author: JUSTICE HARTMAN

text:
      In re PETITION TO DISSOLVE AND DISCONTINUE THE NILES PARK DISTRICT ([Petitioners] In re Petition to Dissolve and Discontinue the Niles Park District and Have its Property and Functions Vest in and be Controlled by the Village of Niles, Petitioners-Appellees, v. The Niles Park District et al., Objectors-Appellants).

    First District (2nd Division)
    No. 1—92—2971
    Opinion filed February 23, 1993.
    Rehearing denied April 29, 1993.

      Michael E. Lavelle, of Oak Park, and Gabriel S. Berrafato, of Morton Grove, for appellants.
    Kolpak & Lerner, of Niles (Jeffrey M. Lerner and Paul A. Kolpak, of counsel), for appellees.

      The caption has been amended to reflect the positions of the parties on appeal.

   JUSTICE HARTMAN

delivered the opinion of the court:

Objectors-appellants Niles Park District, Carol Panek, Marlene Bozek, James Pierski and Bud Skaja (objectors) appeal from a circuit court judgment that certified a referendum which called for the dissolution of the Niles Park District (park district) and for its assets to be vested in the Village of Niles (Niles). The referendum was presented to the electorate during the November 3, 1992, election, on which it voted affirmatively. On review, the issues presented include whether the circuit court erred in certifying the referendum, because the petition failed to meet statutory prerequisites, and whether petitioners failed to publish the proper notice of intent, thereby rendering the petition void for that reason as well. For reasons which follow, we affirm in part and reverse and remand in part.

On July 1, 1992, 276 legal voters residing within the park district filed a petition in the circuit court of Cook County seeking certification of a referendum to decide whether the park district should be dissolved and its property vested in Niles. The question was presented in the following form:

“SHALL THE NILES PARK DISTRICT WHICH IS SITUATED WHOLLY WITHIN THE CORPORATE LIMITS OF THE VILLAGE OF NILES BE DISSOLVED PURSUANT TO THE PROVISIONS OF ILLINOIS REVISED STATUTES, 1989, CHAPTER 105, SECTION 13-8 AND ALL PARKS AND ALL OTHER PROPERTY OWNED OR CONTROLLED BY THE NILES PARK DISTRICT VEST IN AND BE CONTROLLED BY THE VILLAGE OF NILES?”

The petition was filed pursuant to section 13 — 8 and, by reference, section 2 — 1 et seq. of the Park District Code (Ill. Rev. Stat. 1991, ch. 105, pars. 13—8, 2—1 et seq.) (Park District Code). Attached to the petition was a map, admittedly copied from a street guide, endeavoring to describe the territory involved. Pursuant to section 28 — 2(g) of the Election Code (Ill. Rev. Stat. 1991, ch. 46, par. 28—2(g)) (Election Code), petitioners also filed an affidavit of notice of intent to petition and an affidavit of publication.

The circuit court set a public hearing for August 31, 1992, to identify any impediments preventing the referendum from being placed on the November 1992 ballot. On July 24 and August 13 of 1992, verified objections were filed and the objectors moved to strike and dismiss the petition pursuant to section 2 — 619 of the Civil Practice Law (Ill. Rev. Stat. 1991, ch. 110, par. 2—619). Objectors challenged the petition’s validity on 12 grounds, five of which are relevant to this appeal: (1) the petition should have been brought pursuant to section 13—1 of the Park District Code, which requires the signatures of at least 20% of the district’s legal voters, rather than section 2 — 2, which requires only 100 of such signatures; (2) the public question presented did not meet the requirements of section 13 — 2 of the Park District Code; (3) the signed petition failed to clearly define the park district territory involved, as required by section 2 — 2 of the Park District Code; (4) the petition did not contain a plat survey as required by section 2 — 3 of the Park District Code; and (5) petitioners failed to publish the proper notice of intent, thereby rendering the petition void.

After the hearing, the circuit court overruled all objections, finding that petitioners “properly alleged the requisite elements required by section 13 — 8,” and that petitioners served the proper notice. Consequently, the court ordered the referendum certified for the November 3, 1992, election. The election took place and the voters voted “yes” to the above-quoted question. This appeal seeks to overturn that result.

I

Objectors’ principal contention is that the circuit court erred in finding that the petition met the requirements of the Park District Code and the Election Code, and, therefore, in certifying the referendum.

Petitioners and objectors agree that the Park District Code applies. (Ill. Rev. Stat. 1991, ch. 105, par. 1—1 et seq.) They further agree that section 13 — 8 of the Park District Code provides a method of dissolution applicable to a park district that is situated entirely within the corporate limits of a village, in part as follows:

“In addition to the method of dissolution provided in other sections of this Article, any park district situated wholly within the corporate limits of a city, village or incorporated town (hereinafter called a ‘municipality’) may be dissolved and discontinued with the consent of a majority of the legal voters of both the park district and the municipality concerned. The vote of the people of the park district and of the municipality may be had upon like petition, proceedings and referendum as is provided in this Act for the organization of park districts.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 105, par. 13—8.)

One dispute centers upon the above-emphasized sentence. Petitioners maintain that this sentence allows the park district to be dissolved according to sections 2 — 2 and 2 — 3 of the Park District Code, sections that generally provide for the formation of park districts (Ill. Rev. Stat. 1991, ch. 105, pars. 2—2, 2—3). If the substantive provisions of these sections apply, the petition to dissolve the park district need only have been filed by at least 100 legal voter-residents, must have contained a plat survey of the legal boundaries to identify the territory involved, and must have been accompanied by an affidavit of notice of intent to petition and an affidavit of publication. Ill. Rev. Stat. 1991, ch. 105, pars. 2—2, 2—3.

Objectors contend that the emphasized sentence does not control the number of legal voters required to bring the petition. They argue that the plain meanings of the words “like petition,” “proceedings,” and “referendum” in section 13 — 8 do not relate to the number of legal voters required to bring the petition, but refer only to the required form.

In construing a statute, courts assume that words have their ordinary and popularly understood meanings, absent statutory definitions indicating otherwise. (Farrand Coal Co. v. Halpin (1957), 10 Ill. 2d 507, 510, 140 N.E.2d 698.) When statutory language is clear and unambiguous, a court’s only function is to enforce the law as enacted by the legislature. (Price v. State Farm Mutual Automobile Insurance Co. (1983), 116 Ill. App. 3d 463, 470, 452 N.E.2d 49.) In construing statutory provisions, legislative intent must be ascertained and given effect by examining the entire statute and determining the objectives the statute sought to accomplish and the evils it sought to remedy. (City of Springfield v. Board of Election Commissioners (1985), 105 Ill. 2d 336, 340-41, 473 N.E.2d 1313.) Where a statutory proceeding is involved, as here, “every step provided for *** must be strictly complied with subject to such qualifications as may be contained within the act *** [and] [f]ailure to comply with them cannot be excused.” City of Mattoon v. Stump (1953), 414 Ill. 319, 325-26, 111 N.E.2d 551.

A

Dissolutions of park districts are governed by provisions set forth in article 13 of the Park District Code. Ill. Rev. Stat. 1991, ch. 105, pars. 13—1 through 13—9e.

Objectors argue that section 13 — 1 of the Park District Code controls the number of legal voter-residents required to bring the dissolution petition, which provides that a “park district may be dissolved” when “not less than 20% of the legal voters of the district” bring the petition. (Ill. Rev. Stat. 1991, ch. 105, par. 13—1 (section 13—1).) Consequently, objectors argue, approximately 2,744 voter-residents were required to bring the petition, not the 276 voter-residents who did so.

Petitioners do not dispute that a park district may be dissolved pursuant to section 13 — 1, but contend that section 13 — 1 is not mandatory and that section 2 — 2, to which section 13 — 8 makes reference, provides an additional method for the dissolution of park districts if they are wholly contained within a single municipality. Section 2 — 2 requires the signatures of only 100 legal voter-residents, a requirement the petition at issue met with 276 signatures. (Ill. Rev. Stat. 1991, ch. 105, par. 2—2 (section 2—2).) Although petitioners concede that section 2 — 2 generally provides for the formation of park districts, they contend that section 13 — 8 allows section 2 — 2 to be used for the dissolution of a park district that is wholly contained within a municipality. We agree.

By its express language, section 13 — 8 of the Park District Code allows two different methods of dissolution to be followed. The two methods authorized are either (1) a petition addressed to the board of the park district prescribed in section 13 — 1, in which case “not less than 20% of the legal voters of the district” may “petition the board of the park district for submission of the question” to be certified “to the proper election officials for submission to the legal voters of the district,” with other proceedings prescribed; or (2) “like petition, proceedings and referendum as is provided *** for the organization of park districts,” namely, section 2 — 2, which permits “not less than 100 legal voters resident within the limits of such *** district” to “petition the circuit judge [rather than the board of the park district] *** to cause the question to be submitted to the legal voters of *** [the] district.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 105, pars. 2—2, 13—1, 13—8.) The petition here was filed in the circuit court, not before the board of the park district. Under this method, the number of signatures filed met the requirements of sections 13 — 8 and 2 — 2 of the Park District Code.

The circuit court here correctly ruled that the number of signatures on the instant petition satisfied one of the methods authorized by statute.

B

Objectors next argue that the form of the public question utilized here failed to meet the requirements of section 13—2 of the Park District Code. Ill. Rev. Stat. 1991, ch. 105, par. 13—2 (section 13—2).

Both parties agree that section 13 — 2 is applicable. That section provides that the form of the proposition put to the voters “shall

read substantially as follows: Shall the park district known as........be

dissolved?”

In the present case, the public question approved by the court instead read:

“SHALL THE NILES PARK DISTRICT WHICH IS SITUATED WHOLLY WITHIN THE CORPORATE LIMITS OF THE VILLAGE OF NILES BE DISSOLVED PURSUANT TO THE PROVISIONS OF ILLINOIS REVISED STATUTES, 1989, CHAPTER 105, SECTION 13-8 AND ALL PARKS AND ALL OTHER PROPERTY OWNED OR CONTROLLED BY THE NILES PARK DISTRICT VEST IN AND BE CONTROLLED BY THE VILLAGE OF NILES?”

Where the statute requires simplicity, petitioners chose to add language which raises questions that may have been confusing and not germane to the issue. For example, what “other property” is “owned” by the Niles Park District, and what “other property” is “controlled” by it. In addition, although the caption of the lawsuit indicates that the park district’s “functions” (emphasis added) are intended to vest in Niles, neither the petitions themselves nor the proposition put to public vote contained that language and some members of the electorate well may be surprised to learn that the parks were intended to continue their functions under different management.

The public question contained in the statute should have been limited substantially to the form set forth in section 13 — 2. Although standing alone the question as to form would not be deemed sufficient upon which to base reversal, upon the recurrence of the need for such a proposition the statutory form should be followed.

C

Objectors further contend that the signed petition does not define clearly the territory within the park district as required by sections 2 — 2 and 2 — 3 of the Park District Code (Ill. Rev. Stat. 1991, ch. 105, pars. 2—2, 2—3 (section 2—2 or 2—3)), and claim the petition did not contain any definition of territory whatsoever.

Section 2 — 2 provides that the petition “shall clearly define the territory intended to be embraced in such district and the name of such proposed district.” (Ill. Rev. Stat. 1991, ch. 105, par. 2 — 2.) Section 2 — 3 requires “a plat survey of the legal boundaries of the proposed district.” Ill. Rev. Stat. 1991, ch. 105, par. 2 — 3.

Petitioners urge that the petition was sufficient because it stated that the park district is wholly contained within Niles; that section 2— 2 does not require a metes and bounds description; and that the park district involved in this case consisted of miles and miles of land and would be difficult to identify.

The instant petition contained the following language:

“4. That the Park District has as its boundaries, territory which is situated entirely and wholly within the corporate limits of Niles but said Park District boundaries are less than the entire corporate boundaries of Niles.
5. That Niles contains territory within its corporate boundaries which is not a part of the Park District, but no other general park district is located wholly within the corporate boundaries of Niles.”

Further, it stated that the “legal boundaries of both the Park District and Niles are shown on the map” attached as an exhibit.

An examination of the street guide map attached to the petition reveals an area copied onto SVz x 11 paper with largely unintelligible street names and obscure peripheral block numbers. It contains a legend of “other installations” under which are listed some 20 separate parks. The key numbers opposite these parks cannot be located correspondingly on the map. Some parks listed show the names of other municipalities with no explanation; in fact, many of these parks belong to other park districts. Further, nowhere on this street guide map is the Niles Park District mentioned, despite the petition’s assertion to the contrary. An ordinary citizen cannot be expected to be equipped with his or her own clear map, or magnification paraphernalia, and a list of which parks within Niles are included and which parks are excluded from the Niles Park District. Although municipal boundary descriptions are not construed with the same strictness as required for deeds and contracts where the petition and map fairly apprise voters, of the property involved (People ex rel. Village of Worth v. Ihde (1961), 23 Ill. 2d 63, 66, 177 N.E.2d 313), an obscure map and ambiguous petition language, as are involved in this case, do not meet even the relaxed standard suggested by Ihde.

One objector noted that some 19% of Niles residential units are situated outside the Niles Park District boundaries but within Niles. Residents of these units pay taxes as constituents of those other park districts within Niles. Such residents would be subject to double taxation, first for the parks that Niles would absorb, and second for other park districts within Niles, but not involved in the dissolution, for which they would be taxed again. They claim that they were entitled to more effective notice than that afforded here. We agree.

The street guide map utilized in this case hardly qualifies as a clear definition of territory prescribed in section 2 — 2, legal boundaries, or a plat survey mentioned in section 2 — 3 of the Park District Code. The circuit court’s holding that the territorial description contained in the petition was sufficient because it gave adequate notice was in error and must be reversed.

II

As their final argument, objectors maintain that petitioners failed to publish the proper notice of intent as required by section 28—2(g) of the Election Code (Ill. Rev. Stat. 1991, ch. 46, par. 28—2(g) (section 28—2(g))), because it does not contain a proper description of the territory comprising the district.

Objectors and petitioners agree that section 28—2(g) of the Election Code is applicable through section 2—2 of the Park District Code. Section 28—2(g) of the Election Code provides: “The territory proposed to comprise the new......... is described as follows: (description of territory included in petition).” Further, the “[fjailure to file such affidavit, or failure to publish the required notice with the correct information contained therein shall render the petition, and any referendum held pursuant to such petition, null and void.” (Ill. Rev. Stat. 1991, ch. 46, par. 28—2(g).) A similar provision, that failure to comply with a mandatory requirement of a statute renders the procedure it is related to void, was upheld in Hester v. Kamykowski (1958), 13 Ill. 2d 481, 484-85, 488, 150 N.E.2d 196.

The foregoing argument repeats and parallels the previous arguments set forth above. We have held earlier in this opinion that the petition for dissolution did not clearly define the territory subject to dissolution. Since proper notice of intent requires a sufficient description of the territory involved, absent here, the notice of intent fails as well.

Municipal entities are creatures of the legislature and, as such, every step prescribed by statute with respect to their formation, existence and dissolution must be followed; failure to do so constitutes reversible error. (City of Mattoon v. Stump (1953), 414 Ill. 319, 325-26, Ill N.E.2d 551; see People ex rel. Village of Lake Bluff v. City of North Chicago (1992), 224 Ill. App. 3d 866, 871, 586 N.E.2d 802.) A proceeding under the Park District Code must follow the statutes which control the action; failure to require such compliance, as here, constitutes reversible error.

For the reasons aforesaid, this cause is affirmed in part, reversed in part and remanded for proceedings in consonance with this opinion.

Affirmed in part; reversed in part and remanded.

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

      A direct appeal was denied by the supreme court. (134 Ill. 2d R. 302(b).) Objectors filed a motion to have an expedited appellate decision rendered in this case just before the election, to which petitioners objected on the ground that citizens of Niles should be allowed to “obtain a return on the ‘fruits of their labor,’ ” in expending “untold sums of money and hours of volunteer time” by both sides. This court elected to allow the referendum to go forward.

      Neither party challenges the constitutionality of any statute involved in this controversy.


source: Caselaw Access Project

author: PRESIDING JUSTICE McNAMARA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID RAMIREZ, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—2275
    Opinion filed March 12, 1993.
    Rehearing denied April 22, 1993.

      Sam Adam, of Chicago, for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Theodore F. Burtzos, and John R. Roe, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Following a jury trial, defendant, David Ramirez, was convicted of possession of a controlled substance with intent to deliver (III. Rev. Stat. 1989, ch. 5Qxl2, par. 1402(a)(2)(C)), and was sentenced to a term of 35 years’ imprisonment. Defendant appeals, contending that: (1) the police officers approached him without probable cause, and that the package containing cocaine that he dropped as he fled from the police should not have been admitted into evidence; (2) defendant’s post-arrest statements were inadmissible because they were made during the course of plea negotiations; (3) the court improperly admitted evidence relating to an anonymous tip that drugs were being sold; (4) the court’s refusal to rule on codefendants’ motion for a directed verdict until the end of trial deprived defendant of two witnesses in his behalf; (5) defendant’s cross-examination of a key witness for the State was unduly restricted; and (6) the court’s procedure for permitting the direct examination of codefendants’ witnesses for the State to occur in the presence of the jury, but the cross-examination by co-defendant’s counsel in its absence, denied defendant’s right to confrontation and a fair trial.

At the evidentiary hearing on defendant’s motion to suppress, defendant testified that on September 22, 1989, he was employed at a car wash located at 3630 West Diversey in Chicago. During the early afternoon hours, defendant received a telephone call from his sister, Carmen Vega, asking him to look for some car keys located inside a desk in the office of the car wash. The car, a red Ford Escort, belonged to defendant’s father.

Defendant asked one of the car wash customers, codefendant Luis Rosado, to drive him to his sister’s house to deliver the car keys. Rosado, driving a black Toyota, dropped defendant off at the intersection of Lavergne and Fullerton Avenues in Chicago. As defendant crossed the street, a car approached him. Two undercover police officers jumped out of the car, grabbed defendant, and began searching him. The men had no warrant for defendant’s arrest.

The officers asked defendant where he was going. He replied that he was delivering the car keys to his sister who lived across the street. Defendant showed the keys to the police officers and told them that the car belonged to his father. The officers grabbed the keys out of his hand and placed defendant inside the undercover car. They asked defendant where his father’s car was located. After defendant pointed to his father’s car, the officers searched it and pulled out some boxes. Defendant was unaware of the content of the boxes, as he had not used the car within the past 30 days. The police recovered $50 from defendant, but no narcotics. When defendant arrived in court the following day, he learned that the officers had found drugs in the car. On cross-examination, defendant denied knowing codefendant Melvin Monroig or speaking with him on a mobile telephone on the afternoon of the occurrence. Defendant further testified that he entered Rosado’s car inside the car wash after it had been washed. Defendant denied entering the Ford Escort after he got out of Rosa-do’s car or that he took something from it. Defendant also denied getting out of the car and walking down the street carrying a package when the police stopped him, running away from the police, or hiding behind a tree after he got out of Rosado’s car.

Officer Eugene Roy testified at the hearing that he saw Monroig on September 22, 1989, and that he effectuated his arrest later that day. Roy indicated that he was working with his partner, Matthew Plonavich, and that at approximately 10 a.m., they received information that drugs were being sold at a car wash located at 3630 West Diversey. Lookouts were staked at the front and rear of the building. Plonavich and Roy instituted a surveillance and saw Monroig talking on a cellular telephone. As Monroig spoke, he looked up and down the street. Defendant approached Monroig, and they had a short conversation. Both men then entered a white Suzuki jeep driven by Monroig. The men drove one-half block to Lawndale, and then south approximately one block. Defendant got out of Monroig’s car and entered the passenger side of a black Toyota driven by Rosado. Both cars then proceeded a short distance to the intersection of Fullerton and Lavergne, where Monroig parked his vehicle. The car driven by Rosado continued to the corner of Belden and Lavergne, where defendant exited the automobile. Defendant began walking northbound on the sidewalk on the east side of Lavergne. At one point, defendant stood behind a tree and looked in the direction where Rosado’s vehicle had driven off.

Defendant proceeded northbound to the corner of Medill and Lavergne. Plonavich was following defendant, who was not carrying anything at the time he got out of Rosado’s car. Defendant then entered an unoccupied Ford Escort. Defendant drove to the corner of Medill and Lavergne, turned left onto Lavergne, and drove one-half block south, turned left again, and proceeded very slowly eastbound on Belden as both officers followed in their vehicles. After defendant stopped the Ford, he sat in the vehicle and looked in the rear view mirror a number of times. Defendant leaned down toward the passenger seat and emerged from the vehicle carrying a brown paper bag underneath his left arm.

Defendant crossed the street and began walking eastbound on the sidewalk. The officers approached defendant, displayed their stars, and identified themselves as police officers. They also stated words to the effect of “stop, halt, don’t go any further [sic].” Defendant dropped the brown paper bag he was carrying and began to run. Plonavich chased defendant for approximately 25 feet before he apprehended him. Meanwhile, Roy retrieved the bag which defendant had dropped and examined its contents. Roy found a package wrapped in brownish plastic tape which contained a rock-like substance which appeared to be cocaine.

Defendant indicated his understanding of his Miranda rights. He stated that he wished to speak to the officers and told them that the brown package was to to be delivered at the corner of Lavergne and Fullerton to Monroig. Roy seized the Ford Escort and conducted a search of the vehicle. Underneath the right front passenger seat, Roy found another plastic tape-wrapped package similar to the one he had recovered from defendant. Inside the trunk, Roy discovered a cardboard box containing six other similar packages containing bricks of cocaine. Thereafter, Plonavich and Roy decided to drive to Lavergne and Fullerton to see if Monroig and Rosado were waiting. Roy observed Monroig walking towards his vehicle and placed him under arrest. The officers found two cellular telephones underneath the passenger seat of his car. Rosado was observed leaving the area at a low to normal rate of speed. (Rosado was not arrested until October 26, 1989, one month after this incident occurred.) The officers drove defendant to the police station and again apprised him of his Miranda rights.

On redirect examination, Roy testified that he did not know the identity of the informant who told him that drugs were being sold, nor had he spoken to him on previous occasions. In sum, the information Roy received about the alleged drug sales was from the informant and his observation that some individuals were standing outside the car wash that might have been involved in narcotics trafficking. Roy had no specific information concerning the vehicles allegedly involved in the drug transactions.

After considering the total evidence in this case, including the informant’s telephone call, the surveillance of the car wash and subsequent trailing of defendant, and defendant’s conduct in dropping the package and attempting to flee, the judge determined that probable cause existed for his arrest. The judge also concluded that the statements made by defendant occurred after Miranda warnings were given. Defendant’s motion to quash arrest and suppress statements was denied.

Monroig, Rosado, and defendant were tried simultaneously. Monroig and Rosado requested a bench trial, and defendant chose a jury trial. Officer Roy of the Chicago police department testified that on September 22, 1989, he was assigned to the asset forfeiture unit of the organized crime division, and that he was working with Plonavich. His testimony at trial was substantially the same as he had given at the hearing on the motion to quash arrest and suppress evidence.

At the police station, defendant was advised of his rights. Defendant indicated that he wished to speak with the officers. He told the officers that they did not understand the way the deal was structured; that he was merely a runner; that Rosado was the connection to the source of the drugs; and that he was to deliver the drugs to Monroig. Defendant further stated that Rosado was the biggest dope dealer that he knew in Chicago and that he maintained a number of garages in the area where he kept drugs and money. Prior to this incident, defendant saw a gym bag containing several hundred thousand dollars in Rosado’s car. Defendant admitted that he knew that there was a kilo of drugs underneath the passenger seat, but that he was unaware of the packages of drugs in the trunk. Defendant further stated that he believed Rosado had informed the police about his participation in the drug transaction because he was jealous and feared that defendant would take his drug customers away from him.

Defendant further stated that he did not keep drugs at the car wash because he was aware that his property could be seized; however, he used the telephones located in the car wash, and at various times different drug dealers would visit him there. Defendant stated that he had $9,000 in cash at home that he would be willing to post as bond. He also stated that he would be willing to cooperate with the police and help find the locations of the garages where Rosado was hiding guns and money. Defendant indicated that his willingness to cooperate with the police was driven by his fear of incarceration, for as a result of his previous gang affiliations, certain gang members held a grudge against him and had issued a contract for his life.

On cross-examination, Roy testified that he did not know the identity of the person making the anonymous phone call, that the caller refused to meet with him, and that no notes were made of the conversation. Roy did not make a report of the conversation he had with defendant for 34 days after the arrest, and he destroyed the notes he made of that conversation. (Later in the proceedings, Roy stated on redirect examination that he did not make a report of the conversation with defendant for more than a month because he wanted to avoid the possibility of information being passed to Rosado.) Roy told defendant that any cooperation he chose to offer the police would be reported to the State’s Attorney’s office for consideration, but that he could not make any promises of favorable treatment to him.

At the conclusion of the cross-examination by defendant’s attorney, the court excused the jury in order to conduct cross-examination by the codefendants’ attorneys at their respective bench trials. Defendant objected, contending that it was basically an unfair procedure to permit the State to present its direct examination of all witnesses in the presence of the jury, but not the cross-examination. Defendant’s request that the jury be present for the cross-examination was denied.

During cross-examination, which was conducted outside the presence of the jury, Roy stated that he and two other officers effectuated Rosado’s arrest on October 26, 1989. As the officers approached Rosado prior to his arrest, he told them that he knew their identity, and that they had been looking for him; however, he had been lying low.

Plonavich also testified for the State to essentially the same sequence of events as stated by Roy. Over defense objection, Plonavich testified that Roy told him that he received an anonymous telephone call informing him that drugs were being sold at the car wash, that male Hispanics were involved and possibly lookouts.

Cotelia Fulcher, a narcotics analyst with the Chicago police department, testified on behalf of the State that she analyzed the substances recovered by Officers Roy and Plonavich. The substances recovered underneath the passenger seat and in the trunk of the car consisted of approximately 8,000 grams, with a purity of 96.4%.

Kevin Kusiak, keeper of records for Cellular One, also testified for the State. The type of information found in the records consists of the subscriber’s telephone number, name, address, billing address and information regarding local and long distance records. Kusiak’s testimony concerned a match call register for Monroig which covered the period from August 8 through October 8, 1989; however, the last entry made was on September 22, 1989. Five calls, each lasting approximately one minute, were made during the early afternoon hours of September 22, 1989. The judge denied defendant’s motion to strike Kusiak’s testimony on the grounds that it did not pertain to him, and also refused to allow the jury to be present during Kusiak’s cross-examination.

Larry Renfro, manager of security for Illinois Bell, also testified for the State. Renfro testified about the information contained in the billing records of Illinois Bell, which included the subscriber’s telephone number, name, address, listed and billing address, credit information, and long distance and local call details. He identified the State’s exhibit of a multipage document of a bill which included the period between September 19 and October 18, 1989. The subscriber of the bill at issue was identified as Maribell Rosado, and the telephone number was among the calls made by Monroig’s mobile telephone during the early afternoon hours of September 22, 1989. The judge also denied defendant’s request to strike Renfro’s testimony.

Over defense objection, Armando Ramirez of the Chicago police department, organized crime division, testified for the State. Based upon his experience and training, Ramirez estimated the street value of the cocaine seized in this case to be $1,889,203.

At the close of the State’s case in chief, the judge denied defendant’s motion for a directed verdict. Monroig and Rosado also moved for a directed verdict; however, the judge withheld his ruling as to those defendants. Although defendant requested that the court rule on the codefendants’ motion because he “may want to call them as our [sic] witnesses,” the judge denied his request.

Carmen Vega, defendant’s sister, testified that she called defendant around 12:30 p.m. and asked him to bring the spare car keys to the Ford Escort. She had allowed her boyfriend to use the car the previous evening. On cross-examination, Vega stated that she became aware that her brother had been arrested for having drugs in the car, but that she never informed the police that her former boyfriend had used the car the previous night.

Defendant testified that he is the manager of the car wash located at 3630 West Diversey which is owned by his father. On the afternoon of September 22, 1989, defendant’s wife was using his car. In the early afternoon hours, defendant received a telephone call from his sister asking him to bring her an extra set of car keys located in the desk of the office. Defendant asked a customer, whom he knew only on a casual basis as Luis, to drive him to his sister’s house. Defendant denied knowing Monroig at that time. Rosado dropped defendant off at the intersection of Lavergne and Fullerton. As previously testified to in the motion to suppress, two officers apprehended him as he crossed the street and began searching him. After the officers found the car keys, defendant told them they belonged to a Ford Escort owned by his father. The officers placed defendant inside their car, and he pointed to the location of his father’s car. The officers searched the car and found the drugs.

Defendant denied ever driving the car on the day of the occurrence, or that he had driven it during the preceding month. Defendant denied telling the officers that he was going to deliver a package to Monroig or that he could not serve time in jail because of his prior gang affiliations. Defendant also denied having any conversation with the police regarding favorable treatment in return for his testimony.

In rebuttal, Claude Page, subpoena coordinator and keeper of records for Ameritech Mobile Phone, testified that one of the mobile telephones recovered from under the passenger seat of Monroig’s vehicle was subscribed to by defendant’s father.

After the jury retired to deliberate, the court entered directed findings of not guilty for Monroig and Rosado. Defendant was convicted of possession of a controlled substance with intent to deliver.

On appeal, defendant first asserts that when the police officers approached him without probable cause, announced their authority, and directed him to halt, the arrest of defendant was effectuated. The subsequent dropping of the package was not an abandonment. Therefore, the seizure of the bag and inspection of the contents violated defendant’s fourth amendment rights.

The State contends that the arrest of defendant did not occur until he was taken into custody by the police, and that his dropping the bag on the ground as he began to flee from the police was an abandonment. As support for its position, the State relies upon California v. Hodari D. (1991), 499 U.S. 621, 113 L. Ed. 2d 690, 111 S. Ct. 1547, wherein the United States Supreme Court analyzed factual circumstances similar to those presented in this case. In Hodari, police officers were on patrol in an unmarked car in a high-crime area when they observed several youths, including defendant, huddled around a car parked at a curb. At the sight of the officers’ car, the youths apparently panicked and fled. One of the officers left the car and began pursuing defendant. Once defendant realized that the police officer was in close proximity, he tossed away what appeared to be a small rock, which was later found to be crack cocaine. Immediately thereafter, the officer tackled the defendant and handcuffed him.

In its decision, the Court addressed the narrow question of whether, with respect to a show of authority as with respect to application of physical force, a seizure occurs even though the subject does not yield. The Court held that it does not. Even assuming that the officer’s pursuit of the accused had not been based on reasonable suspicion, the cocaine discarded by defendant was not the fruit of a “seizure” of his person within the meaning of the fourth amendment. An arrest — the quintessential seizure of the person under the fourth amendment — requires either: (a) the application of physical force with lawful authority, or (b) submission to the assertion of authority. In Hodari, the defendant had not been touched by the officer at the time he discarded the cocaine. Assuming, arguendo, that the officer’s pursuit of the defendant constituted a show of authority enjoining him to halt, he failed to comply with that injunction and therefore was not seized until the officer tackled him. The cocaine abandoned while defendant was running was not the fruit of a seizure, and his motion to exclude evidence of it was properly denied.

Application of the rationale employed by the Court in Hodari to the present case leads to the conclusion that defendant’s fourth amendment rights were not violated, and the bag was properly seized and searched as abandoned property. Officer Roy testified that after defendant emerged from the Ford Escort, he was carrying a brown paper bag underneath his left arm. The officers approached defendant, displayed their police badges, and identified themselves as police officers. They also stated words to the effect of “stop, halt, don’t go any further [sic].” At that point, defendant dropped the brown paper bag he was carrying and began to run. Plonavich chased defendant for approximately 25 feet before he apprehended him. In the interim, Roy retrieved the bag and examined its contents.

In light of the fact that defendant chose to ignore the officers’ command to stop, and that he had not been touched by the officers at the time he discarded the package, we do not find that the arrest occurred when the officers first approached him and ordered him to halt, but rather after he abandoned the package.

Defendant next asserts the court erred by denying his motion to bar statements made by him to the police after he was in custody. He argued that such statements were inadmissible because they were made during the course of plea negotiations; as such, they were barred by Supreme Court Rule 402(f). (134 Ill. 2d R. 402(f).) The court denied defendant’s motion, and his subsequent attempt to excise portions of those statements also proved unavailing.

Supreme Court Rule 402(f) (134 Ill. 2d R. 402(f)) provides in relevant part:

“If a plea discussion does not result in a plea of guilty, or if a plea of guilty is not accepted or is withdrawn, or if judgment on a plea of guilty is reversed on direct or collateral review, neither the plea discussion nor any resulting agreement, plea, or judgment shall be admissible against the defendant in any criminal proceeding.”

It is well established that the purpose of this rule is to encourage plea negotiations by eliminating the risk of having the jury hear statements the defendant made while negotiating his plea. (People v. Friedman (1980), 79 Ill. 2d 341, 403 N.E.2d 229; People v. Burns (1989), 188 Ill. App. 3d 716, 544 N.E.2d 466; People v. Tennin (1984), 123 Ill. App. 3d 894, 463 N.E.2d 202.) However, not every statement making reference to a deal or omission of jail time is necessarily a plea discussion for purposes of this rule. (People v. Williams (1987), 151 Ill. App. 3d 1010, 503 N.E.2d 1090; People v. Austin (1984), 123 Ill. App. 3d 788, 463 N.E.2d 444; Tennin, 123 Ill. App. 3d at 898, 463 N.E.2d at 205.) The test to determine a plea-related statement is: (1) whether the accused exhibited a subjective expectation to negotiate a plea, and (2) whether the expectation was reasonable under the totality of objective circumstances. As expressed by the Friedman court:

“Before a discussion can be characterized as plea related, it must contain the rudiments of the negotiation process, i.e., a willingness by defendant to enter a plea of guilty in return for concessions by the State.” Friedman, 79 Ill. 2d at 353, 403 N.E.2d at 236.

At trial, Roy testified that while defendant was in custody, he stated that he had $9,000 in cash at home that he would be willing to post as bond; that he would be willing to cooperate with the police and help find the locations of the garages where Rosado was hiding guns and money; and that his willingness to cooperate with the police was fueled by his fear of incarceration because of the vendettas that certain rival gang members held against him. However, in Tennin, this court refused to characterize as plea-related the defendant’s nonspecific statement, “I want to make a deal.” The Tennin court explained:

“Defendant here has not made manifest any indication to plead guilty or what the terms are under which he would be willing to bargain. We cannot assume that every statement by the defendant to the effect of ‘making a deal’ is plea-related. There are other possible explanations underlying a motivation to make a ‘deal,’ such as a defendant negotiating for his release without a cash bond or on a low bond, or the dropping of charges against him in return for information he might supply.” Tennin, 123 Ill. App. 3d at 898, 463 N.E.2d at 205.

In the present case, we concur with the trial judge’s assessment that the statements at issue were not plea-related. We first note that defendant never entered a guilty plea, nor does the record indicate that he ever attempted to negotiate a guilty plea. The testimony reveals that no specific commitment or offer was made to defendant; rather, the officers merely told him that any cooperation on his part would be reported to the State’s Attorney’s office for consideration. It is also significant that throughout the motion to suppress, as well as during trial, defendant denied taking any package from the Ford Escort or that he was even carrying a package when the police stopped him. Defendant further denied at trial telling the officers that he could not serve time in jail because of his prior gang affiliations, or that he had any conversation with the police regarding favorable treatment in return for his testimony. To allow defendant to prevail upon his contention that such statements should be inadmissible because they were made during the course of plea negotiations, in spite of the fact that he denied such a conversation ever occurred at trial, is both inconsistent and illogical.

Defendant next asserts that the court erroneously permitted the State to bring before the jury the hearsay contents of the anonymous tip that drugs were being sold at the car wash. In particular, defendant complains that the testimony of Officers Roy and Plonavich, in which they stated that the drug sales were being conducted by Hispanic males and that lookouts were posted near the building, was inadmissible hearsay. Belatedly, defendant argues that the State’s comments during closing arguments regarding the anonymous tip were prejudicial. Defendant refers to the following dialogue which transpired during closing argument:

“Assistant State’s Attorney: An anonymous tip, that’s how this all started. You heard the evidence of that. Someone, probably someone who lived in the neighborhood, saw what was going on in front of that car wash. Someone saw that people were standing there acting as look-outs in both the front and the back, someone who was too afraid to even give their [sic] name over the phone.
Defense counsel: I object to that.
THE COURT: Overruled. She may argue.
Assistant State’s Attorney: Someone who was too afraid to meet with the police to discuss what they [sic] had seen but at least cared enough to make that phone call to OCD Narcotics that day. * * *
Assistant State’s Attorney: Now we all know what drugs do to people, ladies and gentlemen. We all know how powerless drug addicts are to control their lives. We know how they commit crimes, robberies, burglaries.
Defense counsel: I object to this.
THE COURT: She may argue.
Assistant State’s Attorney: Not to mention the killings that go on in drug deals.
Defense counsel: Judge, objection, I move for a mistrial.
THE COURT: Overruled.”

The State counters defendant’s argument by stating that the evidence relating to an anonymous tip regarding the sale of drugs was properly admitted to explain the investigatory procedures and circumstances leading to defendant’s arrest. In People v. Batinich (1990), 196 Ill. App. 3d 1078, 554 N.E.2d 613, this court held that testimony by a police officer from an informant that defendant was “a drug dealer out of the northwest” was not objectionable hearsay. This court concluded that such testimony was not offered to prove the truth of the matter asserted. (People v. McNeal (1987), 160 Ill. App. 3d 796, 513 N.E.2d 897; People v. Loggins (1985), 134 Ill. App. 3d 684, 480 N.E.2d 1293; People v. Thomas (1975), 25 Ill. App. 3d 88, 322 N.E.2d 597.) Rather, the testimony was elicited to explain why an undercover operation involving the defendant was set in motion. It is proper for an officer to explain the circumstances of his investigation and testify as to how he came upon the defendant’s identity. Batinich, 196 Ill. App. 3d 1078, 554 N.E.2d 613, citing McNeal, 160 Ill. App. 3d 796, 513 N.E.2d 897; see also People v. Gully (1986), 151 Ill. App. 3d 795, 502 N.E.2d 1091.

In People v. Gacho (1988), 122 Ill. 2d 221, 522 N.E.2d 1146, our supreme court held that it is permissible for an officer to testify to what he did during the course of an investigatory procedure; however, the introduction of the substance of the conversation is objectionable as hearsay. More recently, in People v. Johnson (1990), 202 Ill. App. 3d 417, 559 N.E.2d 1041, this court also held that the testimony of the police officers that other parties had identified the defendant as being involved in a burglary was error despite the State’s contention that it explained police procedure.

In the present case, we agree with defendant that Officer Roy’s and Officer Plonavich’s testimony exceeded the boundaries of merely explaining the reasons why the wheels of the police investigation were set in motion. The officers’ testimony included specific details such as the fact that lookouts were placed at the front and rear of the building, and that the drug sales at the car wash were being conducted by Hispanic males. According to Gacho, comments such as these describing the substance of the conversation between the anonymous informant and the police officer constitute inadmissible hearsay. Also, the comments made by the State during closing argument again highlighted the anonymous informant’s statements that drugs were being sold at the car wash, that lookouts were staked in both entrances to the building, and further speculated that the informant was too afraid to give the police his or her name over the telephone. Indeed, the closing comments made by the State went one step farther and even described the killings that also occur in drug deals.

Nonetheless, an evidentiary error of this nature can be labeled harmless if properly admitted evidence is so overwhelming that no fair-minded jury could reasonably have voted to acquit the defendant. (People v. Carlson (1982), 92 Ill. 2d 440, 442 N.E.2d 504.) We first note that defendant was never specifically identified by the hearsay evidence as the individual who was selling drugs. Most importantly, the evidence against defendant was considerable, in view of the fact that the package which defendant dropped contained one kilo of cocaine and several additional kilos of cocaine were found in his car. Defendant also made statements shortly after his arrest that he was a runner in the drug transaction, and that he was aware that there was a kilo of cocaine underneath the passenger seat. In sum, we find the evidence amassed against defendant was sufficient to sustain his conviction in spite of the improper hearsay statements made concerning the contents of the anonymous informant’s telephone call.

Defendant further contends that the court’s refusal to enter an order at the close of the State’s case in chief directing an acquittal of Rosado and Monroig effectively deprived defendant of calling the co-defendants as witnesses, in contravention of his constitutional right to call witnesses in his behalf.

Section 115—4(k) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115—4(k)) provides:

“When, at the close of the State’s evidence or at the close of all of the evidence, the evidence is insufficient to support a finding or verdict of guilty the court may and on motion of the defendant shall make a finding or direct the jury to return a verdict of not guilty, enter a judgment of acquittal and discharge the defendant.” (Emphasis added.)

In People v. Watkins (1990), 206 Ill. App. 3d 228, 563 N.E.2d 806, this court determined that section 115—4(k) does not mandate that the trial court make its ruling at the close of the State’s evidence. Rather, it is sufficient if the ruling is made at the close of all the evidence. Watkins, 206 Ill. App. 3d at 243, 563 N.E.2d at 814.

Defendant did not demonstrate the manner in which he was prejudiced by the judge’s reservation on his ruling until the time when jury deliberations were in progress. (People v. Rascher (1992), 223 Ill. App. 3d 847, 585 N.E.2d 1153.) Also, defendant failed to state with any specificity the nature of the testimony which may have been presented by Rosado or Monroig. When the judge announced his intention to withhold his ruling until the end of the jury trial, defendant stated only that he “may want to call them as witnesses,” but offered no further explanation as to whether such testimony would be exculpatory. We therefore reject defendant’s claim that when the judge declined to rule on codefendants’ motion for a directed verdict at the close of the State’s case in chief, he was deprived of his right to call witnesses on his behalf.

Defendant’s next argument posits that the court unduly restricted the cross-examination of Plonavich when defendant asked whether he read the report prepared by Roy on a previous occasion to refresh his memory or in an attempt to conform his testimony to that given by Officer Roy in his motion to suppress.

The latitude to be allowed on cross-examination and rebuttal is a matter within the sound discretion of the trial court, and a reviewing court should not interfere unless there has been a clear abuse of discretion resulting in manifest prejudice to the defendant. (People v. Collette (1991), 217 Ill. App. 3d 465, 577 N.E.2d 550.) Moreover, it is firmly entrenched that the key to saving for review an error in the exclusion of evidence is an adequate offer of proof in the trial court. (People v. Andrews (1992), 146 Ill. 2d 413, 588 N.E.2d 1126; People v. Jackson (1989), 180 Ill. App. 3d 78, 535 N.E.2d 1086; Yassin v. Certified Grocers of Illinois, Inc. (1986), 150 Ill. App. 3d 1052, 502 N.E.2d 315; M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §103.7, at 19 (5th ed. 1990).) The purpose of an offer of proof is to disclose to the trial judge and opposing counsel the nature of the offered evidence and to enable a reviewing court to determine whether exclusion of the evidence was proper. (Jackson, 180 Ill. App. 3d at 91, 535 N.E.2d at 1094.) The failure to make an adequate offer of proof results in a waiver of the issue on appeal. (Andrews, 146 Ill. 2d 413, 588 N.E.2d 1126.) In the present case, we find defendant’s failure to submit an offer of proof results in waiver of this issue upon review.

In his final argument, defendant contends that the court’s procedure of permitting the direct examination of State’s witnesses to occur before the jury, while the cross-examination was conducted outside its presence, denied defendant his right to due process, cross-examination, and a fair trial. At trial, the court ruled that the cross-examination of four of the State’s witnesses, including Officer Roy, Kevin Kusiak, Larry Renfro and Officer Ramirez, would be conducted out of the presence of the jury. Defendant maintains that this decision placed him in the precarious position of either not cross-examining a witness who had only peripherally, if at all, damaged the defendant, or else cross-examining the witness, thus creating the inference that the witness’ testimony directly applied to defendant.

We find defendant’s argument without merit. We first note that defendant did not file a motion for severance from the other co-defendants prior to trial, and he is merely speculating that a different result would have occurred if the jury had been present for the cross-examination. Most importantly, defendant was not deprived of the opportunity to cross-examine the witnesses. Rather, as the State correctly points out, defense counsel faced the same dilemma confronting each trial attorney on a daily basis: namely, the potential benefit or harm which may be derived by cross-examination of a particular witness. Defendant’s attempt to raise a claim of prejudice must be founded on more than mere conjecture. People v. Velez (1984), 123 Ill. App. 3d 210, 462 N.E.2d 746.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

EGAN and GIANNIS, JJ., concur.


author: PRESIDING JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICO TAYLOR, Defendant-Appellant.
    First District (1st Division)
    No. 1—91—0560
    Opinion filed March 15, 1993.
    Michael J. Pelletier and Anna Ahronheim, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Donald T. Lyman, and Bennett E. Kaplan, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Defendant Rico Taylor was charged by indictment No. 88 — 12662 with two counts of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)(1)) and one count of armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A—2). Prior to trial defendant filed a motion to sever and a motion to suppress statements. The court granted defendant’s motion to sever, but denied his motion to suppress statements. Following a bench trial he was convicted of two counts of first degree murder on an accountability theory and sentenced to 20 years in prison.

Defendant argues on appeal that: (1) he was not proved guilty of murder on an accountability theory beyond a reasonable doubt; (2) the trial court erred in admitting evidence of his gang affiliation; and (3) he was improperly convicted and sentenced on two counts of first degree murder where there was only one death. We reverse.

The following evidence was presented at trial.

Officer Martin Gainer testified that about 11 p.m. on July 20, 1988, he and his partner responded to a call involving a shooting at 9670 South Brennan Street in Chicago. When the two officers arrived at that location, they were met by two additional officers. Gainer stated that at the scene he observed four men standing over the prone body of the victim which lay near the curb. Gainer testified that the men looked in the direction of his vehicle as it approached, then the four men fled, including the defendant. Gainer testified that three of the men ran toward a vehicle parked about 20 feet from the victim, and the fourth man ran northbound on Brennan Street. Gainer stated that he approached the victim, who remained lying on the ground, and that the victim told him that Herbert Kendricks was the shooter.

Gainer testified that defendant was taken to the fourth district police station, where he was advised of his Miranda rights and where he gave a statement. Gainer testified that defendant stated:

“He and the other three individuals were in a car. They were driving on Brennan, saw Smith and the four of them exited the car and approached Smith. Herbert Kendricks produced a weapon, fired at Smith, Smith went down and three of them got back in the car and drove around the block.”

During direct examination, the prosecutor asked Officer Gainer whether he ever had occasion to arrest anyone for gang-related activity. Defense counsel objected, arguing that there had been no foundation laid as to gang-related activity. The trial court overruled defense counsel’s objection, stating:

“I think I have a fair belief of what is involved here. And in spite of the fact that there may not ever come a time when there is any evidence that would suggest that this occurrence was in fact gang related, that is to say that the shooting of the defendant in this case was in some way in furtherance of any gang objective, or activity. Nevertheless, the evidence is admissible for the purpose of establishing the identity of the defendant and their relation from each other. As it may tend to purport [sic] the element of the accountability. Whether or not it is gang related. That’s what I think the law is in this area. So objection is overruled.”

Officer Gainer then testified that he was familiar with gangs in the area and had arrested persons for gang-related activity. Over defense counsel’s objection Gainer was asked if the Gangster Disciples had any insignias. The court overruled that objection also, and Gainer testified that he knew several insignias used by the Gangster Disciples and identified two tatoos from photographs of the victim. Officer Gainer also testified that the Gangster Disciples (Disciples) and the Vice Lords were enemies.

On cross-examination Gainer testified that he never saw defendant with a gun in his hand, nor did he see defendant fire any shots. Gainer further testified that defendant never told him that he shot the decedent, and that before decedent died the decedent said Herbert Kendricks shot him. Gainer further testified that decedent never told him that defendant agreed with Kendricks to shoot decedent, nor that he went to the location to do so.

Detective Angelo Pesavento testified that about 1:20 a.m. on July 21, 1988, he was assigned to investigate a shooting which occurred on the evening of July 20, 1988. Pesavento testified that as part of his investigation he and Detective George Karl interviewed defendant at the police station after advising defendant of his Miranda rights. Pesavento stated that defendant told him that he was in the area of 87th Street and South Chicago in a car. The car was being driven by Michael Page. Herbert Kendricks was in the front passenger seat and defendant was seated in the back seat behind the driver. Ray Hudson was seated next to defendant in the back seat. When the men were in the area of the shooting, Kendricks told Page that he wanted to drive around and look for Otha Smith. Defendant stated Otha was a Disciple. Defendant told Pesavento that Otha Smith had beaten Kendricks’ younger brother and that Kendricks wanted to kill Otha Smith.

Pesavento stated that defendant told him he saw Kendricks with a handgun while they were in the car, and that Kendricks directed Page to look for Disciples as they drove to the area of 96th Street and Brennan Avenue, where they saw Otha Smith. Kendricks told Page to pull the car over, Kendricks got out of the car, fired the gun three times, then got back inside the car. They then left and drove to Kendricks’ home, where he entered and returned shortly with a larger handgun. They then returned to the area of the shooting, and Kendricks got out of the car, fired shots, and the police arrived as everyone fled. Pesavento stated that defendant told him that Kendricks, Hudson, Page and himself were all members of the Vice Lords.

On cross-examination, Pesavento stated that there was no documentation in his police report that defendant knew Kendricks or Otha Smith. The report did state that Kendricks was a Vice Lord. Pesavento stated that defendant never told him that he agreed with Kendricks to shoot Smith, or that the men were going to shoot other members of the Disciples other than Smith. Defendant never told Pesavento that he possessed a gun, nor that he shot anyone. Pesavento further testified that defendant did not tell him that he knew that Smith would be in the neighborhood that night.

Detective George Karl testified that at about 11 a.m. on July 21, 1988, he went to the juvenile intake center, where he picked up defendant and codefendant Michael Page and transported them to Area 2 police station. Defendant was placed in an interview room and Assistant State’s Attorney O’Connor was contacted. After O’Connor arrived defendant was advised of his Miranda rights and he gave a statement.

Defendant gave his statement verbally first, and the statement was later reduced to writing. Detective Karl, youth officer Glynn and Assistant State’s Attorney O’Connor were all present when the statement was given. After reading and correcting his statement, defendant and the others present signed the statement. Detective Karl testified that defendant told him that he understood English and could read. Defendant’s statement was read into evidence.

According to the statement, on the night of the incident, defendant was at home when Page, Ray and Kendricks came to his home and got him. The four then went to Kendricks’ home. Michael Page was the driver, and Kendricks asked Page to drive around in search of Otha Smith because Smith had beaten Kendricks’ younger brother. Defendant stated that Kendricks wanted to kill Smith. Kendricks had a gun with him as they drove in search of Smith. Once Smith was sighted, Kendricks told Page to stop the vehicle, he got out and chased Smith. Kendricks eventually shot at Smith three times. After shooting at Smith, Kendricks ran back to the vehicle and drove back to his home. They then drove back to the scene of the initial shooting where Kendricks exited the vehicle again, made some remarks and shot in the air.

Defendant stated that Smith was affiliated with the Disciples and that Kendricks’ brother was affiliated with the Vice Lords. The relationship between the two gangs was bad. Defendant further stated that he, Ray and Page were also affiliated with the Vice Lords.

Theresa McCastle also testified for the State. She stated that at about 11 p.m. on July 20, 1988, she was visiting her father’s home at 9661 South Brennan Avenue. She stated that she heard three shots and ran to the front door. McCastle testified that she saw a white vehide parked in front of 9659 South Brennan Avenue and observed Herbert Kendricks in the street. McCastle knew Kendricks from grammar school. She testified that Kendricks was shooting towards a driveway.

McCastle stated that she saw three men leave the white vehicle, as Otha Smith staggered from the direction of the driveway. McCastle testified that Kendricks chased Smith, pointing the gun at Smith’s face, but the gun did not fire and made only a clicking sound. The three men who exited the vehicle stood nearby it, while Kendricks stood about 40 feet away. McCastle stated that she ran two doors down the street to get her daughter and returned about five minutes later, but the white vehicle had driven away.

The parties stipulated that if the victim’s mother were called to testify she would state that she saw the victim alive on July 20, 1988, and that on July 21, 1988, he died. The parties also stipulated that if Dr. Choi, a medical examiner, were called to testify he would state that on July 21, 1988, he performed an autopsy on the decedent and that decedent died from a bullet wound to the chest.

After the State’s case in chief, the trial court denied defendant’s motion for a directed verdict. Rico Taylor then testified on his own behalf. He stated that on July 20, 1988, he met Kendricks at Kendricks’ home. At that time he did not see a weapon in Kendricks’ possession. Later, defendant went home, and while sitting on his porch, Page, Hudson and Kendricks came by his house. The men drank beer and eventually Kendricks asked Page to take him home. Defendant stated that he was unaware at that time that Kendricks had a gun in his possession.

Defendant testified that when they arrived at Kendricks’ home, Kendricks went inside, came out and Page drove to 95th Street, then back to Kendricks’ home again. Kendricks then asked Page to drive around the corner. Defendant stated that Kendricks never mentioned looking for some specific individual, but that he did tell the men that someone had beaten his younger brother. Defendant stated that while they were riding in the vehicle, Kendricks did not say that he wanted to kill someone. Page stopped the vehicle, Kendricks got out and began talking with a man, later identified as the decedent, then started shooting. Defendant stated that the vehicle was about 15 feet away. The man fled as Kendricks followed after him.

On cross-examination, defendant testified that he did not know that Kendricks had a weapon on his person before Kendricks got out of the vehicle. Defendant stated that at the time of the shooting no one got out of the vehicle except Kendricks. Kendricks jumped back into the vehicle, drove to Kendricks’ home, where he entered, and returned to the vehicle.

On redirect examination defendant testified that he did not review the entire statement taken by the court reporter, nor did he write the words, “To see if Otha and the Disciples were there” in his statement given to the police. He further testified that the initials by the statement were not his.

After the presentation of evidence, the trial court found defendant guilty of two counts of murder on a theory of accountability and sentenced him to 20 years in the Department of Corrections. The court reasoned:

“Prior to the shooting of Mr. Smith, defendant knew of the murderous intention of Mr. Kendricks, that he knew he was armed with a weapon, knew that Michael Page had been instructed to drive around the comer to determine whether or not Otha Smith and other members of the Disciples street gang were present. Thus, he joined with and attached himself to the murderous plan of Mr. Kendrick [sic] and his presence is not mere presence at the scene of a crime, but his presence is lending aid and comfort and his confidence [sic] to the murderous scheme of Kendricks. By that conduct, he makes himself an aider and abetter of Mr. Kendricks and is responsible legally for all of that which follows from having attached himself to that murderous scheme, along with Mr. Kendricks.”

For the following reason, we reverse defendant’s conviction.

Defendant argues that the trial court erred in finding him guilty on a theory of accountability. Specifically, defendant argues that the State failed to prove beyond a reasonable doubt that he actually participated in the commission of the murder. Defendant maintains that the State’s evidence proved only that he had knowledge and was present at the scene of the crime. Defendant contends that this evidence alone was insufficient for the court to find him guilty on an accountability theory.

For a defendant to be convicted on the accountability theory, the State must establish beyond a reasonable doubt that (1) the defendant solicited, ordered, abetted, agreed, or attempted to aid another in the planning or commission of the crime; (2) the defendant’s participation took place before or during the commission of the crime; and (3) the defendant had the concurrent intent to promote or facilitate the commission of the crime. (People v. MacFarland (1992), 228 Ill. App. 3d 107, 122, 592 N.E.2d 471.) To prove that the defendant had the intent to promote or facilitate the crime, the State must establish beyond a reasonable doubt that the defendant showed the criminal intent of the principal or was engaged in a common design. People v. Stanciel (1992), 153 Ill. 2d 218, 606 N.E.2d 1201.

Although the defendant does not have to actively participate in the overt act, mere presence at the scene, even with knowledge that the crime is being committed, is not sufficient to establish accountability for the actions of another. (People v. Carrizales (1992), 240 Ill. App. 3d 893.) Further, mere presence at the scene of a crime coupled with flight from the scene of a crime is insufficient to establish accountability. People v. Lopez (1979), 72 Ill. App. 3d 713, 391 N.E.2d 105.

In this case, the evidence provided by the State proved that defendant did nothing more than ride in a vehicle in which the shooter was present. While defendant gave conflicting testimony regarding his knowledge of why Kendricks drove to the scene of the shooting, and whether Kendricks had a gun, it is clear that defendant did not participate in any act which attributed to the shooter’s objective of murdering Otha Smith. The record -is clear that defendant did not have a weapon, did not participate in planning or executing any plan to murder Smith or provide instruments in furtherance of that plan.

The State cites to People v. Gutierrez (1985), 136 Ill. App. 3d 774, 483 N.E.2d 944, for the proposition that where a defendant attaches himself to a group which has an objective of murdering another, the requisite knowledge and intent sufficient to establish accountability are shown. In Gutierrez, the victim was shot and killed as he fixed a flat tire in front of his home. The evidence presented at trial clearly showed that one of two codefendants, and not defendant, was the shooter. The evidence also showed that shortly before the shooting occurred defendant was observed sitting in his vehicle while one of the codefendants talked with him. Shortly after the shooting all three defendants were observed fleeing the murder scene and entering a second vehicle used as the getaway car. Further, the murder weapons were found inside the vehicle in which defendant had been observed earlier.

Gutierrez is distinguishable from this case. The evidence presented here showed no active participation by defendant as that of the defendant in Gutierrez. Here, defendant did not provide a vehicle in furtherance of the murder, as the defendant in Gutierrez provided the vehicle for disposing of the murder weapons. Nor did the evidence here show that prior to the shooting of Smith defendant met with the shooter to plan the murder or getaway, as distinguished from the defendant in Gutierrez.

The State contends that defendant rode with Kendricks to the scene of the shooting knowing that Kendricks wanted to kill Smith. The State maintains that defendant made no effort to disassociate himself from the intentions of the group and, therefore, his actions demonstrated acquiescence to the group’s purpose of killing Smith.

As mentioned above, the mere presence at the scene of the crime coupled with knowledge is insufficient to establish defendant’s guilt on an accountability theory. (People v. Lopez (1979), 72 Ill. App. 3d 713, 391 N.E.2d 105.) Moreover, the State has not provided this court with authority to support its contention that a defendant has an affirmative obligation to disassociate himself from a group with a knowing goal to accomplish a criminal purpose, and where failure to do so amounts to guilt on an accountability theory. Officers Gainer’s and Pesavento’s testimony is devoid of any evidence linking defendant to the agreement, participation or commission of the crime. Theresa McCastle’s testimony was also devoid of any participation of defendant to facilitate the crime. Defendant himself testified that he did not know Otha Smith, did not have a weapon on his person, and simply rode in the vehicle with Kendricks and the other men.

Viewing the evidence in the light most favorable to the prosecution, we find that the State did not prove beyond a reasonable doubt that defendant was guilty of first degree murder under the accountability theory. The evidence showed that defendant was a passenger in the vehicle who simply rode to the scene of the shooting with the shooter. Defendant did not have a gun, did not drive the vehicle, did not plan the crime nor do any affirmative act in furtherance of the illegal purpose.

Based on the foregoing, the trial court erred in convicting and sentencing defendant for first degree murder on an accountability theory.

Accordingly, the judgment of the circuit court of Cook County is reversed.

Reversed.

CAMPBELL and BUCKLEY, JJ., concur.


text:
      In re ESTATE OF MARGARET L. KREVCHENA, Deceased (Ella V. Hudson, Ex’r of the Estate of Harry Krevchena, Deceased, Plaintiff-Appellant, v. Margaret L. Krevchena, Deceased, et al., Defendants-Appellees).
    First District (1st Division)
    No. 1—92—0256
    Opinion filed March 15, 1993.

      George M. Petrich, of Chicago, for appellant.
    Robert Emmett Reidy, of Chicago, for appellee.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court granting defendant’s motion to dismiss plaintiff’s claim against defendant’s estate. The court determined that plaintiff’s claim was barred by the statute of limitations. Plaintiff argues on appeal that: (1) the trial court erred in determining that her claim was barred by the statute of limitations; and (2) the trial court abused its discretion by failing to grant plaintiff’s claim where there were equitable defenses raised which tolled the statute of limitations.

Margaret Krevchena (Margaret) was the mother of Harry Krevchena (Harry). Harry died testate in April 1981 appointing his widow, plaintiff Ella Krevchena, as the co-executor of his estate. Margaret died testate in June 1990, appointing defendant Phillip A. Bataglia as executor of her estate. Among one of the assets in Margaret’s estate was a farm located in Michigan.

On January 11, 1991, plaintiff, in her individual capacity, filed a claim against Margaret’s estate alleging that Harry held an interest at his death in a partnership of which the Michigan farm was an asset. This claim was filed over nine years after Harry died. Plaintiff asserted in her claim that Harry continued to visit Margaret while Margaret was in a nursing home, and that after his death Margaret continued to use partnership assets with no resolution of Harry’s rights to those assets, including the Michigan farm. Plaintiff further maintained that Margaret’s mental and physical condition gradually deteriorated during this period, rendering it impossible for Margaret to discuss the matter of the farm. On April 15, 1991, Phillip, as executor of Margaret’s estate, filed a motion to dismiss plaintiff’s claim pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—615) arguing that the claim was not brought by the proper party and, in the alternative, that the claim be made more definite and certain.

Plaintiff filed a motion for leave to amend the claim in her capacity as executor, which motion was granted. The court also ordered plaintiff to answer the motion to dismiss and the alternative motion to make more definite and certain, which she did. In making her claim more definite and certain, plaintiff admitted that the alleged partnership agreement was oral.

On July 18, 1991, defendant filed a second motion to dismiss plaintiff’s amended claim, this time pursuant to section 2 — 619(a)(5) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—619(a)(5)), alleging that the action was not commenced within five years after the cause of action accrued. Defendant asserted that plaintiff had not filed the claim as provided by the statute of limitations for oral contracts, nor in accordance -with section 13—205 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13—205). Defendant made no admission as to the existence, assets, rights, title or interests of the alleged partnership. On December 19, 1991, the trial court entered an order granting defendant’s motion.

Plaintiff first argues that the trial court erred in dismissing the amended claim finding it barred by the statute of limitations. Plaintiff cites to Stenwall v. Bergstrom (1947), 398 Ill. 377, 75 N.E.2d 864, for the proposition that the statute of limitations is not dispositive of the issue of whether a complaint can be brought. In that case, the supreme court reversed the trial court’s dismissal of a claim seeking an accounting and other relief. The trial court dismissed the suit on the basis that the action had not been filed within the period of the limitations act governing adverse possession, which at the time was seven years. The suit involved the validity of a deed, and defendant’s motion to dismiss contained averments that the defendants had paid rent after the land was conveyed, and that representations had been made that the grantor’s heirs had an interest in the land. The supreme court held that because the facts in plaintiff’s amended complaint had been admitted by defendant in its motion to strike, the limitations act was not binding in that instance.

Plaintiff maintains that, as in Stenwall, so here, those facts in plaintiff’s amended complaint are all admitted for purposes of defendant’s motion to dismiss. Specifically:

1. Deceased continued to employ partnership assets after the death of her son, her only partner.
2. Deceased failed to wind up partnership affairs.
3. Plaintiff and deceased were in-laws, mother and daughter, and remained on cordial terms.
4. Discussion of business matters between them was difficult and deceased was forgetful, not always lucid or communicative, attributable to her old age.
5. Plaintiff’s decedent contributed cash, services, labor and his rights under the G.I. Bill to the partnership for more than 30 years.

Defendant contends that there are only three relevant facts, undisputed and admitted. They include: (1) the date of Harry’s death, which was April 8, 1981; (2) the date the claim was first filed in any court, which was January 11, 1991; and (3) the admission by plaintiff that the alleged partnership agreement was oral. Defendant asserts that under these circumstances the five-year limitations period set forth in the Code of Civil Procedure is applicable. Section 13 — 205 states:

“Five year limitation. Except as provided in Section 2 — 725 of the ‘Uniform Commercial Code’, approved July 31, 1961, as amended, and Section 11 — 13 of ‘The Illinois Public Aid Code’, approved April 11, 1967, as amended, actions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued.” Ill. Rev. Stat. 1989, ch. 110, par. 13-205.

Defendant further asserts that under the Illinois Uniform Partnership Act (UPA) (Ill. Rev. Stat. 1989, ch. 106%, par. 31(4)), the dissolution of a partnership occurs upon the death of a partner, and that the time for bringing a claim for accounting upon the dissolution of an oral partnership commences upon the death of that partner. Section 43 states:

“The right to an account of his interest shall accrue to any partner, or his legal representative, as against the winding up partners or the surviving partners or the person or partnership continuing the business, at the date of dissolution, in the absence of any agreement to the contrary.” Ill. Rev. Stat. 1989, ch. 106%, par. 43.

Defendant contends that the alleged partnership in this case was oral and that plaintiff’s obligation was to bring the complaint for an accounting within the five-year statutory period. Defendant cites to Leichtfeld v. Dornbaugh (1950), 339 Ill. App. 281, 89 N.E.2d 752, for the proposition that an action for accounting involving a dissolved partnership must be brought within five years of the dissolution or the action is barred. In that case, a son and father allegedly had a partnership. The son died and a right to an accounting of the son’s interest against the father as surviving partner accrued to the son’s widow, as legal representative of his estate at that time. The court held that the widow’s action for an accounting, which was not brought until more than five years after the son’s death, was barred by limitations.

Defendant further maintains that plaintiff’s claim individually against defendant was filed over nine years after the cause of action accrued and that plaintiff’s claim as executor was filed over 10 years after the cause of action accrued. Therefore, defendant argues that the trial court properly dismissed the case.

A motion to dismiss under section 2—619(a)(5) admits all facts well pleaded, and we must accept as true not only those facts, but all reasonable inferences therefrom. (Suslick v. Rothschild Securities Corp. (1987), 164 Ill. App. 3d 589, 517 N.E.2d 688.) Therefore, the court is to accept as true that Margaret continued to employ partnership assets after the death of her son, that Margaret failed to wind up partnership affairs, that plaintiff and Margaret were in-laws who maintained cordial relations, and that discussion of matters between them was difficult. However, under the Illinois Uniform Partnership Act (UPA) (Ill. Rev. Stat. 1989, ch. 106½, par. 34), the dissolution of a partnership occurs upon the death of a partner or judicial order. The term “dissolution” is defined in the UPA (Ill. Rev. Stat. 1989, ch. 106½, par. 29) as “the change in the relation of the partners caused by any partner ceasing to be associated in the carrying on as distinguished from the winding up of the business.” (Schlossberg v. Corrington (1980), 80 Ill. App. 3d 860, 400 N.E.2d 73.) Further, in the absence of any agreement to the contrary, a partner’s right to an accounting occurs at the date of dissolution. (Ill. Rev. Stat. 1989, ch. 106½, par. 43.) Moreover, section 13—205 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13—205) establishes the limitations period within which actions must be brought. That section requires that civil actions not otherwise provided for shall be commenced within five years after the cause of action accrued.

In this case, the action for an accounting accrued upon the death of Harry, which occurred on April 8, 1981. This was the date upon which the partnership was dissolved. Section 43 of the UPA states that in the absence of any agreement, the right to an accounting brought by the representative of a deceased partner’s estate shall accrue upon the date of dissolution. (Ill. Rev. Stat. 1989, ch. 106½, par. 43.) Therefore, when the two statutes are read together, plaintiff’s right to bring an action for accounting arose in 1981, the date the partnership was dissolved as a result of Harry’s death. Thus, a claim for accounting should have been filed by April 8, 1986. The claim here was not filed by the representative in her individual capacity until January 11, 1991, almost 10 years after the right accrued and five years beyond the statute of limitations. A claim in her capacity as representative was not filed until June 24, 1991. Thus, on the face of the complaint, it is clear that plaintiff’s right to bring an action for an accounting was barred by the statute of limitations.

Plaintiff next argues that the trial court erred in granting the motion to dismiss where defendant failed to wind up the partnership affairs as required by statute. Plaintiff specifically asserts that after Harry’s death Margaret continued to use partnership assets and thereby received an unjust benefit. Plaintiff contends that even if the statute of limitations did not begin to run until Harry’s death, it was tolled by Margaret’s continued use of the partnership assets.

Defendant cites In re Estate of Streck (1962), 35 Ill. App. 2d 473, 183 N.E.2d 26, for the proposition that where the surviving partner continues to earn profits from the partnership business after the death of one partner, the profits earned from the use of the partnership property belong to the estate of the deceased partner. In re Estate of Streck is distinguishable from the instant case. That case involved a written partnership agreement which recited the duties of each partner to account, and stated that the profits after dissolution where the business continued must be shared in accordance with the UPA. More significantly, the action filed in Streck was filed within the limitations period. In actions for equitable relief where a suit is not filed until after the statutory time has lapsed, the party seeking relief must affirmatively explain in his complaint the reason for delay and, if unexplained, unreasonable delay will bar relief in equity. Schlossberg v. Corrington (1980), 80 Ill. App. 3d 860, 400 N.E.2d 73.

Plaintiff contends that no claim was brought against Margaret because Margaret and she maintained cordial relations during Margaret’s lifetime. Plaintiff’s argument is therefore based on equitable principles. Although plaintiff makes this equitable argument, she has not provided this court with any authority in support of this principle. Further, where a legal remedy is available for the same claim, a court of equity may look to the legal limitations period to determine if a cause of action is barred by laches. (Rakstiene v. Kroulaidis (1975), 33 Ill. App. 3d 1067, 339 N.E.2d 447.) In Rakstiene, the court stated that, “where the period of delay exceeds that legal limitation period, equity follows the law by adopting that limitation period as the period constituting laches as well.” Rakstiene, 33 Ill. App. 3d at 1072.

Certainly, in cases where plaintiff’s complaint alleges fraud or tortious misrepresentation, the statute of limitations begins to run on the date the fraud is discovered by plaintiff. (Rozny v. Marnul (1969), 43 Ill. 2d 54, 250 N.E.2d 656.) However, there is no authority for the principle that where an executor of an estate does not file a claim against a third party because the relationship between the executor and third party remains cordial the statute of limitations is tolled.

For the above reasons, we find that the judgment of the trial court granting summary judgment in favor of defendant was proper.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.