. He dropped the gun and his shirt while walking. He subsequently went to the police station and turned himself in at approximately 5:30 or 6 a.m.

On cross-examination, he admitted that he was about to be kicked out of the apartment by Bennett on July 4, 1990. He planned to move in with Robinson and was not upset that Bennett was asking him to move. He admitted that he did not leave the gun at Robinson’s house when he was there earlier on July 4. He knew about Bennett’s shoulder injury, and he knew the shoulder became dislocated during their fight. When asked about his statement to the police that he tried to shoot Bennett in the arm, Ross stated that the gun went off accidentally, that he was not trying to shoot Bennett in the arm, and that what he told the police “may have been how it came out, but that’s not what happened.”

The State in rebuttal established by stipulation that Johnson told Detective Williams that after Bennett was shot and had fallen to the ground, Ross again pointed the gun at him and pulled the trigger. It was also established by stipulation that Detective Kluenen interviewed Johnson and that Johnson said that Ross went into the apartment, retrieved the gun upstairs and shot at Bennett twice though only one bullet left the gun.

The defendant first maintains that the State failed to prove beyond a reasonable doubt that he did not act in self-defense. The State contends that the defendant waived any self-defense claim and that the defendant’s only defense was that the killing was an accident. We disagree with the State that the issue of self-defense was not raised in the trial court. The State’s position seems to be that one cannot claim both accident and self-defense. That is not the law. (See People v. Everette (1990), 141 Ill. 2d 147, 565 N.E.2d 1295.) The defendant’s answer to the State’s discovery motion asserted that the “defendant may also assert self-defense.” The State, in closing argument, said that the defendant’s conduct was not reckless, accidental or justified. The defendant’s attorney argued that the defendant was acting “reasonably” under the circumstances and that he was “justified in pulling the gun because [Bennett] had been attacking him time and time again.” Finally, and most important, the trial judge explained that if this had been a jury trial, he would have given a self-defense instruction. It is clear, therefore, that the issue of self-defense was raised by the defendant in the trial court and was considered by the judge.

Self-defense is an affirmative defense requiring the State to disprove the defense beyond a reasonable doubt once the defendant raises it. (Ill. Rev. Stat. 1989, ch. 38, par. 3 — 2; People v. Daniel (1989), 191 Ill. App. 3d 837, 548 N.E.2d 354.) When a fact finder rules against the defendant’s self-defense claim, a reviewing court should not set aside a conviction “unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt concerning the defendant’s guilt.” (People v. McGrath (1989), 193 Ill. App. 3d 12, 28, 549 N.E.2d 843, 853.) The existence of proper self-defense is a question of fact and the State has carried its burden of proof when the trier determines that “any of the evidence adduced at trial negates the existence of any element of self-defense beyond a reasonable doubt.” People v. Martinez (1990), 206 Ill. App. 3d 813, 827, 564 N.E.2d 1271, 1279.

A person is justified in the use of force likely to cause death or great bodily harm only if a person reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself. (Ill. Rev. Stat. 1989, ch. 38, par. 7 — 1.) The trial judge, the finder of fact, found that Ross believed that it was necessary to shoot Bennett but that Ross’ belief was unreasonable. The test on review is not what the judges of the reviewing court would have found; the test is whether any rational trier of fact could have found that Ross’ belief was unreasonable. See People v. Sanchez (1986), 115 Ill. 2d 238, 503 N.E.2d 277.

Bennett and Ross were almost the same size. Ross was the only one armed. He had already struck Bennett in the face with the gun. Bennett’s shoulder was dislocated. Johnson was standing between Ross and Bennett. Importantly, Ross reached around Johnson to fire the shot. His statement, “Fuck it,” as he reached around Johnson and fired the shot may be interpreted as an abandonment of any intention to resolve the dispute peacefully. We conclude that the evidence supports the finding of the trial judge.

The defendant argues alternatively that the evidence, as a matter of law, establishes that the shooting was accidental and supports a finding of involuntary manslaughter rather than second degree murder. Again we disagree with the defendant’s contention. There is more than ample evidence to support the judge’s finding. In addition to the evidence we have already discussed on the question of the sufficiency of the proof to support a finding of second degree murder, there is Ross’ statement to the police that he intended to shoot Bennett in the shoulder.

It would serve no purpose to discuss the many cases cited by the defendant and the State in support of their arguments on the question of whether the evidence supports a finding of second degree murder and whether the evidence supports a finding that the shooting was not accidental. Suffice it to say that each case must rest on its own facts. None of the cases cited by the defendant is factually controlling.

After the indictment was returned, the case was assigned to Judge John W. Crilly. The State moved for a substitution of judge from Judge Crilly pursuant to section 114 — 5(c) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 114— 5(c)). The motion was heard by Judge Robert P. Bastone, who granted the motion over the defendant’s objection. Judge Bastone then allowed the defendant’s oral motion for substitution from two other judges, and the case was assigned to Judge Thomas P. Durkin, who heard the case. The defendant now contends that Judge Bastone erred in granting the State’s motion.

In 1987 the legislature amended section 114 — 5(c) of the Code to permit the State to move for a substitution of one judge on the ground that the judge is prejudiced against the State. In People v. Williams (1988), 124 Ill. 2d 300, 529 N.E.2d 558, the supreme court upheld the constitutionality of amended section 114 — 5(c). Williams involved a single motion by the State’s Attorney against a single judge. The court explained that the substitution of judge provisions should be liberally construed, though “abuse of these statutory rights should not go unremedied.” (Williams, 124 Ill. 2d at 309.) The court explained that defendants cannot use the procedure to delay trial, and added that “the courts or the legislature will deal with [abuses by the State] when and as they arise.” Williams, 124 Ill. 2d at 309.

The statute was next considered in People ex rel. Baricevic v. Wharton (1990), 136 Ill. 2d 423, 556 N.E.2d 253. In that case, the State’s Attorney made motions to substitute against Judge Milton S. Wharton in six different cases. Judge Wharton denied the motions, citing the separation of powers doctrine; he held that he could make a “limited inquiry” into the circumstances of the motions when they were filed on a “blanket basis.” (Wharton, 136 Ill. 2d at 429.) Judge Wharton also noted that before filing the six motions, the State’s Attorney had asked the chief judge to reassign Judge Wharton. Judge Wharton knew about the State’s Attorney’s attempts because he received two memos from the chief judge explaining that the State’s Attorney “informally” requested reassignment of Judge Wharton before filing the motions and that the chief judge was reassigning Judge Wharton due to the State’s Attorney’s repeated motions for substitution.

The supreme court decided the case under its supervisory power. The court explained that the State’s right to substitute a judge, created in 1987, “is similar to the more well-established right enjoyed by defendants” and thus could be analogized to the defendants’ right. (Wharton, 136 Ill. 2d at 430, citing Williams, 124 Ill. 2d at 305.) The Wharton court affirmed the Williams holding that the statute is constitutional, but distinguished Williams, and held that if the six motions in Wharton were used to coerce the chief judge in the exercise of his assignment powers, the State’s motions violated the separation of powers doctrine. Despite the fact that it found a possible constitutional violation, the court stressed “the general rule that judges cannot inquire into the truth of allegations of prejudice in [substitution of judge] motions.” Wharton, 136 Ill. 2d at 430-31.

The supreme court established a procedure for reviewing claims that motions for substitution by the State were being used to thwart the chief judge’s authority:

“First, the trial judge must determine whether there is prima facie evidence that the motions are being used in an effort to thwart the chief judge[’s] *** independence in assigning cases * $ $ * * *
If the trial judge determines that a prima facie case does not exist, the section 114 — 5(c) motion must be granted. If a prima facie case is found to exist, a hearing shall be conducted ***.” Wharton, 136 Ill. 2d at 438-39.

The court listed several factors that a judge may consider in making the prima facie determination, such as previous conduct by the State’s Attorney toward the judge in question. (Wharton, 136 Ill. 2d at 439.) The court held that, under this test, Judge Wharton had established in each of the six cases the required prima facie evidence and remanded the case for hearings.

The defendant claims that Judge Bastone did not first make a finding about the presence of a prima facie case of abuse, and thus committed reversible error. Again we disagree with the defendant’s argument. We interpret Wharton to mean that the burden is on the defendant to at least allege facts which, if true, would require the judge to conduct a hearing. We do not interpret Wharton to mean that when a motion for a substitution of judge is made by the State, the judge must sua sponte announce the presence or absence of a prima facie case of abuse. The record in this case is bereft of any allegation or proof that the State’s single motion in this case was designed to thwart the chief judge’s powers of assignability or to delay the case. The only “evidence” before Judge Bastone was the prosecutor’s specific statement that the State’s Attorney did not intend to object to Judge Crilly in every case. Consequently, we find that Judge Bastone, on the basis of the record before him, correctly found that there was no reason to circumvent the general rule for granting substitution motions.

The defendant’s last claim is that the sentence of 10 years was excessive. He asks that we reduce the sentence to the minimum term of four years.

The defendant was 20 years old at the time of the killing. He had no previous convictions, no probation record and two previous arrests. The judge heard a victim-impact statement of Bennett’s mother. Officer Edward Haynes testified that on March 12, 1990, he observed the defendant disobey a red light; the officer stopped him to give him a ticket. He learned that Ross did not have a driver’s licence and arrested him. In the search of the car he found a fully loaded revolver under the driver’s seat. He testified that Ross cooperated fully when arrested. The record does not disclose the disposition of that case.

In mitigation, Ross submitted a report prepared by the public defender sentencing advocacy team (Team) that recommended intensive probation and restitution as a sentence for Ross. It was established that he had a job at a paint store waiting for him. The Team interviewed family and friends of both Ross and Bennett to prepare its report and stressed that Ross recognized the seriousness of his crime. In conjunction with the report, the Team submitted 18 letters of support from family, friends and Illinois Department of Corrections employees who worked with Ross during his detention before and after trial. (Ross was never released on bond.) The letters generally praised Ross’ character and stressed the closeness of Ross and Bennett and the ability of Ross to function well in society.

Nate Robinson, Shawntha Robinson’s father, testified that he was a district sales manager for Interstate Brands and was a very good friend of the personnel manager there. He explained there was a possibility he could obtain employment for Ross.

Shawntha Robinson testified that Ross’ child was eight months old and that if he was released, Ross could live with her.

Tracy Ross, the defendant’s sister, also testified and identified 13 other friends and family members who were in court to show support for Ross; they included Ross’ mother, who made the trip to Chicago from her home in Ohio.

The defendant apologized to both families involved, said that he was very sorry and stated that he “realize[d] how serious this is and everything but it wasn’t on purpose.”

The trial judge noted that he was “duty bound to consider probation as a sentence.” He stated that a “factor to be considered” was the “tremendous amount of family support on both sides.” He noted the “serious evidence regarding the defendant’s willfully arming himself with a firearm that day” and the evidence that Ross previously had possession of a gun. He noted that Ross had no previous convictions and stated that “[tjhese are always difficult cases because [he] genuinely believe[d] Mr. Ross when he grieves for his friend.” He specifically found that imprisonment was necessary to protect the public and that probation would deprecate the seriousness of the crime.

We acknowledge that the defendant has made an appealing argument in mitigation. But it is the same argument that was considered in great detail by the trial judge. A reviewing court should reduce a sentence only if a trial judge abuses his discretion. (People v. Rose (1989), 191 Ill. App. 3d 1083, 548 N.E.2d 548.) A trial court “is the better forum for establishing and imposing an appropriate sentence, [thus] a court of review gives deference to the trial court’s determination.” (People v. Ruskey (1986), 149 Ill. App. 3d 482, 494, 501 N.E.2d 146, 154.) The test on review of sentences is not what sentence the judges of the reviewing court might have imposed; the test is whether or not the trial judge abused his discretion. We cannot say that the judge in this case did abuse his discretion.

The principal case cited by the defendant, People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138, does not assist the defendant’s position. In that case the supreme court reduced a sentence because the trial judge had considered an improper factor in sentencing. There is no allegation that the trial judge in this case considered an improper factor. See People v. Rose (1989), 191 Ill. App. 3d 1083, 548 N.E.2d 548.

For all these reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

McNAMARA, P.J., and RAKOWSKI, J., concur.


author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT STONE et al., Defendants-Appellants.
    First District (2nd Division)
    Nos. 1 — 91—4112,1—91—4120 cons.
    Opinion filed March 30,1993.
    Rehearing denied May 28,1993.

      Charles E. Pinkston, of Chicago (Ronald A. Bobbitt, Burgess F. Ervin, and Milton S. Travis, Jr., of counsel), for appellants.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Laura L. Morrison, and William M. Traynor, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendants, Robert and Gloria Stone, appeal their jury convictions, seeking reversal or, alternatively, reversal and remandment for a new trial. Robert was convicted of possession with intent to deliver a controlled substance (Ill. Rev. Stat. 1989, ch. 56x/2, par. 1401 (section 401)), and possession of a controlled substance (Ill. Rev. Stat. 1989, ch. 56x/2, par. 1402 (section 402)). Gloria was convicted of possession with intent to deliver a controlled substance (section 401), and two counts of possession of a controlled substance (section 402). They raise as issues whether (1) denial of their motion to suppress evidence and quash arrest violated their constitutional rights; (2) evidence presented by the State was sufficient to convict either of them; (3) the circuit court’s reversal of its ruling granting a motion in limine violated their rights to fair trials; (4) the court’s denial of their motion for a mistrial denied their rights to fair trials; and (5) alleged cumulative errors resulted in a deprivation of their rights to fair trials.

At a hearing on defendants’ motion to quash arrest and suppress evidence, Maywood police officer Robert Novak testified that on March 19, 1990, at approximately 8:30 p.m., he received a radio report of shots fired at 2028 South 3rd Ave. from a dark-colored vehicle bearing Indiana license plates. He arrived at that location two minutes later and observed a dark blue or black Buick Riviera with Indiana license plates, numbered 98 D 9860, parked a quarter block to the south of the address given. Officer Novak pulled behind it, exited his vehicle with his weapon drawn, and observed Gloria standing at the passenger side of the vehicle. Robert, her husband, was in the driver’s seat and her brother-in-law, Dennis Stone, was seated in the backseat on the passenger side of the vehicle.

Officer Novak instructed Gloria to step to the rear of the vehicle and to place her hands on the trunk. He then instructed Dennis to exit the vehicle, come to the rear of the vehicle and place his hands on the trunk. At this point, Maywood police officer Lawrence Jackson arrived and instructed Robert to exit the vehicle, which he did. Officer Novak performed a protective pat down on Dennis, searching for weapons. He tried to take Gloria’s purse for inspection. She struggled and asked him why. He stated that it was for officer’s safety and to search for any weapons. He observed that the purse was heavy and asked what it contained. At that moment a gunshot and a woman’s scream were heard coming from 2028 South 3rd Ave. Gloria jumped up and down and told the police officers that “[tjhey’re going to try to kill her again,” referring to the “lady at 2028” South 3rd Ave.

Jackson called for police backup and proceeded toward the sound of the gunshot. Officer Novak put Gloria’s purse on the trunk lid and proceeded in his squad car to back up Jackson. As he looked back, he saw Gloria and the others walking toward a house at 2039 South 3rd Ave. Upon arrival at 2028, Officer Novak met with a “female white” named Patricia, who told him that the three individuals he was just talking with were involved in the original shooting. Officer Novak ran back to the corner, where he observed all three subjects now walking from the backyard of 2039 South 3rd Ave. toward their car. Gloria was again in possession of her purse. He asked Gloria for her purse anew. Now she was very cooperative. All three individuals put their hands on the car at his direction. Officer Novak searched the purse and recovered a small clear plastic bag containing a white powdery substance, later determined to be 1.5 grams of cocaine. Gloria was placed under arrest and sat in one of the squad cars.

Following the search of Gloria’s purse, he went to the rear patio area at 2039 South 3rd Ave. and, from underneath a bush, recovered two loaded .38 revolvers, an unloaded .32 revolver, a bag of cocaine, and a bag of cannabis. The caliber and manufacturer of the weapons matched that of the live rounds later found in the trunk of the car.

The Stone vehicle was searched for weapons or other contraband. Ten .38-caliber special rounds of ammunition were found in the armrest compartment.

The other two subjects were seated in different squad cars. Neither Robert nor Dennis was placed under arrest until later, “[u]pon the arrival of additional units,” following Officer Novak’s recovery of contraband. Officer Novak testified that any time the department gets a call of shots fired and gets a description of the vehicle or gets a call and finds narcotics, the police do a preliminary search and tow the vehicle to the station for a more thorough search of the vehicle. At the police station, to which the Stone vehicle was later removed, police recovered from the glove compartment a blue “Crown Royal” bag containing $10,420, and a clear plastic bag containing 26.2 grams of cocaine. Also, found in the trunk was a Nordek 7.62 automatic assault rifle fully loaded with 30 rounds of ammunition, an additional 18 rounds, two clips containing nine rounds each and a box of “32 special” ammunition.

On cross-examination, Officer Novak testified that he did not see any defendants engaged in illegal conduct when he first came upon them. After hearing the gunshot, he was at 2028 South 3rd Ave. for two to three minutes before returning to defendants. Officer Novak did not know Patricia’s last name and had no arrest warrant for either defendant.

Maywood police officer Harold Jenkins testified that both defendants signed written consent forms, to search the automobile, at the police station.

The circuit court denied the motion as to both defendants. Further, the court granted a defense motion in limine precluding the mentioning at trial of the items recovered from behind the house at 2039.

At trial, Officer Novak substantially tracked the same events as in his testimony given at the suppression hearing. He added that Gloria’s purse was lighter when he took it the second time; defendants lived in Indianapolis, Indiana; he never found a key to the car’s glove compartment or trunk and therefore was unable to search those areas while it was on the street; and when he first got Gloria’s purse, he thought it possibly contained a weapon.

The circuit court informed the attorneys of a note that was received from a juror which asked “[d]id anyone search the area of 2039 where Officer Novak saw the defendants come from?” The court stated that it would be necessary to reverse itself on defendants’ in limine order, recounting that defense counsel for Robert, in his opening statement and his consistent cross-examination of Officer Novak, implied that the officer never observed Robert doing anything illegal. The court stated that it would be prejudicial to defendants just to admonish the jury that there was a prior ruling finding that defendants’ arrest was legal, and would now permit the jury to learn of the additional contraband found nearby. The court admonished the jury that other witnesses in the case would testify and to wait and listen to further evidence. Officer Novak was then recalled by the State and testified as to the items found at the rear of 2039 South 3rd Ave., as earlier described.

Maywood police officer Anthony Winburn testified that on May 11, 1990, he interviewed Gloria at the Maywood police station. After being read her Miranda warnings, she told him that the 1983 Buick Riviera was a gift given to her by Robert. Gloria told him that she and Robert came to Maywood because they were cheated out of some money and they were going to get it back from a person who lived near 3rd and Fillmore. Officer Winburn added that following the giving of Miranda warnings, Robert told him that he had bought the Riviera and had given it to Gloria as a gift.

Officer Winburn testified that Gloria was present when the police officers searched the trunk and that she stated, prior to his opening of the trunk, that it contained a weapon. Found in the trunk was a box containing an AK47 assault rifle; two magazines for the rifle with 30 rounds each; three separate clips with about 10, 9 and 9 rounds, respectively; a box of .32-caliber rounds; an Indiana certificate of title for the 1983 Buick in Robert’s name; and two checks with Gloria’s name on them.

Officer Winburn added that he opened the glove compartment with Gloria present where he observed a blue velvet Seagram’s Crown Royal bag containing $10,420 as well as a clear plastic bag containing approximately 25 to 30 grams of a white powdery substance. Both defendants told Officer Winburn that the money was from a settlement. Gloria more specifically said that it belonged to her mother.

Officer Winburn testified that he received yearly narcotics training for the last 5 to 10 years from the Federal Bureau of Investigation, the Illinois State Police and the Multi-Regional Training Authority. The street value of 25 to 30 grams of cocaine was $2,500 to $8,000, when cut with Manitol. He averred that someone selling drugs would be in possession of this amount. Drug dealers typically carry a large amount of drugs, currency and weapons.

Illinois State Police Bureau of Forensic Science senior chemist Sarah Pethokoukis testified that the white substance found in Gloria’s purse weighed 1.5 grams and the substance in the glove compartment weighed 25.1 grams. Both substances tested positive for cocaine.

The parties then stipulated to the chain of custody.

Defendants’ motions for directed verdicts at the close of the State’s evidence were denied. Defendants offered no evidence. They were convicted and sentenced as first mentioned.

I

Defendants contend that the denial of their motion to suppress evidence and quash arrest violated their constitutional rights against unreasonable searches and seizures because (1) the evidence obtained from the search and seizure of Gloria’s purse should have been suppressed and her arrest quashed; (2) Robert’s arrest was improper; and (3) evidence seized from the vehicle should have been suppressed.

A

Initially, defendants argue that the search and seizure of the contents of Gloria’s purse should have been suppressed and her arrest quashed. They suggest that the officer did not believe she concealed a gun in her purse because he left the purse on the trunk, turned his back on the suspects, and uttered a simple command not to leave. They assert that nothing connected Gloria with the dispatch received of shots having been fired from a dark-colored vehicle with Indiana license plates; there was no warrant to search or seize, no consent, no proper search incident to an arrest; and there was no probable cause with exigent circumstances. Gloria’s arrest, therefore, was based upon an allegedly unlawful search and seizure and should have been quashed.

The evidence reveals, however, that Officer Novak first approached the Indiana vehicle with his gun drawn, believing that the occupants were armed and dangerous. When he struggled with Gloria over possession of her purse and then held it, the purse felt heavy. At the moment he was about to check its contents, a gunshot went off. Significantly, Gloria spontaneously told the officers “[t]hey were going to try to kill her again,” naming “the lady at 2028,” apparently having some knowledge of the previous shots fired, that a woman was involved, and where the woman would be found. When the gunshot rang out, Officer Novak put Gloria’s purse on the trunk of their automobile and told the three suspects to wait at their car. He then went to investigate the shot and, as he did so, saw the three individuals leave the car area and walk toward a house at 2039 South 3rd Ave., disregarding his instructions. After his conversation with Patricia at 2028 South 3rd Ave., who told him that the three persons he was just with were involved in the first shooting, Officer Novak ran back toward the three, who by this time were in the rear patio area of 2039. Gloria was again carrying her purse. Under this state of the record, Officer Novak clearly had probable cause to search Gloria’s purse for weapons, during which time he found the package which he suspected was cocaine. Her arrest was proper.

B

Next, defendants aver that Robert’s arrest was improper, claiming the record is devoid of any evidence suggesting that Robert was engaged in an illegal act prior to his arrest. Defendants maintain that there was no probable cause particularized as to Robert even assuming, arguendo, that probable cause existed as to Gloria. (Ybarra v. Illinois (1979), 444 U.S. 85, 62 L. Ed. 2d 238, 100 S. Ct. 338.) Defendants add that the contraband in the car’s armrest was found after Robert’s arrest and, therefore, could not be a basis for his arrest.

Here, too, the record demonstrates probable cause to arrest Robert. When first observed, he was seated in a vehicle which bore a resemblance to the police dispatch description and was in the vicinity of where the shots were reportedly fired. In addition, Patricia told Officer Novak that defendants were involved in the first shooting, which corroborated the earlier radio dispatch of shots being fired from a dark-colored vehicle bearing Indiana license plates at 2028 South 3rd Ave. This also was an additional indicia of reliability supporting Patricia’s assertion of their involvement.

A court’s finding of probable cause will not be overturned on appeal unless it is manifestly erroneous. (People v. Reynolds (1983), 94 Ill. 2d 160, 165, 445 N.E.2d 766.) Since the arrest of Robert was without a warrant, it was valid only if supported by probable cause. (People v. Montgomery (1986), 112 Ill. 2d 517, 525, 494 N.E.2d 475.) Probable cause exists if the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense. (People v. Moody (1983), 94 Ill. 2d 1, 7, 445 N.E.2d 275.) Information received by the police from third parties, such as Patricia in this case, must be justified by some indicia of reliability in order to establish probable cause. (People v. Morris (1992), 229 Ill. App. 3d 144, 158, 593 N.E.2d 932.) The central issue is not the rigid classification of the informant as an ordinary citizen or a paid informant but, rather, whether the information, taken in its totality, and interpreted not by technical legal rules but by factual and practical commonsense considerations, would lead a reasonable and prudent person to believe that the person stopped had committed an offense. (People v. Adams (1989), 131 Ill. 2d 387, 396-97, 546 N.E.2d 561.) The information received by police from the radio dispatch, reporting shots fired from a vehicle bearing a resemblance to the Stone vehicle, which was found in the vicinity of where it was reported to be, was corroborated by Patricia. The totality of these facts and circumstances alone, known to the police, supports the circuit court’s finding of probable cause to arrest Robert.

Assuming, arguendo, that the foregoing was insufficient support for probable cause, the evidence permits the inference that Robert was arrested subsequent to the first search of the vehicle. He was not placed under arrest or handcuffed, but merely complied with the police request to sit in the squad car. Robert’s and Gloria’s movement to 2039 South 3rd Ave., after being told to stay at their vehicle, and the search of the backyard produced additional evidence which added to probable cause to arrest Robert. According to Officer Novak, Robert was not arrested until the “arrival of additional units.”

C

Under the facts previously set forth, Officer Novak had the right to search the vehicle for weapons where, as here, he had reason to believe that he was dealing with armed and dangerous individuals. A search warrant need not be obtained when police have probable cause to believe that the vehicle was used in or contains evidence of a crime. (People v. Binder (1989), 180 Ill. App. 3d 624, 627, 536 N.E.2d 218.) Both defendants signed consent to search forms with respect to their vehicle, rendering legal the subsequent seizure of the contraband in the automobile trunk.

We find no error.

II

Defendants contend that the State’s evidence was insufficient to convict them of controlled substance possession with intent to deliver because the State improperly was allowed to use a police officer as its expert in establishing intent to deliver; the finding of possession with intent to deliver, therefore, was manifestly erroneous in the absence of delivery and inference of intent.

A

Officer Winburn, who received extensive training in narcotics investigations, as detailed above, estimated the street value of the subject cocaine to be between $2,500 and $8,000, depending upon whether a cutting agent would be used; that the amount of cocaine found in the Stones’ vehicle exceeded that usually possessed for personal use; that someone selling drugs would possess such an amount; and that drug dealers typically carry a large amount of drugs, currency and weapons.

Although extensive testimony by a police officer as to habits of drug sellers may cause prejudice to defendants and deprive them of fair trials (People v. Brown (1992), 232 Ill. App. 3d 885, 598 N.E.2d 948), defendants waived this argument because it was not presented in their post-trial motions. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Even in the absence of waiver, it is within the discretion of the circuit court to decide whether evidence is relevant and admissible, and its decision will not be reversed absent a clear abuse of discretion resulting in manifest prejudice to defendants. People v. Hayes (1990), 139 Ill. 2d 89, 130, 564 N.E.2d 803.

Here, unlike the police expert in Brown, Officer Winburn did not testify to such extensive “profile” evidence unrelated to the issues in the case. The testimony given by Officer Winburn more nearly approximates that given by a police expert in People v. King (1991), 218 Ill. App. 3d 248, 578 N.E.2d 217, where the court found similar evidence helpful to a jury in differentiating between narcotics users and dealers, and noted that the jury was not required to accept such testimony. Lastly, were we to find that the circuit court erred in allowing the questioned testimony, the presence of overwhelming evidence against defendants here renders any error harmless.

B

Next, defendants argue that a finding of possession with intent to deliver was manifestly erroneous because of an alleged absence of direct evidence of delivery or support for an inference of intent to deliver. Defendants insist that because they did not possess cocaine divided into packets, drug paraphernalia, cellophane for packaging, scales, mixing substances or a beeper (see People v. Crenshaw (1990), 202 Ill. App. 3d 432, 559 N.E.2d 1051), the circuit court should have ruled as a matter of law that the State failed to meet its burden of proving the offenses beyond a reasonable doubt and should have directed verdicts in their favor.

In determining whether the elements of a charged offense have been proved beyond a reasonable doubt, a reviewing court must consider record evidence in a light most favorable to the prosecution, with the objective of deciding whether any rational trier of fact could have found the essential elements of the offense to have been so proved. (People v. Cordle (1991), 210 Ill. App. 3d 740, 569 N.E.2d 209.) To support a conviction for unlawful possession of narcotics with intent to deliver, the State must establish that defendants had knowledge of the presence of narcotics, that the narcotics were in the immediate control or possession of defendants, and that defendants intended to deliver the narcotics to others. People v. Pintos (1989), 133 Ill. 2d 286, 549 N.E.2d 344.

The jury’s finding that defendants knew of the presence of narcotics in the glove compartment is supported by the evidence. Officer Winburn testified that Gloria told him she and Robert came to Maywood because they were cheated out of money by someone who lived near 3rd Ave. and Fillmore. Officer Winburn found the cocaine and money in a bag in the glove compartment of the car. Both defendants told him that the money was from a “settlement” of some sort. It is highly improbable that both defendants knew about the settlement money found in the same container as the cocaine, but knew nothing about the cocaine itself.

The evidence shows further that both defendants controlled the vehicle. Officer Novak observed Robert sitting in the driver’s seat. Defendants were married and lived together. Gloria told Officer Win-bum the car was given to her as a gift from Robert. Robert told Officer Winburn that he gave the car to Gloria. Gloria told Officer Win-burn, prior to opening the trunk, that a weapon would be found in the vehicle’s trank. The certificate of title for the car was in Robert’s name. Two checks with Gloria’s name on them were found in the car. Based upon these facts, the triers of fact properly could have found that both defendants jointly controlled the vehicle at the time of the stop.

Where, as here, it is shown that defendants controlled the contraband, this fact, in and of itself, gives rise to an inference of knowledge and possession by them which is sufficient to sustain a conviction for unlawful possession of cocaine, absent other facts and circumstances which might leave in the mind of the jury a reasonable doubt as to defendants’ guilt. (People v. Nettles (1961), 23 Ill. 2d 306, 178 N.E.2d 361.) Further, the amount of cocaine found in the vehicle under defendants’ control reasonably could have given rise to an inference that such a quantity was in excess of that usually held for personal use. (People v. Schaefer (1985), 133 Ill. App. 3d 697, 702, 479 N.E.2d 428.) There was no error.

Ill

Defendants assert that the circuit court’s reversal of its ruling granting a motion in limine, prohibiting the introduction of certain evidence allegedly discovered behind a house near where defendants were seen walking, violated defendants’ rights to fair trials.

As previously set forth, before trial, defendants made a motion in limine asking that the State be prohibited from introducing evidence pertaining to items allegedly recovered from under a bush at the rear of 2039 South 3rd Ave., from which defendants were seen walking. The court initially granted the motion, but reversed itself following the testimony of the first witness and after a juror sent a note to the court asking whether the area behind 2039 South 3rd Ave. was ever searched by police. Based upon defense counsel’s implication to the jury, that the police arrested Robert without observing any criminal activity, the court reversed itself as to the motion in limine in order to avoid a mistrial and because defendants themselves brought out the necessity for such evidence.

A ruling on a motion in limine is interlocutory in nature and may be reconsidered throughout the trial as the evidence progressively becomes more developed. (Marshall v. Osborn (1991), 213 Ill. App. 3d 134, 571 N.E.2d 492.) Defendants maintain that the reversal of the motion in limine here was problematic, however, in that it was based on the court’s mistaken belief that the contraband found behind 2039 South 3rd Ave. was the basis for Robert’s arrest. Further, defendants aver, by allowing in the evidence concerning items that were allegedly recovered from 2039 South 3rd Ave., they were subjected to evidence of other crimes, which had a prejudicial effect on the jury. Defendants urge that the items found were irrelevant to the issues in this case.

The questioned evidence consisted of three revolvers, of which one was partially loaded with ammunition similar to that found in defendants’ auto, as well as suspect cocaine and suspect cannabis; it was clearly relevant to the case. The evidence was found in the vicinity of where Robert, Gloria and Dennis Stone were seen walking after disobeying Officer Novak’s order to remain with their car. The fact that an additional quantity of similar drugs, weapons, and ammunition was recovered from that area tended to make the existence of defendants’ knowledge of the contraband in their vehicle more probable than it would be without the evidence.

The admissibility of evidence at trial is a matter within the sound discretion of the trial court, and that court’s discretion may not be overturned on appeal absent a clear abuse of discretion. (People v. Rigen (1991), 145 Ill. 2d 353, 364, 583 N.E.2d 515.) There was no such abuse here.

IV

Defendants contend that the circuit court’s denial of their motion for a mistrial, which was based on possible jury contamination and the alleged introduction of irrelevant testimony, denied their right to a fair trial.

Defendants maintain that a mistrial should have been ordered in light of the court’s expressed consideration as to whether the testifying officer would be considered incompetent, inexperienced or otherwise “dumb” in the eyes of the jurors without testimony as to what was found at 2039 South 3rd Ave. The decision whether to grant a mistrial is within the broad discretion of the circuit court (People v. Robinson (1984), 121 Ill. App. 3d 1003, 1014, 460 N.E.2d 392), and its determination will not be reversed unless it appears that there was a manifest necessity for the mistrial or that the ends of justice would be defeated by continuing with the trial. (Robinson, 121 Ill. App. 3d at 1014-15.) Such reasons are absent in this case.

V

Defendants argue that the cumulative errors in law and fact committed by the court resulted in a deprivation of defendants’ right to a fair trial. We have reviewed the errors assertedly committed and find that they are without merit.

For the reasons stated, there are no bases upon which to disturb the jury’s verdict in this case, which we must affirm.

Affirmed.

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