author: JUSTICE MANNING

text:
    ALEX WASLEFF, JR., as Ex’r of the Estate of Alex Wasleff, Sr., Deceased, Plaintiff-Appellant, v. ASTAIRRE M. DEVER et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—87—2026
    Opinion filed January 22, 1990.

      Thomas E. Buess, of Chicago, for appellant.
    Law Offices of Jeffrey M. Marks, of Chicago (Jeffrey M. Marks, of counsel), for appellee Astairre M. Dever.

      Hopkins & Sutter, of Chicago (Paul K. Vickrey, of counsel), for appellee Continental Illinois National Bank and Trust Company of Chicago.

      Justiee Campbell participated in this opinion after the resignation of Justice Quinlan, who had participated in the oral argument. Justice Campbell has read the briefs and listened to a tape of oral argument.

   JUSTICE MANNING

delivered the opinion of the court:

Plaintiff, Alex Wasleff, Jr., executor of the estate of Alex Wasleff, Sr., brought this action against his sister, Astairre Dever, and Continental Illinois Bank and Trust Company of Chicago (Continental Bank). This action arises out of a transaction whereby Continental Bank released $40,000 to Astairre Dever from a trust account of Alex Wasleff, Sr. Wasleff, Sr., filed this action on March 17, 1982. Claims against Patrick Dever, the Northern Trust Company and the Harris Trust & Savings Bank were resolved prior to trial. On October 19, 1982, Wasleff, Sr., died, and his estate was substituted as the plaintiff in this action with Wasleff, Jr., as the executor, representing the estate. Items included in Wasleff, Sr.’s estate were listed in his will and identified in the inventory of the estate prepared by counsel after Wasleff, Sr.’s death. Although claims were listed against both of Wasleff, Sr.’s daughters, no claim was listed against Continental Bank. At the close of the plaintiff’s case in chief, the trial court entered a directed finding for Astairre Dever. Subsequently, judgment was also entered in favor of Continental Bank. Plaintiff appeals the trial court’s decisions.

On April 9, 1981, Astairre Dever withdrew $40,000 from a Totten trust of Alex Wasleff, Sr., as trustee, opened for the benefit of Alex Wasleff, Jr. A similar account was opened at the Northern Trust Bank by Wasleff, Sr., as trustee, for the benefit of his daughter, Astairre Dever (Astairre). Matthew Cook, division director for Continental Bank, testified that the funds in both accounts were for the use of Wasleff, Sr., during his lifetime and upon his death were to insure to the benefit of the respective beneficiaries. Astairre and Wasleff, Jr., testified that while the signature card and agreement for the Totten trust in issue contained only the signature of Wasleff, Sr., Wasleff, Sr.’s wife had handled all of his financial affairs until her death. They further testified that upon her death defendant, Astairre, began taking care of her father’s financial concerns, which included: (1) the payment of all of his living .expenses; (2) maintaining custody of his checkbooks and passbooks to his personal bank accounts; (3) depositing money into his personal accounts; and (4) routinely signing her father’s name to checks and withdrawals.

Astairre testified that in April 1981, the family business, Alex Wasleff Building Maintenance Company, of which Wasleff, Sr., was the principal shareholder, encountered financial difficulty and the business was threatened with a shut down by the Internal Revenue Service (IRS) for outstanding Federal tax obligations. Wasleff, Jr., served as the vice-president of the business, and Astairre served as secretary-treasurer. In that capacity, she was responsible for the payment of business taxes and the withholding of tax deposits for the business. Astairre further testified that on April 9, 1981, upon instructions from Wasleff, Sr., she withdrew $37,000 from the Northern Trust Bank trust account and $40,000 from the Continental Bank trust account by signing her father’s name to the withdrawal slips. The IRS had assessed a $300,000 family business tax indebtedness as a lien against Wasleff, Jr., and the purpose of the withdrawals was to pay the IRS $100,000 of the $300,000 due to reduce the family’s tax indebtedness.

A manager at Continental Bank testified that the signature on the withdrawal slip did not match the signature on the trust account’s signature card. Sally Churn, the Continental Bank employee who handled the transaction, testified that she made an unsuccessful attempt to reach Wasleff, Sr., by telephone in order to verify the withdrawal. She further testified that after Astairre explained that her father was elderly and could not conduct his business, and presented the passbook and proper identification, and since it was time to pay taxes, she released the money to Astairre in the form of a cashier’s check payable to the IRS.

Wasleff, Jr., testified that he informed Wasleff, Sr., who was both physically and mentally infirm, that Astairre used the $40,000 from the Continental Bank account for her own personal use. Moreover, Wasleff, Sr., was never told before his death that the money was used to reduce the family’s business debt. The business was actually closed by the IRS in July 1981.

During the trial, Astairre testified regarding her conversations with her father prior to his death concerning the withdrawals. Additionally, Astairre and other witnesses testified about other financial transactions that Astairre was involved in on behalf of the business. Wasleff, Jr., also testified during the trial regarding the content of two conversations held between himself and Wasleff, Sr., pertaining to the $40,000 withdrawal from the Continental Bank account. Audrey Hunter, his sister, was present during the first conversation, and attorney Joseph O’Callanhan was present during the second conversation. Specifically, the following occurred: Wasleff, Jr., further testified that: (1) Astairre handled Wasleff, Sr.’s personal affairs; (2) she possessed passbooks and checkbooks to Wasleff, Sr.’s personal bank accounts that were given to her by Wasleff, Sr.; (3) Astairre made deposits into Wasleff, Sr.’s personal bank accounts; and (4) Wasleff, Sr., gave Astairre permission to sign his name to his personal checks.

“Q. What if anything, did your father say when you told him about the withdrawal^]
A. He said no one was supposed to withdraw that money.”

On May 21, 1987, judgment was entered for Astairre. The trial court held that Astairre did not convert the funds received from Continental Bank, finding instead that Wasleff, Sr., either expressly or impliedly, authorized the transactions. On May 22, 1987, the trial court entered judgment for Continental Bank, holding that Wasleff, Sr., authorized the withdrawal. In a detailed analysis the trial court discussed Astairre’s express, implied or ratified authority and Wasleff, Sr.’s contribution to the withdrawal. The trial court further discussed the lack of damage suffered by the estate as a result of the withdrawal and the failure of the plaintiff to show that a valid claim of the Wasleff estate existed. Plaintiff appeals from these judgments.

We must first determine whether Wasleff, Sr.’s cause of action abated with his death. It should be noted that abatement of actions because of death is not favored by our supreme court. (See Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423, 308 N.E.2d 583.) Section 27 — 6 of the Probate Act of 1975 provides:

“Actions which survive. In addition to the actions which survive by the common law, the following also survive: actions of replevin, actions to recover damages for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property or for the detention or conversion of personal property, actions against officers for misfeasance, malfeasance, nonfeasance of themselves or their deputies, actions for fraud or deceit, and actions provided in Section 6 — 21 of ‘An Act relating to alcoholic liquors.’ ” Ill. Rev. Stat. 1987, ch. IIOV2, par. 27 — 6.

It is well established that the Illinois survival statute allows a decedent’s representative to maintain those common law or statutory actions which had already accrued to the decedent prior to his death. (National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 160, 172, 383 N.E.2d 919; Menery v. Citizens First National Bank (1987), 160 Ill. App. 3d 223, 225, 513 N.E.2d 553; Raisl v. Elwood Industries, Inc. (1985), 134 Ill. App. 3d 170, 172, 479 N.E.2d 1106; Rodgers v. Consolidated R.R. Corp. (1985), 136 III. App. 3d 191, 196, 482 N.E.2d 1080.) Since Wasleff, Sr.’s claim is based on the alleged conversion of personal property, the claim survived his death, pursuant to the Illinois survival statute. Therefore, Wasleff, Jr., as the executor of the estate, was a proper party to bring this action.

Plaintiff initially argues on appeal that the Dead Man’s Act (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 201) was violated when the trial court admitted into evidence conversations held between Astairre and Wasleff, Sr., regarding his authorization of the withdrawal of the $40,000 that were not witnessed. Plaintiff further argues that the Dead Man’s Act was violated when the trial court erroneously allowed Astairre to testify regarding conversations held -with her father pertaining to the receipt and return of her father’s personal passbooks and checkbooks. The plaintiff’s arguments are without merit. The object of the Dead Man’s Act is fundamental fairness. (VazirZadeh v. Kaminski (1987), 157 Ill. App. 3d 638, 645, 510 N.E.2d 1096.) The Dead Man’s Act provides in pertinent part as follows:

“In the trial of any action in which any party sues or defends as the representative of a deceased person or persons under a legal disability, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability, except in the following instances:
(a) If any person testifies on behalf of the representative to any conversation with the deceased or person under legal disability ***, any adverse party or interested person, if otherwise competent, may testify concerning the same conversation or event.” Ill. Rev. Stat. 1987, ch. 110, par. 8 — 201.

In Zorn v. Zorn (1984), 126 Ill. App. 3d 258, 464 N.E.2d 879, where the issue involved the signing of a deed, we addressed the meaning of the word “event.” After reviewing cases from other jurisdictions, we determined that “event” includes all of the connected incidents and conversations leading up to the signing of the deed. (Zorn, 126 Ill. App. 3d at 263.) In the instant case, the “event” was Astairre’s withdrawal of the $40,000 from Continental Bank, and Wasleff, Jr., waived any protection provided by the Dead Man’s Act. Specifically, Wasleff, Jr., testified during trial, while presenting his case in chief, as to conversations held with his father about the $40,000 withdrawal from the Continental Bank account. Moreover, his testimony established that Astairre was authorized to make the withdrawal when he stated that: (1) Astairre handled Wasleff, Sr.’s personal affairs; (2) she possessed passbooks and checkbooks to Wasleff, Sr.’s personal bank accounts that were given to her by Wasleff, Sr.; (3) Astairre made deposits into Wasleff, Sr.’s personal bank accounts; and (4) Wasleff, Sr., gave Astairre permission to sign his name to personal checks. Furthermore, since Wasleff, Jr., in his complaint and through his 1984 deposition testimony, which was admitted at trial, asserted that Astairre was not authorized to sign Wasleff, Sr.’s name to the withdrawal slip, Astairre was entitled to testify as to the conversations that she had with Wasleff, Sr., granting her authority to withdraw monies from the various bank accounts to reduce the family’s tax indebtedness to the IRS.

The purpose of the exception in the Dead Man’s Act which permits testimony regarding the same conversation or transaction is to allow both parties to be on equal grounds in giving testimony (Bain v. Schnorr (1976), 35 Ill. App. 3d 761, 764, 342 N.E.2d 439; Firke v. McClure (1945), 389 Ill. 543, 551, 60 N.E.2d 220), and but for the exception set forth in the Dead Man’s Act, the defendants would not have been on equal ground in defending plaintiff’s claim of an unauthorized withdrawal. In the absence of the exception to the Dead Man’s Act, Wasleff, Jr., would have been allowed to assert that As-tairre did not have the authority to withdraw the monies and then raise the Dead Man’s Act as a bar to Astairre’s testimony that authority to withdraw the monies had been granted by Wasleff, Sr. (See Bain, 35 Ill. App. 3d 761; Firke, 389 Ill. at 551.) We, therefore, conclude that the Dead Man’s Act does not bar Astairre’s conversations with Wasleff, Sr. Since Astairre could properly testify as to the authority granted to her by Wasleff, Sr., the trial court properly admitted the testimony of Astairre regarding conversations held between herself and Wasleff, Sr.

Plaintiff next contends that the trial court improperly admitted evidence of transactions other than the Continental Bank transaction, since the writing of checks from other accounts is irrelevant to establish Astairre’s authority to withdraw $40,000 from the Totten trust at Continental Bank. Defendants argue that the evidence that Astairre has conducted all of Wasleff, Sr.’s financial affairs for eight years is relevant to establish that the transaction at issue was authorized. “ ‘Relevancy is established where a fact offered tends to prove a fact in controversy or renders a matter in issue more or less probable.’ ” (People v. Monroe (1977), 66 Ill. 2d 317, 321, 362 N.E.2d 295, quoting Marut v. Costello (1966), 34 Ill. 2d 125, 128, 214 N.E.2d 768.) Moreover, evidence of other specific similar acts may be admitted for the purpose of proving habit, and in many instances a person’s conduct on other occasions is the best evidence to establish facts in controversy. (People v. Tipton (1980), 78 Ill. 2d 477, 485-86, 401 N.E.2d 528.) It is well established that “habit testimony is relevant and the only limitations imposed on its admission have been on the basis of necessity.” (Bradfield v. Illinois Central Gulf R.R. Co. (1987), 115 Ill. 2d 471, 475-76, 505 N.E.2d 331; Hardware State Bank v. Coiner (1973), 55 Ill. 2d 240, 302 N.E.2d 257; Plank v. Holman (1970), 46 Ill. 2d 465, 264 N.E.2d 12.) Furthermore, our courts have adopted Rule 406 of the Federal Rules of Evidence (Fed. R. Evid. 406), which establishes that habit evidence is always admissible for the purpose of proving the conduct of a person or business organization. (Bradfield v. Illinois Central Gulf R.R. Co. (1985), 137 Ill. App. 3d 19, 23, 484 N.E.2d 365, aff’d (1987), 115 Ill. 2d 471, 505 N.E.2d 331.) Rule 406 provides as follows:

“Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.” Fed. R. Evid. 406.

In the instant case, the testimony revealed that Astairre routinely signed her father’s name to checks and withdrawals. In addition to Astairre’s testimony that she had signed her father’s name hundreds of times while handling his financial affairs, Wasleff, Jr., testified that: (1) Astairre possessed Wasleff, Sr.’s “passbooks and .checkbooks to his various personal bank accounts”; (2) Wasleff, Sr., had given Astairre permission to sign his name on his personal checks; and (3) Wasleff, Jr., had witnessed the signing of Wasleff, Sr.’s name on checks and withdrawals by Astairre on many occasions. Based on the above, we conclude that the trial court properly admitted other similar transactions as relevant for the limited purpose of establishing habit.

Plaintiff next argues that the trial court erroneously admitted irrelevant evidence that Wasleff, Jr., had been individually assessed a penalty by the IRS for failure of the Alex Wasleff Building Maintenance Company to pay Federal withholding taxes. Defendants argue that Wasleff, Jr.’s tax liability is relevant to this cause of action since he is the sole beneficiary of the estate and received a direct benefit. It should be noted that neither Wasleff, Jr., nor Astairre has cited any case law to support their positions on this issue. Pursuant to Supreme Court Rule 341(e)(7) (107 Ill. 2d R. 341(e)(7)), an appellant’s brief must contain citations to the relevant authority in support of the argument raised on appeal. (Lunde v. Rockford Public Library Board (1987), 153 Ill. App. 3d 803, 805, 506 N.E.2d 385.) Moreover, it is well settled that a contention that is supported by some argument but does not cite any authority does not satisfy the requirements of Supreme Court Rule 341(e)(7) (Lunde, 153 Ill. App. 3d at 806; Fuller v. Justice (1983), 117 Ill. App. 3d 933, 942-43, 453 N.E.2d 1133; Wilson v. Continental Body Corp. (1981), 93 Ill. App. 3d 966, 969, 418 N.E.2d 56), and bare contentions that fail to cite any authority do not merit consideration on appeal. (People ex rel. Aldworth v. Dutkanych (1986), 112 Ill. 2d 505, 493 N.E.2d 1037.) Arguments unsupported by citation to legal authority are considered as waived by a court of review. (Lunde, 153 Ill. App. 3d at 806; Nancy’s Home of the Stuffed Pizza, Inc. v. Cirrincione (1986), 144 Ill. App. 3d 934, 939, 494 N.E.2d 795; In re Marriage of Drummond (1987), 156 III. App. 3d 672, 685, 509 N.E.2d 707.) Thus, we will not address plaintiffs assertion that the trial court erred in admitting testimony regarding the transaction’s effect on Wasleff, Jr.’s tax liability.

Plaintiff also maintains that the real issue to be determined is whether Astairre had the authority to withdraw the $40,000 from Continental Bank, specifically alleging that Astairre converted the funds for her own personal use. In order to resolve this issue, we must ascertain whether an agency relationship existed between Wasleff, Sr., and Astairre authorizing Astairre to withdraw money from the Continental Bank trust account. The existence of an agency relationship may be shown by direct or circumstantial evidence, and where the evidence shows that one person is acting for others under circumstances implying knowledge on the part of the principal of those acts, a prima facie case of agency is established. Mateyka v. Schroeder (1987), 152 Ill. App. 3d 854, 862-63, 504 N.E.2d 1289; City of Evanston v. Piotrowicz (1960), 20 Ill. 2d 512, 518, 170 N.E.2d 569, 573.

In the present case, Astairre’s testimony established the existence of an agency relationship between herself and Wasleff, Sr. Several witnesses, including Wasleff, Jr., testified to the fact that As-tairre handled Wasleff, Sr.’s financial affairs, including the payment of all of his living expenses. Moreover, in her capacity as secretary-treasurer, she was responsible for the financial affairs of the business. It is undisputed that Astairre was acting on behalf of Wasleff, Sr., and that he had knowledge that she was handling his financial affairs. Therefore, we conclude that an agency relationship existed. Since the evidence has shown that an agency relationship exists, we must now determine the extent of the agency.

An agent may have actual authority to act on behalf of a principal which is expressed or implied or the agent may have apparent authority. Implied authority is actual authority that is implied by facts and circumstances, and it may be proved by circumstantial evidence. (Devers v. Prudential Property & Casualty Insurance Co. (1980), 86 Ill. App. 3d 542, 545-46, 408 N.E.2d 462, 465.) Apparent authority exists where a principal, through his words or conduct, creates a reasonable impression that the agent has been granted the authority to perform certain acts. (Hofner v. Glenn Ingram & Co. (1985), 140 Ill. App. 3d 874, 882, 489 N.E.2d 311.) The extent of the agency relationship may be established by circumstantial evidence. (Hofner, 140 Ill. App. 3d at 880; Schoenberger v. Chicago Transit Authority (1980), 84 Ill. App. 3d 1132, 1137, 405 N.E.2d 1076, 1080.) Moreover, the extent of an agent’s authority may also be shown by ascertaining what a reasonably prudent person exercising diligence and discretion in dealing with the agent might believe the agent to possess based on the principal’s conduct. Hofner, 140 Ill. App. 3d at 882; Barraia v. Donoghue (1977), 49 Ill. App. 3d 280, 283, 364 N.E.2d 952, 954.

In the case at bar, Astairre acted on behalf of Wasleff, Sr., for years in handling his financial affairs, including the payment of all of his living expenses, maintaining custody of checkbooks and passbooks to his personal bank accounts, depositing money into his personal accounts and routinely signing her father’s name to checks and withdrawals. Upon a review of all the circumstances and actions that occurred prior to the event of withdrawing the $40,000, we feel that an ordinary prudent person would believe that Astairre was acting on behalf of Wasleff, Sr. We, therefore, conclude that under the facts of this case, Astairre was authorized to withdraw the funds from the Continental Bank trust account for direct payment to the IRS to reduce the family business indebtedness.

Plaintiff asserts that Astairre converted the $40,000 for her own personal use. It is well settled that in order to establish a cause of action based on conversion, the party claiming that a conversion has occurred must show: (1) an unauthorized and wrongful assumption of control, dominion, or ownership by the defendant over the personal property of another; (2) plaintiff has a right to the property; (3) plaintiff has an absolute and unconditional right to the immediate possession of the property; and (4) plaintiff has made a demand for possession of the property. (Pasulka v. Koob (1988), 170 Ill. App. 3d 191, 209, 524 N.E.2d 1227; First National Bank v. Lachemnyer (1985), 131 Ill. App. 3d 914, 917, 476 N.E.2d 755; A.T. Kearney, Inc. v. INCA International, Inc. (1985), 132 Ill. App. 3d 655, 664, 477 N.E.2d 1326; Farns Associates Inc. v. Sternback (1979), 77 Ill. App. 3d 249, 252, 395 N.E.2d 1103; see also Katz v. Belmont National Bank (1986), 112 Ill. 2d 64, 68, 491 N.E.2d 1157.) “ ‘[A] conversion is any unauthorized act, which deprives a man of his property permanently or for an indefinite time ***.’ ” (In re Thebus (1985), 108 Ill. 2d 255, 259, 483 N.E.2d 1258, quoting Union Stock Yard & Transit Co. v. Mallory, Son & Zimmerman Co. (1895), 157 Ill. 554, 563.) Moreover, “ ‘[t]he essence of conversion is the wrongful deprivation of one who has a right to the immediate possession of the object unlawfully held.’ ” Thebus, 108 Ill. 2d at 259, quoting Bender v. Consolidated Mink Ranch, Inc. (1982), 110 Ill. App. 3d 207, 213, 441 N.E.2d 1315.

The record discloses that plaintiff failed to carry his burden of proving the first element for establishing conversion, which is that Astairre’s signature was an unauthorized and wrongful assumption of control over Wasleff, Sr.’s accounts. Since a necessary element of conversion was not established, we hold that the trial court properly ruled that Astairre did not convert the funds received from Continental Bank.

A court of review will not disturb the determination of a trial court unless the finding is against the manifest weight of the evidence. (Spec-Cast, Inc. v. First National Bank & Trust Co. (1989), 128 Ill. 2d 167, 177, 538 N.E.2d 543; Menicocci v. Archer National Bank (1978), 67 Ill. App. 3d 388, 391, 385 N.E.2d 63.) Moreover, a judgment is only against the manifest weight of the evidence where an opposite conclusion is clearly apparent. (Spec-Cast, Inc. v. First National Bank & Trust Co. (1987), 168 Ill. App. 3d 615, 617, 522 N.E.2d 586; Menicocci, 67 Ill. App. 3d at 391.) After a careful review of the record we cannot conclude that the decisions of the trial court were against the manifest weight of the evidence. Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SCARIANO PRESIDING JUSTICE DiVITO,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE HUANTE, Defendant-Appellant.
    First District (2nd Division)
    No. 1—88—2650
    Opinion filed January 23, 1990.

      Stephen M. Connolly, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Jane E. Loeb, and Nicholas Ford, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendant, Jose Huante, was arrested on November 13, 1985, after he had made three separate sales of cocaine to a Chicago police officer. Although the quantity of narcotics involved in this case made defendant eligible to be sentenced as a Class X felon, plea negotiations between defense counsel and the State led to the reduction of one of the charges to a Class 3, and defendant then pleaded guilty to three counts of delivery of a controlled substance. Defendant was sentenced to concurrent three-year terms of imprisonment on each plea, plus a one-year period of mandatory supervised release thereafter. Defendant did not appeal his conviction or file a motion to vacate the judgment and for leave to withdraw his pleas of guilty. On May 26, 1988, he filed a petition seeking relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 1 et seq.), alleging ineffective assistance of counsel on the ground that his attorney failed to inform or discuss with him that deportation could be a collateral consequence of his pleading guilty in light of his status as an alien and that his plea of guilty was therefore rendered involuntary. Folio-wing a hearing, the trial court denied defendant’s post-conviction petition. He now appeals from that decision.

Upon receiving defendant’s guilty pleas, the trial judge admonished defendant as to the constitutional rights he was waiving thereby, and then entered judgment on each conviction. Nothing was entered in aggravation or mitigation; instead, both sides relied on their statements made in a pretrial conference. Although the trial judge did not ask defendant if defense counsel had said or done anything to influence his decision to plead guilty, defendant did tell the trial judge that no one had promised him anything or threatened him in any manner that would influence his decision.

At the evidentiary hearing held on defendant’s post-conviction petition, attorney Michael D. Walsh, who represented defendant in his criminal proceeding, was asked by his present counsel, “[Y]ou were aware that if he was Mexican and he did speak Spanish he could be an alien. Is that correct?” And Walsh replied, “Anything’s possible.” Walsh also stated that he was cognizant that “certain convictions could result in deportation,” and that he had advised other clients that their status as aliens could be affected if they were convicted of a crime, but that he had never discussed the subject with defendant because he had not been informed nor had he been aware of defendant’s status in this country.

Defendant testified in his own behalf that he and Walsh had never discussed the consequences of a guilty plea upon his status as an alien and that he was unaware that he “could have problems with the Immigration and Naturalization Service” (INS) as a result of such a plea. Defendant further stated that he would not have pleaded guilty if he had known of the consequences, and that he did not learn of any involvement in his case by the INS until he was released from prison and discovered that the immigration authorities had lodged a detainer against him. Although defendant had entered the United States illegally in 1973, he was a legal resident and the holder of a “green card” at the time that Walsh represented him. Defendant agreed with Walsh’s testimony that they had never discussed his status in the United States and that he had never informed Walsh of his status or of the fact that he was born in Mexico.

Present counsel for defendant cited two cases in support of the granting of defendant’s petition: People v. Correa (1985), 108 Ill. 2d 541, 485 N.E.2d 307, and People v. Padilla (1986), 151 Ill. App. 3d 297, 502 N.E.2d 1182. After he had heard oral argument and had taken the matter under advisement, the trial judge denied the petition, stating that in both Correa and Padilla “the attorney was ineffective because he misrepresented the law,” whereas “in the case I have before me *** there was no misrepresentation of the law,” and that both defendant and Walsh testified that defendant’s status in the United States “was never discussed,” that defendant “never asked about it,” and “never told the attorney.”

A guilty plea is valid only when it is made as “a voluntary and intelligent choice among the alternative courses of action open to the defendant.” (North Carolina v. Alford (1970), 400 U.S. 25, 31, 27 L. Ed. 2d 162, 168, 91 S. Ct. 160, 164.) When a defendant enters a plea of guilty upon advice of counsel, the voluntariness and intelligence of the plea depends “on whether that advice was within the range of competence demanded of attorneys in criminal cases.” McMann v. Richardson (1970), 397 U.S. 759, 771, 25 L. Ed. 2d 763, 773, 90 S. Ct. 1441, 1448-49.

To determine “whether the defendant’s pleas, made in reli-anee on counsel’s advice, were voluntary and intelligently and knowingly made depends on whether the defendant had effective assistance of counsel.” (People v. Correa (1985), 108 Ill. 2d 541, 549, 485 N.E.2d 307, 310.) The United States Supreme Court has adopted a two-part test for this determination. First, the defendant must demonstrate that his “counsel’s representation fell below an objective standard of reasonableness” (Strickland v. Washington (1984), 466 U.S. 668, 688, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064), and second that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068). Our supreme court has expressly adopted the two-component test of Strickland. (People v. Albanese (1984), 104 Ill. 2d 504, 526-27, 473 N.E.2d 1246, 1255-56.) The second prong of the Strickland test can be satisfied by a showing that but for counsel’s unprofessional conduct, defendant would not have pleaded guilty but would have insisted upon going to trial, i.e., that defense counsel’s conduct affected the outcome of the plea process. Hill v. Lockhart (1985), 474 U.S. 52, 88 L. Ed. 2d 203, 106 S. Ct. 366.

On appeal, defendant reasserts his reliance upon Correa and Padilla. (See also People v. Miranda (1989), 184 Ill. App. 3d 718, 540 N.E.2d 1008 (decided by the second district after the briefs in this case were filed).) But the State argues that here we are presented with an issue which did not arise in Correa or Padilla, for it is clear that although in each of those cases trial counsel had knowledge of ' the fact that their clients were aliens, they did not inform them of, or look into, the effect of a guilty plea and conviction on their alienage. Indeed, in Correa, the defendant asked his attorney what effect his guilty pleas would have on his status as an alien, and the attorney replied that although he did not know the answer to that question, “In my experience, I represent a lot of people who have been aliens, and none of them have been deported.” (Correa, 108 Ill. 2d at 547, 485 N.E.2d at 309.) And when the defendant informed the attorney that his wife was an American citizen, the attorney erroneously told him, “If your wife is an American citizen, then a plea of guilty would not affect your status. You probably will be picking up her status as an American citizen.” Correa, 108 Ill. 2d at 548, 485 N.E.2d at 309.

In Padilla, trial counsel “by his own admissions, knew defendant was an alien, knew drug convictions could cause deportation, and took no action to inform his client before the guilty plea.” (Padilla, 151 Ill. App. 3d at 303, 502 N.E.2d at 1186.) In Miranda, the issue, as stated by the court, was “whether defendant was denied his right to the effective assistance of counsel when his attorney, knowing that he was an alien in this country illegally, did not advise defendant as to, or even research the effect of a guilty plea and conviction on his immigration status,” and the question was answered in the affirmative. Miranda, 184 Ill. App. 3d at 722, 549 N.E.2d at 1010.

In the case at bar, the parties are in accord that defendant’s alien status was never discussed by Walsh with defendant prior to the entry of his pleas; defendant did not inform Walsh of it and Walsh did not inquire of his client. Nor did defendant inform Walsh that he was born in Mexico. The record also shows that present counsel for defendant stated to the judge at the post-conviction hearing that “my client speaks fairly good English.” Nevertheless, counsel obtained permission from the court to have defendant’s sister stand by at the hearing in the event she was needed to interpret for him; however, there was apparently no need for her services despite the fact that the questions asked of defendant by his attorney were replete with references to legal terms not commonly understood by laymen. Defendant appears to have answered those questions coherently and without any hesitation. It is also of record that defendant had been in the United States for 13 years at the time he pleaded guilty in his criminal case, that he was then a self-employed general contractor, that he had married in Chicago and was the father of two children, ages seven and five at the time, and that, according to the presen-tence investigation report, he was born in Mexico. Evidently, Walsh had occasion to use defendant’s sister and sister-in-law to interpret some of his conversations with defendant prior to the entering of his pleas. Accordingly, the issue resolves itself into one of whether Walsh either knew or should have known that defendant was an alien who, under the circumstances, was susceptible to deportation.

In determining whether Walsh’s representation of defendant “fell below an objective standard of reasonableness,” an examination of the relevant law is necessary:

“Any alien in the United States *** shall, upon the order of the Attorney General, be deported, who—
(11) is, or hereafter at any time after entry has been, *** convicted of a violation of, *** any law or regulation of a State, *** relating to a controlled substance [as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)].” 8 U.S.C. 1251(a)(ll) (1988).

Defendant, although a legal resident of the United States, is deemed an “alien” because he is neither a citizen nor a national of this country. 8 U.S.C. 1101(a)(3) (1988).

Deportation, although collateral, is, nevertheless, a drastic consequence. (Fong Haw Tan v. Phelan (1948), 333 U.S. 6, 92 L. Ed. 433, 68 S. Ct. 374; Correa, 108 Ill. 2d 541, 485 N.E.2d 307.) In most cases this collateral consequence is more severe than the penalty imposed by the court in response to the plea. (Correa, 108 Ill. 2d at 550-51, 485 N.E.2d at 311.) Indeed, deportation has been equated with a “life sentence of exile” (Jordan v. De Gorge (1951), 341 U.S. 223, 243, 95 L. Ed. 886, 898, 71 S. Ct. 703, 714, (Jackson, J., dissenting); accord Fong Haw Tan v. Phelan (1948), 333 U.S. 6, 10, 92 L. Ed. 433, 436, 68 S. Ct. 374, 376 (“the equivalent of banishment”); Ng Fung Ho v. White (1922), 259 U.S. 276, 284, 66 L. Ed. 938, 943, 42 S. Ct. 492, 495 (may result in the “loss of both property and life; or of all that makes life worth living”)). And in United States ex rel. Klonis v. Davis (2d Cir. 1926), 13 F.2d 630, 631, Judge Learned Hand referred to deportation as “a cruel and barbarous result [which] would be a national reproach.”

The harsh consequences of deportation may be averted, however, if the trial judge having jurisdiction over the alien defendant recommends to the Attorney General, at the time of first imposing judgment or passing sentence or within 30 days thereafter, that the defendant not be deported. (8 U.S.C. 1251(b) (1988).) And “while section 1251(b) speaks in terms of the sentencing court’s making a ‘recommendation,’ it is a recommendation that is binding on the Attorney General, for the section has consistently been interpreted as giving the sentencing judge conclusive authority to decide whether a particular conviction should be disregarded as a basis for deportation.” Janvier v. United States (2d Cir. 1986), 793 F.2d 449, 452, citing Haller v. Esperdy (2d Cir. 1968), 397 F.2d 211, 213; Velez-Lozano v. Immigration & Naturalization Service (D.C. Cir. 1972), 463 F.2d 1305, 1308; United States ex rel. Santarelli v. Hughes (3d Cir. 1940), 116 F.2d 613, 616.

In view of these factors, our courts have concluded that the potential deportation consequences of guilty pleas in criminal proceedings brought against alien defendants are material to the critical phases of such proceedings (Correa, 108 Ill. 2d 541, 485 N.E.2d 307; Miranda, 184 Ill. App. 3d 718, 540 N.E.2d 1008; Padilla, 151 Ill. App. 3d 297, 502 N.E.2d 1182); and the determination of whether the failure to investigate those consequences constitutes ineffective assistance of counsel turns to a significant degree upon whether the attorney had sufficient information to form a reasonable belief that the client was in fact an alien. (People v. Pozo (Colo. 1987), 746 P.2d 523.) In the case at bar, although it is true that present counsel for defendant admitted that his client “speaks fairly good English”; that no interpreter was needed at the post-conviction hearing (the record does not show whether one was utilized in the criminal case); that defendant had no difficulty in responding to his counsel’s interrogation, however laden the questions may have been with legal terms; that defendant had been in the United States for 13 years at the time he entered the pleas at issue here; and that he was then a self-employed general contractor, it is also true that Walsh had on some occasions used defendant’s sister and sister-in-law to interpret his conversations with him; that the presentence investigation report shows that defendant was born in Mexico; and that Walsh, in response to the query put to him at the post-conviction hearing, “You were aware that if he was Mexican and he did speak Spanish he could be an alien,” replied, “Anything’s possible.” Walsh also stated that he was aware that “certain convictions could result in deportation,” and that he had advised other clients that their status as aliens could be affected if they were convicted of a criminal offense.

Our supreme court has held that it is counsel’s and not the court’s responsibility to advise an accused of the collateral consequences of a plea of guilty (Correa, 108 Ill. 2d at 550, 485 N.E.2d at 310), and although Correa treats the issue of an attorney who admits knowing of his client’s alienage and misleads him, which is also the case with Padilla and Miranda, and although the Correa court expressly stated that it was not ruling upon the merely passive conduct of counsel, the case at bar commands no different a result than the one reached there or in Padilla or in Miranda. Here, from all of the facts known to him at the time that his client pleaded guilty, Walsh evidently chose to guess that defendant was an American national, for that is the only reasonable characterization we can give it— a guess. And therein Walsh erred, for to guess without ascertaining the accuracy of his conclusion was to choose to remain ignorant. No matter: either to err or to be ignorant of so vital a fact under the circumstances of this case is to fail the first element of the Strickland test — “counsel’s representation fell below an objective standard of reasonableness.” (Strickland, 466 U.S. at 668, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) This is so especially because defense counsel had a duty “to ascertain the personal circumstances of his client so as to determine what indirect consequences the guilty plea may trigger.” (Michel v. United States (2d Cir. 1974), 507 F.2d 461, 466; accord Commonwealth v. Wellington (Pa. Super. 1982), 305 Pa. Supp. 24, 451 A.2d 223.) Nor can there be any doubt that Walsh’s conduct affected the outcome of the plea process, thus completing the Strickland requirement.

Accordingly, we reverse the judgment of the circuit court and remand with directions to vacate defendant’s guilty pleas and to grant him a new trial.

Reversed and remanded.

HARTMAN, J., concurs.

PRESIDING JUSTICE DiVITO,

dissenting:

In my judgment, neither Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, nor Illinois case law compels the conclusion reached by the majority. I do not believe the lawyer’s conduct in this case fell below the objectively reasonable standard of professional conduct required by the sixth amendment, and I do not believe either People v. Correa (1985), 108 Ill. 2d 541, 485 N.E.2d 307, or People v. Padilla (1986), 151 Ill. App. 3d 297, 502 N.E.2d 1182, applies where, as in this case, the lawyer is unaware of his client’s alien status.

There is no doubt that the Strickland test applies to challenges to guilty pleas based on ineffective assistance of counsel. (See Hill v. Lockhart (1985), 474 U.S. 52, 88 L. Ed. 2d 203, 106 S. Ct. 366.) The first part of the Strickland test applied to such challenges is “whether counsel’s advice ‘was within the range of competence demanded of attorneys in criminal cases.’ ” (Hill v. Lockhart, 474 U.S. at 56, 88 L. Ed. 2d at 208, 106 S. Ct. at 369, quoting McMann v. Richardson (1970), 397 U.S. 759, 771, 25 L. Ed. 2d 763, 773, 90 S. Ct. 1441, 1449.) Concerning the deportation consequences of a guilty plea, the Illinois Supreme Court has stated that “unequivocal, erroneous, misleading representations *** made to [the] defendant in response to his specific inquiry” fall outside the range of competence demanded by Strickland and the sixth amendment, but expressly declined to consider whether the same is true of “the passive conduct of counsel in failing to discuss with a defendant the collateral consequences of a guilty plea.” People v. Correa, 108 Ill. 2d at 551-52.

Application of the rule in Correa to “passive conduct” was first considered in People v. Padilla (1986), 151 Ill. App. 3d 297, 502 N.E.2d 1182. In that case, the defendant challenged his guilty plea in a post-conviction hearing, alleging that his lawyer incorrectly assured him that no deportation consequences would result from pleading guilty. His lawyer denied that he had discussed the subject of deportation with his client. The trial court did not resolve this conflict in the evidence, and the court on appeal did not find the lawyer’s denial relevant, holding that “ineffective assistance render[s] a guilty plea involuntary where counsel knows his client is an alien and does nothing to inform him of possible deportation consequences.” (People v. Padilla, 151 Ill. App. 3d at 303.) In People v. Miranda (1989), 184 Ill. App. 3d 718, 540 N.E.2d 1008, the court agreed that a lawyer who knows his client is an alien, but does Hot inform him of the deportation consequences of a guilty plea, provides constitutionally ineffective assistance, even where the client never raised the subject of deportation with his lawyer.

Because the lawyer in Correa actually misrepresented to his client the deportation consequences of a guilty plea, both Padilla and Miranda represent an extension of the result reached in that case. The majority here would now extend Correa further by finding ineffective assistance even though the lawyer does not know his client is an alien. I do not believe, however, that a lawyer’s conduct is outside the range of reasonable competence where the lawyer, who does not know his client is an alien, fails to advise him of the deportation consequences of a guilty plea. Such a result would impose on defense lawyers a duty, not mandated by the constitution, required by statute, or compelled by Correa, Padilla, or Miranda, to inquire into their clients’ alien status. Indeed, if such inquiries are constitutionally required, then the duty should be imposed on the court as well as counsel to advise a defendant of the deportation consequences of a guilty plea, regardless of whether the defendant is known to be an alien. Although this might be a simple procedure to follow, I am not aware of any authority compelling such a practice.

If there are circumstances under which a lawyer could be charged with the knowledge that his client is an alien, such circumstances were certainly not present in this case. Defendant never discussed his alien status with his lawyer, had been in the United States for 13 years, was married in Chicago, had two children, was self-employed as a general contractor, and spoke “fairly good” English. The only facts cited by the majority remotely indicative of defendant’s alien status and presumably known to defendant’s lawyer are the entry in the presentence investigation report showing defendant was born in Mexico and the use of defendant’s sister and sister-in-law as interpreters. On these facts, I simply do not believe defendant received constitutionally ineffective assistance because his lawyer failed to inform him of the deportation consequences of a guilty plea.

For the foregoing reasons, I would affirm the judgment of the circuit court.

      The supreme court did, however, cite cases from three different States which held that even passive conduct of counsel may constitute ineffective assistance. Correa, 108 Ill. 2d at 551.


author: JUSTICE WHITE

text:
      In re MARRIAGE OF PARASKEVAS AGATHOS, Petitioner-Appellee, and DIAMONDO BAKATSELOS, f/k/a Diamondo Agathos, Respondent-Appellant.
    First District (3rd Division)
    No. 1—89—1020
    Opinion filed January 24, 1990.

      Block, Levy & Associates, of Chicago (Alvin W. Block and Carolyn M. Schiess, of counsel), for appellant.
    Nicholas C. Syregelas, of Chicago, for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

This is an appeal, pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), from the circuit court’s orders registering two foreign-country custody orders. We find that this registration was erroneously granted and therefore reverse and remand for further proceedings.

This action began on December 30, 1988, when petitioner, Paraskevas Agathos, filed a two-count petition in the domestic relations division of the circuit court of Cook County. Petitioner alleged that he and respondent, Diamondo Bakatselos, had, on February 26, 1988, obtained a Greek divorce decree granting custody of their minor child to respondent, but granting petitioner a right of visitation with the child every Saturday. Petitioner alleged that in April 1988 respondent secretly took the child to America, depriving petitioner of his visitation rights. Petitioner then obtained from the Greek court on November 7, 1988, an ex parte order granting him temporary custody of their child. Petitioner also alleged that he had traced respondent and their child to Chicago on November 14, 1988. Certified copies of the Greek orders, together with translations of those orders, were attached to the petition.

Petitioner sought relief in two counts. In count I he sought “registration” of the Greek orders. In count II he sought injunctive relief to restrain respondent from removing their child from the jurisdiction, and he also sought custody of the child. On February 3, 1989, the circuit court entered an order which, inter alia, registered the Greek orders pursuant to section 12 — 603 of the Uniform Enforcement of Foreign Judgments Act (Ill. Rev. Stat. 1987, ch. 110, par. 12 — 603) and granted respondent leave to respond to those orders as well as to respond to count II. On April 7, 1989, the circuit court entered an order denying respondent’s motion to vacate the previous order of registration, recognizing and granting comity to those orders, and finding that in granting comity the court had no further subject matter jurisdiction to modify those orders. The court also made the Rule 304(a) finding that there was no just reason to delay enforcement or appeal of the order. Respondent now appeals from that order and from those portions of the February 3, 1989, order pertaining to count 1.

Respondent maintains that the court erred in registering the Greek orders pursuant to the Uniform Enforcement of Foreign Judgments Act (UEFJA) (Ill. Rev. Stat. 1987, ch. 110, pars. 12 — 601 to 12 — 617). She also contends that under Illinois case law the doctrine of comity does not permit recognition of divorce decrees of foreign countries. Petitioner has abandoned reliance on either of these bases to support the circuit court’s actions, relying instead on the authority of the Uniform Child Custody Jurisdiction Act (UCCJA) (Ill. Rev. Stat. 1987, ch. 40, par. 2101 et seq.).

Clearly the trial court erred in basing its registration of these decrees on the UEFJA. Judgments of foreign countries cannot be registered under that act. (Zalduendo v. Zalduendo (1977), 45 Ill. App. 3d 849, 360 N.E.2d 386.) Illinois case law also supports respondent’s contention that the circuit court’s reliance on comity was misplaced. Illinois courts have long held that comity cannot be the basis for enforcement of foreign countries’ matrimonial judgments. Clubb v. Clubb (1949), 402 Ill. 390, 84 N.E.2d 366; Hager v. Hager (1971) 1 Ill. App. 3d 1047, 274 N.E.2d 157; In re Marriage of Mullins (1985), 135 Ill. App. 3d 279, 481 N.E.2d 322.

As petitioner now concedes, the appropriate authority for registering or filing the Greek orders in Illinois was the UCCJA. Section 16 of that act provides for filing certified copies of the custody judgments of' other States with the clerk of the circuit court. Judgments so filed are to have the same effect as custody judgments rendered by Illinois courts. (Ill. Rev. Stat. 1987, ch. 40, par. 2116.) Section 24 provides:

“The general policies of this Act extend to the international area. The provisions of this Act relating to the recognition and enforcement of custody judgments of other states apply to custody judgments and judgments involving legal institutions similar in nature to custody institutions rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons.” Ill. Rev. Stat. 1987, ch. 40, par. 2124.

Implicit in this latter provision is the requirement that an opposing party have the opportunity to contest the foreign judgment on the grounds that the legal institutions involved were not similar to those of the United States or that reasonable notice and the opportunity to be heard were not provided in that foreign proceeding. Respondent was not given the opportunity to raise such objections because the circuit court was not relying on this act. Indeed, in written arguments to the circuit court petitioner erroneously informed the court that the UCCJA did not apply to foreign country judgments. The circuit court’s February 3, 1989, order also erroneously specified that the court had no further jurisdiction to modify the Greek orders. In fact, under the UCCJA prior judgments by other courts may be modified if certain criteria are met. Ill. Rev. Stat. 1987, ch. 40, par. 2104.

Accordingly, because the circuit court’s registration and recognition of the Greek orders were not based upon the appropriate statutory authority, because respondent has not yet been given the opportunity to contest this registration and recognition under the standards of the UCCJA, and because the circuit court erroneously deprived itself of further jurisdiction, we reverse and remand for further proceedings.

The orders of the circuit court of Cook County, purporting to register and recognize the orders of the Greek court, are reversed and the cause remanded for further proceedings.

Reversed and remanded for further proceedings.

CERDA, RJ., and FREEMAN, J., concur.


author: JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MAX POLK et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—87—2285
    Opinion filed January 26, 1990.

      Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Linda Woloshin, Assistant State’s Attorneys, of counsel), for the People.
    Sheldon L. Banks, of Chicago, for appellees.
   JUSTICE MURRAY

delivered the opinion of the court:

The State appeals from the trial court’s granting of defendants’, Max Polk and Leola Hobson’s, pretrial motion to suppress evidence after they had been charged with possession of a controlled substance (cocaine) with intent to deliver. The following facts are relevant to this appeal.

At the hearing on the motion, Polk testified that after defendants had paid cash for airplane tickets from Fort Lauderdale, Florida, to Chicago, they had to sit one seat apart from each other because of the crowded plane. Upon reaching Midway Airport, Hobson left the plane first and waited for Polk and then the two defendants walked to the terminal area together. Polk went to the luggage carousel area while Hobson went to make a phone call. Polk was carrying a folded-over suitbag and a white purse. After the phone call, Hobson left the suitbag on the floor by Polk while she went outside to see if their ride had arrived. Hobson returned to where Polk was standing, picked up the suitbag and went back outside.

After Polk retrieved his suitcase from the carousel, he joined Hobson outside the terminal doors. Defendants were then approached by a plainclothesman (Detective Richard Crowley) who showed them a badge. Without identifying himself, Crowley asked to see Polk’s luggage and was refused. Crowley did not tell Polk that the officer could have dogs brought in to sniff the luggage or that a search warrant could be obtained if appropriate. Polk had his plane ticket in his hand (apparently for a luggage sticker), which Crowley grabbed. Crowley then took Hobson’s ticket from her hand. The officer then searched Polk’s suitcase without Polk’s consent. Afterwards, Crowley grabbed Hobson’s purse, which was slung over her shoulder. Polk grabbed its strap, and the two men struggled over the purse, causing the strap to break. Crowley retained the purse and Polk ran away. After a block and a half, Polk stopped and was arrested by a uniformed police officer (A1 Murphy) assigned to airport duty. Polk also testified that neither the purse nor its contents belonged to him.

Hobson’s testimony was substantially the same as Polk’s but differed in the following respects. She testified that Polk, not she, held her airline ticket and that Crowley snatched both of them from him. Polk stated that Crowley took his suitcase from him and placed it on the ground for the search; Hobson said that the case was on wheels and Polk never let go of its strap during Crowley’s search. Hobson also said that Crowley left marks on her arm where he held her while struggling for her purse.

Detective Crowley’s testimony is considerably different from that of the defendants. Crowley claimed that he and Detective Richard Boyle were watching the unboarding of defendants’ flight as part of a routine drug surveillance at the airport. They had no information regarding any drug activity but were watching passengers arriving from drug source cities who might fall within an, apparently, amorphous drug courier profile.

Crowley saw Hobson get off among the first 10 passengers and she aroused no suspicions. Polk was one of the last few passengers to deplane and was carrying a folded-over suitbag. After the detective saw Polk look over his shoulder several times (the only passenger to do so) as he was walking alone, the officers decided to watch him. They noticed that as he walked past the security area for boarding passengers, he walked as far away as possible from the security personnel, hugging the wall. Polk made eye contact with Hobson, who was about 15 feet away in the terminal, and the defendants then nodded at each other. Polk went to the luggage carousel. Hob-son went outside the terminal, then came back in and stood silently next to Polk, and then went back outside. Hobson came in again, talked to Polk and took the suitbag as she returned to the outside. She came into the terminal once again as Polk retrieved his suitcase whereupon they both left the terminal to stand on the sidewalk near a cab stand.

Both detectives then approached defendants, with Crowley identifying himself and asking them if he could speak with them, although they didn’t have to speak. Detective Boyle left the area after this initial encounter. Crowley asked Polk for his name and identification and requested his flight ticket, which Polk gave to him. Crowley then asked Polk’s consent to search his luggage and told him that he was free to go and was not under arrest. Polk then exclaimed that he was tired of being harassed every time he came into Midway and became very nervous and angry. The detective then told Polk that there was probable cause to detain his luggage and call the canine unit for a sniffer dog. Polk swore and threw his bag down, telling Crowley to go ahead and search it.

During the search, Crowley noticed Hobson walking away with the suitbag and asked Polk if she was carrying his suitbag. Polk said she was and gave his consent to a search of it. Polk called Hobson back. She returned, placing the suitbag on the sidewalk and started to run back into the terminal. Crowley followed her to the entry doors, and when he reached her, she threw her purse over the detective’s head into the street. Polk grabbed the purse and ran down the street until he ran into another passenger, Frank Zimmerman. A struggle ensued, causing the purse to drop and spill open. Three packages wrapped in duct tape fell out. Polk ran away but was caught about a block away by Officer Murphy. The State did not call Zimmerman to testify.

Officer Murphy testified that he saw Crowley search Polk’s suitcase by himself, but that Polk pulled clothes out of the folded suitbag and threw them onto the sidewalk. Murphy also observed Hobson throw her purse over Crowley’s head into the street.

Two police reports were made on the incident: a four-page case report for the Chicago police department (police report) and a five-page report for the Federal Drug Enforcement Agency (DEA report). Although Detective Crowley testified that he puts matters he considers to be important in his reports, the two reports were dissimilar in many respects. Many important facts were not put in the police report, which omissions were explained by Crowley on the basis that DEA reports were the more detailed reports. The police report did not mention that Polk stopped and looked around after deplaning; no gestures between defendants were mentioned nor were any of the airport meetings between defendants in the report. Both reports state that Hobson exited and reentered the airport twice; Crowley testified that it was three times. Much of the alleged initial conversations with defendants, e.g., questions regarding drug activity, requests for identification and flight tickets, was not in the police report. No mention of advising Polk of his rights regarding a search or Polk’s angry response of throwing his clothes onto the sidewalk was made in the police report. The police report noted that when Hobson started to run, she threw her purse to Polk, who caught it and then ran into another passenger. A struggle over the purse ensued whereupon the purse’s contents fell onto the ground. The DEA report states that as Hobson was running, she threw her purse into the street.

After oral arguments, the trial court sustained defendants’ motion to suppress, stating that it did not believe the testimony of the State’s witnesses. It found that, under these circumstances, the stop, search and seizure, and arrest were unconstitutional. The State now appeals, claiming that the motion should not have been granted because Polk had no standing to object to admission of the evidence (purse’s contents); the stop and questioning were agreed to by defendants; and the search was consensual. We must affirm the trial court for the following reasons.

A defendant has standing to seek suppression of evidence only if his own fourth amendment rights have been violated. (United States v. Salvucci (1980), 448 U.S. 83, 65 L. Ed. 2d 619, 100 S. Ct. 2547.) In other words, one must have a proprietary or possessory interest in the item sought to be suppressed. (See Rakas v. Illinois (1978), 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421.) Thus, a defendant must demonstrate a subjective expectation of privacy in the searched place that society accepts as objectively reasonable in order to claim protection of the fourth amendment. California v. Greenwood (1988), 486 U.S. 35, 100 L. Ed. 2d 30, 108 S. Ct. 1625.

The State argues that because defendant Polk denied owning the purse or its contents and demonstrated no reasonable expectation of privacy in the purse, he had no standing to object to introduction into evidence of the drugs found in Hobson’s purse. This argument is fallacious because it rests upon the premise that Hobson threw her purse into the street, after which it was picked up by Polk, who then ran away with it. It is clear from the record that the trial court did not believe this version of the events. Instead, the court emphasized its disbelief of the State’s witnesses.

It is axiomatic that a reviewing court will not overturn a trial court’s ruling on a motion to suppress unless it is manifestly erroneous. (People v. Galvin (1989), 127 Ill. 2d 153.) At a hearing on such a motion, the trial court’s function is to determine the credibility of witnesses, the weight to be assigned to their testimony, and the inferences to be drawn from the evidence. (People v. Akis (1976), 63 Ill. 2d 296.) Based on this record, we cannot overturn the trial court’s determination on some theory that the court was erroneous in believing the defendants’ testimony. Even in print, the testimony of the State’s witnesses, coupled with the inadequate and sometimes-conflicting police and DEA reports, is incredible.

If one believes the defendants’ testimony that Crowley and Polk struggled over Hobson’s purse, as obviously did the trial court, then Polk had standing to object to introduction of the purse’s contents. He had a possessory interest in the personal luggage of his companion when he went to her aid in an attempt to keep Crowley from grabbing her purse off of her shoulder. It was in Polk’s possession when Crowley seized it. Property ownership may be a factor in determining whether a party has standing to test the constitutionality of a search and seizure, but it is not dispositive. Other relevant factors include a reasonable expectation of privacy, whether a defendant was legitimately present in the area searched, defendant’s possessory interest in the area or property seized, his ability to control or exclude others’ use of the property, and a subjective expectation of privacy in the property. (People v. Johnson (1986), 114 Ill. 2d 170.) Although Polk disclaimed ownership of the purse, the evidence indicated that he had possession of, and a reasonable right to exclude others from, seizure of his companion’s property. Therefore, Polk had standing to assert suppression of the purse’s contents.

The State’s other contentions must fail also on the basis of the trial court’s credibility assessments. Once again, the State assumes we must overturn these assessments and believe Crowley’s testimony. The trial court found no probable cause for an investigatory stop and the subsequent seizure of defendants. To make an initial stop, there must be an articulable suspicion, based on objective facts, that a defendant is involved in criminal activity. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) However, a consensual inquiry is permissible if it does not escalate into a detention amounting to a seizure in violation of a constitutionally protected interest. Florida v. Royer (1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319.

Based on these principles, our appellate court has condoned police intrusion at airports upon persons deplaning from flights originating in Florida “drug source cities” who make eye contact with and nod affirmatively to other passengers. (People v. Forrest (1988), 172 Ill. App. 3d 385.) It has done so, however, where the evidence indicated passenger consent to the initial intrusion. Consent to a search is a question of fact to be determined from the totality of all the circumstances. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041.) In the present case, the trial court did not believe that the appropriate eye contact or affirmative nod occurred, or that defendants gave consent to either the initial questioning or subsequent searches. We can find nothing in the record to disturb such a determination.

Once again, the credibility determinations are crucial to the outcome of this case. The trial court made a succinct summation while commenting on the testimony of the State’s witnesses: “I don’t believe that is what occurred, I think there were no articulable facts taken from the activities of the defendant, there would be no rational inferences drawn therefrom that would reasonably warrant the intrusion and investigatory stop.” The record does not indicate that these assessments were manifestly erroneous but, rather, supports the trial court’s conclusion. Accordingly, because there was no warrant, no probable cause or exigent circumstances, no consent to an investigatory stop or search, the granting of defendants’ motion to suppress must be affirmed.

Affirmed.

COCCIA, P.J., and LORENZ, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN WHEELER, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—2476
    Opinion filed January 26, 1990.

      Emory Andrew Tate & Associates, Ltd., of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Jane E. Loeb, and David P. Gaughan, Assistant State’s Attorneys, of counsel), for the People.

      Justice R. Eugene Pincham participated in this case prior to his resignation. Since that time Justice Francis S. Lorenz was designated the third member of the panel and has read the record and briefs and has listened to the oral argument tape.

   JUSTICE MURRAY

delivered the opinion of the court:

Defendant Steven Wheeler appeals from his conviction of murder after a bench trial. The sole issue on appeal is whether the trial court’s rulings restricting testimony regarding defendant’s prior use of alcohol and drugs were prejudicial to his insanity defense.

Defendant does not deny that he killed Caroline Dotson on March 4, 1986. He and Dotson had lived together for over a year and had a daughter. Defendant moved out of Dotson’s apartment in December 1985, although the couple continued to see each other, with defendant spending some nights with Dotson. Defendant and Dotson, with her three children, had stayed together at the home of his mother from March 1 through March 3, 1986. On the morning of March 4, defendant went to work. He drank two shots of whiskey at noon and returned to work, where he drank another half-pint of whiskey. After leaving work at 5 p.m., he stopped at a bar and had several more drinks. He then went to his mother’s home and smoked one gram of cocaine.

Around 6:45 p.m., defendant left for Dotson’s home, taking a gun with him. Defendant testified that he had been “stuck up” in the area several months earlier. Upon arriving at Dotson’s home, defendant asked her who Jimmie Lee was. She replied that he was a man who had been giving her money and, in vernacular terms, that she had been sleeping with him. Defendant testified that the next thing he remembered was Dotson lying on the floor.

Dotson’s eight-year-old son testified that defendant arrived at Dotson’s home with a gun in his pocket which he placed on a shelf before he started fighting with Dotson. Defendant then grabbed the gun and shot Dotson twice, left the apartment, but reentered and shot the screaming woman two more times.

When defendant was arrested at his brother’s home later that evening, he told an officer that he had shot and killed his girl friend. The officer smelled no odor of alcohol on defendant. Detective William Kelly testified that when he spoke with defendant around 2 a.m. on March 5 at the police station, defendant told him that he had shot Dotson and identified the gun he had used, which police had recovered from his brother. Around 5:18 a.m., defendant gave a court-reported confession that was quite detailed. During the statement proceedings, defendant corrected the assistant State’s Attorney when asked if the arresting officers had taken him directly to the Area 4 violent crimes section. Defendant acknowledged that he had been taken first to another police station “on Damen.” During his trial, defendant stated that he did not remember exactly what had occurred in Dotson’s apartment or with the police or assistant State’s Attorney. However, in his statement he admitted shooting Dotson twice and leaving the apartment, returning to shoot her twice more.

At trial, defendant contended that when he shot Dotson, he was insane as a result of prolonged substance abuse and paranoia. He testified that between December 1985 and March 1986, he drank IV2 pints of whiskey a day and spent between $120 and $180 a week on cocaine. In support of his insanity defense, he called as a witness Fre-derico Duran, a co-worker who had socialized with defendant for approximately five years. Duran stated that he saw defendant have four shots of whiskey at a bar after work on the Friday before the shooting, which occurred on Tuesday. The court refused to allow defense counsel to question Duran regarding defendant’s prior use of alcohol or drugs, limiting, his testimony to events occurring on the Friday before the murder.

Dr. Henry Conroe, a psychiatrist testifying for the defense, reported that he interviewed defendant in October 1986 and concluded that defendant suffered from paranoia and mixed substance abuse. The doctor noted that the alcohol and drug use had increased in the eight months preceding the shooting. Dr. Conroe also testified that the employer for whom defendant had worked as a printer for six years told the doctor that defendant was an excellent worker whom the employer would retain if he were not in jail. Conroe opined that, based on his diagnoses, defendant was “unable to appreciate the criminality of his action or conform his conduct to the requirement of the law” at the time of the killing.

Dr. Lisa Grossman, a clinical psychologist, and psychiatrist Dr. Robert A. Reifman, who had examined defendant in June 1986, testified as State expert witnesses. Dr. Grossman found that defendant suffered from substance abuse and a mixed personality with antisocial behavior, but that he was sane when he shot Dotson. The trial court sustained an objection to defense counsel’s attempts to cross-examine the doctor regarding the duration of defendant’s drug abuse. Dr. Reif-man agreed with Dr. Grossman that defendant was rational and coherent and legally sane on March 4. He diagnosed defendant as a passive, aggressive personality with substance abuse. Defendant allegedly told Reifman that he had killed Dotson because she was unfaithful. Defendant testified that he had never been treated for alcohol or drug abuse, he had never had the “shakes” or hallucinations, and his drinking had never interfered with his job performance.

The trial court found defendant guilty of murder and sentenced him to 30 years’ imprisonment. We must affirm the trial court for the following reasons.

Defendant contends on appeal that the trial court’s rulings restricting Duran’s testimony to events occurring within a four-day period preceding the shooting of Dotson and the limitations of defense counsel’s cross-examination of Dr. Grossman were prejudicial to his defense. He argues that these rulings prevented him from presenting evidence crucial to his defense of insanity resulting from his prolonged and intensive abuse of alcohol and drugs. We find the limitations on Duran’s testimony were proper, but that it was harmless error to restrict cross-examination of Dr. Grossman.

A person is not criminally responsible for his conduct at the time of an offense if, as a result of a mental disease or defect, he lacks substantial capacity to either appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. (Ill. Rev. Stat. 1985, ch. 38, par. 6 — 2(a).) Once a defendant raises an insanity defense, a presumption that all persons are sane may be overcome by presenting evidence that raises a reasonable doubt that he was sane at the time of the offense. (People v. Dunigan (1981), 96 Ill. App. 3d 799.) The State must then prove that the defendant was sane when he committed the crime. (People v. Eckhardt (1987), 156 Ill. App. 3d 1077.) Only insanity existing at the time of the crime, and not before or after, can serve as an excuse for its commission. (People v. Littlejohn (1986), 144 Ill. App. 3d 813.) Moreover, it is for the trier of fact to determine whether a defendant was insane at the time of the offense, and a reviewing court will not reverse that determination unless it is so improbable or unsatisfactory as to raise a reasonable doubt as to the defendant’s sanity, or is so manifestly contrary to the manifest weight of the evidence as to indicate that it was based on passion or prejudice. People v. Kapsalis (1989), 186 Ill. App. 3d 96.

Generally, a voluntary intoxicated or drugged condition precludes the use of an insanity defense unless a mental disease or defect has resulted from the habitual or chronic use of drugs or alcohol and such use results in a permanent type of insanity. (People v. Free (1983), 94 Ill. 2d 378; People v. Downey (1987), 162 Ill. App. 3d 322.) Cases have required such use to have been of long duration (People v. Mask (1975), 34 Ill. App. 3d 668; and see People v. Cochran (1924), 313 Ill. 508 (the fact that, three years before offense, defendant was temporarily committed to mental institution for treatment of a permanent type of insanity caused by drinking moonshine is relevant to sanity at time of crime); People v. Bray (1964), 52 Ill. App. 2d 384 (defendant’s claim of 20 years’ alcoholism, by itself, was insufficient evidence of insanity at time of offense)).

In presenting his defense, it is without question that a defendant has a right to present relevant evidence and witnesses during trial. (See Taylor v. Illinois (1988), 484 U.S. 400, 98 L. Ed. 2d 798, 108 S. Ct. 646.) And, almost every aspect in a defendant’s life is relevant when an insanity defense is raised, although relevancy remains a prerequisite for admission of evidence. (People v. Buggs (1986), 112 Ill. 2d 284.) A fact is relevant if it tends to prove a fact in controversy or render a matter in issue more or less probable. (People v. Free (1983), 94 Ill. 2d 378.) Based on these and the above rules, the trial court’s restriction of the direct examination of defendant’s friend Duran was not error. As revealed in the sidebar, defense counsel wanted to question Duran as to how many times he had stopped after work to drink with defendant in the year preceding Dotson’s death. Such questioning only goes to proof of defendant’s addiction, not to any resultant permanent insanity. (See People v. Downey (1987), 162 Ill. App. 3d 322.) Since defendant’s sanity was the issue in question, the frequency and amounts he drank during the preceding year were not relevant to that issue. In addition to being nonrelevant, such testimony would have been cumulative to testimony of defendant and Dr. Conroe that defendant had a worsening drug and alcohol problem, for at least the preceding eight months, and was therefore properly excluded. See People v. Ward (1984), 101 Ill. 2d 443.

The restriction of defense counsel’s cross-examination of Dr. Grossman is a different matter. Wide latitude should be allowed in the cross-examination of an expert witness, and the scope of inquiry into the basis of such an opinion is broad. (People v. Buggs (1986), 112 Ill. 2d 284.) Dr. Grossman testified that defendant suffered from substance abuse, but she was not allowed to be cross-examined as to the duration of that abuse. Defendant’s defense rested, in part, on the duration of his abuse. Guided by the rules enunciated by our supreme court in People v. Buggs, the preferable course would have been to allow full cross-examination of the psychologist. However, the scope of cross-examination is largely discretionary and will be overturned only where an abuse of that discretion manifestly prejudices the defendant. (People v. Gacho (1988), 122 Ill. 2d 221.) Any error committed here was not prejudicial to defendant and was, therefore, harmless. Harmless error occurs where a reviewing court can safely conclude that the same result would have been effected without the error. People v. Myles (1985), 131 Ill. App. 3d 1034.

We can discern neither prejudice nor a different result where both Dr. Grossman and Dr. Reifman opined that defendant was sane when he killed Dotson and, further, where both Dr. Conroe and defendant testified as to the duration and growing severity of defendant’s abuse problems. The eight-months-to-one-year period of time in this case is not equivalent to the length of abuse in the few cases in which a defendant has successfully asserted a defense of insanity based on abuse of alcohol and/or drugs over a long period of time.

It is for the trier of fact to resolve contradictory testimony of expert witnesses in determining the sanity of a defendant. (People v. Meeker (1980), 86 Ill. App. 3d 162.) The trial court’s determination that defendant was sane when he killed Dotson is supported by other evidence in addition to Grossman’s and Reifman’s opinions. (See People v. Kapsalis (1989), 186 Ill. App. 3d 96.) Defendant testified that he had never been treated for any mental problem or substance abuse; he had never had the “shakes” or hallucinations. It was also shown that his alleged problem never interfered with his ability to perform his job, which he had held for six years. In addition, defendant’s coherency and detailed accounting of events immediately after his arrest and several months later when he talked to the examining doctors further bolster the trial court’s conclusion.

Accordingly, it is apparent that the restriction of the cross-examination of Dr. Grossman regarding the duration of defendant’s substance abuse did not deny him a fair trial; thus, there was no prejudice. Nor, under the circumstances of this case, can we conclude that the results would have been any different had full cross-examination been permitted. Therefore, we must affirm defendant’s conviction.

Affirmed.

COCCIA, P.J., and LORENZ, J., concur.


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES GILBERT, Defendant-Appellant.
    First District (6th Division)
    No. 1—87—0982
    Opinion filed January 26, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Barabara J. McClure and James H. Reddy, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Linda Woloshin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, James Gilbert, was jointly indicted with codefendants, Kenneth Thompson and Davey Luster, for murder and armed robbery. Defendant’s trial was severed from his co-defendants’. After a jury returned a guilty verdict of armed robbery against defendant, the trial court entered judgment on the verdict and sentenced defendant to 20 years’ imprisonment. Defendant appeals, contending that he was not proved accountable for armed robbery beyond a reasonable doubt; that the trial court erred in denying his motion to have his codefendants barred from the courtroom during his testimony; that the trial court erred in permitting the prosecutor to misstate the law regarding accountability; that the trial court improperly considered the victim’s death when imposing sentence; and that the evidence obtained as a result of defendant’s initial stop should have been suppressed because the police officers lacked any specific information justifying their action.

The following facts were adduced at trial. Juan Garcia testified that on October 8, 1985, he was walking at 50th and Ashland, across the street from a laundromat. He observed Luster and Thompson in the laundromat. Luster was holding Clayton Wilbourne, and Thompson was pointing a gun at Wilbourne’s head. Wilbourne appeared to struggle, and Thompson shot him. Luster then went through Wil-bourne’s pockets, and he and Thompson left the laundromat, walking toward Marshfield. The men went to the alley, where they were joined by defendant. At a lineup conducted later that evening, Garcia identified Thompson and Luster.

Gayle Jeropke testified that as she stepped out of a car at 50th and Ashland, two men passed her as they headed down the street toward Marshfield. As she approached the alley, a third man, whom she identified as defendant, emerged from the alley and bumped into her. Jeropke continued walking until she reached the corner. She then returned and saw defendant and the two other men talking.

Jeropke entered a tavern on the corner and asked for Wilbourne. She was informed that he was at the laundromat closing up. She went to the laundromat, where she found Wilbourne lying on the floor in a pool of blood. (It was stipulated that Wilbourne died of a gunshot wound.) Jeropke returned to the tavern and told the patrons to call the police. She then returned to the laundromat. Jeropke told the police about the two men who had passed her and the third man who came out of the alley and bumped into her. She gave them a description of defendant.

Officer Thomas Glynn testified that at 8 p.m., he was alerted over his radio that three men had just fled from a shooting at 50th and Ashland. The caller provided a description of one of the men as a black male, with short hair, 5 feet 9 inches tall, 160 pounds, and wearing a black jacket. Glynn patrolled the area and noticed three men, defendant and his codefendants, crossing the street at 51st and Wood. Glynn and his partner drew their weapons and ordered the men to stop. They searched the three men, but recovered nothing linking them to the laundromat incident.

The officers placed the three men into a squadrol and brought them to the laundromat. The men were taken out of the squadrol, and Jeropke identified them. Later that evening, Jeropke viewed a seven-man lineup conducted by Detective Thomas Ptak. She identified all three men again. At that time, she told the detectives that defendant was not wearing the same coat he had been wearing on the street. She informed the detectives that the offender sitting next to him was wearing the coat.

Following the lineups, Ptak read defendant his rights and told him that he had been identified. Ptak asked defendant about the coat, and defendant stated that he and Luster had changed coats in the squadrol because he did not want to be identified. Defendant stated that he and his codefendants had planned a robbery earlier in the day. He said they had walked down Ashland and arrived at the laundromat store front. Defendant watched codefendants walk into the laundromat. He continued to the back of the laundromat and remained in the alley. After a few minutes, he heard a gunshot. He then walked out of the alley, and as he reached the alley mouth, Thompson walked by and said, “I just killed someone.” The three men then fled westbound on 50th Street. Ptak did not take any notes during this conversation with defendant.

Assistant States’ Attorney Michael Gerber spoke with defendant at Area 3 Headquarters. Following that conversation, he called for a court reporter and took a statement. In that statement, defendant repeated what he had told Officer Ptak.

At the close of the State’s case, defense counsel expressed defendant’s reluctance to testify in • the presence of codefendants. Defendant then rested without testifying.

Defendant first contends that his actions prior to and during co-defendants’ armed robbery and murder of Wilbourne did not constitute aiding and abetting and, therefore, that he improperly was found guilty of armed robbery on an accountability theory. Defendant argues that his presence outside the laundromat and his subsequent flight from the scene after hearing shots are not sufficient factors to make him accountable for the crimes carried out inside the laundromat by codefendants.

When a defendant has solicited, aided, abetted or agreed or attempted to aid another in the planning or commission of an offense with the intent to promote or to facilitate the commission of the offense, he is legally accountable for the conduct of another. (Ill. Rev. Stat. 1985, ch. 38, par. 5 — 2(c).) However, presence at the scene of a crime coupled with subsequent flight, without more, does not establish accountability. (People v. Lopez (1979), 72 Ill. App. 3d 713, 391 N.E.2d 105.) Nonetheless, one may aid and abet without actively participating in the overt act. (People v. Johnson (1966), 35 Ill. 2d 624, 221 N.E.2d 662; People v. Ray (1979), 80 Ill. App. 3d 151, 399 N.E.2d 977.) That is, evidence that an individual was present at the scene of a crime without disapproving or opposing it can be considered together with other circumstances in determining whether that individual should be held accountable. People v. Underwood (1982), 108 Ill. App. 3d 846, 439 N.E.2d 1080; People v. Torres (1981), 100 Ill. App. 3d 931, 427 N.E.2d 329.

We believe that the evidence here was sufficient to prove defendant guilty of robbery under an accountability theory. In a statement taken before a court reporter, defendant told the assistant State’s Attorney that the three men planned the robbery of the laundromat that afternoon at an apartment. Defendant’s statements demonstrate his participation in planning the robbery. Furthermore, his presence with his codefendants at the scene and his flight with them after the incident demonstrate his acquiescence in the execution of the robbery. Finally, defendant not only fled with his codefendants, but also changed jackets with one codefendant to avoid detection. Whether an individual has specific intent to aid or abet a crime for purposes of imposing liability under an accountability theory is a question of fact for the jury. (People v. Kelly (1976), 39 Ill. App. 3d 988, 351 N.E.2d 419.) Here, the jury reasonably could have found that defendant aided and abetted in the planning or commission of the robbery; that this participation took place before the commission of the robbery; and that defendant had concurrent specific intent to promote or facilitate the robbery. See People v. Jones (1973), 12 Ill. App. 3d 643, 299 N.E.2d 77.

Defendant next urges this court to find that even if he did specifically plan the robbery, he nonetheless withdrew from the commission of the offense. Defendant argues that his separation from his code-fendants is evidenced by the fact that he went into the alley and did not continue on to the laundromat with codefendants.

In order to effectively withdraw from a criminal enterprise, a defendant must communicate his intent to withdraw, and not merely withdraw. (People v. Rybka (1959), 16 Ill. 2d 394, 158 N.E.2d 17; Ill. Rev. Stat. 1985, ch. 38, par. 5 — 2(c)(3).) Moreover, the withdrawal must be timely, so as to give the coconspirators a reasonable opportunity to follow the example and to refrain from further action before the act is committed. (People v. Rybka, 16 Ill. 2d 394, 158 N.E.2d 17.) The trier of fact must be able to find that the accused wholly and effectively detached himself from the criminal enterprise before the crime is in the process of consummation or has become so inevitable that it cannot reasonably be stayed. People v. Rybka, 16 Ill. 2d 394, 158 N.E.2d 17; Ill. Rev. Stat. 1985, ch. 38, par. 5-2(c)(3).

Here, defendant did not effectively detach himself from the criminal enterprise. Defendant accompanied his codefendants to the scene of the crime and separated from them only moments before the crime. Defendant proceeded into the alley behind the laundromat, leaving only when his two codefendants exited the laundromat. He then fled with them, and when the three men were arrested, he changed jackets with one of his codefendants to avoid detection. (See People v. Ruiz (1982), 94 Ill. 2d 245, 447 N.E.2d 148 (evidence of events occurring after the crime has been committed is competent to show participation in the crime itself).) The jury reasonably could have concluded that defendant’s action did not neutralize the effect of his prior conduct, and, accordingly, we will not disturb this conclusion.

Defendant also contends that the trial court erred in denying his request to have his codefendants barred from the courtroom during his testimony. Defendant maintains that this error denied him the right to testify at his trial.

A defendant’s right to testify at his own trial is fundamental. (People v. Dredge (1986), 148 Ill. App. 3d 911, 500 N.E.2d 445.) Our review of the record, however, reveals that defendant was not denied the right to testify, but rather, that he chose not to testify. Defense counsel indicated that defendant was reluctant to testify in front of the other two defendants, but did not move to exclude them from the courtroom. When asked whether defendant would testify, defense counsel unequivocally responded that he would not. At no time did he request a ruling from the trial court on the subject of the code-fendants’ presence in the courtroom, and, accordingly, no such ruling issued. Thus defendant has failed to show that he was denied the right to testify.

Defendant next contends that certain statements made by the prosecutor during closing argument constituted reversible error. During closing argument, the prosecutor remarked that in order for the defense of withdrawal to apply, the defendant must not only terminate participation in the plan, but also must “do an affirmative action.” Defendant argues that this comment amounts to a misstatement of the law of accountability.

As noted previously, a person is not accountable if, prior to the commission of the offense, he terminates his effort to promote or facilitate such commission, and then does one of the following: wholly deprives his prior efforts of effectiveness in such commission, or gives timely warning to the proper law enforcement authorities, or otherwise makes proper effort to prevent the commission of the offense. Ill. Rev. Stat. 1985, ch. 38, par. 5 — 2(c)(3).

The plain language employed in the statute mandates that the defendant first terminate his participation in the crime and then do one of three things. Judicial construction of the statute is consistent with this interpretation. (See, e.g., People v. Richard (1980), 90 Ill. App. 3d 322, 413 N.E.2d 5.) Thus, in our view, the prosecutor did not misstate the law of accountability when he indicated that defendant had to both terminate participation in the criminal enterprise and perform some affirmative action which neutralized his prior conduct.

Defendant further urges that the prosecutor’s explanation of accountability caused the jury to believe that the only way defendant could have deprived his prior efforts of their effectiveness was by warning the victim. Our review of the record, however, reveals that the prosecutor couched his argument in terms of alternatives and not absolutes. The comments were well within the parameters of permissible closing argument and did not misstate the law of accountability.

The last comment about which defendant complains is as follows:

“[Defense counsel] said that at 6:00 p.m. on October 8th, 1985 in the basement on Wood Street, James Gilbert sat with Kenneth Thompson and Davey Luster and planned the armed robbery of the laundromat at 50th and Ashland. At that time James Gilbert had committed a conspiracy to commit armed robbery.”

Defendant contends that this comment was equivalent to pronouncing him guilty of armed robbery by accountability. Although it is true that the prosecutor may not state his own individual opinion or belief of the defendant’s guilt (People v. Fuerback (1966), 66 Ill. App. 2d 452, 214 N.E.2d 330), we do not believe that the complained-of statement represented the prosecutor’s personal opinion as to defendant’s guilt. Rather, the statement merely was made in the context of argument regarding the evidence presented at trial.

Moreover, the jury was properly instructed on the law of accountability. The jury also was instructed to follow all of the instructions and was informed that closing arguments were not evidence. The jury’s obligation to follow the trial court’s instructions was clear. Thus, even if any of the remarks of the prosecutor exceeded the bounds of proper comment, we still would not disturb the judgment because defendant has failed to show that the remarks resulted in substantial prejudice. (See People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.) As noted previously, defendant failed to establish that he had taken any action which reasonably could be construed as withdrawal from the criminal enterprise.

Defendant next contends that the trial court improperly considered Wilboume’s death in sentencing him.

Defendant was convicted of armed robbery, a Class X felony. (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 2.) A defendant convicted of a Class X felony permissibly may be sentenced to no less than 6 years and not more than 30 years. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8— 1(3).) Thus, defendant’s sentence falls well within the permissible range. Defendant nonetheless contends that the sentencing hearing improperly focused primarily on the 76-year-old laundromat worker’s death.

In sentencing a defendant, a judge may not consider the fact that the victim died as a result of the offense, where the jury acquitted the defendant of the murder charge. (People v. Gant (1974), 18 Ill. App. 3d 61, 309 N.E.2d 265.) There is no indication here, however, that the sentencing judge was influenced in any way by the acquitted offense. The court never commented on Wilbourne’s death. Moreover, the prosecutor’s argument did not focus on the death. The prosecutor merely referred to the fact that the victim of the armed robbery died. This comment did not unduly direct the sentencing judge’s attention to Wilbourne’s death. Accordingly, we will not disturb the sentence imposed upon defendant.

Defendant lastly contends that the arresting officers did not have sufficient information to justify the original stop of defendant and co-defendants and that the court erred in denying his motion to suppress. Defendant notes that the officers had only a description of three male blacks and a physical description matching one of the three.

A police officer’s conduct in a stop-and-search situation must be governed by a standard of reasonableness. A stop must be justified by specific and articulable facts which, taken together with rational inferences from these facts, reasonably warrant the intrusion. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; People v. Byrd (1977), 47 Ill. App. 3d 804, 365 N.E.2d 443.) Here, the officers had specific and articulable facts from which they legitimately could have concluded that the three men may have been the perpetrators of the crime at the laundromat.

Officer Glynn testified that at about 7:52 p.m., he received a radio message indicating that a shooting had occurred at 50th and Ash-land. A second radio message described three male blacks, one of whom was 5 feet 9 inches, 160 pounds, having short hair and dark skin, and wearing a black jacket. The message also gave the direction of flight as westbound on 50th Street. Glynn and his partner observed three male blacks at 51st and Wood. The three men were the only people on the street. One of the men was tall, with short hair and dark skin and was wearing a black jacket. They were approximately three blocks from the scene of the shooting. Twenty to thirty minutes had elapsed from the time of the first radio call.

Glynn testified further that when he and his partner emerged from their squad car to stop the three men, Thompson made a move to run, stopping only when the officers drew their weapons. As the officers searched him, Thompson swung at Glynn. The men then were told that they were being returned to the scene and that if they were not identified, they would be brought back to 51st Street.

In our judgment, Glynn and his partner had ample facts from which they could conclude that defendant and the codefendants may have committed the crime. The men were stopped in the vicinity of the crime, within a short timé after the crime occurred. Moreover, the three men fit the general description given by the witnesses to the crime, and one of the men specifically fit the description given by Jeropke. Finally, when the officers approached the three men, one began to run. (See People v. Addison (1977), 56 Ill. App. 3d 92, 371 N.E.2d 1025 (flight in the face of officers approaching under the Terry rule may supply the additional matter needed to constitute probable cause).) We find that the officers had specific facts and circumstances from which the officers reasonably could suspect that the group might be the one which had committed the crime. (See People v. Garza (1976), 44 Ill. App. 3d 30, 357 N.E.2d 1264.) Accordingly, the initial stop of defendant and codefendants was proper and the evidence obtained as a result of the stop was properly admitted.

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

Judgment affirmed.

LaPORTA, P.J., and EGAN, J., concur.