author: JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFERSON COLEMAN, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 88—0300
    Opinion filed September 7, 1990.
    Rehearing denied October 9, 1990.

      Michael J. Pelletier and Mitchell Katten, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Gael O’Brien, and Kenneth W. Goff, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

A jury convicted the defendant, Jefferson Coleman, of two counts of armed robbery, two counts of unlawful restraint and one count of residential burglary. The convictions for unlawful restraint and armed robbery were merged, and the defendant was sentenced to concurrent prison terms of 60 years for armed robbery and 15 years for residential burglary.

The defendant first contends that he was not proved guilty of residential burglary beyond a reasonable doubt. The two principal witnesses for the State were Charles Brown (Brown) and his wife Frederica. They testified that on May 11 at approximately 10:15 p.m., they were returning to their home from a Mother’s Day celebration. When they reached the door to their garden apartment at 2112 North Bissell in Chicago, they heard someone say, “Stop, don’t move.” Turning toward the speaker, they noticed a man pointing a handgun at them. The area was lighted by a streetlight 30 to 40 feet away. They repeatedly asked the man what he wanted, and the man repeatedly demanded that they open their door. Brown asked his wife to give the man his wallet which she had in her purse. The man took the wallet, placed it in his coat pocket and continued to demand that they open their door. He then told them that he would shoot if they had not opened the door by the time he counted to three.

Frederica unlocked the door by the count of two and immediately turned on the lights inside the apartment. The man forcibly moved them into the apartment. They continued to ask him what he wanted. The man then told them to lie facedown on the floor. He ripped an extension cord out of the wall and used the cord to tie Brown’s hands back to his ankles as he faced the floor. While he was tying Brown up, his gun discharged.

After the man had secured Brown, he asked Frederica the location of the bedroom; he told her to stand up and then pushed her with his gun toward the bedroom. Upon entering the bedroom, she immediately turned on the light. The man turned her around and sat her on the bed. He suddenly turned and left the room.

While the man was leading Frederica to the bedroom, Brown had been able to hop to the entrance-way of the apartment which was out of the defendant’s sight. While Brown was attempting to free his feet, he heard the man run down the hallway. The two men struggled. Brown grabbed the man’s left hand, which was holding the gun, and tried to point it towards the ceiling. With his feet still tied, he fell over. The man continued to point his gun at Brown, and Brown continued to reach up to grab it. The man eventually put the gun in his belt and fled from the apartment.

Frederica sat dazed for about 30 seconds after the man left the bedroom. While the man and her husband struggled, she locked the bedroom door and called the police. The police arrived within minutes. Brown estimated that the entire episode lasted about five to seven minutes.

Both Brown and his wife gave the police a description of the man. Because their description was a joint effort, Brown could not remember exactly what he had told the police that night. He remembered describing the man as being 5 feet 10 inches or 5 feet 11 inches tall but he did not specifically remember how he had described the defendant’s shirt.

Frederica specifically described the man as a black male, wearing a dark jacket, dark pants and shoes that had leather weaving on top, approximately 30 to 35 years old, 5 feet 10 inches to 5 feet 11 inches, with black hair, brown eyes, medium complexion, pock-marked face and a pointed jaw. At trial, she explained that when she said that he had a pock-marked face she meant that he appeared unshaven; he did not have a clean-kept face but had “short, curly hairs sort of not closely spaced over his cheeks fairly high on his face.”

Officer Stanley Obos responded to a radio call of a robbery at 2112 North Bissell. He met Brown and his wife, who were very nervous and upset. Together, the two described the offender as a male black with black hair, pointed jaw, pock-marked faced, 5 feet 10 inches to 5 feet 11 inches tall and 150 to 160 pounds. They also said that the man was wearing a short leather jacket, dark shirt and pants and brown shoes with a mesh weave.

The wallet taken from Frederica contained various types of identification of Brown including a driver’s license, some credit cards, an attorney registration or bar association card, a gun registration card, an Illinois State firearm owner’s identification card, a couple of blank checks, a check made out to Brown and perhaps some cash.

Two days later Officers John Waterloo and Robert Banning received an assignment concerning a forgery at the Continental Bank at 1165 North Clark Street. The officers arrested the defendant near the bank and subsequently booked him for forgery. A search of the defendant uncovered a brown wallet containing identification cards, credit cards and checks belonging to Brown. Banning contacted Brown regarding the recovery of his wallet and asked him to come to the station. Brown then contacted his wife, and they each went to the 18th District police station. Brown later identified his wallet at trial, the gun registration card, the Illinois driver’s license and the Illinois State firearm owner’s Identification card. The defendant’s photograph had been placed over Brown’s on the driver’s license and firearms’ identification card.

Detective O’Leary conducted a lineup which included the defendant. The defendant chose his own position in the lineup; he stood second from the left. O’Leary had Brown and his wife view the lineup separately. They did not meet or talk to each other during the lineup. After initially viewing the lineup, Brown asked for a voice identification. Brown turned his back to the lineup, and after O’Leary changed the order of the participants, each participant was required to say, T am going to count to three, one, two, three.” After hearing the participants speak, Brown identified the defendant. Frederica viewed the lineup first and also identified the defendant. Both Brown and his wife identified the defendant in court as the man who had robbed them. However, Frederica admitted that the defendant looked about 20 pounds heavier at trial than he did at the time of the incident; his body was much more developed, and he was clean-shaven.

The indictment charged the defendant with the offense of residential burglary in that he entered the dwelling place of Brown and his wife “with the intent to commit therein a theft.” The defendant first maintains that the evidence failed to establish that he entered the Brown’s residence with the intent to commit theft.

We believe that the State adequately proved both an unlawful entry and the requisite intent to sustain the defendant’s conviction of residential burglary. Absent inconsistent circumstances, a fact finder may infer the requisite intent to commit theft from proof of an unlawful breaking and entering into a building when it contains personal property that could be the subject of larceny. (People v. Johnson (1963), 28 Ill. 2d 441, 192 N.E.2d 864.) The defendant argues that his act of entering the bedroom with Frederica rather than the living room or dining room was inconsistent with an intent to commit theft because, he maintains, objects of theft would more likely be found in the living room or dining room. This somewhat novel argument is similar to that made and rejected in People v. Sehr (1986), 150 Ill. App. 3d 118, 501 N.E.2d 848. In Sehr, the court noted that a “master bedroom seems a likely cache for such portable and desirable items as jewelry and currency.” (150 Ill. App. 3d at 124.) It is more likely that Frederica would know the location of jewelry than would her husband. We reject the defendant’s additional argument that an intent to commit theft may not be inferred because nothing was taken. (See People v. Ybarra (1987), 156 Ill. App. 3d 996, 510 N.E.2d 122.) It is reasonable to infer that events such as the discharge of the gun and the struggle with Brown prompted the defendant’s flight before he was able to seize any property. '

The facts clearly justify an inference that the defendant entered the Browns’ apartment attempting to commit theft. He confronted the Browns at gunpoint on their doorstep at 10 on a Sunday night. He entered their residence forcibly. Having received Brown’s wallet upon Brown’s own initiative, the jury could have reasonably inferred that the defendant recognized the Browns as easy victims and that he wanted more money or other valuables. It is also reasonable to conclude that the defendant tied up Brown to remove him as a threat and then took Frederica into the bedroom to aid him in locating easily transportable valuables. We conclude that the relevant surrounding circumstances including the time, place and manner of entry into the premises, the defendant’s activity within the premises and the lack of any alternative explanation indicate that the defendant intended to commit a theft when he entered the apartment. People v. Richardson (1984), 104 Ill. 2d 8, 470 N.E.2d 1024.

The defendant next contends that reversible error occurred at the hearing on his motion to suppress the identifications. During the cross-examination of the Browns the judge sustained objections to the following questions:

“Q. What was the height of the individual that you [Brown] gave to the police [of the man] who accosted you?”
“Q. Did the individual whom you [Brown] *** identified in the lineup match the description of the individual which you gave to the police [on the night of the accident]?”
“Q. Do you [Frederica] recall giving a height identification to the police?”

The judge ruled that the questions were irrelevant unless the defendant could establish some impropriety or suggestiveness on the part of the police before the Browns made their identification.

The defendant relies on People v. Robinson (1970), 46 Ill. 2d 229, 263 N.E.2d 57, in which the court held that the factors to be considered in deciding whether an identification has been unduly influenced by unfair procedures include the prior opportunity the victim had to observe the alleged criminal act, the existence or absence of any discrepancy between any prelineup description and the defendant’s actual description, the failure to identify the defendant on a prior occasion and any acquaintance with the defendant prior to the crime. One of the questions to which the court held an objection was improperly sustained was whether the witness had given a description to the police, and, if so, what was the description. It would appear that Robinson would be applicable here. However, in a later case, People v. Garcia (1983), 97 Ill. 2d 58, 454 N.E.2d 274, the supreme court explained its holding in Robinson:

“Defendant, referring us to People v. Robinson (1970), 46 Ill. 2d 229, asserts that the hearings were unfair because the trial judge precluded defense counsel from making an effective inquiry into the reliability of the witnesses’ identification testimony by sustaining objections to questions designed to reveal whether there was any independent basis for the identifications. This argument, however, misapprehends the allocation of the burden of persuasion in a suppression hearing. Our decisions have made clear that the defendant must first establish that the pretrial identification procedure was unnecessarily suggestive and that the evidence will then be suppressed unless the State is able to show by clear and convincing evidence an independent basis of reliability. (People v. McTush (1980), 81 Ill. 2d 513, 520; People v. Blumenshine (1969), 42 Ill. 2d 508, 511. See People v. Bryant (1983), 94 Ill. 2d 514, 520.) The inquiry prescribed in Blumenshine and repeated in Robinson, mandating consideration of such factors as how well the witness was able to observe the criminal act, the accuracy of any description furnished by the witness, and whether the witness had been previously acquainted with the defendant, is relevant only to evaluate the independent basis of reliability. (See People v. Bryant (1983), 94 Ill. 2d 514; People v. Hopkins (1973), 53 Ill. 2d 452.) The questions [including those concerning a previous description] were simply not relevant to the issue of whether the identification procedure had been unnecessarily suggestive, and the trial judge did not deny defendant a fair hearing by sustaining objections to those inquiries.” (Emphasis added.) 97 Ill. 2d at 73.

In People v. Bryant (1983), 94 Ill. 2d 514, 447 N.E.2d 301, relied upon in Garcia, the supreme court held that identifications made under suggestive conditions are admissible if reliable. The court also held that the factors that it had previously said were relevant on the questions of suggestiveness in People v. Robinson were relevant on the questions of reliability. We conclude, therefore, under the later cases of Bryant and Garcia that the questions asked here were properly excluded in the absence of proof of suggestive preidentification procedures by the police.

The defendant asserts that he established such suggestive procedures in that, he claims, he was the only person in the lineup wearing a black shirt and that Frederica had told the police that the man was wearing a dark shirt at the time of the offense. The fact that the defendant was the only one wearing a black or dark -shirt was not so suggestive or prejudicial as to taint the identification. (People v. Keane (1970), 127 Ill. App. 2d 383, 262 N.E.2d 364.) It is apparent from the judge’s ruling and findings that he found no evidence to support the defendant’s claim that the identifications were the result of improper police procedures or unnecessary suggestiveness. Implicit in his findings is the conclusion that he found no significance in the fact that the defendant was wearing a black shirt. The defendant also contends that suggestiveness is apparent because, again he claims, Brown was shown the identification cards recovered from the defendant in which the defendant’s picture had been imposed over Brown’s picture before Brown viewed the lineup. That assertion is contrary to the record. Brown testified, as did one of the officers, that he was shown the pictures after viewing the lineup.

Finally, the questions that the defendant was prevented from asking on the motion to suppress were asked and answered at the trial. Both Brown and Frederica testified that they described the man as being 5 feet 10 inches or 5 feet 11 inches tall. (According to the record, the defendant is 5 feet 11 inches in height.) Moreover, the robber’s height was the only part of the description Brown remembered making to the police. Consequently, no prejudice occurred to the defendant. See People v. Williams (1972), 52 Ill. 2d 455, 288 N.E.2d 406; People v. Hine (1980), 88 Ill. App. 3d 671, 410 N.E.2d 1017; People v. Attaway (1976), 41 Ill. App. 3d 837, 354 N.E.2d 448.

The defendant also contends that his identification by Frederica and Brown both at his pretrial lineup and at trial should have been suppressed because they were unreliable. He again argues that the lineup was too suggestive and that the witnesses failed to provide the police with a description which accurately described him. We reject the argument that the lineup was suggestive for reasons we have already discussed concerning the admissibility of evidence on the motion to suppress. Further, we do not find his attire to be so strikingly dissimilar from the other participants that it virtually assured his identification. Cf People v. Sykes (1987), 161 Ill. App. 3d 623, 515 N.E.2d 253.

Frederica described the man as wearing a dark jacket, dark pants and shoes that had leather weaving on top. Contrary to the defendant’s assertion here, during the lineup he was not wearing dark pants; they were gray pants. As a matter of fact, his pants are lighter than any one else’s in the lineup. The police report indicated that one of the men in the lineup was 5 feet 9 inches, two of the men including the defendant were 5 feet 11 inches, one was 5 feet 7 inches and another 6 feet 1 inch. The police never told either Frederica or Brown what man to pick out of the lineup. They never told them anything about any of the men in the lineup. They never told them from which man they had recovered Brown’s wallet. Both Frederica and Brown viewed the lineup separately and did not meet or talk to each other during the identification procedure. The defendant chose his own position in the lineup. The order of the participants was changed after Brown requested a voice identification, and Brown made the voice identification with his back turned toward the lineup. In light of all these facts, we conclude there was ample evidence to support the admissibility of the out-of-court identification and the in-court identification.

The defendant next contends that he was denied effective assistance of counsel at sentencing and on his motion for new trial. Both the public defender and the defendant pro se filed post-trial motions for a new trial. The defendant alleged, among other things, that the public defender had ineffectively represented him at trial. He specifically alleged that his trial counsel failed to assert an alibi defense despite alibi witnesses; that he was prejudiced by the agreement of his counsel with the State to eliminate evidence which was vital to his case; and that his counsel engaged in a meaningless defense, giving scant attention to evidence and failing to make proper objections. His pro se motion also adopted the public defender’s motion for a new trial which alleged pretrial, trial and post-trial errors. The trial judge granted the defendant’s request for new counsel and continued the post-trial matters by agreement until counsel could be appointed. The judge subsequently appointed Dennis Born to represent the defendant on his post-trial motion. Born advised the judge that he had read the half-sheets on the case but requested a continuance to familiarize himself with the case. The judge granted his request and set post-trial matters for December 9, 26 days later.

On December 9, 1987, Born again requested the judge to continue post-trial matters. He advised the judge that he had not yet had the opportunity to familiarize himself with the case. He had been presented with approximately 400 pages of documentation, but he had been unable to obtain the official trial transcript. The judge said that he was not sure that a trial transcript was “absolutely necessary”; however, he thought that it had already been ordered. He was anxious to hear post-trial matters and to proceed with three remaining cases against the defendant. Born advised the judge that he had spoken with trial counsel and that the necessity for a transcript might be obviated. The judge granted the request for a continuance and set the post-trial matters for-hearing on December 23, 1987.

At the hearing on December 23, Born again informed the judge that he had spoken to trial counsel. The defendant testified that he originally had been represented by an assistant public defender named Carothers; later he was represented by an assistant public defender named Kathleen O’Leary; and later he was represented by Assistant Public Defender Donna Foley. On the day the trial began he was also represented by an assistant public defender named Ptacek. He said that he did not trust Ptacek or Foley. He said he did not like Foley because they “could never see eye to eye on the case at all, and she wanted to proceed in a different manner.” On cross-examination he said that Foley wanted to “eliminate certain evidence received that [he felt] was vital.” That evidence was the description of himself that the witnesses had given that was totally different from his own. When he was asked by the State’s Attorney what other evidence he might be talking about he said the following:

“A. Description didn’t match me at all totally, and even one person that is supposed to come in for me didn’t even show up, and the person, Miss Higgins, never showed up, and she couldn’t make a description.”
Later in the cross-examination the following occurred:
“[STATE’S ATTORNEY]: Isn’t it a fact [that] the testimony that was favorable to you is the eyewitness of Kathleen Higgins, who is the victim in another case that is still pending in this case?
A. I’m sorry, I didn’t say testimony was favorable, to be favorable, I didn’t say that.
Q. But that testimony is in fact from a victim in a case that is still pending against you, is that not true?
A. Yes.”

He testified that he had provided Foley with witnesses for an alibi. When asked the names of the witnesses and their addresses, he said that he did not know. Later he said that the name of one of them was “Kimberly Barnes, which was co-defendant.” He said he had a man named “Kelly, guy stayed over at the house. I don’t know his full name. I had it wrote down, and my aunt Mary Foster.” He gave Foley the names and addresses of those persons. When he was asked whether to his knowledge she had spoken to the individuals he said the following:

“A. She did. She had made one phone call and she got negative response from one of my aunts, and as far as getting in contact with the other ones, and she didn’t do anything that I know of.”

Edward Ptacek was called by the State and testified that Anita Carothers and Kathleen O’Leary had left the public defender’s office and had entered private practice. During the time that Carothers and O’Leary had been assigned to that courtroom, Donna Foley was the lead public defender in the courtroom. It was brought to his attention that the defendant was having problems with Foley as far as her representation was concerned. He came into the case to assist her in the trial. The relationship between the defendant and Foley was “strained.” There was some incident between the defendant and Foley that caused her to express concern as to her representation. The incident to which he referred was one in which the defendant made some threats against Foley.

Foley testified that the defendant had given her names of witnesses and that she had checked them out. She determined that they could not assist her in establishing an alibi defense. One person was deceased, another person she was able to find but that person would not have been an alibi for “this particular time.” She went to her superiors about representing the defendant because she did not feel that he was cooperating with her. Questions by the judge established that at the time she began to represent the defendant she was aware that he had other matters pending. The State moved to try the defendant on a forgery and burglary charge together with the armed robbery of the Browns. Foley resisted that motion successfully. The suggestion was made that Kimberly Barnes was a fugitive.

To abbreviate, the defendant’s argument on this point is that Born was incompetent because he did not take sufficient steps to establish the incompetence of Foley and Ptacek. We have examined the entire record, and we find no incompetence on the part of Born or on the part of Foley and Ptacek. Born did everything that could reasonably be expected of him. A reading of the transcript would have shown Born, as it shows us, that Foley and Ptacek cross-examined the State’s witnesses and argued as effectively as they could under the circumstances. This was a relatively simple case, but a strong one for the State. Not only did two persons make positive identifications but the defendant had in his possession the evidence which overwhelmingly corroborated the identification — the proceeds of the robbery. The defendant does not offer any plausible explanation his attorneys might have advanced for his possession of Brown’s identification to which the defendant had attached his own picture.

Ironically, what the defendant urged as a ground of Foley’s incompetence was her successful effort to prevent proof of another crime. His other claim of incompetence is the failure to call his alleged alibi witnesses, one of whom was dead, one apparently was a fugitive and the last could not establish an alibi. He made no attempt to show the judge what any of those witnesses would prove. He made no showing himself at the post-trial hearing that he had an alibi. Under these circumstances the judge correctly denied the post-trial motion based on the alleged incompetence of trial counsel. Similarly, we reject the defendant’s claim that he established inadequate representation on the part of Born at the post-trial motion.

The defendant next contends that the case should be remanded for resentencing because he received ineffective assistance of counsel at his sentencing hearing. At the sentencing hearing the State argued that the defendant was eligible for an extended term because of the nature of the offense against the Browns and because he had previously been convicted of murder in 1975 and sentenced to 14 to 18 years' imprisonment. The record also shows that he had received six month’s probation in 1972 for possession of marijuana and in 1985 he received one year’s probation for retail theft. Born argued that the judge should not impose an extended term and that the judge could sentence the defendant under the Class X provision of the statute to a term of from 6 to 30 years and that any sentence within that period would be sufficient. He argued that the evidence did not show heinous and brutal conduct on the part of the defendant.

The defendant was given an opportunity to address the court. In substance he said that the witnesses were mistaken and that he was not the man who had robbed them. The judge then expressed his view of the offense and the defendant’s background. He pointed out that the defendant had already been convicted of the most serious crime defined by the legislature. He felt that, judging from the defendant’s character and attitude, he would be likely to commit other crimes.

The defendant’s claim is based again on the failure of Born to read the trial transcript and on Born’s failure to introduce evidence in mitigation. Implicit in the defendant’s argument is that the trial transcript would disclose something in mitigation. The defendant, who now has the transcript, does not refer us to anything in the record which would rebut the contentions of the State’s Attorney or the findings of the judge with respect to the evidence heard at trial. Consequently, we conclude that reading the record would not have added anything to Born’s ability to advocate for his client at sentencing.

With respect to the alleged failure of Born to submit anything in mitigation, we note that Born told the court that the defendant had given him the names of three individuals. He was given only the first name of one of the individuals. He told the court that he had attempted to contact those individuals and that they had not responded to his phone calls. The defendant argues that he suffered a complete lack of representation because Born failed to argue evidence in mitigation contained in the presentence investigation report. Born’s failure to argue these facts is not prejudicial because the court’s knowledge of them can be presumed. First, the judge himself suggested that the presentence investigation report be updated before sentencing and the report was subsequently made part of the record. Second, the defendant himself advised the court of many of the facts contained in the presentence report. Based on these facts, the record does not support the defendant’s assertion that he suffered from a complete lack of representation at the sentencing hearing. The record strongly suggests that nothing Born could have done would have changed the judge’s conclusion that the defendant should be imprisoned for a substantial period of time.

The defendant next maintains that the jury was improperly instructed because it was not expressly instructed on the mental state required to commit armed robbery.

The jury was given Illinois Criminal Pattern Jury Instructions numbers 14.01 and 14.02. Jury instruction No. 14.01 informed the jury of the elements of armed robbery as defined in the Criminal Code of 1961. (Ill. Rev. Stat. 1985, ch. 38, pars. 18 — 1, 18 — 2.) Instruction No. 14.02 expressly informed the jury that the prosecution had to prove beyond a reasonable doubt each element of armed robbery, as defined by the statute. The armed robbery statute does not explicitly include a mental state, and neither the definition nor issue instructions refer to a mental state or to the burden of proof regarding a mental state.

The defendant contends that, nevertheless, as a matter of Illinois law, a mental state is an essential element of armed robbery on which the jury must be expressly instructed. He reasons that, under section 4 — 3(a) of the Criminal Code, a person is not guilty of an offense, except one involving absolute liability, unless he acts either with intent (Ill. Rev. Stat. 1985, ch. 38, par. 4 — 4), knowledge (Ill. Rev. Stat. 1985, ch. 38, par. 4 — 5), recklessness (Ill. Rev. Stat. 1985, ch. 38, par. 4 — 6) or negligence (Ill. Rev. Stat. 1985, ch. 38, par. 4 — 7). Because armed robbery is not an absolute liability offense, the defendant argues that section 4 — 3(a) dictates that a mental state requirement is incorporated into the definition of armed robbery and, therefore, he concludes that the defendant’s mental state is an essential element of the offense. The precise argument advanced by the defendant was made and rejected in People v. Avant (1989), 178 Ill. App. 3d 139, 532 N.E.2d 1141, and People v. Talley (1988), 177 Ill. App. 3d 170, 531 N.E.2d 1139. In Talley the court pointed out that robbery is a general intent crime, citing People v. Banks (1979), 75 Ill. 2d 383, 388 N.E.2d 1244. The court concluded that commission of a general intent crime such as robbery implies an intent or knowledge. Consequently, it was not error to omit the implied mental state from the issue instructions. The Avant case followed Talley and rejected the argument of the defendant, which is the same argument made here, that the failure to instruct the jury as to mental state was a violation of Federal law. We follow the reasoning and conclusions of Avant and Talley and hold that no error occurred in instruction of the jury.

The defendant next maintains that the judge abused his discretion when he failed to hold a hearing on whether Foley could continue to effectively represent the defendant, when he failed to appoint substitute counsel and when he denied Ptacek’s request for a continuance.

On July 2, 1987, Assistant Public Defender Foley filed the defendant’s motion to suppress identification. After at least five continuances, the court set the defendant’s motion for hearing and the case for trial on Friday, October 2, 1987. Just before the hearing on the defendant’s motion, Foley’s supervisor, Edward Ptacek, advised the court that Foley wished to withdraw from the case because of a “personality clash” with the defendant. Ptacek requested that he be allowed to take over the defense, and he further advised the court that, although the defendant had “some reservations” about Foley’s representation, he did not object to Ptacek’s representation. Finally, Ptacek requested a one month’s continuance to familiarize himself with the case. The State did not object to either request.

Without further discussion or argument, the trial judge denied Foley’s request to withdraw; and, although he permitted Ptacek to act as additional counsel, he denied Ptacek’s request for a continuance. In ruling on Ptacek’s request, the trial judge stated as follows:

“All right, this case has been set with subpoenas for the last six times, since July ***. As far as I’m concerned, the State has witnesses here. *** We are going to proceed with the motion ***. I am sorry, but I am not going to allow a defendant, in effect, to frustrate the wheels of justice * * * because they grind them very slowly in this case, back as far as June.
Mr. Jefferson Coleman filed a motion for appointment of Counsel, other than the Public Defender. We had a hearing on that. That was denied. He will have to get along with whoever is available to get along with on these motions. I am not going to delay proceedings any longer. We are going to have the hearing today.”

The judge then heard the defendant’s suppression motion. After denying the motion, he set jury selection for the following Monday, and trial began one day later.

The defendant treats Foley’s “personality clash” as a “conflict of interest” and argues that the trial judge had the responsibility to investigate the nature of the conflict and to cure its ill-effect. Relying on Holloway v. Arkansas (1978), 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173, the defendant argues that once the trial judge was advised of Foley’s probable conflict, it had the duty either to appoint new counsel or to take adequate steps to ascertain whether the risk of conflict sufficiently warranted new counsel. The defendant’s reliance on Holloway, which is factually distinguishable, is entirely misplaced. Unlike Holloway, this case does not involve multiple representation by a single court-appointed attorney confronted with the risk of representing conflicting interests.

More important, we find no evidence to indicate that the trial judge was properly advised of any potential “conflict of interest” on the part of Foley. We find no authority which will permit us to equate a “personality clash” between an attorney and his client with a “conflict” or “potential conflict of interest” as recognized under Illinois law. See People v. Spreitzer (1988), 123 Ill. 2d 1, 525 N.E.2d 30 (reviewing relevant law concerning conflict of interest cases in Illinois).

Because we do not find that the pretrial motion of Ptacek presented a “conflict of interest” and the trial did not disclose any such conflict, a reversal of the defendant’s conviction depends upon whether he can demonstrate prejudice. (See Spreitzer, 123 Ill. 2d at 18-19.) The defendant has not demonstrated that his defense was prejudiced in any way. The fact that he had “some reservations” about Foley’s representation is not dispositive. The fact that he did not get along with Foley did not entitle him to new counsel absent evidence that his defense would be adversely affected. In our judgment, to hold that the law requires appointment of a lawyer with whom an indigent defendant never disagrees or with whom he never has a “personality clash” would gut the orderly administration of the procedures governing appointment of counsel in criminal cases.

Further, we are aware of the judge’s belief that the defendant, in effect, was attempting to frustrate the already slow-moving “wheels of justice.” A defendant cannot exercise his right to have counsel appointed merely to delay trial. (People v. Hall (1986), 114 Ill. 2d 376, 499 N.E.2d 1335.) We note that the judge was conscious of the defendant’s earlier attempt to have new counsel appointed and was aware of additional indictments still pending against the defendant at the time of trial. The judge was properly concerned about the length of time it was taking to dispose of this case. It is within the sound discretion of the trial judge to decide, on a case-by-case basis, when a defendant’s right to select counsel unreasonably interferes with the orderly process of justice. (People v. Terry (1988), 177 Ill. App. 3d 185, 523 N.E.2d 568; see also 107 Ill. 2d R 13(c)(3) (the court may deny a motion to withdraw if granting it would delay the trial or would otherwise be inequitable).) We believe that the trial judge well considered the defendant’s situation and the quality of Foley’s representation. Therefore, we do not believe that the judge abused his discretion when he denied Foley’s motion to withdraw without holding a hearing as to whether he should appoint substitute counsel.

Turning to the defendant’s contention that the trial judge abused his discretion when he denied Ptacek’s request for a one-month trial continuance, we conclude that the record fails to show an abuse of discretion. The decision to grant or to deny a continuance is completely within the trial judge’s discretion and will be determined by the facts and circumstances in each case. (Ill. Rev. Stat. 1985, ch. 38, par. 114 — 4(e); People v. Friedman (1980), 79 Ill. 2d 341, 403 N.E.2d 229; People v. Spurlark (1978), 67 Ill. App. 3d 186, 384 N.E.2d 767.) The movant’s diligence, the defendant’s right to a speedy, fair and impartial trial and the interests of justice are among the factors to be considered in making the decision. (Friedman, 79 Ill. 2d at 347; Spurlark, 67 Ill. App. 3d at 202.) A court may also review the history of the case. (People v. Dunigan (1981), 96 Ill. App. 3d 799, 421 N.E.2d 1319.) In this case, the trial commenced after a somewhat tortuous history which began in mid-May 1986. Discovery was completed in mid-June and trial was continued from time-to-time by agreement to late July 1987. Ptacek’s request for continuance came on the day of trial despite the fact that the defendant’s relationship with Foley became “rocky” well before the eve of the trial. Clearly, the trial court properly considered the defendant’s right to a speedy trial and the movant’s lack of diligence in presenting his request.

Further, we will not reverse a trial judge’s denial of additional time absent a clear abuse of discretion. (People v. Hayes (1972), 52 Ill. 2d 170, 287 N.E.2d 465.) We cannot find an abuse of discretion without the defendant having shown that he was prejudiced by the court’s denial. (People v. Latimer (1966), 35 Ill. 2d 178, 220 N.E.2d 314.) The record indicates that neither the defendant’s case nor his rights were prejudiced by the denial of a continuance. Contrary to the defendant’s assertion, the record does not show that the judge’s denial prevented Ptacek from taking over the case, forcing Foley to dominate the defense. Foley’s representation was limited to arguing the defendant’s motion to suppress, to presenting an opening statement and to cross-examining one witness.

The record does not reveal that Ptacek exhibited either a lack of knowledge or effectiveness due to the time in which he had to examine the case before trial. The trial was not complex; Ptacek was an experienced criminal defense attorney; and, as Foley’s supervisor, he already had at least fundamental familiarity with the case. The record demonstrates that he appeared to be thoroughly prepared and conducted a vigorous defense with adequate skill. Ptacek cross-examined all but one of the six witnesses, interposed objections when appropriate, argued jury instructions and offered a more than adequate closing argument. Under the circumstances, we do not find an abuse of discretion in the judge’s denial of the motion for continuance. See People v. Killings (1986), 150 Ill. App. 3d 900, 501 N.E.2d 1363.

The defendant’s last contention is that he was denied his statutory right to a speedy trial. The defendant failed to raise this issue either before the trial, at trial or in his pro se motion for a new trial. After several briefs in this case were filed, including one pro se brief by the defendant, he filed another pro se brief asserting his right to a statutory discharge for the State’s failure to provide him a speedy trial and attacking the effectiveness of his trial and appellate counsel for their failure to raise a speedy trial issue.

A defendant does not have the right to representation both pro se and by appointed counsel. (People v. Lighthall (1988), 175 Ill. App. 3d 700, 530 N.E.2d 81.) Under the circumstances we would be justified in striking the defendant’s pro se supplemental brief raising this issue. However, to put the matter to rest, we deem it appropriate to address the question.

Appointed counsel is not obliged to brief every conceivable issue on appeal and will not be adjudged incompetent when he refrains from raising those issues believed to be meritless unless the appraisal is patently wrong and thereby clearly prejudices the defendant. People v. Barnard (1984), 104 Ill. 2d 218, 470 N.E.2d 1005.

The record shows that the defendant was arrested on May 13, 1986. The indictment was returned two weeks later. The defendant escaped from the county jail. On February 25, 1987, he was apparently rearrested. He was arraigned on February 27, 1987, and the case was continued by agreement at least nine times until September 1, 1987. The trial began on October 5. Therefore, assuming the correctness of the common law record, the statutory period began on September 1, and the defendant was brought to trial within the 120-day statutory term. Consequently, there is no showing of ineffective assistance on the part of trial counsel or appellate counsel.

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

Judgment affirmed.

McNAMARA and RAKOWSKI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SCARIANO

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. HERLINDO ZAMORA et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1— 87—3627
    Opinion filed September 11, 1990.

      Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Paula Carstensen, and Richard Nathaniel, Assistant State’s Attorneys, of counsel), for the People.
    John R. DeLeon, of Chicago, for appellees.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendants Herlindo Zamora (Herlindo), his son, Alfonso Zamora (Alfonso), and Lisa Bouza (Lisa) were arrested on several narcotics charges after the police recovered two plastic bags containing controlled substances from the front seat of a vehicle in which they were sitting. The State appeals from an order of the circuit court granting defendants’ motion to quash their arrest and to suppress the physical evidence. We affirm.

We are presented two issues for review: (1) whether the police were legally justified in approaching defendants’ vehicle and requesting Herlindo to produce his driver's license; and (2) whether the police had a reasonable belief based on specific and articulable facts that defendants were dangerous or could gain immediate access to weapons in their car, which would have justified a search of the vehicle pursuant to Michigan v. Long (1983), 463 U.S. 1032, 77 L. Ed. 2d 1201, 103 S. Ct. 3469.

Defendants were charged by indictment with two counts of possession of more than 15 grams of a controlled substance, two counts of possession of more than 15 grams of a controlled substance with intent to deliver, and armed violence predicated on possession with intent to deliver. At a hearing held on defendants’ motion to quash arrest and to suppress physical evidence, Alfonso and Cicero police officer John Beuhle (Beuhle) provided the following testimony.

According to Alfonso, age 19, on February 27, 1987, at about 11 p.m., his father, Herlindo, was driving him home. Herlindo and Lisa sat in the front seat, and Alfonso and a minor female, who was not charged, sat in the back seat. As they were riding on 14th Street in Cicero, the gas pedal malfunctioned, so Herlindo coasted into the mouth of an alley and stopped, with the car partially blocking the sidewalk. All of the passengers remained in the car while he crawled underneath it to hook up the spring connecting the gas pedal. Having repaired the pedal, he returned to the driver’s seat, put the car in gear and was about to pull out, when a police car drove up and flashed its lights. Herlindo voluntarily exited the car and engaged in a conversation with the officer who approached him. The officer shined a flashlight into the car and then told everyone to get out. The officer and his partner then searched the inside of the car and pulled out a plastic bag from what Alfonso thought was the front seat, but was not sure, because the officers had separated the occupants of the car and had them “facing different ways.” At this point, all four subjects were placed under arrest. Back-up police units arrived and searched the inside of the car about four or five times. The police did not show any of the parties either a search warrant or an arrest warrant.

On the night in question, Beuhle, a part-time reserve officer with the Cicero police department, and his partner were on patrol in a squad car, when at approximately 11 p.m., the officers noticed a car parked in the alley abutting 14th Street between 48th Court and 49th Avenue, with its front end near the sidewalk. One individual lay under the car on the driver’s side and another stood toward the rear of the car. Beuhle turned around at the end of the block and parked the squad car with its passenger side parallel to the front end of the other vehicle, which was still stationary. Only the squad car’s headlights were on and were not shining in the other vehicle’s direction. The driver got out of the vehicle as Officer Beuhle got out of his, and Beuhle asked him whether there was a problem. When the driver responded “no,” Beuhle asked to see his driver’s license. Until this point Beuhle had not observed any violations of law and had no information that either the vehicle or its occupants had been involved in any crime. The officer’s examination by defense counsel proceeded as follows:

“Q. *** Wliy did you ask for a driver’s license?
A. As a form of identification.
Q. That was your sole purpose at that point?
A. Correct.
Q. Was there any special reason you felt you had to identify this individual?
A. Just the neighborhood. He is in an alley, a dark alley. I’d like to know if he lived around there or not. There are a lot of burglaries in that area. I’d like to know if he really had any reason there.
Q. So, basically, that was your reason?
A. Correct.
Q. Sort of a routine check on your part?
A. Identification.
Q. Identification.”

Herlindo then told the officer that he did not have a driver’s license, walked to the back of the vehicle and began laying out papers from his wallet on the trunk, apparently in an attempt to find some sort of identification. After having been to the back of the car with Herlindo, Office Beuhle walked over to the side of the car, a two-door Buick with bench seats, and shined a flashlight inside. There he saw three individuals. Without physically entering the vehicle, he noticed a “Kleenex” box nearly full of tissues on the front seat, and on top of the tissues were two clear plastic bags, one containing a brown chunky substance, and the other, a white chunky substance. In Beuhle’s opinion, based on his experience and training as a police officer, the bags contained heroin and cocaine. He then reached inside to pick up the bags and placed them on top of the car. His partner called in back-up units, and when they arrived, all four occupants were ordered out of the car and a search of the vehicle was conducted.

While examining Beuhle, defense counsel pointed out a discrepancy between the officer’s police report and his testimony in court: the police report stated that he found the controlled substance “in the front seat,” whereas he testified that he found it “in the Kleenex box on the front seat.” He also testified that when he drove past the parked car the first time, there were two individuals standing outside the car, but when he pulled up, the individuals were in the car. Finally, Beuhle stated that he never saw Herlindo driving the car.

Although it is not mentioned in the briefs, the record also reflects that defendant Lisa was carrying a revolver on her person at the time of her arrest. The weapon was one of the items of evidence she sought to suppress.

After the hearing the trial judge commented that, in his opinion, Herlindo’s behavior was “very suspicious”; however, he noted that Officer Beuhle did not share the same belief. He also opined that Beuhle was being honest, but went on to draw attention to the discrepancy between the police report and Beuhle’s testimony. He accordingly granted defendants’ motion to quash and suppress, holding that the police had conducted a search and that neither the search nor the subsequent arrests were supported by probable cause. The State filed a timely notice of appeal.

A reviewing court may not disturb the findings of a trial court in a hearing on a motion to suppress unless they are manifestly erroneous. (People v. Long (1983), 99 Ill. 2d 219, 457 N.E.2d 1252.) Furthermore, a reviewing court must accept a trial court’s findings with respect to conflicts in the evidence unless they are clearly unreasonable. People v. DeMorrow (1974), 59 Ill. 2d 352, 320 N.E.2d 1; People v. Clover (1987), 162 Ill. App. 3d 62, 515 N.E.2d 324.

We note at the outset that, in reviewing Beuhle’s testimony, the trial court determined that when the officer first noticed defendants’ car parked in the mouth of an alley in Cicero at 11 o’clock at night and saw two individuals, one lying underneath the car and one standing nearby, he was concerned about the incidence of burglaries in the area but was, in the words of the judge, “not suspicious.” In fact, Beuhle testified that he asked to see defendant Herlindo’s driver’s license for the sole purpose of identification and insisted that he had not observed any violations of law prior to that. Furthermore, the trial judge found that the two bags of contraband were recovered as a result of a search rather than a plain view inspection.

This case lends itself to a two-step analysis of the fourth amendment issue with which we are presented. The first inquiry is whether Officer Beuhle was justified in stopping defendant Herlindo and asking to see his driver’s license; and second, whether he properly seized the contraband from the front seat of the car.

In Terry v. Ohio (1968), 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880, the Supreme Court held that a police officer may stop and frisk an individual without probable cause if he is able “to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Illinois codified Terry in section 107 — 14 of the Code of Criminal Procedure of 1963, which states:

“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 *** and may demand the name and address of the person and an explanation of his actions.” Ill. Rev. Stat. 1987, ch. 38, par. 107 — 14.

Defendants discuss numerous Illinois opinions which have held on varying facts that the police acted unreasonably, on the basis of a mere “hunch” or suspicion of criminal activity, in stopping motorists and requesting them to produce a driver’s license and registration. (People v. Vanderver (1987), 158 Ill. App. 3d 178, 510 N.E.2d 1293 (car driving slowly at 2:30 a.m. through parking lot of apartment complex plagued by automobile thefts); Parking v. Grotti (1983), 112 Ill. App. 3d 718, 445 N.E.2d 946 (car matching description of car seen “hot rodding” two weeks previously); People v. Fox (1981), 97 Ill. App. 3d 58, 421 N.E.2d 1082 (car driving at night through deserted boat docks where, according to public complaints, partying and littering had been going on); People v. Deppert (1980), 83 Ill. App. 3d 375, 403 N.E.2d 1279 (car turning around and travelling slowly through an industrial area in which two recent burglaries had occurred); People v. James (1976), 44 Ill. App. 3d 300, 358 N.E.2d 88 (car parked halfway on roadway in residential neighborhood); People v. Harr (1968), 93 Ill. App. 2d 146, 235 N.E.2d 1 (“suspicious” car leaving gas station which was closed for the night).) In spite of Officer Beuhle’s testimony that his sole purpose in requesting to see Herlindo’s driver’s license was identification, the trial judge felt that “[a] lot of things *** what Mr. Herlindo was doing [were] very suspicious.” Furthermore, the judge stated that the most important issue to decide was whether there was an illegal search, for “[i]f there was no search conducted, this motion is moot.” These statements imply that the judge found that the officer conducted a permissible Terry-type stop when he asked Herlindo for identification. Indeed, such a conclusion is not unwarranted, especially in light of the facts which the officer had at his disposal at the time of the stop: a car parked in the mouth of an alley at 11 o’clock at night in February in a neighborhood often plagued by burglaries, a person lying underneath the car and another person standing nearby. Since each case dealing with police interference with an individual’s fourth amendment right to privacy necessarily turns on its own unique circumstances (see Terry v. Ohio, 392 U.S. at 29, 20 L. Ed. 2d at 910, 88 S. Ct. at 1884), the decisions cited by defendants in which the appellate court found the conduct of the police to be unreasonable are not dispositive of the present case.

Defendants also rely heavily on Delaware v. Prouse (1979), 440 U.S. 648, 663, 59 L. Ed. 2d 660, 673, 99 S. Ct. 1391, 1401, wherein the Supreme Court held that it is unreasonable under the fourth amendment for a police officer to stop an automobile and detain its driver for the purpose of checking his driver’s license and registration unless “there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law.” Defendant’s reliance on Prouse is inapt, however, because there the police stopped the vehicle completely at random, without having observed any suspicious activity or any traffic or equipment violations. Here, on the contrary, the car attracted the officer’s attention because of its unusual location at a late hour, the activity of two persons outside of it and the prior history of crime in the area.

A more appropriate analysis to compare with the instant case can be found in People v. Murray (1990), 137 Ill. 2d 382, in which the supreme court held on facts similar to those we encounter here that no “seizure” within the meaning of the fourth amendment had occurred. Rather, the court adopted Justice Stewart’s reasoning in United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870, in which he stated that:

“ ‘[A] person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” (Murray, 137 Ill. 2d at 389, quoting Mendenhall, 446 U.S. at 553-56, 64 L. Ed. 2d at 509-10, 100 S. Ct. at 1877-78.)

Circumstances indicating that a seizure has taken place include:

“(1) the threatening presence of several police officers, (2) the display of a weapon by a police officer, (3) some physical touching of the person of the citizen, and (4) the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” (Murray, 137 Ill. 2d at 390.)

The court concluded that none of these circumstances was present when two police officers stopped behind a car legally parked on a frontage road, tapped on the window to awaken the driver, then asked him to step out of the vehicle and produce his driver’s license; thus, the court held, no fourth amendment violation had occurred.

Here, although the State did not raise the issue on appeal as to whether a “seizure” within the meaning of the fourth amendment did, in fact, occur, we are nevertheless aware that taking the incident out of the fourth amendment analysis would not dispose of the case, for we must still address the manner in which the police officers discovered the contraband. With respect to this latter issue, the State argues that the plain view doctrine brings Officer Beuhle’s discovery of the contraband within the range of permissible police activity under the fourth amendment. The plain view doctrine holds that a police officer may make a warrantless seizure of an item in plain view provided he has prior fourth amendment justification for having access to it. (Texas v. Brown (1983), 460 U.S. 730, 75 L. Ed. 2d 502, 103 S. Ct. 1535.) Also, a police officer’s use of a flashlight does not activate constitutional protection. (Brown, 460 U.S. at 740, 75 L. Ed. 2d at 512, 103 S. Ct. at 1542, citing United States v. Lee (1927), 274 U.S. 559, 71 L. Ed. 2d 1202, 47 S. Ct. 746.) The cited authorities would be a persuasive argument in favor of the State in the present case but for the trial court’s decision to disbelieve the officer’s testimony that he initially observed the two plastic bags containing narcotics from the outside of the car. We are thus constrained by his decision to focus on but one question: if we take the testimony of Alfonso as credible, as did the trial court — that Officer Beuhle first ordered everyone out of the car, searched the interior with his partner, then found the drugs and arrested the occupants — did the officers violate defendants’ fourth amendment rights? See People v. DeMorrow (1974), 59 Ill. 2d 352, 359, 320 N.E.2d 1, 5-6.

The answer depends on the applicability of Michigan v. Long (1983), 463 U.S. 1032, 77 L. Ed. 2d 1201, 103 S. Ct. 3469, wherein the Supreme Court extended the rationale of Terry v. Ohio to a protective search of the passenger compartment of a vehicle. Long held that “the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” (463 U.S. at 1049, 77 L. Ed. 2d at 1220, 103 S. Ct. at 3481, quoting Terry, 392 U.S. at 21, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880.) However, the Court stressed that such a search is by no means an “automatic” right of the police upon a valid Terry stop of a motorist, in contrast to the situation in which the police have effected a custodial arrest, as was the case in New York v. Belton (1981), 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860. (Long, 463 U.S. at 1049 n.14, 77 L. Ed. 2d at 1220 n.14, 103 S. Ct. at 3481 n.14.) The State’s reliance on Belton is unwarranted, because according to Alfonso’s testimony, Officer Beuhle and his partner arrested defendants only after retrieving the narcotics from the inside of the car.

The facts in the present case bear little if any resemblance to what occurred in Long. There the police saw a vehicle driving erratically and at excessive speed in a rural area until it turned down a side road and swerved into a ditch. (463 U.S. at 1035, 77 L. Ed. 2d at 1210-11, 103 S. Ct. at 3473.) The occupant, who met the officers at the rear of the car, “appeared to be under the influence of something,” took a long time to respond to the officers’ request for a driver’s license, and when asked for a registration, began walking toward the open car door. (463 U.S. at 1035-36, 77 L. Ed. 2d at 1211, 103 S. Ct. at 3473-74.) The officers followed him and both observed a large hunting knife on the floorboard of the driver’s side. They stopped defendant and patted him down, but discovered no weapons. Then one of the officers shined a flashlight inside the car and noticed a pouch protruding from under the front arm rest. After reaching in and retrieving the pouch, he discovered that it contained marijuana. At this point, defendant was arrested on a charge of possession. A subsequent search of the trunk of the car uncovered approximately 75 pounds of marijuana.

In contrast to the facts in Long, Officer Beuhle testified that he observed no violations of traffic or any other laws before he stopped to investigate defendants and their vehicle. Furthermore, there is no evidence that Herlindo appeared intoxicated or otherwise “under the influence” when he spoke to Beuhle. Even more significant, neither Beuhle nor his partner observed any weapons in the car. In fact, the officers’ behavior in allowing the three passengers to remain in the car while they talked to Herlindo and in failing to pat him down for weapons indicates that they did not feel any immediate danger for their safety as the officers did in Long. In the absence of any testimony from the officers articulating a reasonable suspicion that their safety was in danger at the time of the encounter with Herlindo prior to the search, we may not assume that it was even reasonable for the officers to be in fear of their safety.

Hence, although we find that the police-citizen encounter between the' officers and defendants was proper under the fourth amendment analysis of either Terry or Murray, we do not deem the trial court’s assessment of Officer Beuhle’s credibility and its ultimate finding that the contraband was not in plain view when the officers discovered it to be manifestly erroneous. Lisa also challenges the seizure of a revolver from her person; however, since its legality hinges on our resolution of the fourth amendment issues we have discussed above, it does not merit separate discussion. Thus, we affirm the order of the circuit court granting defendants’ motion to suppress.

Affirmed.

DiVITO, P.J., and BILANDIC, J., concur.


text:
    CHARLES A. GUSE, Plaintiff-Appellant, v. BOARD OF TRUSTEES OF THE PUBLIC SCHOOL TEACHERS’ PENSION AND RETIREMENT FUND OF CHICAGO, Defendant-Appellee.
    First District (2nd Division)
    No. 1— 89—0834
    Opinion filed September 11, 1990.

      Asher, Gittler & Greenfield, Ltd., of Chicago (Marvin Gittler and Stephen Feinberg, of counsel), for appellant.
    Kirkland & Ellis, of Chicago (John E. Angle, of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

The Board of Trustees (Board) of the Public School Teachers’ Pension and Retirement Fund of Chicago (Pension Fund) revoked certain pension credits previously credited to plaintiff on the basis of the Board’s erroneous interpretation of certain 1987 amendments to the Illinois Pension Code (Pension Code) (Ill. Rev. Stat. 1989, ch. 108½, par. 1 — 101 et seq.). Plaintiff sought review of the administrative decision in the circuit court, which granted his motion for summary judgment on the ground that the Board’s determination was incorrect. Plaintiff then petitioned the circuit court for attorney fees pursuant to the provisions of section 14.1(b) of the Illinois Administrative Procedure Act (the Act) (Ill. Rev. Stat. 1989, ch. 127, par. 1014.1(b)). The court denied his petition, holding that the Board is not an “agency” as defined in section 3.01 of the Act (Ill. Rev. Stat. 1989, ch. 127, par. 1003.01). Plaintiff now appeals. We affirm.

The Board is a legislatively created entity responsible for administering and controlling the Pension Fund. (Ill. Rev. Stat. 1989, ch. 108½, par. 17 — 137.) It consists of 10 members: two members of the Chicago Board of Education; six contributors to the Pension Fund (i.e., teachers); and two pensioners (i.e., retired teachers). (Ill. Rev. Stat. 1989, ch. 108½, par. 17 — 137.) The Pension Fund is established and governed by the provisions of article 17 of the Pension Code, entitled “Public School Teachers’ Pension and Retirement Fund — Cities of Over 500,000 Inhabitants” (Ill. Rev. Stat. 1989, ch. lO8½, par. 17— 101 et seq.). Effective only in cities of 500,000 or more inhabitants, as its title suggests, article 17 of the Pension Code provides pensions to eligible teachers and school administrators and death benefits to their eligible next of kin. (Ill. Rev. Stat. 1989, ch. 108½, pars. 17 — 101, 17 — 115 through 17 — 126.) All areas of Illinois outside the corporate limits of such cities are subject to the provisions of article 16 of the Pension Code, entitled “Teachers’ Retirement System of the State of Illinois” (Ill. Rev. Stat. 1989, ch. 108½, par. 16 — 101 et seq.). As a practical matter, the Board operates only in the City of Chicago, whereas the Teachers’ Retirement System of the State of Illinois covers personnel in all areas of the State outside the city limits of Chicago. See Ill. Rev. Stat. 1989, ch. 108½, pars. 16 — 102, 17 — 101.

Plaintiff was a Chicago public school teacher and a contributor to the Pension Fund until September 16, 1985, when he went on an authorized leave of absence to serve as an officer of the Chicago Federation of Musicians. On March 30, 1987, the Board advised plaintiff by letter that, due to a recent amendment to section 17 — 134 of the Illinois Pension Code (Pub. Act 84 — 1472, eff. Jan. 23, 1987 (amending Ill. Rev. Stat. 1985, ch. lOBVa, par. 17 — 134)), he could validate his leave of absence for receiving pension benefits if he contributed certain sums of money to the Pension Fund, which plaintiff accordingly did. On March 29, 1988, however, the Board advised him that it was considering the retroactivity of the amendment and that its decision could impact on his ability to validate his leave. Finally, in June 1988, the Board advised plaintiff's counsel that it had determined that section 17 — 134 is not retroactive and that therefore plaintiff could not receive any pension credit for his special leave of absence prior to January 1987. On June 21, 1988, the Board denied plaintiff’s request for review of its determination.

Plaintiff then sought administrative review of the Board’s decision in the circuit court pursuant to the provisions of the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 101 et seq.). The court granted plaintiff’s motion for summary judgment, in effect reversing the Board’s determination that amended section 17 — 134 of the Illinois Pension Code is not retroactive, and allowed plaintiff to file a petition for attorney fees pursuant to section 14.1(b) of the Administrative Procedure Act (Ill. Rev. Stat. 1989, ch. 127, par. 1014.1(b)). On December 30, 1988, plaintiff filed his fee petition with the circuit court, and after having reviewed the parties’ memoranda and having heard counsel’s arguments, on March 2, 1989, the court denied plaintiff’s fee petition on the ground that the Board is not a State agency as defined in section 3.01 of the Administrative Procedure Act (Ill. Rev. Stat. 1989, ch. 127, par. 1003.01).

Plaintiff seeks attorney fees under section 14.1(b) of the Administrative Procedure Act, which provides as follows:

“(b) In any case in which a party has any administrative rule invalidated by a court for any reason, including but not limited to the agency’s exceeding its statutory authority or the agency’s failure to follow statutory procedures in the adoption of the rule, the court shall award the party bringing the action the reasonable expenses of the litigation, including reasonable attorney’s fees.” (Emphasis added.) (111. Rev. Stat. 1989, ch. 127, par. 1014.1(b).)

Section 3.01 of the Administrative Procedure Act defines “agency” in the following manner:

“ ‘Agency’ means each officer, board, commission and agency created by the Constitution, whether in the executive, legislative, or judicial branch of State government, but other than the circuit court; each officer, department, board, commission, agency, institution, authority, university, body politic and corporate of the State; and each administrative unit or corporate outgrowth of the State government which is created by or pursuant to statute, other than units of local government and their officers, school districts and board of election commissioners; each administrative unit or corporate outgrowth of the above and as may be created by executive order of the Governor. However, ‘agency’ does not include:
(a) the House of Representatives and Senate, and their respective standing and service comittees;
(b) the Governor; and
(c) the justices and judges of the Supreme and Appellate Courts.
No entity shall be considered an ‘agency’ for the purposes of this Act unless authorized by law to make rules or to determine contested cases.” Ill. Rev. Stat. 1989, ch. 127, par. 1003.01.

Therefore, unless the Board is a State agency as defined in section 3.01 of the Administrative Procedure Act, the provisions of the Act do not apply, and the circuit court may not award attorney fees to plaintiff pursuant to section 14.1(b). (Ill. Rev. Stat. 1989, ch. 127, pars. 1002, 1003.01, 1014.1(b); see Bethune v. Larson (1989), 188 Ill. App. 3d 163, 170, 544 N.E.2d 49, 53; County of Macon v. Board of Education of Decatur School District No. 61 (1987), 165 Ill. App. 3d 1, 7, 518 N.E.2d 653, 658.) The statutory definition of “agency” is composed of four disjunctive parts: (1) entities created by the Illinois Constitution; (2) various other entities and bodies politic and corporate of the State; (3) legislatively created administrative units or corporate outgrowths of the State government, “other than units of local government and their officers, school districts and board of election commissioners”; and (4) administrative units or corporate outgrowths of the above. Ill. Rev. Stat. 1989, ch. 127, par. 1003.01.

It is clear that the Board is not a constitutionally created entity and thus does not satisfy the first part of the definition. But is it perhaps a body politic and corporate of the State? Plaintiff advances several arguments favoring State affiliation based on certain provisions in the Pension Code describing the nature of pension funds in general. Section 22 — 401 of the Pension Code, while stating that “[a]ny *** retirement fund *** created by the legislature of the State of Illinois *** is hereby declared *** to be a body politic and corporate under the title specified in the law creating such fund” (Ill. Rev. Stat. 1989, ch. 108½, par. 22 — 401), does not provide that a pension fund is a body politic and corporate of the State.

Several other Pension Code provisions lead to the conclusion that in establishing the Pension Fund, the Illinois General Assembly sought to create an entity independent of the State. For example, section 22 — 402 of the Pension Code declares that the Pension Fund is “created in the public interest and for the general welfare of the State, and pursuant to the governmental powers of the State” but also states that it is “separate and apart from the corporate purposes of the State.” (Ill. Rev. Stat. 1989, ch. 108½, par. 22 — 402.) This “separateness” is further emphasized in section 22 — 403, which provides that any taxes levied for the benefit or purposes of any pension fund are “for governmental purposes *** and not for the corporate purposes *** of the State,” and that “[a]ny pension payable *** shall not be construed to be a legal obligation or debt of the State, *** but shall be held to be solely an obligation of such pension fund.” (Ill. Rev. Stat. 1989, ch. 108½, par. 22 — 403.) Further, section 22 — 404 provides that “[e]xpenditures made and expenses incurred in connection with the administration of any pension fund shall not be construed to be a debt imposed upon the State, [but] *** shall be held to be the obligation of such pension fund exclusively, as a body politic and corporate.” Ill. Rev. Stat. 1989, ch. 108½, par. 22 — 404.

We would conclude from the foregoing observations alone that under the plain meaning of the statute the Board is not a body politic and corporate of the State, but rather a body politic and corporate separate and distinct from the State and therefore does not qualify as a State “agency” under the second part of the definition. However, plaintiff accurately observes that sections 22 — 401 through 22 — 404 of the Pension Code apply equally to all pension funds created by the Code, including, for example, the State Employees’ Retirement System (SERS) (111. Rev. Stat. 1989, ch. 108½, par. 14 — 101 et seq.). Significantly, in Escalona v. Board of Trustees, State Employees Retirement System (1984), 127 Ill. App. 3d 357, 469 N.E.2d 297, the appellate court applied the rulemaking provisions of section 4.02 of the Administrative Procedure Act to the actions of the SEES board of trustees. Thus, we must examine other indicia of State affiliation to determine whether the Board is an agency of the State.

With reference to Escalona, we nóte that the issue of the applicability of the Administrative Procedure Act to the SEES and its governing board was not litigated in that case. Moreover, certain dispositive differences exist between the SEES and the Pension Fund, leading to the conclusion that although the SEES board of trustees may be a State agency for the purposes of the Act, the defendant Board is not. The following comparisons make this clear.

The SEES is a comprehensive retirement system for employees of the State of Illinois. (See Ill. Rev. Stat. 1989, ch. 108½, pars. 14— 101, 14 — 102, 14 — 103.05.) The State must provide sufficient contributions “to meet the cost of maintaining and administering the system on a funded basis in accordance with actuarial reserve requirements.” (Ill. Rev. Stat. 1989, ch. 108½, par. 14 — 131.) Moreover, the payment of contributions by each individual department of the State, as well as all allowances, annuities, benefits and administration expenses, are the obligations of the State.

In contrast, any deficiency in the Pension Fund must be removed by the Chicago Board of Education from the annual Pension Fund tax and/or its educational fund, and not by the State. Ill. Rev. Stat. 1989, ch. 108½, par. 17-129.

The SEES board consists of seven trustees: the State Comptroller; the Director of the State Bureau of the Budget; a non-State employee appointed by the Governor; two SEES members appointed by the Governor; one member elected from the contributing membership; and one annuitant elected by the annuitants of the system. Ill. Rev. Stat. 1989, ch. 1081/2, par. 14-134.

Significantly, the 10 members of the Pension Fund’s board are neither appointed by the Governor nor employed by the State. (See Ill. Rev. Stat. 1989, ch. 108½, pars. 17 — 137 through 17 — 140.) In fact, as noted earlier, the Board consists of two members of the Chicago Board of Education, six contributors to the Pension Fund and two pensioners. (Ill. Rev. Stat. 1989, ch. 108½, par. 17 — 137.) The Chicago Board of Education appoints two of its members to serve on the Board; and the contributors and pensioners separately elect their respective representatives from their own ranks. Ill. Rev. Stat. 1989, ch. 108½, pars. 17-138,17-139.

Finally, the official title of the SEES bears the designation “State,” whereas the official title of the Pension Fund, the “Public School Teachers’ Pension and Retirement Fund of Chicago,” does not reflect any affiliation with the State. (See Ill. Rev. Stat. 1989, ch. 108½, par. 17 — 101.) Thus, the Pension Fund’s official title,- its fiscal obligations and the composition of its board evidence an orientation that partakes of both the local education and private sectors.

Two opinions of the Illinois Attorney General address the definition of “agency” under the Administrative Procedure Act, and although not binding on this court, such opinions are persuasive authority. (Mulligan v. Joliet Regional Port District (1988), 123 Ill. 2d 303, 527 N.E.2d 1264; City of Springfield v. Allphin (1978), 74 Ill. 2d 117, 384 N.E.2d 310.) Defendant cites opinion No. S — 1362, issued on June 29, 1978, in which the Attorney General concluded that the board of trustees of the University of Illinois is a State agency subject to the provisions of the Administrative Procedure Act. (1978 Ill. Att’y Gen. Op. 117.) The opinion stated that in order to qualify as an “agency” an entity must be a “ ‘State Board’ *** authorized by law to make rules or to determine contested cases.” The Attorney General found that the board of trustees was sufficiently affiliated with the State to qualify as a “State Board” because: (1) it was created by the General Assembly; (2) the governor serves on the board; (3) nine of the board’s members are elected by the voters of the State in general elections; (4) the board has the power to acquire and hold property— but only as trustee and agent for the State, which is the beneficial owner of all the property; (5) the board must pay the income received by the university into a special State treasury fund from which the General Assembly may make appropriations; (6) the board’s expenditures are subject to the State Comptroller Act and the Illinois State Auditing Act; (7) the board’s employees are employees of the State; and (8) they are subjects of the State University Civil Service System and State Universities Retirement System. In the present case, with the exception of having been created by the General Assembly, the defendant board does not bear any of the other indicia of State affiliation just enumerated.

Plaintiff draws our attention to opinion No. S — 1434, issued on April 30, 1979, in which the Attorney General concluded that the Northeastern Illinois Planning Commission (NIPC) is not a State agency within the meaning of the Administrative Procedure Act. (1979 Ill. Att’y Gen. Op. 64.) He opined that although NIPC is “a body politic and corporate,” it is “a separate governmental entity exercising a specific and distinct governmental function — planning. It is no part of the counties, cities, villages, townships, park districts, etc., located in the six county area of northeastern Illinois. It is also separate and apart from State government. State executive government has no control over NIPC, or its functions. Indeed, the Northeastern Illinois Planning Act treats the State of Illinois as a separate entity ***.” (Emphasis in original.) (1979 Ill. Att’y Gen. Op. 64, 65.) Similarly, in the present case, the Board is a body politic and corporate separate from the State in that it exercises a specific and distinct governmental function — to administer and control the Pension Fund for the benefit of public school educators in the City of Chicago. (Ill. Rev. Stat. 1989, ch. 108½, par. 17 — 101.) It is no part of Cook County, the City of Chicago, or any subdivision of the county or city. (Ill. Rev. Stat. 1989, ch. 108½, par. 22 — 401.) The State executive department has no control over the Board. (Ill. Rev. Stat. 1989, ch. 108Vz, par. 17 — 137.) Moreover, the Pension Code treats the State of Illinois as a separate entity. (See, e.g., Ill. Rev. Stat. 1989, ch. 108V2, pars. 17— 127, 17 — 128; see also Ill. Rev. Stat. 1989, ch. 108V2, par. 22 — 401 (a pension fund is a “fund *** to which the State or any such county, city, town, municipal corporation or body politic and corporate is required to contribute”).) Finally, like NIPC, the Board has only regional, rather than statewide, jurisdiction.

All of the foregoing reasons bolster the conclusion that the Board is not a body politic and corporate of the State, but is rather separate and apart from State government. Being so separate and apart, the Board similarly cannot be an administrative unit or corporate outgrowth of State government, and therefore fails to satisfy the third and fourth parts of the definition of a State agency. See 1979 Ill. Att’y Gen. Op. 64.

Apart from being an agency of the State, in order to come under the provisions of the Administrative Procedure Act, an agency must also possess the legislative authority to make rules or to determine contested cases. (Ill. Rev. Stat. 1989, ch. 127, par. 1003.01.) We note that section 17 — 145 of the Pension Code provides that the Board has the duty and authority to adopt rules and bylaws for the administration of the fund. (Ill. Rev. Stat. 1989, ch. 108½, par. 17 — 145.) However, in light of our determination that the Board is not a body politic and corporate of the State, we need not determine whether it is also a body vested with legislative or adjudicatory powers.

In support of his argument that the Board is a State agency, plaintiff relies on Hernandez v. Fahner (1985), 135 Ill. App. 3d 372, 481 N.E.2d 1004, in which the court held that when the Illinois Attorney General’s office acts in its role as administrator of the Crime Victims Compensation Act (Ill. Rev. Stat. 1989, ch. 70, par. 71 et seq.), it is an “administrative agency” subject to the attorney fee provisions of the Administrative Procedure Act. The court relied on Palmyra Telephone Co. v. Modesto Telephone Co. (1929), 336 Ill. 158, 163, 167 N.E. 860, 862, in which the supreme court characterized the Illinois Commerce Commission as “an administrative body created by the State for carrying into effect the will of the State as expressed by its legislature.” However, this definition of “administrative agency” does not coincide with the definition of the term in section 3.01 of the Administrative Procedure Act, and thus we are not bound to apply it in the present case.

Plaintiff also maintains that the attorney fee provision of the Administrative Procedure Act automatically applies to all entities subject to the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 101 et seq.). Plaintiff’s position is incorrect for two reasons. First, the Administrative Procedure Act provides that it shall apply “to every agency as defined herein” (Ill. Rev. Stat. 1989, ch. 127, par. 1002); and, as determined above, the defendant Board is not such an agency. Second, although the Pension Code provides that the Administrative Review Law shall apply to all final administrative decisions of the defendant Board (Ill. Rev. Stat. 1989, ch. 108½, par. 17 — 158), it does not similarly subscribe to the Administrative Procedure Act. Plaintiff’s reliance on Ackerman v. Department of Public Aid (1984), 128 Ill. App. 3d 982, 471 N.E.2d 931, which applied the Administrative Procedure Act to the Department of Public Aid in a suit for administrative review, is inappropriate for the same reasons: the department is subject to the Act because it is an agency of the State (see Ron Smith Trucking, Inc. v. Jackson (1990), 196 Ill. App. 3d 59, 552 N.E.2d 1271); and the Illinois Public Aid Code expressly adopts the Act’s rulemaking provisions (Ill. Rev. Stat. 1989, ch. 23, par. 12 — 13; Warrior v. Thompson (1983), 96 Ill. 2d 1, 14, 449 N.E.2d 53, 59).

Finally, plaintiff invites this court to resort to equitable considerations and to award him attorney fees pursuant to section 14.01(b) of the Administrative Procedure Act because the Board’s erroneous decision forced him to defend his position in court. However, since the plain meaning of both the Pension Code and the Administrative Procedure Act requires a contrary solution, superimposing any equitable considerations would be unwarranted in this case. (See Belfield v. Coop (1956), 8 Ill. 2d 293, 134 N.E.2d 249.) Accordingly, we affirm the decision of the circuit court.

Affirmed.

HARTMAN and BILANDIC, JJ., concur.

       Although the Board is the named party in interest, and we have set out to determine whether the Board is an agency of the State, our analysis of the Board’s classification necessarily includes a discussion of the Pension Fund, because references in the Pension Code to the Pension Fund implicitly include the Board as its administrative and controlling body.