author: PRESIDING JUSTICE McMORROW

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL LONG, Defendant-Appellant.
    First District (4th Division)
    No. 1—87—1570
    Opinion filed December 31, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Karen E. Tietz, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Randall Roberts, and Walter Hehner, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McMORROW

delivered the opinion of the court:

Following a jury trial, defendant was convicted of two counts of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 2(a)) and sentenced to natural life imprisonment as a habitual offender (Ill. Rev. Stat. 1985, ch. 38, par. 33B — 1). On appeal, defendant contends that (1) the trial court erred in denying his motion to quash his warrant-less arrest and suppress his subsequent inculpatory statement as the fruit of an illegal arrest, and (2) he was denied effective assistance of counsel at the hearing on his motion to quash, and at his trial. We conclude that the trial court properly denied defendant’s motion to quash and that he was adequately represented by counsel. Accordingly, we affirm.

Prior to trial, defendant filed a motion to quash his arrest and suppress his statement to the police. In this motion, defendant argued that the police officers had unlawfully entered his residence without a warrant, and that neither consent nor exigent circumstances justified their warrantless entry into his home to arrest him.

At the hearing on his motion to quash arrest and suppress statements, defendant testified that on the date of his arrest, he lived in the first floor apartment of a two-flat house in Chicago. His girlfriend, Christina White, had been living with him for approximately two months and rented the apartment. Defendant’s mother and sister lived in the second-floor apartment.

Defendant further testified that shortly before 9 p.m., he was watching television in the living room at the rear of the apartment. His girlfriend, Christina, had just left the apartment to go to the store on the corner. Defendant’s sister, Charmaine, came down the rear stairs to talk to Christina. Defendant told Charmaine that Christina had just gone to the store but would return shortly. He let Charmaine out the back door, locked it, and then returned to the couch to watch television. At that time, he saw a shadow on the wall between the kitchen and the living room. Defendant recalled that it was exactly 9 p.m., because he looked at a clock in the living room. As he started to look around the corner, at least five or six men ran up to him, pointed guns at his face, said “police officers,” and then handcuffed him. The officers searched the entire apartment, including cabinets and drawers. When he asked if they had an arrest or search warrant, they said they did not need either one. Defendant testified that Charmaine, who was on her way back upstairs, immediately returned and began knocking on the back door to be let in. Before he was taken from the apartment by the officers, Christina returned and brought him his coat from the closet. Defendant testified that neither he nor anyone else consented to the police entry into the apartment or gave them permission to search it.

Following defendant’s testimony, defense counsel stated that the defense rested on the motion. The State then presented the testimony of two police officers. Officer Peter Ciaccio of the Oak Lawn police department testified that he and and his partner, along with several officers of the Chicago police department, went to defendant’s home to arrest him for the armed robbery of a White Hen Pantry store in Oak Lawn that had occurred a few days earlier. Officer Ciaccio stated that he did not attempt to obtain a warrant for defendant’s arrest, a process that would have taken six to eight hours. It is undisputed that the officers had probable cause to arrest the defendant, as two individuals had given incriminating statements to police that implicated defendant in the White Hen Pantry robbery.

Officer Ciaccio testified that he and the other officers arrived at defendant’s residence at approximately 9 p.m. Officer Ciaccio and three or four Chicago police officers went to the front of the house. Detective Robert Gricus of the Chicago police department knocked on the door. A young woman approximately 20 to 25 years old, who at some point later stated that she lived there with defendant, opened the door. At this time, Officer Ciaccio was standing, with his gun drawn, approximately five to six feet from the door. He was behind Officer Gricus, who did not have his gun drawn, and a uniformed Chicago police officer. Officer Ciaccio did not know if any other officers had their weapons drawn.

When the young woman opened the door, Officer Gricus showed her his police star, identified himself both by name and as a Chicago police officer, and told her that they were looking for Michael Long. She said “come in officers” or “step in officers.” When they entered the apartment, they saw defendant seated on a couch, watching television. Officer Gricus asked him if he was Michael Long. When defendant responded in the affirmative, Officer Gricus told him he was under arrest for armed robbery. Defendant was then patted down and handcuffed. Officer Ciaccio testified that he did not prepare a case report following defendant’s arrest and did not know whether his partner had done so.

Chicago police officer Gricus testified that at about 9 p.m. on December 23, 1985, he accompanied officers of the Chicago and Oak Lawn police departments to defendant’s residence in order to arrest him for the armed robbery of the White Hen Pantry store. When they arrived at the home, Officer Gricus knocked on the front door, and a young female whose name he could not recall opened the door. Officer Gricus identified himself, showed her his police badge, and asked if defendant was home. She said “step in.” He immediately saw defendant and, after identifying himself, asked if he was Michael Long. When defendant responded that he was, Officer Gricus told him that he was under arrest for armed robbery. Officer Gricus did not have his gun drawn and did not notice whether any of the other officers had drawn their weapons. His partner prepared the arrest report, and he did not know if it or any report indicated that they had gained entry into the apartment with the consent of the female who resided there.

Following the testimony of the police officers, defense counsel moved for a continuance for the purpose of locating defendant’s girlfriend, Christina. The trial court granted defendant’s motion. When the hearing reconvened, the defense called defendant’s sister, Charmaine, as a witness. Charmaine testified that on the day of defendant’s arrest, she lived with her mother in the second-floor apartment and defendant was living in the first-floor apartment with Christina. Between 8:30 and 9 p.m., Charmaine went downstairs to talk to Christina. Defendant told her that Christina had just gone to the store, and Charmaine left through the back door and returned to the upstairs apartment. She did not see Christina in the upstairs apartment when she returned or while she remained in the apartment.

Approximately 20 minutes later, Charmaine went back down the stairs to the first-floor apartment and began knocking and then pounding on the back door. After approximately five minutes, someone opened the door. Charmaine saw defendant and about six or eight police officers, some of whom had their guns drawn. Charmaine did not see Christina anywhere in the apartment. Charmaine noticed that the apartment was ransacked and that it had not been in that condition when she had left 20 minutes earlier. She asked the detectives whether they had a search warrant, and they responded that they did. Approximately one-half hour later, Christina came down the back stairs -with Lois Long, the mother of defendant and Charmaine. Charmaine testified that she surmised Christina had returned from the store after Charmaine had gone back downstairs and found that defendant had been arrested.

Lois Long, the mother of defendant and Charmaine, testified that at approximately 9 p.m., Christina came through the front door of her apartment and said that the police had defendant, that they were arresting him and that her “house was full of cops.” Mrs. Long went downstairs by way of the rear stairway. When she reached the doorway, she saw defendant with six to eight police officers. She did not see the condition of the apartment because she remained outside at the bottom of the stairway.

Following this testimony, the defense rested. After arguments by counsel, the trial court stated that it found credible police testimony to the effect that they entered the apartment with the voluntary consent of the young woman who rented it. On this basis, the court denied defendant’s motion to quash the arrest and suppress his statement.

Defendant was prosecuted for the armed robbery of the manager and attendant of a Union 76 Gas Station in Evergreen Park, Illinois, that occurred at approximately 3:45 p.m. on December 19, 1985. Dwayne Edwards, the manager of the gas station, testified that on the date of the incident, he was confronted by two men as Edwards was about to enter the gas station. One man was wearing an army jacket and had a nylon stocking over his face. The second person wore a blue, hooded jacket and had a ski mask over his face. Both individuals were white males approximately 5 feet 7 inches tall and weighing about 130 to 135 pounds. Edwards stated that the man wearing the army jacket and nylon stocking withdrew from his jacket and displayed to him the butt end of a pistol. The man wearing the hooded jacket and ski mask asked Edwards for the keys to the safe in the gas station. When Edwards responded that he did not have the keys, the man wearing the hooded jacket and ski mask took all the money from Edwards’ pockets. The two men then fled on foot. Edwards went into the gas station and telephoned the police.

The gas station attendant, Patrick Gumbleton, testified that the two individuals, about whom he gave the same description as that provided by Edwards, had entered the station and taken from Gumbleton all the money in his possession while Gumbleton had been counting the money in the cash register. Thereafter, the men had accosted Edwards and fled. Gumbleton attempted to chase the men for approximately three-quarters of a block, but had been unable to pursue them any farther. Both Edwards and Gumbleton testified that they did not see their assailants get into a vehicle after the robbery.

The State was permitted to introduce into evidence at defendant’s trial the circumstances of the armed robbery of a cashier at a White Hen Pantry store in Oak Lawn that occurred a few days later, on December 22, 1985. The cashier, Janet Hayes Carrano, testified that on that date, at approximately 12:30 a.m., she was confronted by two men who demanded money from the cash registers in the store. One man was approximately 6 feet 4 inches tall, was wearing a brown corduroy jacket, and had a nylon stocking over his head. The second person was approximately 5 feet 7 inches tall, wore an army jacket, and had a ski mask over his face. Both individuals were white males. The man wearing the brown jacket and nylon stocking displayed a gun to Carrano, while the other person took the money from the registers. Both men then fled on foot. Carrano did not see the men get into an automobile after the incident.

The gas station owner and attendant, as well as the cashier of the White Hen Pantry, identified at trial the items of clothing worn by their assailants and the weapon used during the robberies. It was established at trial that these items had been recovered by police from the residence of Eric Petrouskas.

At trial, the court admitted into evidence an oral incriminating statement made by defendant while he was in custody at a police station following his arrest. In this statement, defendant said that he participated in the armed robbery of the gas station and the White Hen Pantry with the assistance of Petrouskas and defendant’s brother, Scott Long. According to defendant’s statement, Petrouskas drove the car to the gas station, and defendant and his brother went into the station. Defendant admitted that he took money from the gas station attendant’s pockets and that he and his brother then fled. In his oral statement, defendant also admitted that he participated in the armed robbery of the cashier at the White Hen Pantry store. Defendant stated he remained in the car, which was parked in an alley near the store, while his brother and Petrouskas, wearing a nylon stocking and ski mask, entered the store and committed the robbery. While at the police station following his arrest, the defendant also signed a written statement incriminating himself in both robberies, and testimony was admitted into evidence to show that defendant had signed such a written account of the incidents. However, the trial court refused to admit the written statement into evidence, because it included references to armed robberies other than those occurring at the gas station and the White Hen Pantry.

In his defense at trial, defendant presented the testimony of his sister, Susan Green, his mother, Lois Long, and a neighbor, Brenda Garcia. Each of these witnesses testified that on the date and time of the robbery of the gas station, defendant was stringing Christmas lights on the outside of the house in which defendant, his girlfriend, and his family lived. All of these witnesses also testified that on the date and time of the White Hen Pantry robbery, defendant was playing cards with them in the apartment of defendant’s mother.

Based upon this evidence, defendant was found guilty and convicted of the armed robbery of the manager and attendant at the Union 76 Gas Station. He was sentenced to natural life imprisonment as a habitual offender. This appeal followed.

Defendant contends that the trial court committed reversible error in denying his motion to quash his arrest and suppress his subsequent statement at the police station because he was illegally arrested in his home without a warrant. Defendant argues that probable cause alone does not justify the warrantless arrest of a suspect in his home without either voluntary consent to enter it or exigent circumstances, citing Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371. Defendant maintains that neither consent nor exigent circumstances were present in this case and that consequently his statement was inadmissible at trial as the fruit of the illegal arrest.

However, defendant’s argument with respect to the warrant-less entry into his apartment is inconsistent with the United States Supreme Court’s decision in New York v. Harris (1990), 495 U.S. 14, 109 L. Ed. 2d 13, 110 S. Ct. 1640. In Harris, the police entered the defendant’s home without his voluntary consent. The police did not have a warrant, and no exigent circumstances justified their failure to obtain one. Once inside the house, the officers arrested Harris, and he was transported to a police station for questioning. While at the station, Harris waived his Miranda rights and signed a written inculpatory statement. This statement was admitted against him at trial, and he was convicted. On appeal to the United States Supreme Court, Harris argued that the police, by entering his home without a warrant, exigent circumstances, or his consent, violated Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371. Payton held that the fourth amendment prohibits the police from effecting a constitutionally valid warrantless, nonconsensual entry into a suspect’s home to make a routine felony arrest, and that under Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254, a subsequent statement made by the accused is inadmissible as the fruit of the illegal arrest.

The Harris court reviewed Payton and Brown and held that when the police have probable cause to arrest a suspect, the Federal exclusionary rule does not bar the State’s use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest in violation of Payton. The majority found Brown and its progeny to be distinguishable because in those cases the police lacked probable cause, whereas in Harris the police had justification to question Harris prior to his arrest. The Court reasoned that Harris’ incriminating statement made at the police station was not the product of being in unlawful custody or an “exploitation of the illegal entry into Harris’ home.” New York v. Harris (1990), 495 U.S. 14, 19, 109 L. Ed. 2d 13, 21, 110 S. Ct. 1640, 1644.

There is no dispute in the instant case that the police had probable cause to arrest defendant when they arrived at his home to arrest him. The record shows that, prior to their arrest of defendant, the officers had been informed that two persons had admitted to the armed robberies and had implicated defendant in the commission of those offenses. Under Harris, defendant’s voluntary, incriminating statements were lawfully obtained at the police station during interrogation, irrespective of whether the police gained consensual entry into defendant’s home in order to arrest him. In light of Harris, the admission of defendant’s voluntary statement at the police station did not constitute a violation of his fourth amendment rights.

Defendant asserts that this court should not follow Harris and that the Illinois constitutional protection regarding unreasonable searches and seizures is, or should be, more expansive than that provided under Federal constitutional law. This argument was expressly rejected in People v. Beasley (1990), 206 Ill. App. 3d 112, for reasons which we find dispositive in this appeal. As the court noted in Beasley, Illinois’ constitutional protection regarding unreasonable searches and seizures (Ill. Const. 1970, art. I, §6) closely parallels the fourth amendment to the United States Constitution (U.S. Const., amend. IV). In view of this close parallel, the Illinois Supreme Court in People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147, held that Federal constitutional interpretations regarding the fourth amendment apply to Illinois’ constitutional provision regarding unreasonable searches and seizures. Based upon these considerations, the Beasley court concluded that Harris was applicable to the case before it. In accordance with Tisler and Beasley, we find that the United States Supreme Court’s decision in Harris is appropriately considered in our determination of whether the trial court properly denied defendant’s motion to quash and suppress.

The cases upon which defendant relies do not conflict with our conclusion in this regard. In People v. Brocamp (1923), 307 Ill. 448, 138 N.E. 728, the Illinois Supreme Court held inadmissible evidence obtained in the defendant’s home as a result of police officers’ unlawful entry into his residence. The case is distinguishable from the instant cause, because defendant here seeks to suppress statements made at the police station, not evidence seized from his residence. In People v. White (1987), 117 Ill. 2d 194, 512 N.E.2d 677, the court considered the admissibility of a defendant’s statement under Federal, not Illinois, precedent. (See also People v. Stofer (1989), 180 Ill. App. 3d 158, 534 N.E.2d 1287; People v. Wiedman (1988), 168 Ill. App. 3d 199, 522 N.E.2d 231.) We decline to deviate from the precedent established in Tisler and Beasley in the instant cause.

In addition, assuming arguendo that Harris were not applied to the case at bar, the evidence presented in the instant cause supports the trial court’s conclusion that the State met its burden of establishing that consent was given to the police officers’ warrantless entry into defendant’s home in order to arrest him. Defendant argues that the trial court should have credited his testimony that Christina did not consent to the officers’ entry because she was at the store when the police entered the apartment. Defendant contends that his testimony in this respect was consistent with that of his sister, Charmaine, and his mother, Lois Long.

The question of whether the police gained entry to a residence through voluntary consent is generally a question of fact to be resolved by the trial court, as finder of fact, at a hearing on a defendant’s motion to quash and suppress. The trial court’s determination is entitled to substantial deference and will be reversed only if against the manifest weight of the evidence. (People v. Rose (1989), 191 Ill. App. 3d 1083, 548 N.E.2d 548; People v. Turner (1986), 143 Ill. App. 3d 417, 493 N.E.2d 38; People v. Calhoun (1984), 126 Ill. App. 3d 727, 467 N.E.2d 1037.) Based upon our review of the record, we cannot say that the trial court’s determination was against the manifest weight of the evidence. The evidence presented was sufficient to justify the trial court’s conclusion that the testimony of defendant and his witnesses was less credible than the testimony given by the police officers who testified on behalf of the State.

The testimony of defendant and his witnesses was not free of contradiction. For example, according to defendant, Charmaine returned to the downstairs apartment almost immediately after she had left it upon being told by defendant that Christina had gone to the store. However, Charmaine testified that it was not until 20 minutes later that she went back to defendant’s apartment to find out if Christina had returned. Also, although defendant testified that Charmaine returned because she heard a “commotion,” Charmaine said nothing about hearing a commotion in defendant’s apartment. In addition, the testimony of defendant’s mother did not lend any direct support to his assertion that Christina was not at home when the police arrived. Defendant’s mother testified that at approximately 9 p.m., Christina came to her apartment to tell her that the police were arresting defendant and that there were “cops all over [her] house.” Defendant states that this testimony shows that when Christina returned from the store, she saw the police stakeout, as well as the circumstance that officers were inside the house, and that Christina decided to “seek aid from defendant’s mother in lieu of confronting that number of police alone.” It is also possible, however, that after allowing the police into her apartment and witnessing defendant’s arrest, Christina felt it her obligation to inform his mother of what was occurring.

In contrast to the divergent or inconclusive testimony given by defendant and his witnesses, the testimony of the police officers was direct and consistent as to the events preceding and surrounding defendant’s arrest. Both officers testified that a young female who stated that she lived in the apartment with defendant answered the door and, after being presented with Officer Gricus’ identification and being advised that they were looking for defendant, invited them to “step in” or “come in” to the apartment, following which defendant was placed under arrest. In view of this testimony, we find ample evidence in the record to support the trial court’s conclusion that the officers’ entry was consensual.

We also cannot accept defendant’s argument that the officers’ testimony was rebutted by the alleged fact that there was no mention in any police report that a female granted the police consent to enter defendant’s home. The police reports were not admitted into evidence, and the record does not show what was contained in the reports. The police officers who appeared on behalf of the State testified that they could not recall whether an arrest report had been made or what the arrest report might contain. In addition, the officers gave clear and consistent testimony that they were given consent to enter the apartment where defendant was arrested. In light of this evidence, we cannot say that the trial court’s factual determination was against the manifest weight of the evidence, on the ground that the officers’ reports allegedly failed to mention a female’s consent to the officers’ entry.

Defendant alternatively contends that the State failed to prove that Christina’s consent was voluntary rather than a mere acquiescence to a claim of legal authority. He argues that when Christina opened the door, she was faced with five or six men, one of whom was in a police uniform and at least one other standing two feet from her with his gun drawn. He posits that “[a]ny person, and most definitely the young woman the police say answered the door, would hardly feel they [sic] had any alternative other than to admit police into their [sic] home.”

Voluntariness of consent is also a question of fact to be determined from the totality of circumstances based on the testimony of the witnesses (People v. Rose (1989), 191 Ill. App. 3d 1083, 548 N.E.2d 548; People v. Turner (1986), 143 Ill. App. 3d 417, 493 N.E.2d 38), and the trial court’s resolution of conflicts in the testimony will not be disturbed unless it is clearly erroneous. People v. Calhoun (1984), 126 Ill. App. 3d 727, 467 N.E.2d 1037.

We find no basis in the record to disturb the trial court’s determination that Christina voluntarily consented to the police officers’ entry into her apartment. Both Officer Ciaccio and Officer Gricus testified that a young female opened the door in response to Officer Gricus’ knock and that after he identified himself and stated their purpose for being there, she invited them to “step in.” Officer Ciaccio did testify that his gun was drawn. However, he further testified that he was about six feet, not two feet, from the door. In addition, Officer Ciaccio testified that he was standing behind Officer Gricus and a uniformed officer at the time. Accordingly, the evidence of record supports the trial court’s ruling.

Defendant also maintains that the State was required to call Christina as a witness in order to sustain the State’s burden of proof on his motion to quash and suppress. However, the record shows that the consistent testimony of the police officers was sufficient to prove that Christina voluntarily consented to the officers’ entry into the apartment. Consequently, we cannot say that the State’s failure to call Christina rendered insufficient the State’s proof with respect to the defendant’s motion to quash and suppress. People v. Broge (1987), 159 Ill. App. 3d 127, 511 N.E.2d 1321, is distinguishable, because the officers in Broge lacked probable cause to arrest the defendant in his home, and the trial court improperly placed upon the defendant the burden of disproving a police officer’s uncorroborated testimony that entry into the defendant’s home had been consensual. See People v. Guerrieri (1990), 194 Ill. App. 3d 497, 551 N.E.2d 767.

In light of our determination that the trial court properly concluded that there was voluntary consent to the officers’ warrant-less entry into the apartment in order to arrest defendant, we need not consider whether exigent circumstances also justified the warrant-less entry into the residence to arrest him.

For these reasons, we conclude that the trial court properly denied defendant’s motion to quash and suppress and that defendant’s incriminating statement was properly entered into evidence against him at trial.

Defendant contends that he should receive a new trial because his attorney was ineffective at both the hearing on defendant’s motion to quash and at the jury trial. He argues that his attorney was ineffective because he failed to thoroughly prepare his case, waived the presence of a court reporter at jury selection, failed to object to evidence of other crimes, and failed to disclose to defendant that disciplinary proceedings were pending against him.

In People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246, the Illinois Supreme Court adopted the two-prong test enunciated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, on the issue of ineffectiveness of counsel. Under Strickland, the defendant must overcome the strong presumption that the attorney’s conduct fell within the wide range of reasonable professional assistance. The defendant must first establish that defense counsel was actually incompetent in his duties, and then demonstrate that counsel’s deficient performance prejudiced the defendant in a manner that denied him a fair trial, and that, absent the alleged errors, the outcome of the trial would likely have been different. (Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246; People v. Perry (1989), 183 Ill. App. 3d 534, 540 N.E.2d 379; People v. Bernardo (1988), 171 Ill. App. 3d 652, 525 N.E.2d 857.) In determining the adequacy of legal assistance, a reviewing court will not focus on isolated instances of alleged deficiencies but, rather, must consider the totality of circumstances. Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246; People v. McNutt (1986), 146 Ill. App. 3d 357, 496 N.E.2d 1089.

We consider first defendant’s argument that defense counsel was ill-prepared at the hearing on defendant’s motion to quash. Defendant contends that his counsel was ineffective, because he did not discover prior to the hearing that the State would argue and present evidence to show that the police entered the apartment with the consent of defendant’s girlfriend, Christina.

We cannot say that defendant was prejudiced by his counsel’s representation at the hearing on defendant’s motion to quash. As noted more fully above, defendant’s statement was lawfully obtained under the United States Supreme Court’s decision in Harris. In addition, as defendant suggests in his brief, it is entirely possible that Christina was not called as a witness by defendant’s attorney because Christina had moved and could not be located. There is nothing in the record to indicate that defendant’s attorney did not attempt to locate this witness, or that defendant’s counsel was not diligent in his attempt to locate her. Under these circumstances, we cannot conclude that defendant was deprived of effective assistance of counsel at the hearing on his motion to quash and suppress.

Defendant also argues that his defense counsel was ineffective when he waived the presence of a court reporter during jury selection. Defendant asserts that this waiver violated Illinois Supreme Court Rule 308 (107 Ill. 2d R. 308), which states that stenographic notes shall be taken during jury selection. He maintains that a transcript was necessary because of an issue regarding jury selection.

The record discloses that on the day after jury selection, but prior to the commencement of trial, the trial court excused a juror for cause. This excusal was based on the juror’s misrepresentation during voir dire that he had no prior criminal arrests. The record contains a complete transcript of the dialogue among the court, counsel, and the juror, regarding the misrepresentation and the court’s resulting ex-cusal of the juror. Trial proceeded with one of the alternatives sitting in the place of the excused juror.

Defendant does not explain what error occurred, or what prejudice resulted, from the absence of stenographic notes of the jury selection proceedings. In addition, the record also shows no prejudice accrued to defendant because of the absence of such stenographic notes. The record reflects that the trial court rejected defense counsel’s post-trial argument that defendant was prejudiced by the excusal of the juror for cause. In so ruling, the trial court reviewed the transcript of its proceedings when the juror was excused. The court noted that the alternates had been selected in the same manner as the other jurors, and that neither the State nor the defense had used all its peremptory challenges at the end of jury selection. Given these circumstances, we find defendant’s argument with regard to the absence of stenographic notes insufficient ground to grant him a new trial for lack of effective assistance of counsel.

As further illustration of counsel’s ineffectiveness, defendant cites his attorney’s failure to object to the admission of evidence relating to the armed robbery of a White Hen Pantry three days after the offense for which he was on trial. He argues that the extensive evidence regarding this second robbery did not méet the requirements for admission to show modus operandi, or for any other permissible purpose. Defendant contends the evidence was introduced solely to show his propensity to commit crime and that counsel was incompetent in not only failing to object to its introduction, but in conceding its admissibility.

We need not address whether the evidence regarding the robbery of the White Hen Pantry store was properly admitted to show modus operandi. Even assuming arguendo that this evidence should have been excluded, we cannot say that the failure of defendant’s attorney to object to its admission is sufficient to warrant a new trial. Defendant provided an incriminating statement to officers following his arrest in which defendant admitted to his participation in the robbery of the gas station, the offense for which defendant was charged. Defendant’s account of the robbery as given in his incriminating statement was corroborated at trial by the testimony of the victims of the gas station robbery. In light of this substantial evidence of the defendant’s guilt, we cannot conclude that the outcome of defendant’s trial probably would have been different if defendant’s attorney had successfully objected to the admission of this other evidence.

Defendant also contends that he did not receive' effective assistance of counsel because disciplinary proceedings were pending against his attorney at the time of trial. (See In re Levin (1987), 118 Ill. 2d 77, 514 N.E.2d 174.) Relying on People v. Williams (1982), 93 Ill. 2d 309, 444 N.E.2d 136, defendant argues that these disciplinary matters, which counsel failed to disclose to him, affected his performance at trial and resulted in deficient representation.

In Williams, defense counsel represented Williams and two other codefendants before one jury, and simultaneously represented a fourth defendant before another jury. All four defendants were charged with capital crimes, and defendant was convicted and sentenced to death. Disciplinary proceedings were in progress at the time of trial and the attorney was subsequently disbarred. (In re Weston (1982), 92 Ill. 2d 431, 442 N.E.2d 236.) The Williams court took into account the additional burdens placed on both the court and counsel because of the simultaneous trials for four defendants, and the admissions of defendant’s attorney at the disciplinary hearing that he had been under such emotional stress that he “did not feel mentally or physically capable of presenting his case before the [disciplinary commission].” (Weston, 92 Ill. 2d at 436.) The supreme court held that although it could not characterize the trial performance of defendant’s counsel as actual incompetency, “considering the unique circumstances and sequence of events in this capital case, which will rarely, if ever, be duplicated, that the interests of justice require that [defendant] be granted a new trial.” (Emphasis added.) Williams, 93 Ill. 2d at 325.

Defendant in the case at bar argues that “this is the rare case that duplicates the unique circumstances in [Williams].” Nearly identical assertions were made and rejected in People v. Bernardo (1988), 171 Ill. App. 3d 652, 525 N.E.2d 857, and People v. Perry (1989), 183 Ill. App. 3d 534, 540 N.E.2d 379. In Bernardo, the defendant contended that his attorney was ineffective because he was suffering from a mental illness, drug addiction, and the mental strain of pending disbarment proceedings. We held that the case was factually distinguishable from Williams. Unlike Williams, Bernardo was not charged with a capital offense, nor was the evidence either voluminous or complicated. We therefore held that the Bernardo case did not present the unique circumstances which existed in Williams and applied the Strickland test, under which defendant failed to establish that he was denied effective assistance of counsel.

A similar result was reached in Perry, involving the same defense attorney who was retained by defendant in the case before us. With one notable exception, i.e., that defendant in Perry was advised of his counsel’s disciplinary proceedings before commencement of defendant’s trial and elected not to seek substitute counsel, the allegations made by Perry regarding counsel’s alleged ineffective performance at trial are similar to those raised by defendant in this case. Perry argued that the mere pendency of disciplinary proceedings renders an attorney incompetent to defend in a criminal case. The court disagreed, stating that the fact that the supreme court permits lawyers to continue to practice until they are suspended or disbarred negated Perry’s theory. The court also determined that the case before it did not involve the unique circumstances present in Williams and, as in Bernardo, examined Perry’s specific examples of alleged ineffectiveness under the standard in Strickland. Applying that test, the court concluded that defense counsel provided Perry with effective assistance of counsel.

Similar to the courts in Bernardo and Perry, we find no unique circumstances such as those in Williams to warrant a departure from the Strickland test requiring proof of actual incompetence without which the outcome of the trial would likely have been different. Reviewing the entire record of counsel’s representation of defendant in the case at bar, we cannot say that the attorney rendered defendant ineffective assistance. That his efforts on defendant’s behalf were not successful does not constitute incompetency entitling defendant to a new trial. People v. McNutt (1986), 146 Ill. App. 3d 357, 496 N.E.2d 1089.

Aside from the other specific allegations of ineffectiveness which we have reviewed and rejected, the only remaining instance cited in support of defendant’s contention is a remark by the trial court when defense counsel appeared 10 minutes late from a recess. After counsel explained that he had been delayed at a sentencing hearing in another case, the court replied, “[y]ou’ve got too many cases.” There is nothing in the record to disclose the extent of defense counsel’s caseload. We do not believe that an isolated remark by the trial court regarding the defense attorney’s heavy caseload establishes that counsel was unable to provide effective assistance to defendant in the case at bar. We also note that the trial court’s remark was made outside the presence of the jury and did not serve to prejudice defendant at trial.

For the reasons stated, defendant’s conviction and sentence are affirmed.

Affirmed.

LINN and JOHNSON, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    JOHN BARBOUR, Plaintiff-Appellant, v. FRED BERGLUND AND SONS, INC., Defendant-Appellee.
    First District (4th Division)
    No. 1—89—0659
    Opinion filed December 31, 1990.

      Arthur E. Engelland, of Chicago, for appellant.
    Law Offices of James J. Desveaux, of Chicago (Thomas P. Mangan, of counsel), for appellee.
   PRESIDING JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff, John Barbour, filed a personal injury suit against defendant, Fred Berglund & Sons, Inc. Plaintiff’s suit was dismissed on the ground that it was not filed within the time limited by law. Plaintiff appeals, contending that the trial court erred when it ruled that this case did not come within the misnomer provision of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 4 — 102(b)) (the Code) and was barred by the statute of limitations.

Plaintiff’s case arose from an injury he suffered on June 21, 1985, when a beam collapsed and fell on him while he was working at a construction site in Chicago. Plaintiff’s employer, Patent Scaffolding Co., was a subcontractor at the site.

On June 18, 1987, plaintiff filed a complaint naming Bergman Construction as the only defendant. The complaint alleged that Bergman Construction was the general contractor at the site on the date of plaintiff’s injury. On the day his lawsuit was filed, plaintiff requested that summons be served on Bergman Construction at 3116 River Road in River Grove, Illinois. The sheriff’s return stated that summons was served on an agent of Bergman Construction at the address given.

On December 2, 1987, plaintiff moved to quash summons, file an amended complaint and issue alias summons. The motion stated that the summons and complaint were served upon I. Bergman Construetion and that I. Bergman Construction verified that it was not the defendant in this cause. Upon the granting of the motion, plaintiff filed an amended complaint against defendant, Fred Berglund and Sons, Inc. On December 17, 1987, summons was served upon Fred Berglund and Sons, Inc., at 8410 South Chicago Avenue in Chicago.

On March 10, 1988, defendant filed an appearance and a motion to dismiss in lieu of an answer. The motion asserted that Fred Berglund and Sons, Inc., was not named as a defendant in this case nor was summons issued until December 2, 1987; that the two-year statute of limitations for personal injury actions expired on June 21, 1987; and that, therefore, plaintiffs suit was barred because it was not timely filed.

On April 8, 1988, the trial court granted defendant’s motion to dismiss with prejudice pursuant to section 2 — 619(5) of the Code. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(5).) On April 14, 1988, plaintiff moved to vacate the dismissal on the ground that he had not received notice of the motion and had no knowledge of the hearing on defendant’s motion until he received a copy of the ex parte order granting it. Plaintiff requested vacatur of the order and leave to file a response to the motion to dismiss. Plaintiff’s motion to vacate the April 8, 1988, dismissal was granted, and plaintiff was given time to file his response to defendant’s motion to dismiss.

In his response, plaintiff asserted that his original naming of Bergman Construction as defendant was merely a misnomer, and that under section 2 — 401(b) of the Code, the case should not have been dismissed. He argued that misnomer is not a basis for dismissal, and that the error may be corrected at any time by amendment of the complaint and upon proof that summons was served on the party in interest who at all times was intended to be made the defendant, thereby giving that party actual notice of the lawsuit. Plaintiff maintained that it was his intention when he filed his original complaint to name Fred Berglund and Sons, Inc., the general contractor at the site of his injury, as the defendant in this action, but that defendant was misnamed as Bergman Construction. He further asserted that Fred Berglund and Sons, Inc., was the real party in interest, and that according to section 4 — 102(b), defendant was served with process and therefore had actual notice of the suit.

Attached to the response was plaintiff’s affidavit in which he averred the following: that at the time of his injury he was employed by Patent Scaffolding Co., a subcontractor at the site; that he did not deal directly with the general contractor and incorrectly believed the general contractor’s name to be Bergman Construction; that at no time did Bergman Construction contract or subcontract for any work on the site; that a subsequent investigation revealed that there is no such company as Bergman Construction; and that it was never his intention to bring suit against any construction contractor other than the general contractor on the jobsite where his injury occurred, which was Fred Berglund and Sons, Inc. Plaintiff asserted that as a result of his mistaken belief that the general contractor’s name was Bergman Construction, he misnamed Fred Berglund and Sons, Inc., in his complaint, but that upon discovery of the misnomer, he immediately corrected it by having his complaint amended to name Fred Berglund and Sons, Inc., as the real party in interest and by effectuating service of summons upon Fred Berglund and Sons, Inc., in accordance with the misnomer statute.

On June 14, defendant filed a motion to vacate the order of April 20 and reinstate the dismissal order of April 8. In support of its motion, defendant argued that plaintiff had failed to file his response to the motion to vacate by the date prescribed in the order. Defendant also filed a reply to plaintiff’s response to the motion to dismiss. In its reply, defendant argued that the misnomer statute was not applicable because this was not a case of misnomer but, rather, a case of mistaken identity. Defendant noted that plaintiff named Bergman Construction in his original complaint and that service of summons was effectuated at the address plaintiff listed for Bergman Construction. Defendant maintained that plaintiff did not misname the correct party but, instead, named the wrong party in his complaint. Defendant argued that because it was not until after the expiration of the statute of limitations that plaintiff named and served summons upon Fred Berglund and Sons, Inc., the April 8 order dismissing the action should be reinstated.

Following a hearing on July 29, 1988, the trial court granted defendant’s motion and dismissed the action with prejudice. On August 29, plaintiff filed a motion to reconsider, arguing again that this was a case of misnomer. He attached to his motion the affidavit of David Barbour, which essentially reiterated the averments in plaintiff’s earlier-filed affidavit. On January 27, 1989, the trial court denied plaintiff’s motion for reconsideration, and this appeal followed.

Opinion

Section 2 — 401(b) of the Code provides:

“Misnomer of a party is not a ground for dismissal but the name of any party may be corrected at any time, before or after judgment, on motion, upon any terms and proof that the court requires.”

The rule that misnomer is not a ground for dismissal is a narrow one and applies only where an action is brought and summons is served upon a party intended to be made a defendant. In a misnomer case, actual notice of the lawsuit is given to the real party in interest, but the complaint and process do not refer to the person by his correct name. (Ashley v. Hill (1981), 101 Ill. App. 3d 292, 427 N.E.2d 1319; see also Tyler v. J.C. Penney Co. (1986), 145 Ill. App. 3d 967, 496 N.E.2d 323.) Courts of this State have consistently distinguished the misnomer rule from rules applicable to a mistake in identity. The misnomer statute applies only to correctly joined and served, but misnamed, parties. Mistaken identity occurs when the wrong person was joined and served. The intent of the plaintiff is a pivotal inquiry in the determination of whether a particular case involves misnomer or mistaken identity. However, the plaintiff’s subjective intent as to whom he intended to sue is not controlling where the record contains objective manifestations indicating an intent to sue another. See Hoving v. Davies (1987), 159 Ill. App. 3d 106, 512 N.E.2d 729; Leonard v. City of Streator (1983), 113 Ill. App. 3d 404, 447 N.E.2d 489; Clinton v. Avello (1982), 105 Ill. App. 3d 336, 434 N.E.2d 355.

The test in deciding whether the misnomer statute applies is whether the party sued is the real party in interest. (Borkoski v. Tumilty (1977), 52 Ill. App. 3d 839, 368 N.E.2d 136.) If section 2— 401(b) applies, service of summons after the expiration of the statute of limitations does not bar the suit, provided that the plaintiff used reasonable diligence in obtaining service upon the proper defendant. However, in cases of mistaken identity, service upon the proper defendant is required before the expiration of the time provided in the statute of limitations. See Thielke v. Osman Construction Corp. (1985), 129 Ill. App. 3d 948, 473 N.E.2d 574.

Plaintiff contends that this was a case of misnomer and that section 2 — 401(b) authorized the amendment of his complaint to name, and cause process to be served upon, Fred Berglund and Sons, Inc., even though the statute of limitations had expired by the time the misnomer was discovered. It is his position that the pivotal inquiry in this case, as in other misnomer cases, is whom he intended to sue. He argues that it had always been his intention to sue the general contractor on the jobsite at the time of his injuries, but that he was unaware of the general contractor’s name and misnamed it as Bergman Construction.

Plaintiff concedes that if he intended to sue Bergman Construetion, as the general contractor, the case would be one of mistaken identity, and the trial court’s order should be affirmed. He maintains, however, that it could not have been his intention to sue Bergman Construction because it does not exist, and therefore, he could not have intended to sue a nonexisting entity. He argues that the situation in which a plaintiff has sued the wrong party because the named party does not exist is the precise purpose of the misnomer statute.

Initially, we note that we see nothing in the record referring to an “I. Bergman,” whom plaintiff asserts was the party served. The original complaint named “Bergman Construction” in River Grove, Illinois, and plaintiff requested that summons be served upon “Bergman Construction” in River Grove, Illinois. The sheriff’s return states that Bergman Construction was served at the River Grove address upon “Ron — Agent.”

Although plaintiff strenuously asserts in his appeal that the trial court was in error when it concluded that the party named in his complaint was an existing company, in his motion to quash service upon Bergman, amend his complaint and issue alias summons upon Fred Berglund and Sons, Inc., plaintiff expressly stated in his motion:

“1. That summons and complaint was served upon I. Bergman Construction in this cause.

2. That I. Bergman Construction has verified that it is not the named defendant in this case and is not a proper party.” Plaintiff further states in his brief that “the only manifestation in this case that I. Bergman was the intended party defendant was the fact that service was erroneously made upon them in the name of Bergman Construction.”

Plaintiff’s statement in a formal pleading filed in the trial court and again in this appeal that Bergman Construction or I. Bergman or I. Bergman Construction was named and served, and his statement that Bergman verified that it was not the proper party, do not comport with his assertion, on which his appeal is largely based, that there is no such entity as Bergman Construction or I. Bergman Construction. It also directly contradicts the sheriff’s return stating that Bergman Construction was served at the address given by plaintiff in River Grove, Illinois.

Nevertheless, irrespective of who or what I. Bergman or Bergman Construction or I. Bergman Construction in River Grove, Illinois, is or may be, plaintiff admits that none of those parties was the real party in interest in this case. We are not persuaded by plaintiff’s argument that because none of these parties legally exists, he could not have intended to sue any of them. Plaintiff asserts that Clinton v. Avello (1982), 105 Ill. App. 3d 336, 434 N.E.2d 355, established a two-part test to determine whether the case involved misnomer or mistaken identity. Plaintiff quotes the following passage from Clinton in support of his argument that there can be no mistaken identity if the party named does not exist:

“The plaintiffs rather subjective explanation of who he intended to sue cannot prevail over a somewhat more obvious conclusion that he intended to sue the specific party who he named in the complaint and who in fact exists.” (Emphasis added by plaintiff.) (105 Ill. App. 3d at 338.)

We do not read the italicized language in Clinton as the establishment of a correlative rule, as asserted by plaintiff in his brief, that “if there is a claim of mistaken identity, then the party mistakenly identified must exist.”

Even assuming, simply on the basis of plaintiff’s assertion, that none of the forms of “Bergman” named above are legal entities, it has been held that where a suit is brought against an entity which is legally nonexistent, the proceedings are void ab initio. (Tyler v. J.C. Penney Co. (1986), 145 Ill. App. 3d 967, 496 N.E.2d 323.) In Ashley v. Hill (1981), 101 Ill. App. 3d 292, 427 N.E.2d 1319, the plaintiff named and attempted service upon a deceased, and hence, nonexistent party at an address not the address of the correct defendant. Although plaintiff eventually identified the correct party in interest, amended her complaint to name that party and served summons upon him at his residence, the court held that the misnomer statute did not apply, and because the statute of limitations had run prior to service upon the proper defendant, the court dismissed the case. Similarly, in Dunavan v. Heritage House Nursing Home (1984), 121 Ill. App. 3d 813, 460 N.E.2d 75, the name ascribed to the defendant nursing home was a legal nonentity and the person named as the administrator was neither the administrator nor even an employee of the nursing home. The court held that the case was one of mistaken identity, not misnomer, and affirmed the trial court’s dismissal of plaintiff’s amended complaint for failure to name and serve the correct defendants within the time allowed by law.

In the instant case, plaintiff was bound to bring suit against and serve summons upon the real party in interest within the two-year statute of limitations. The real party in interest in this case appears to be Fred Berglund and Sons, Inc. Thus, whether Bergman Construction or I. Bergman Construction exists, the real party in interest was neither named nor served until approximately six months after the statute of limitations had run.

As noted above, plaintiff admits, indeed emphasizes, that his employer at the jobsite was a subcontractor and that he was “unaware of the actual ‘name’ of the general contractor *** [and consequently *** ‘misnamed’ the defendant Fred Berglund and Sons, Inc. as Bergman Construction.” Although the language used by plaintiff is that he did not know the general contractor’s “name” and “misnamed” the real party in interest as Bergman, the statement itself establishes that he was not aware of the identity of the general contractor. Thus, his naming of Bergman Construction was a case of mistaken identity, not misnomer.

Plaintiff’s argument that because his intent was to sue the general contractor and because Fred Berglund and Sons, Inc., not Bergman Construction, was the general contractor, this case involved nothing more than misnomer is not supported by the case on which he relies. In Clinton v. Avello (1982), 105 Ill. App. 3d 336, 338, 434 N.E.2d 355, the court stated immediately prior to the passage cited by plaintiff and discussed earlier, that “[i]t merely begs the question for a plaintiff to contend that he intended to sue the party who caused his injuries.” The Clinton court held that “[t]he most probative evidence of who a plaintiff intended to sue is the party named by the plaintiff in the complaint.” (Clinton, 105 Ill. App. 3d at 338.) While plaintiff in this case may have intended to sue the party who caused his injuries, he did not do so.

In Thielke v. Osman Construction Corp. (1985), 129 Ill. App. 3d 948, 473 N.E.2d 574, the plaintiff named “Osmond and Associates, Inc.,” as the defendant and directed service to the defendant’s former address in Chicago within the time allowed by the statute of limitations. The sheriff’s return noted that Osmond had moved to Arlington Heights. Service was then effected upon “Stanley Osman” as agent of Osman & Associates Construction Corp. in Arlington Heights, albeit 41/2 months after the running of the statute of limitations. The trial court dismissed plaintiff’s action as being time barred. The appellate court reversed, finding that Osman was indeed the real party in interest and that plaintiff had merely misspelled “Osman” as “Osmond.” The court also noted that the defendant entered a special appearance and motion to quash the service of summons in the name of “Osmond & Associates,” rather than identifying itself as “Osman & Associates.” Ruling that the case was one of misnomer, and finding that plaintiff exercised reasonable diligence in attempting service at the proper defendant’s prior address and then in obtaining service at the defendant’s new address, the fact that the statute of limitations had run did not bar plaintiff’s action under the misnomer statute.

Here, as stated previously, plaintiff did not merely misspell the correct defendant’s name or direct service to the defendant at a current or former address. Rather, plaintiff sued and served a party who was not the real party in interest at a location not the address or a former address of the real party in interest. Thus, we conclude that the misnomer statute does not apply and that the trial court correctly dismissed plaintiff’s action as being barred by the statute of limitations.

For the reasons stated, the order dismissing plaintiff’s action is affirmed.

Affirmed.

JOHNSON and LINN, JJ., concur.


author: JUSTICE WHITE

text:
    SAM TEMBRINA, Plaintiff-Appellee, v. CORNELIO SIMOS, d/b/a Beverly Ridge Medical Center, Defendant-Appellee (Leopoldo Jurado, Defendant-Appellant).
    First District (3rd Division)
    No. 1—89—1651
    Opinion filed January 2, 1991.
    Rehearing denied January 25, 1991.

      Thomas E Courtney, of Palos Heights, for appellant.
    Kenneth S. Finkle, of Buffalo Grove, for appellee Sam Tembrina.
    Mary Francis Hill, of Palos Heights, for appellee Cornelio Simos.
   JUSTICE WHITE

delivered the opinion of the court:

Appellant Leopoldo Jurado appeals from an order of the trial court striking his motion for contribution and ordering that the funds from the sale of partnership property be distributed according to the parties’ partnership shares and without regard to appellant’s payment of a mortgage held on the partnership’s property.

This action was initiated in July 1984 when Sam Tembrina filed suit against Cornelio Simos. Simos, Tembrina, and appellant were partners and joint owners of the beneficial interest in a land trust of property located at 1836 West 87th Street in Chicago. Simos owned a three-fifths interest in the trust while Tembrina and appellant each owned one-fifth interests. Under an agreement between the parties, each was jointly and severally liable for payments of a. mortgage on the property held by the Chicago Title & Trust Company (CT&T).

In October 1983, Simos, as owner of a three-fifths interest in the trust, directed the trustee to execute a deed making Simos the sole owner of the property. Tembrina’s suit sought an accounting and re-conveyance of the property to the trust.

In August 1984, when a final “balloon” payment on the mortgage note was not made, the mortgage held by CT&T went into default. In January 1986, while Tembrina’s action was pending and without notice to the other parties, appellant paid the $67,046.16 balance due on the mortgage note and took an assignment of the note from CT&T. Appellant then brought suit against Simos and Tembrina for foreclosure of the note. This action was consolidated with Tembrina’s earlier action for an accounting.

In an order entered September 6, 1986, the trial court vacated the deed transferring the property to Simos. No appeal was taken from this order, and the property was reconveyed to the trust.

In December 1986, Simos and Tembrina filed motions for summary judgment on appellant’s complaint for foreclosure alleging that the doctrine of merger precluded appellant from maintaining an action for foreclosure.

On January 23, 1987, the trial court granted the motions for summary judgment and ordered that the note and mortgage be cancelled. Appellant appealed, and in an opinion dated February 3, 1988, this court affirmed the trial court’s order. See Jurado v. Simos (1988), 166 Ill. App. 3d 380, 519 N.E.2d 1018.

Subsequently, appellant filed a motion for leave to join as an additional party plaintiff in Tembrina’s accounting action. This motion was denied on March 3,1988.

On July 14, 1988, Tembrina filed a motion to join appellant as an additional party defendant. Appellant consented to being joined, and on August 2, 1988, the court entered an order adding appellant as a defendant and granting Tembrina leave to amend his complaint to include allegations against appellant.

On December 12, 1988, Tembrina filed an emergency motion seeking dissolution of the partnership and requesting that the property be sold. In an order entered December 12, 1988, the trial court dissolved the partnership and scheduled a public sale of the property. Tembrina made a bid of $179,000, and the court entered an order approving his purchase of the property.

The sale of the property produced $52,957.23 in net proceeds, and on March 23, 1989, the trial court ordered the parties to file motions for distribution of the partnership’s assets. Appellant filed a motion on April 18, 1989, alleging that he was entitled to contribution from Tembrina and Simos for payment of the CT&T mortgage note. Appellant therefore sought an order granting him all of the sale proceeds and entering judgment against Tembrina and Simos for their share of the mortgage debt not satisfied by the partnership assets.

In response, Simos filed a motion to strike and dismiss appellant’s motion for contribution. Simos alleged that appellant was not entitled to contribution because he had failed to file a counterclaim for contribution within 30 days of being joined as a defendant, as required by the Code of Civil Procedure. Ill. Rev. Stat. 1987, ch. 110, par. 2 — 608.

On May 1, 1989, the trial court entered an order granting Simos’ motion to strike appellant’s motion for contribution and stating that appellant’s contribution was not a partnership liability. The court’s order also stated that the partnership’s assets would be distributed according to the parties’ interests, with one-fifth going to Tembrina, one-fifth to appellant, and three-fifths to Simos.

Appellant has appealed from the trial court’s order of distribution. Appellant argues that the trial court abused its discretion when it granted Simos’ motion to strike and ruled that the claim for contribution was not a partnership liability.

Appellant contends that there was no question that he paid a partnership debt when he paid off the mortgage note held by CT&T. In support of his contention, appellant cites this court’s decision in Jurado v. Simos, where we stated that “if the doctrine of merger is applied to cancel the debt, [appellant] is entitled to contribution from Simos and Tembrina, because [appellant] has paid more than his share of a common obligation.” (166 Ill. App. 3d at 382.) Relying on this language, appellant argues that the trial court was required to take the payment of the mortgage note into consideration when it settled the partners’ accounts.

Initially we note that the appellant is correct in arguing that the trial court erred in holding that appellant’s claim for contribution was not a partnership liability. No evidence was presented on the claim, its validity, or any defenses thereto. Accordingly, we find that there was nothing to support the trial court’s ruling that the claim was not a partnership liability. However, we also find that appellant failed to properly plead his claim for contribution and that therefore the trial court did not err in granting Simos’ motion to strike.

A party cannot be afforded relief despite the presence of evidence supporting such relief, absent a corresponding pleading. (Bartsch v. Gordon N. Plumb, Inc. (1985), 138 Ill. App. 3d 188, 485 N.E.2d 1105.) Where a defendant does not raise by his answer or by a counterclaim a right to a claim arising out of a partnership dissolution, a trial court cannot properly consider such a claim. (See Abbott v. Ferrell (1981), 92 Ill. App. 3d 632, 415 N.E.2d 703.) A defendant who desires affirmative relief must file a cross-bill or cross-complaint; he will not be permitted to prove a claim, defense, or counterclaim which he has not pleaded. 68 C.J.S. §§424, 427 at 959, 961-62 (1950).

In the present case, the record shows that appellant was first put on notice that he had not raised his claim for contribution in a proper manner nine months before the trial court granted Simos’ motion to dismiss. On July 14, 1988, Tembrina filed a petition seeking reimbursement for his payment of delinquent property taxes. In his response to Tembrina’s petition, appellant requested contribution for his payment of the CT&T mortgage note. At a hearing on August 2, 1988, the trial court ruled that a claim for contribution could not be raised in this manner. The court stated:

“Is that the appropriate way to bring that issue to the Court in a response to a petition for contribution? It seems to me that there should be more substantive pleadings so that the issue can be drawn.
* * *
It’s got to be done by a pleading, or I can’t form a hearing on a basis of something like that counsel.
* * *
I don’t believe this how [sic] you raise this kind of an issue.
You have to make an affirmative allegation^] other than in a response to a petition here for reimbursement^] which brings that issue to the Court.
You’re not at issue. Nothing is before the Court. This isn’t a pleading; this is just a simple response. This is an argument. This is what courts receive in lieu of oral argument. It’s your formal response.
It’s not an answer; it’s not a complaint; it’s not a cross-complaint; it’s not a counter-complaint; it’s not an affirmative defense.”

The court reiterated its position at a hearing held on January 17, 1989, to discuss the public sale of the property. At the hearing, appellant again raised the issue of his payment of the mortgage note and his desire for contribution from the other partners. In response, the court stated that it was not satisfied that the claim for contribution had been made a part of the pleadings. Thus, the trial court made it clear on two occasions that it would not entertain appellant’s claim for contribution until some pleading setting forth the claim was filed.

In arguing that the trial court erred in finding that he had not properly raised his claim for contribution, appellant contends that he could not have raised the claim in an answer or counterclaim because Tembrina never amended his complaint to add any allegations against appellant. However, following the August 2, 1988, hearing, appellant made no effort to bring Tembrina’s failure to amend the complaint to the attention of the trial court; nor did appellant take any other steps to plead his claim for contribution, even after January 17, 1989, when the trial court again stated that the claim for contribution had not been made a part of the pleadings. For this reason, we find no error in the trial court’s order striking appellant’s claim for contribution as untimely.

Appellant also argues that the trial court’s orders dissolving the partnership and distributing the partnership assets must be reversed because Tembrina’s complaint sought only an accounting, reconveyance of the property, and injunctive relief and did not request any relief regarding the partnership. This argument is wholly without merit.

Initially, we note that in his complaint, Tembrina sought not only an accounting, but also any other relief the trial court deemed equitable. The fact that a partner’s accounting action does not contain a specific request for a dissolution will not preclude a court from ordering that a partnership be dissolved. (See Saballus v. Timke (1983), 122 Ill. App. 3d 109, 460 N.E.2d 755; Susman v. Cypress Venture (1982), 114 Ill. App. 3d 668, 449 N.E.2d 143.) Under the Uniform Partnership Act (Ill. Rev. Stat. 1987, ch. 106½, par. 32), a court may order a dissolution whenever a partner has been guilty of conduct tending to affect prejudicially the carrying on of the business; when a partner so conducts himself in matters relating to the partnership business that it is not reasonably practicable to carry on the business in partnership with him; when the business can only be carried on at a loss; and when other circumstances render a dissolution equitable.

In ordering the dissolution of the partnership, the court stated that it was apparent that animosity existed between the partners and that they were unwilling to cooperate with each other. The court also took note of the actions of one of the partners in causing the partnership property to be conveyed into his individual name, the partners’ failure to pay their share of real estate taxes, and one partner’s action in absenting himself from the country. The trial court stated that these circumstances clearly justified an order of dissolution. We agree and we find no impropriety in the court’s action.

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

Affirmed.

CERDA, P.J., and FREEMAN, J., concur.

       Justice Freeman participated in the decision of this case prior to taking office as a supreme court justice.


author: PRESIDING JUSTICE RAKOWSKI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT LAMAR PAYTON, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—0952
    Opinion filed January 4, 1991.
    Rehearing denied February 5, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Kyle Wesendorf, Assistant Public Defender, of counsel), for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William D. Carroll, and Walter P. Hehner, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

Following the denial of defendant’s motion to quash arrest and suppress evidence, a bench trial was held and he was found guilty of possession of cocaine and sentenced to 18 months’ imprisonment.

On June 3, 1987, at approximately 4 a.m., Markham police officer Ralph Tolbert observed a vehicle proceeding “northbound on Winchester at a very slow rate of speed.” As the vehicle approached 163rd Street, it stopped and defendant, who was the driver, exited and walked “briskly” toward a house. He approached the door but did not knock or ring the bell. Instead he walked around the back of the residence. At this point, Tolbert approached the vehicle and was informed by the passenger that defendant was going to visit someone. Because Tolbert, from previous experience, knew that the defendant did not live in the residence, he went around the back, where he observed the defendant climb over a fence and run down an alley. Tolbert then pursued the defendant on a chase which lasted 10 to 15 minutes. During the chase Tolbert periodically lost sight of the defendant and used his portable to call for back-up. At least six cars responded and sealed off the area. After finally losing the defendant, Tolbert returned to his auto, where he heard a radio dispatch that defendant had been seen “between houses on the 164th block of Wolcott”.

At approximately 5 a.m. Tolbert again saw the defendant, this time running toward a house at 165th and Winchester. He then saw the defendant return to the vehicle he had seen earlier and enter the passenger door as the vehicle pulled away. Tolbert activated his overhead lights and pulled the car over. As he approached the vehicle, from a distance of approximately five feet, he observed the defendant “lean forward almost to the dash” and “stuff a plastic bag in the crack of the seat *** he had his fingers extended and he was pushing it into the crack of the seat.” Tolbert ordered the defendant out of the car, frisked him, seized the plastic bag, and upon observing that it contained “fifteen small plastic folds and a smaller plastic bag containing a white powder substance” which he suspected was cocaine, placed the defendant in handcuffs. Tolbert testified that at the time of the initial seizure he did not know what was in the plastic bag. When asked if he feared that defendant had a weapon he stated: “I had concerns but I was sure he didn’t have a weapon on him.”

At oral argument, the State conceded that probable cause for arrest did not exist at the time of the stop, pat-down or seizure of the plastic bag. Instead, it relies on Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, as codified in section 108 — 1.01 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 108 — 1.01). Under Terry, it has long been established that an officer may pat-down for weapons whenever he has reason to believe that he is encountering a person who is armed and dangerous. Defendant, also at oral argument, conceded that while Tolbert could have conducted a valid Terry stop and pat-down during or immediately after the chase, the intervening time (approximately 45 minutes) during which Tolbert returned to his car, heard the dispatch and again observed defendant somehow diminished the officer’s basis to stop defendant. Defendant further argues that even if the stop is justified, the seizure is not because the plastic bag was not a weapon.

In Illinois, the circumstances under which a police officer may stop a citizen have been codified:

“A peace officer, after having identified himself as a peace officer, may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense as defined in Section 102 — 15 of this Code, and may demand the name and address of the person and an explanation of his actions. Such detention and temporary questioning will be conducted in the vicinity of where the person was stopped.” (Ill. Rev. Stat. 1987, ch. 38, par. 107 — 14.)

(See People v. Lang (1978), 66 Ill. App. 3d 920, 383 N.E.2d 782.) Section 108 — 1.01 of the Code of Criminal Procedure provides that at such a stop, if an officer “reasonably suspects that he or another is in danger of attack, he may search the person for weapons.” Ill. Rev. Stat. 1987, ch. 38, par. 108 — 1.01.

We do not accept defendant’s argument that because 45 minutes had elapsed, Officer Tolbert no longer had sufficient grounds to conduct an investigatory stop pursuant to section 107 — 14 or a subsequent pat-down pursuant to section 108 — 1.01. To the contrary, not only do we fail to understand how the passage of 45 minutes would change anything under these circumstances, but during that period additional factors came to the attention of Officer Tolbert which would, if anything, heighten his suspicions: Defendant was sighted between buildings in the 164 hundred block of Wolcott, and when seen by Officer Tolbert at 165th and Winchester, he was first running toward a building and then came back to the auto and entered the passenger door as the vehicle pulled away. Further, it must be kept in mind that it was 4 a.m. and Tolbert, from previous experience, knew that defendant did not live in the house he initially had approached.

Clearly, the foregoing circumstances justify an investigatory stop pursuant to Terry. While defendant cites five cases in support of a contrary position, all are easily distinguished. In People v. Grotti (1983), 112 Ill. App. 3d 718, 445 N.E.2d 946, the officer’s only basis for a traffic stop was that the vehicle matched the description of a vehicle seen “hot rodding through town about two weeks earlier.” Further, this observation was made by someone who failed to give the officer any description of the driver. (Grotti, 112 Ill. App. 3d at 719.) In People v. LaGrone (1984), 124 Ill. App. 3d 301, 464 N.E.2d 712, an auto was stopped because it was being driven with the door to the trunk opened, the trunk containing two chairs and a TV set. (LaGrone, 124 Ill. App. 3d at 302.) It should also be noted that the State in LaGrone argued that these facts not only justified a stop but a search of the entire vehicle. In People v. Deppert (1980), 83 Ill. App. 3d 375, 403 N.E.2d 1279, an auto was stopped in an industrial area, which had been the subject of recent burglaries, because it was traveling slowly in a northbound direction, turned around in a private railroad yard and then came out and proceeded back in a southbound direction. (Deppert, 83 Ill. App. 3d at 377.) In People v. James (1976), 44 Ill. App. 3d 300, 358 N.E.2d 88, an “auto was parked to one side of the street so as to not impede passing traffic and the driver moved his vehicle as soon as he saw a car coming.” (James, 44 Ill. App. 3d at 303.) The officer ordered the vehicle to stop because “he ‘wanted to check the car out and find out what the occupants were doing,’ at that hour of the morning.” (James, 44 Ill. App. 3d at 302.) Finally, in People v. Wombacher (1982), 104 Ill. App. 3d 812, 443 N.E.2d 374, the defendants were passengers in an auto, the driver of which had stopped for soft drinks. When the arresting officer saw the driver walk back toward the car, he decided to check the auto because there had been recent vending machine thefts in the area and because people had told him that one of the occupants was “a heavy user of drugs.” (Wombacher, 104 Ill. App. 3d at 816.) While we agree with the holdings in these cases, they are all far removed from the facts of the instant case. Each is an example of a specific act that was not sufficient to warrant intrusion pursuant to Terry. However, “a series of acts, each of them perhaps innocent in itself, [when taken together may warrant further investigation].” Terry, 392 U.S. at 22, 20 L. Ed. 2d at 907, 88 S. Ct. at 1880-81.

Next defendant argues that Tolbert did not have any basis to seize the plastic bag from the seat, and once he did and discovered that it didn’t contain a weapon, he should have returned it. We disagree. Initially, we note that defendant has failed to cite any authority for the above proposition. Bare contentions not supported by argument or citation to authority may be deemed waived on appeal. (Rockford Memorial Hospital v. Schueler (1988), 167 Ill. App. 3d 358, 361-62, 521 N.E.2d 251.) The appellate court is not a depository in which appellant may dump the burden of argument and research. (Thrall Car Manufacturing Co. v. Lindquist (1986), 145 Ill. App. 3d 712, 719, 495 N.E.2d 1132.) While arguments raised only at oral argument, as here, ordinarily are waived, it is the prerogative of the court to consider such points. (Handley v. Unarco Industries, Inc. (1984), 124 Ill. App. 3d 56, 66, 463 N.E.2d 1011.) Despite appellant’s failure to properly present these arguments, we shall address them.

To hold that an officer, after making a valid stop and pat-down, cannot seize an unidentified item that he had seconds before seen defendant stuff into a crack of the seat and which was still within reach of the other occupant of the auto and arguably within reach of the defendant himself is not at all realistic. In Michigan v. Long (1983), 463 U.S. 1032, 77 L. Ed. 2d 1201, 103 S. Ct. 3469, the Supreme Court extended the rationale of Terry to a protective search of the passenger compartment of a vehicle. It is permissive for an officer in making a Terry stop to search the passenger compartment of the automobile, limited to those areas where a weapon may be placed, provided that the officer has a reasonable belief, based on specific and articulable facts which, taken together along with rational inferences therefrom, warrant the belief that the suspect is dangerous and may gain immediate control of a weapon. (People v. Froio (1990), 198 Ill. App. 3d 116, 121, 555 N.E.2d 770.) We have examined the record and agree with the trial judge that Officer Tolbert could have reasonably believed that defendant was dangerous and that control of a weapon could have been gained. Situations such as this are the very justification of the Terry rule as codified in section 108 — 1.01 of the Criminal Code.

Equally without merit is the notion that once Officer Tolbert had the bag in his hand and discovered that it contained folded papers and a white powder that he suspected was cocaine, he should have returned it because it did not contain a weapon. As the seizure was valid, it would not have been proper to suppress any contraband recovered. Long, 463 U.S. at 1050, 77 L. Ed. 2d at 1220, 103 S. Ct. at 3481; Froio, 198 Ill. App. 3d at 123.

For the above reasons, the judgment of the circuit court is affirmed.

Affirmed.

EGAN and LaPORTA, JJ., concur.