author: PRESIDING JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID SMITH, Defendant-Appellant.
    Third District
    Nos. 3—83—0109, 3—83—0375 cons.
    Opinion filed March 9, 1984.

      Jerry Serritella, of Peoria, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Vicki R. Wright, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The defendant, David Smith, was charged with the offenses of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 2(a)) and armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A — 2). Following a trial by jury, the defendant was found guilty as charged. The circuit court of Peoria County sentenced the defendant to a 12-year term of imprisonment in the Department of Corrections for the offense of armed robbery, dismissing the armed violence charge. In addition, the court fined the defendant and ordered him to make restitution.

On the morning of July 20, 1982, Ricky Smith, the defendant’s uncle, entered the Turf Club, a tavern in Peoria, Illinois, and remained on the premises for about 90 minutes. During that time period, the owner of the club arrived. He counted the receipts in the cash register, removing money from the register and placing part in a box near the register and the remainder in a cigarbox underneath the bar, and prepared a bank deposit, all within the view of Ricky Smith. While the owner was present, Smith made one telephone call and received one telephone call. The owner left the tavern prior to Smith’s departure.

Approximately one hour after Ricky Smith left the club, a man entered the premises through the back door and said, “This is a stick up.” The man was wearing a nylon stocking drawn over his face and was carrying a dark, small-caliber, automatic gun.

The man then ordered the bartender and the customers present to go to the back of the club and enter the restrooms. However, the bartender and the customers ran out the back door and telephoned the police from a nearby location. Thereafter, upon his return to the club, the owner noticed that the cigarbox containing approximately $150 in cash was missing from the bar.

Immediately following the robbery, Elmer Mohn, whose residence is located near the Turf Club, observed a man running down the street in front of his home carrying a cigarbox and bank deposit pouch. The man he saw was wearing a dark jersey with the number 72 printed on the back.

Two days later, Mohn identified the defendant in a police lineup as the person who looked like the man he had seen running with the cigarbox and deposit pouch the day of the robbery. Mohn later made an in-court identification of the defendant.

The police, in their investigation of the scene of the crime, found a notebook underneath the passenger seat of an automobile parked in the lot located to the rear of the Turf Club. The notebook contained a drawing which resembled a diagram of the Turf Club bar. Fingerprints found on the diagram did not match those of the defendant. The automobile was later identified as belonging to the defendant’s fiancee, Debra Burton, now his wife.

The police also found a nylon stocking in the area near the front door of the club. A report from the State Crime Lab in Morton, Illinois, indicated that a single Caucasian hair was found clinging to the stocking and that a hair sample taken from the defendant was dissimilar to the hair found on the nylon stocking.

On August 10, 1982, the defendant was charged with armed robbery and armed violence in connection with the events occurring at the Turf Club on July 20, 1982. In addition to the previously related facts, testimony was heard at trial relative to the defendant’s whereabouts on that date, certain statements made by the defendant and his prior criminal activities.

Penny Grimm, a professional psychic and western wear retailer, testified on behalf of the prosecution. She stated that she knew both the defendant and his wife, Debra Burton, and that both were living in her home at the time of the armed robbery. She also indicated a familiarity with a certain football jersey, dark in color, with the number 72 or 73 printed on the back, owned by the defendant.

Grimm further stated that during the afternoon on the day of the robbery, Burton telephoned Grimm at her place of business and, as a result of the call, Grimm returned to her home where Burton, the defendant and his mother, Barbara Long, were gathered in the dining room. A conversation then ensued among the people present. During this conversation the defendant was pacing up and down the hallway leading into the dining room.

Grimm asked the defendant if he had called the police. The defendant responded that he could not telephone the police. Grimm then asked if he had called his attorney. The defendant stated that he had telephoned his attorney, who had advised him not to talk to anyone until later.

Grimm also related two statements, one made by the defendant’s mother and the other made by his wife, which caused the defendant to stomp off down the hallway. The defendant’s mother stated that he could not pass a lineup and the defendant’s wife responded in the affirmative when asked by Grimm whether or not the defendant had committed the robbery at the Turf Club.

Grimm further stated that later the same day, she had a telephone conversation with the defendant at her store when he called in order to speak with his wife, who was also present. Grimm testified at length to certain statements made by the defendant’s wife while she was speaking to her husband on the telephone, urging him to go to the police and inform them of what he had done and indicating she would lie for him if he promised this would never happen again.

Grimm then testified that she instructed the defendant to go to the police station and talk with the police. The defendant informed Grimm that he planned to make a statement to the police. In response to her question as to what he would say, he stated, “I’m going to tell them I dkln’t do it.” Grimm then instructed the defendant to tell the truth to which the defendant responded. “No, I can get away with it. They ain’t got no witnesses.”

The defendant testified on his own behalf during the trial. The morning of the day of the robbery, the defendant stated that he received a telephone call from his uncle, Ricky Smith. He then went to his mother’s home. Several other witnesses, members of the defendant’s family, also placed the defendant at his mother’s home during that day.

He then traveled with his mother and Burton in his mother’s car in search of a location for his wedding with Burton which was to be performed later that same day. Near midday, they drove to the Grimm residence where the defendant and Burton remained and, later that same afternoon, he, Burton and his mother went to the police station, where the defendant gave a statement.

In response to the testimony of Penny Grimm, the defendant stated he informed Grimm in his conversation with her at his mother’s home on the day of the robbery that he could not go to the police station early in the afternoon because his attorney had instructed him to wait until later. In addition, he denied hearing any statements made either by his wife or his mother implicating him in the robbery at the Turf Club. He also testified he telephoned Grimm at her place of business that same day and informed her that he had not committed the crime at the Turf Club and that the police could not possibly have any witnesses who could identify him as the armed robber.

Barbara Long, the defendant’s mother, also testified on behalf of the defense. She corroborated the testimony of her son for the day of July 20, 1982.

During the State’s rebuttal, Ruby Wombacher, owner of the C.B. Haven Tavern in Peoria, Illinois, testified to an armed robbery which occurred at that location on December 21, .1980. At that time, there were several customers in the bar including Ricky Smith. Wombacher stated that while Ricky Smith was seated near her as she tended bar, a man entered the tavern, holding a gun, and stated, “This is a stick up.” The man was wearing a ski mask which covered his entire face except for his eyes and was described as being about 5 feet 4 inches tall and weighing between 125 and 130 pounds.

The man then ordered everyone present to enter the restrooms. After about four minutes, Wombacher left the restroom area and discovered that approximately $8,000 and four rings were missing from the cash register and her purse.

Patricia Moon, the defendant’s former wife, also testified for the State during rebuttal. She stated that on December 21, 1980, she was visiting the defendant’s mother at her home when the defendant and Ricky Smith arrived and indicated that they had robbed the C.B. Haven Tavern. The defendant was carrying a ski mask when he arrived. She also stated at various times during her testimony that either $4,000 or $8,000 had been taken in the robbery. She recalled seeing jewelry in the possession of the defendant and Ricky Smith on that day, however, she admitted that in a previous statement to the police she had not recalled seeing any jewelry in their possession. In addition, Moon indicated that $500 of the stolen money was given to the defendant’s mother that day.

The defendant’s mother was recalled following the State’s rebuttal. She described the defendant as being approximately 6 feet 1 inch tall and weighing 220 pounds in December of 1980. During her earlier testimony, she had denied her son’s involvement in the armed robbery of the C.B. Haven Tavern in 1980.

At the conclusion of the trial, the jury found the defendant guilty of both armed violence and armed robbery. However, the trial court entered judgment only upon the armed robbery conviction, finding armed violence to be a lesser-included offense of armed robbery.

The defendant has asked that we review several evidentiary issues, the sufficiency of the evidence as a whole and the propriety of the sentence imposed.

The first issue we must address is whether the rebuttal testimony of Patricia Moon, the defendant’s former wife, and Ruby Wombacher, owner of the C.B. Haven Tavern, concerning the defendant’s involvement in a prior armed robbery similar in method to the subject robbery, was improperly admitted into evidence.

Moon’s and Wombacher’s rebuttal testimony was not in response to any competent evidence presented by the defense. Therefore, it was not true rebuttal evidence and should have been offered during the prosecution’s presentation of its case in chief.

In the event it had been properly offered during the State’s case in chief as demonstrating a common design or the same modus operandi, it would not have been admissible!

Evidence of crimes other than the one for which the accused is being tried is admissible to show motive, intent, identity, absence of mistake or modus operandi. People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.

Prior to the admission of evidence of “other crimes,” it must first be shown that a crime actually took place and that the defendant committed it. The critical question then is not identity of the two offenses but whether a comparison of the acts of both offenses as a whole demonstrates a common design and the same modus operandi. People v. Osborn (1977), 53 Ill. App. 3d 312, 368 N.E.2d 608.

The only evidence connecting the defendant with the armed robbery at the C.B. Haven Tavern is the testimony of Patricia Moon. At the time the robbery occurred in December of 1980, the defendant was not identified as the perpetrator of the crime, nor was he in any way connected with the crime. In addition, the physical description of the armed robber given by the owner of the C.B. Haven Tavern differs greatly from the uncontroverted description given by the defendant’s mother during her testimony. Insufficient evidence was presented by the State to show that the defendant committed the prior armed robbery. Thus, evidence of the prior crime is not admissible to establish the same modus operandi.

Evidence of “other crimes,” if not admissible for a purpose other than to merely establish the defendant’s criminal propensities, is extremely prejudicial. The substantial prejudicial effect on the jury of the improperly admitted evidence leads us to conclude that this error is reversible and entitles the defendant to a new trial.

Furthermore, the defendant has claimed that he is entitled to a new trial because of the State’s untimely production of certain discovery materials, among which is a report from a polygraph technician who examined Patricia Moon. The prosecution had a duty to deliver this report to the defendant along with the names of Moon and Wombacher as potential witnesses under the discovery provisions of Supreme Court Rule 412(a) (87 Ill. 2d R. 412(a)), and because the nature of Moon’s and Wombacher’s testimony was not rebuttal, the exception as to information relating to rebuttal witnesses is not applicable. See Ill. Rev. Stat. 1981, ch. 38, par. 114-9(c); 87 Ill. 2d R. 412(a); People v. Hope (1974), 22 Ill. App. 3d 721, 318 N.E.2d 128; and People v. Manley (1974), 19 Ill. App. 3d 365, 311 N.E.2d 593.

Because we believe the defendant is entitled to a new trial, certain additional evidentiary and sentencing errors alleged by the defendant to have occurred at the trial court level need not be discussed. However, the following issues are likely to reoccur upon retrial and, therefore, must be resolved.

The defendant contends that the trial court erred in refusing to hear testimony that another suspect had been arrested immediately after the crime had been committed. The suspect matched a general description of the armed robber and was stopped by the police during their initial investigation of the robbery. The suspect was taken into custody and later released when his girlfriend confirmed his explanation that he was on his way to her apartment when stopped by the police.

Although it is true that a defendant is entitled to all reasonable opportunities to present evidence which could create a doubt as to his guilt, the evidence offered must be relevant and material in order to be admissible. It is within the trial court’s discretion to refuse the admission of evidence whose relevancy is so speculative as to provide little probative value. People v. Mikel (1979), 73 Ill. App. 3d 21, 391 N.E.2d 550.

Evidence which indicates that someone other than the defendant committed the crime is relevant; however, such evidence is admissible only if a close connection can be demonstrated between the other person and the commission of the crime. Remote conduct not connected with the crime itself may not be shown. People v. Nitti (1924), 312 Ill. 73, 143 N.E. 448; People v. King (1978), 61 Ill. App. 3d 49, 377 N.E.2d 856.

We believe that the trial court properly exercised its discretion in refusing to allow evidence to be introduced concerning the additional suspect. Certainly, a man matching a general height and weight description of the robber, walking in the general environs of the Turf Club, has an extremely remote connection with the crime itself. Such evidence is speculative and of minimal probative value. Thus, it was properly excluded.

The defendant next contends that the testimony of Penny Grimm concerning certain statements made by the defendant’s wife and mother in the defendant’s presence and to him on the telephone was inadmissible hearsay.

It is a well-established rule that when a person is accused of a crime while in the presence of others and is silent, the tendency of a reasonable man being to deny the accusation, his silence is admissible as an implication of guilt because it gives rise to an inference of the truth of the accusation. People v. Norman (1963), 28 Ill. 2d 77, 190 N.E.2d 819.

Here, Grimm’s testimony established that the defendant was present at the time his mother stated he could not pass a lineup and at the time his wife answered in the affirmative to Grimm’s question of the defendant’s guilt. Both statements clearly implicated the defendant in a robbery at the Turf Club. His failure to refute the statements infers their truth. These statements were, therefore, admissible as admissions by silence.

As for Grimm’s testimony relating statements made by the defendant’s wife while speaking to her husband on the telephone, we agree with the defendant that this testimony was clearly hearsay, not falling within any exception to the general hearsay rule, and, thus, inadmissible.

The defendant also argues that the State’s evidence did not establish the defendant’s guilt beyond a reasonable doubt. It is the function of the jury to weigh the testimony, judge the credibility of the witnesses and determine factual matters in debatable circumstances. (People v. Daily (1968), 41 Ill. 2d 116, 242 N.E.2d 170; People v. Ross (1981), 100 Ill. App. 3d 1093, 427 N.E.2d 868.) We have reviewed the evidence presented at trial and believe that the evidence was sufficient, if believed, to support a determination by the jury of the defendant’s guilt beyond a reasonable doubt.

Accordingly, for the reasons set forth in this opinion, the judgment of the circuit court of Peoria County is reversed and the case is remanded with the direction the defendant be granted a new trial.

Reversed and remanded with directions.

ALLOY and HEIPLE, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE ALLOY

license: Public Domain

text:
      In re R.D.S., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. R.D.S., Respondent-Appellant).
    Third District
    No. 3—83—0476
    Opinion filed March 14, 1984.

      Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and John M. Wood, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

R.D.S. appeals from his commitment to the Department of Corrections following his plea of guilty and the court’s adjudication of him as a delinquent and a ward of the court. The only issue presented is whether he is entitled to a new dispositional hearing because the court erred in considering a prior delinquency adjudication which had been reversed on appeal. We find no error and affirm.

In January 1981, R.D.S. was found to be a delinquent, as a result of his commission of the offense of theft. He was adjudged a ward of the court and committed to the Department of Corrections. The findings and commitment were reversed on appeal. (People v. R.D.S. (1983), 94 Ill. 2d 77, 445 N.E.2d 293.) In March 1983, another juvenile petition was filed against R.D.S., for another theft offense. R.D.S. appeared in court and admitted the allegations of the petition. He was adjudged a ward and a dispositional hearing was scheduled. At that hearing, the court reviewed the investigation report as well as heard testimony from the minor, his mother and his probation officer. The record indicates that R.D.S. was first adjudged a delinquent in November 1978 and placed on probation. Although he violated that probation, it was continued. In October 1979, he was again found to be delinquent and again placed on probation. Another violation was committed by R.D.S., but again the probation was continued. Most of the delinquency findings and probation violations focus upon theft-related offenses.

In January 1981, as previously noted, R.D.S. was again adjudged delinquent and thereupon sentenced to the Department of Corrections. That adjudication was reversed on appeal. The court, in the instant case which is grounded upon the March 1983 adjudication of delinquency, committed R.D.S. to the Department of Corrections.

Trial judges, in determining the appropriate disposition of a juvenile adjudged to be a ward of the court, have wide discretion:

“(1) After adjudging the minor a ward of the court, the court shall hear evidence on the question of the proper disposition best serving the interests of the minor and the public. All evidence helpful in determining this question, including oral and written reports, may be admitted and may be relied upon to the extent of its probative value, even though not competent for the purposes of the adjudicatory hearing ***.” (Ill. Rev. Stat. 1981, ch. 37, par. 705 — 1.)

Being empowered to consider all helpful evidence (In re White (1982), 103 Ill. App. 3d 105, 429 N.E.2d 1383), a trial judge may look to prior arrests, station adjustments, curfew violations and hearsay in determining whether commitment to the Department of Corrections is appropriate. In re Brooks (1978), 63 Ill. App. 3d 328, 379 N.E.2d 872; In re Scott (1978), 62 Ill. App. 3d 367, 379 N.E.2d 72.

The defense contends, however, that the trial court here improperly considered this juvenile’s prior adjudication of delinquency where the prior adjudication was reversed on appeal. Reliance is placed upon the rule of criminal law making it reversible error for a sentencing court to consider a conviction which was subsequently reversed on appeal in entering sentence. See People v. Coty (1982), 105 Ill. App. 3d 398, 434 N.E.2d 432.

We find no error on the facts in this case. The record is clear that the trial judge did not consider or rely upon the prior adjudication as a matter in aggravation when determining an appropriate disposition for the March 1983 delinquency. The trial judge’s reference to the prior adjudication was within a context focusing upon an appropriate disposition. The judge noted that R.D.S. had spent some time in the Department of Corrections and that shortly after release he had returned to criminal conduct. In the court’s own words,

“The last time that a dispositional hearing was held, a judge sitting in the place that I’m sitting sent him to the Department of Corrections. It is obvious from the record at the Department of Corrections that he needed more time there. His case was reversed because of a failure of service of process, not because the Supreme Court disagreed with the placement of this minor at the Department of Corrections, but rather because of a clerical error in the adjudication process.
* * *
The point is that this young man, after having been sentenced or placed in the Department of Corrections, and having been released, returned to the community, and immediately returned to the conduct which resulted — which had previously placed him in the Department.” (Emphasis added.)

The clear emphasis and reliance was not upon the prior adjudication, as in itself as a matter in aggravation, but rather upon the fact, properly considered, that upon release from the Department, following the reversal, R.D.S. returned to his criminal activities. Under the circumstances and given the context of his reference to the prior adjudication, we find no error. This situation is distinct from that in which a sentencing judge considers or relies upon a prior conviction, subsequently reversed, as a matter in aggravation in sentencing upon a subsequent charge. Here, it was not the prior adjudication or its circumstances that the court noted, but the respondent’s conduct after having been released from commitment following the prior adjudication. The mere mention of the prior adjudication, in this context, does not mandate reversal.

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.

STOUDER and BARRY, JJ., concur.


author: PRESIDING JUSTICE STOUDER JUSTICE BARRY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY DEATHERAGE, Defendant-Appellant.
    Third District
    No. 82-813
    Opinion filed March 16, 1984.

      BARRY, J., specially concurring.
    Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Patricia Hartmann, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Together with Danny Cabage, the defendant, Gary Deatherage, was indicted for the unlawful delivery of less than 30 grams of a substance containing cocaine. (Ill. Rev. Stat. 1981, ch. 56½, par. 1401(b).) The defendant was tried separately before a jury and convicted as charged. He was sentenced to three years’ imprisonment.

The State’s case was based on an accountability theory. On appeal, the defendant contends: (1) that he was not proven guilty beyond a reasonable doubt because the State’s evidence of his accountability was entirely circumstantial and his conduct was explainable by a reasonable hypothesis of innocence; (2) that the trial judge improperly admitted into evidence hearsay statements made by Danny Cabage; (3) that he was prejudiced by the prosecutor’s closing argument; and (4) that the trial judge erred in giving only the first paragraph of Illinois Pattern Jury Instruction (IPI), Criminal, No. 3.02 (2d ed. 1981), on circumstantial evidence.

The only occurrence witness at the defendant’s trial was undercover agent Francis Simmons. His testimony established that the defendant was present in the Sports Page tavern at approximately 1:45 p.m. on February 11, 1982, when he (Simmons) entered the tavern with Gary DuPoy, a fellow agent. DuPoy introduced Simmons to Cabage, who was standing near the entrance to the bar. The defendant was sitting in the middle of the bar.

Simmons, DuPoy and Cabage talked for awhile in the bar and then went outside to the parking lot. After more conversation, Simmons and DuPoy left and Cabage returned to the bar. The two agents met with police officers and then returned to the tavern at about 2:30 p.m. to set up a meeting for the purchase of cannabis from Cabage.

Simmons saw Cabage as he entered the bar. The two went outside where Simmons arranged for the purchase of cannabis. Simmons then asked Cabage if he could obtain a taste of cocaine. Cabage replied that he would have to contact another “guy.” The two agreed that Simmons would telephone Cabage at his home at 5 p.m. Simmons did not see the defendant at this time.

The 5 p.m. telephone call was not made. Instead, Simmons and DuPoy went to Cabage’s home at 5:30 p.m. Cabage met them at the door. The defendant was seated on the living room couch, watching television.

Upon entering the room, Simmons expressed concern at the presence of someone new. There was some confusion about the exact conversation that took place then, but it is undisputed that Cabage showed Simmons a sample of cocaine and told him not to worry about the defendant’s presence. DuPoy and Cabage both said they knew the defendant, and at some point, Simmons shook the defendant’s hand, telling him he had nothing against him.

Cabage told Simmons that the cocaine he showed him was the best he had ever purchased. He stated that he would sell some of it to Simmons for $100 per gram. When Simmons asked if he could get more, Cabage asked the defendant what the source had said about the price. The defendant replied that it was $200 a gram, but that the source had purchased an “8th” for $285.

Simmons then asked about the cannabis, and Cabage replied that it was in the car. As they were about to go outside to get the cannabis, Simmons asked the defendant if he could get more cocaine from the source. The defendant started to answer, but Cabage interrupted and talked to Simmons about the quality and quantity of the cocaine.

Cabage and Simmons obtained a carton from Cabage’s car and returned to the house. Simmons, DuPoy and Cabage entered a bedroom where Cabage dumped five pounds of cannabis on the bed. Simmons paid Cabage $1,930, of which $200 was for two grams of cocaine, and then asked who could get him cocaine in the future. Cabage replied that he would have to “go through that guy plus another guy.” Simmons understood the reference to “that guy” to be a reference to the defendant. Shortly after the transaction in the bedroom took place, Simmons and DuPoy left the house.

On appeal, the defendant contends that the evidence did not establish accountability beyond a reasonable doubt. Before we address this issue, we turn our attention to the second issue raised by the defendant; that is, whether the trial court erred in admitting the hearsay declarations of Danny Cabage.

Those statements attributable to Cabage in Agent Simmons’ testimony were admitted under the co-conspirator exception to the hearsay rule. To admit statements by a co-conspirator, which would otherwise be barred by the hearsay rule, the State must establish the existence of a conspiracy by nonhearsay evidence. Once a prima facie showing of a joint venture has been established by a preponderance of the evidence, statements made by a co-conspirator of a party during the course and in furtherance of the conspiracy may be admitted. (People v. Goodman (1980), 81 Ill. 2d 278, 408 N.E.2d 215.) While proof of the illicit association between the declarant and the defendant may be totally circumstantial (United States v. Cicale (2d Cir. 1982), 691 F.2d 95), it must be sufficient, substantial and independent of the declarations. (People v. Goodman (1980), 81 Ill. 2d 278, 408 N.E.2d 215; United States v. Nixon (1974), 418 U.S. 683, 701 n.14, 41 L. Ed. 2d 1039, 1060 n.14, 94 S. Ct. 3090, 3104 n.14.) A preponderance of the nonhearsay evidence in the case at bar does not support a finding of a conspiracy between Danny Cabage and the defendant.

The defendant was not actively involved in the first two meetings of Simmons and Cabage. During the first meeting, which occurred in the Sports Page tavern’s parking lot, the defendant was seated inside the bar. The second meeting also took place in the parking lot. Simmons did not see the defendant at this time. The defendant was present at the Cabage home when Simmons and DuPoy arrived to purchase the cannabis, and he answered a question about the price of cocaine put to him by Cabage. This evidence is hardly sufficient to establish a conspiracy between Cabage and the defendant for the delivery of cocaine to Simmons. There is no evidence of an agreement between the two, which is the essence of a conspiracy. Mere knowledge or acquiescence of an illegal act does not constitute conspiracy. People v. Mordick (1981), 94 Ill. App. 3d 497, 418 N.E.2d 1057.

Because a conspiracy between Cabage and the defendant was not proven, the trial court erred in admitting all of the statements attributable to Cabage. We need not address the question of whether one particular declaration by Cabage was admissible as an implied admission by the defendant. Since none of Cabage’s out-of-court statements were admissible, one particular statement cannot serve as the basis of an implied admission by the defendant.

Turning now to the first issue raised by the defendant, we hold that his conviction of unlawful delivery based on an accountability theory cannot stand. To sustain such a conviction, the State must establish beyond a reasonable doubt that: (1) the defendant solicited, ordered, abetted, agreed or attempted to aid another in the planning or commission of the delivery; (2) the defendant’s participation took place before or during the commission of the delivery, and (3) the defendant had the concurrent, specific intent to promote or facilitate the commission of the offense. (Ill. Rev. Stat. 1981, ch. 38, par. 5 — 2; People v. Trapps (1974), 22 Ill. App. 3d 1029, 318 N.E.2d 108.) Mere presence at the scene of a crime and knowledge that a crime is being committed is insufficient to establish guilt. (People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520.) Where the evidence is entirely circumstantial, as it is in the case at bar, guilt must be established so as to exclude every reasonable hypothesis of innocence. People v. Grizzel (1943), 382 Ill. 11, 46 N.E.2d 78; People v. Wright (1976), 43 Ill. App. 3d 458, 357 N.E.2d 224.

In the present case, the evidence shows only that the defendant was present and that he may have known about the transaction. The references made by Cabage to another “guy” were too vague to implicate the defendant. In addition, it is possible that the defendant, while obviously an individual somewhat knowledgeable about the local cocaine trade, was merely an innocent bystander. Such an innocent interpretation is supported by the evidence.

For the foregoing reasons, we find the evidence insufficient to sustain the defendant’s conviction of unlawful delivery on an accountability theory. This is so even with consideration of the improperly admitted hearsay declarations by Cabage. Without those statements, there clearly is no case against the defendant.

For the foregoing reasons the judgment of the circuit court of Peoria County is reversed.

Reversed.

HEIPLE, J., concurs.

JUSTICE BARRY,

specially concurring:

I agree with the result reached by the majority, but not all of the reasoning provided therefor. I agree that the hearsay declarations by Cabage were improperly admitted, and without such declarations there was insufficient evidence to convict this defendant of the offense charged. Had the statements been properly admitted there may have been enough evidence to support a conviction.


author:
      JUSTICE HEIPLE
      JUSTICE STOUDER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID OVERTURF, Defendant-Appellant.
    Third District
    No. 3-83-0547
    Opinion filed March 16, 1984.
    STOUDER, J., specially concurring.
    Robert Agostinelli and Thomas A. Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and John M. Wood, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

Following a jury trial in Peoria County, the defendant, David Overturf, was convicted for the offense of armed robbery. The issue on appeal is whether the defendant was denied due process of law due to a delay of 43 months between the date of the offense and the date when the defendant was charged.

The robbery occurred on May 27, 1979. However, the defendant was not arrested and indicted until January 4, 1983. The intervening delay was caused when the defendant fled to Florida in July of 1979 after being asked by the Peoria police department to participate in a lineup. While in Florida, the defendant was convicted of other offenses and was incarcerated. Upon learning of the defendant’s arrest and incarceration in Florida, Illinois authorities closed his file. In the fall of 1982, after the defendant was released from prison in Florida, the Peoria County State’s Attorney filed an information charging the defendant with armed robbery.

The defendant argues that the 43-month pre-indictment delay resulted in substantial prejudice and a denial of due process. The State responds that the defendant has failed to satisfy the test set forth by the Illinois Supreme Court in People v. Lawson (1977), 67 Ill. 2d 449, to determine if a pre-indictment delay violated a defendant’s due process rights:

“Where there has been a delay between an alleged crime and indictment or arrest or accusation, the defendant must come forward with a clear showing of actual and substantial prejudice. Mere assertion of inability to recall is insufficient. If the accused satisfies the trial court that he or she has been substantially prejudiced by the delay, then the burden shifts to the State to show the reasonableness, if not the necessity, of the delay.
If this two-step process ascertains both substantial prejudice and reasonableness of a delay, then the court must make a determination based upon a balancing of the interests of the defendant and the public. Factors the court should consider, among others, are the length of the delay and the seriousness of the crime.” 67 Ill. 2d 449, 459.

Despite the explicit requirement of a clear showing of actual and substantial prejudice, the defendant failed to present any evidence of actual prejudice. He chose instead to rely on a presumption of prejudice purportedly authorized by People v. Gulley (1980), 83 Ill. App. 3d 1066.

In Gulley, this court noted that a 51-month pre-indictment pre-arrest delay causes great suspicion and a presumption that the delay was prejudicial (83 Ill. App. 3d 1066, 1069.) Prejudice was also presumed in People v. Nichols (1978), 60 Ill. App. 3d 919, which involved a 33-month delay between indictment and arrest.

People v. Nichols (1978), 60 Ill. App. 3d 919, can be distinguished because it was concerned with a defendant’s right to a speedy trial as guaranteed by the sixth amendment. This case involves pre-accusation which does not come within the purview of the sixth amendment and is governed by the separate standards found in the Lawson opinion. People v. Nichols (1978), 60 Ill. App. 3d 919, 924.

We also do not believe that Gulley permits a defendant to avoid the Lawson standard of actual prejudice by hiding behind a presumption. A careful reading of Gulley reveals that despite the court’s reference to a presumption of prejudice (based on the inapposite authority of Nichols), it was actually relying upon a well-articulated showing of actual and substantial prejudice which was amply supported by the record. (People v. Gulley (1980), 83 Ill. App. 3d 1066, 1070.) That was the true basis for the court’s decision and is the only solution which is consistent with Lawson. Unlike Gulley, the record in the present case contains no evidence of actual and substantial prejudice.

The defendant’s fallback position is that after he ran away to Florida, he had no reason to believe that he was still a suspect and therefore did not attempt to contact witnesses or keep the date and events of the offense fresh in his mind. A mere assertion of inability to recall and resulting impairment of the ability to prepare a defense is insufficient to establish actual and substantial prejudice from preindictment delay. (People v. DiBenedetto (1981), 93 Ill. App. 3d 483.) This is especially true when a defendant is primarily responsible for causing the delay by fleeing the State in order to avoid an investigation.

At best, the defendant has demonstrated only a possibility of prejudice. That is not enough to shift the burden to the State to show the reasonableness, if not the necessity, of the delay. People v. DiBenedetto (1981), 93 Ill. App. 3d 483, 488.

The defendant has failed to satisfy the first part of the Lawson test. Accordingly, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

SCOTT, J., concurs.

JUSTICE STOUDER,

specially concurring:

I concur with the result reached by my colleagues, but I do not agree completely with the reasons set forth to reach the result.

People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244, is of course the leading case in Illinois dealing with fifth amendment due process violations which may result from preaccusatory delay. That Lawson requires an initial showing by the defendant of actual and substantial prejudice is undeniable. However, I believe the actual prejudice requirement of Lawson may be proved or shown by a presumption arising from the long period of delay between the alleged criminal act of the defendant together with the State’s knowledge thereof and the bringing of the charge. I believe the effect of a long period of delay as discussed in People v. Gulley (1980), 83 Ill. App. 3d 1066, 404 N.E.2d 1077, is harmonious and consistent with the views set forth in Lawson, and accordingly I would not overrule the Gulley case as the majority purports to do. While People v. Nichols (1978), 69 Ill. App. 3d 919, 377 N.E.2d 815, does mention a sixth amendment problem, unreasonable delay adversely affecting the right to a speedy trial of an accused is still of some relevance since either in the context of a fifth or sixth amendment violation we are trying to resolve problems incident to delay.

Even though I believe that a long delay might give rise to a presumption or inference of actual or substantial prejudice as suggested in People v. Gulley (1980), 83 Ill. App. 3d 1066, 404 N.E.2d 1077, I do not believe the defendant can claim such effect in the instant case. First, he undeniably fled from the county and State to Florida knowing that he was suspected of committing the robbery. Second, the plaintiff can hardly claim prejudice when he failed to even make such an assertion until after he had been found guilty of the offense.

In conclusion, I do not believe the facts warrant the application of any claim of actual prejudice from the lapse of time when considered in the context of the defendant’s own conduct.


author: JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL POWERS, Defendant (Louis E. Olivero, Appellant).
    Third District
    No. 3—83—0562
    Opinion filed March 9, 1984.
    Louis E. Olivero, of Peru, for appellant, pro se.

    James R. May, State’s Attorney, of Princeton (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

Louis Olivero appeals from an order of the circuit court of Bureau County finding Olivero in contempt of court for refusing to proceed with a trial.

Olivero, a lawyer, was representing his client, Powers, in an arson case. Olivero filed a motion for a temporary restraining order (TRO) with the trial court in order to prevent the State from transcribing and using certain testimony obtained in a grand jury proceeding. Olivero felt the testimony was improperly obtained and would be used by the State in preparing its case against Powers. The trial court refused to grant the TRO and set Powers’ trial for August 29, 1983. Powers, through Olivero, filed an interlocutory appeal to this court.

On August 29, 1983, just prior to trial, Olivero argued to the trial court that Powers’ appeal relieved the lower court of jurisdiction. The State moved to quash the appeal because Powers had no right to an interlocutory appeal in his criminal case. The trial judge observed that a trial court only loses jurisdiction when a proper appeal is filed. Since Powers’ interlocutory appeal was not authorized by any law or rule, his appeal was not proper; consequently, the trial court did not lose jurisdiction. The trial judge granted the motion to quash the appeal. Yet, Olivero continued to argue the lower court had no jurisdiction over the case.

Despite the trial judge’s repeated attempts to convince Olivero that his position was untenable, Olivero indicated that neither he, nor his client, would participate in the trial. The trial judge then warned Olivero that if Olivero did not start the trial, he would be held in contempt and fined $1,009 ($806 for jury fees, $153 for mileage and $50 for two bailiffs). Olivero refused to comply with the judge’s request and the judge proved true to his word. This appeal followed.

Before examining the contempt issue, we would like to note that a review of the record of the Powers case, and the briefs of the parties, reveals no grounds to support the granting of a TRO. Moreover, we know of no authority which will allow an interlocutory appeal by Powers of the denial of the TRO in his criminal case. In order to restrict the use of the grand jury testimony, Olivero should have submitted a motion in limine or a motion to suppress. However, such evidentiary issues cannot be appealed by a defendant until a final disposition of his case.

In short, we find a glaring lack of authority in support of the theories which Olivero apparently believed justified his refusal to participate in Powers’ trial. Nevertheless, even if the law did support Olivero’s arguments, we could not and will not countenance his conduct before Judge Wampler. A lawyer’s good-faith belief in the accuracy of his argument, or his ignorance of the law, or the absence of contemptuous intent, is no justification for his acts of contempt. (See People v. Haas (1981), 100 Ill. App. 3d 1143.) A lawyer’s actions before the court speak louder than his words.

This is not a case of indirect criminal contempt where the attorney missed an appearance date and the trial court was unaware of the reason for the absence. (See People v. McNeil (1976), 42 Ill. App. 3d 1036.) Here, we have a case of direct criminal contempt. The lawyer and judge were face to face shortly before trial. Judge Wampler explicitly instructed Olivero that if he did not participate in the trial, he would be held in contempt. Olivero deliberately chose not to respect the wishes of the court and prevented the court from holding the trial. Such an act by a lawyer can be characterized as nothing other than conduct calculated to hinder or obstruct a court in its administration of justice, or to derogate from its authority or dignity. (People v. Haas.) Thus, it was criminally contemptuous. We affirm the lower court’s finding of contempt.

However, we must reduce the fine imposed by the trial judge. Our supreme court, in County of McLean v. Kickapoo Creek, Inc. (1972), 51 Ill. 2d 353, held that, where the record reveals that the defendant was not afforded a jury trial, or did not waive his right to a jury, the contempt fine cannot exceed $500. The record reveals neither a jury trial nor a waiver. Consequently, we order that the fine be reduced to $500.

Affirmed in part; modified in part.

SCOTT and STOUDER, JJ., concur.


author: JUSTICE STOUDER

text:
    WILLIAM V. STATON, Plaintiff-Appellant, v. AMAX COAL COMPANY, Defendant-Appellee.
    Third District
    No. 3—83—0506
    Opinion filed March 14, 1984.

      Daniel P. Nagan, of Barash, Stoerzbach & Henson, P.C., of Galesburg, for appellant.
    Martin J. Klaper and Byron L. Meyers, both of Ice, Miller, Donadio & Ryan, of Indianapolis, Indiana, and Ralph Froehling, of Froehling, Taylor & Weber, of Canton, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

William V. Staton, the plaintiff-appellant, was employed as a maintenance manager for Amax Coal Company, the defendant-appellee. Sta-ton had no employment contract with the defendant; he was an at-will employee. Staton was involuntarily terminated by Amax and filed suit seeking payment of termination pay pursuant to an Organization and Policy Guide issued by Amax. The Guide did not apply to “discharge for cause.” The trial court granted Amax’ motion for summary judgment based upon its findings that there was no genuine issue as to any material fact and that Staton was discharged for cause as a matter of law and, therefore, not entitled to termination pay. It is from that judgment that Staton appeals. We reverse.

The sole issue on appeal is whether there is a genuine issue of material fact as to the existence of reasonable or good cause for Amax’ discharge of Staton.

The underlying facts of this case for the purpose of this appeal are not in dispute. We relate the facts here as they were set forth by the trial court in its memorandum opinion. Amax is in the business of surface coal mining in the State of Illinois and in other States. Staton was hired by Amax on September 24, 1969, and worked for Amax until his discharge on June 3, 1982. During his 13 years of employment, Staton progressed from the position of welder to the position of maintenance manager.

The events leading to Staton’s discharge began on the morning of May 28, 1982, when Staton instructed an Amax employee to go to a nearby town using a company vehicle and pick up a keg of beer. The employee returned with a keg of beer and placed it in a company owned vehicle used by Staton. Later, the keg of beer was stored in the defendant’s welding shop. During the afternoon of May 28, 1982, Sta-ton obtained explosives and igniting devices belong to Amax and took them to a lake owned by Amax. By approximately 4 p.m., a group of people consisting of Amax management and union employees, private citizens, and at least one minor child had gathered at the lake. The group was at the lake for a party, unrelated to the defendant’s business, that had been planned for the purpose of obtaining fish for a charitable fish fry. Many persons including Staton consumed alcoholic beverages on the defendant’s property. Staton personally detonated some of the explosives for the purpose of stunning or killing the fish in the lake near where the party was held. While the party was in progress Staton instructed an on-duty employee to get additional explosives. Further explosives were obtained and detonated at the lake.

On June 2, 1982, officials of Amax advised Staton that he could either resign or he would be terminated because of the events occurring on May 28, 1982. Staton refused to resign and was involuntarily terminated on June 3, 1982. In his suit Staton alleged that his discharge was not for “cause” within the meaning of Amax’ Organization and Policy Guide and that he was entitled to termination pay. Staton alleged that pursuant to the termination pay schedule Amax owed him the amount of $26,405.82, plus interest from the date of discharge. Amax refused to give Staton the termination pay.

On appeal, Staton admits that because of his conduct Amax was justified in taking some disciplinary action against him. But, Staton contends that a genuine issue of fact exists as to whether Amax had cause to discharge him rather than disciplining him in another less severe way. Amax contends that the determinative issue on appeal is the meaning and intention of the language of its Organization and Policy Guide, not whether Staton’s undisputed conduct warranted a particular level of discipline. Amax maintains that the purpose of the policy is simply to distinguish between cases where employees lose their jobs because of reasons beyond their control and cases where employees lose their jobs because of their own acts of misconduct.

Summary judgment is appropriate “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005(c).) The aim of summary judgment is not to try issues but to determine whether any triable issues exist. In ruling on a motion for summary judgment, the trial court should construe the pleadings, affidavits, exhibits and depositions most strictly against the moving party and most liberally in favor of the opponent. Inferences may be drawn from the facts which are not in dispute, and if fair-minded persons could draw different inferences from these facts, then a triable issue exists. (In re Estate of Kietrys (1982), 104 Ill. App. 3d 269, 273, 432 N.E.2d 930, 933.) Summary judgment should be granted only when the legal and factual right to it is clear and free from doubt. Gagliardo v. Vodica (1978), 58 Ill. App. 3d 1053, 1055, 374 N.E.2d 1302, 1304.

Amax and Staton agree that, for purposes of appeal only, this action is governed by Amax’ Organization and Policy Guide. Thus, we need not determine whether the Guide was in fact a binding contract or merely a guideline or policy. The Guide set forth a program of termination pay based upon an employee’s length of service. Section 2.1 provided that termination pay would not be awarded if termination resulted from “discharge for cause.” The Guide did not define the phrase “discharge for cause” or set forth what activity or conduct would constitute “cause” for discharge.

The sole question to be resolved, therefore, is whether there was a genuine issue of material fact as to the existence of “cause” for the discharge of Staton by Amax. The resolution of this question requires that we define the term “for cause.” We start with the assumption that the phrase “discharge for cause” means discharge for reasonable, just, or good cause, not discharge for any cause or discharge for bad cause.

Generally, the burden is on the employer to prove that the employee was guilty of conduct justifying termination. Thus, it is a question of fact, to be determined by the trier of fact, whether an employee has been discharged for good cause. (Lukasik v. Riddell, Inc. (1983), 116 Ill. App. 3d 339, 346, 452 N.E.2d 55, 59-60.) Neither party has cited any Illinois appellate-case law defining the term “cause” for purposes of discharge from employment of a nonpublic, at-will employee. This is likely due to the general rule that an employee “at will” may be terminated for any reason. (53 Am. Jur. 2d Master and Servant sec. 43 (1970).) However, cases involving arbitration under collective bargaining agreements and cases involving statutory protection for public employees are helpful because they have developed rules and principles governing discipline and discharge of employees.

In cases involving arbitration under collective bargaining agreements, arbitrators have interpreted cause to mean some cause not arbitrary or capricious. (Fries v. Pennsylvania R.R. Co. (7th Cir. 1952), 195 F.2d 445, 448.) “Just cause” includes only conduct that an employee knows is subject to discipline. While an employer has the right to create rules, they must be made known to employees and employees must reasonably believe that they will be enforced. Employees who have engaged in similar conduct must be subject to similar discipline. Even when an offense is undisputed, an employee may not be singled out and punished as an example to others. The burden rests on the employer to prove, by at least a preponderance of the evidence, that the employee should be discharged. Summers, Individual Protection Against Unjust Dismissal: Time For A Statute, 62 Va. L. Rev. 481 (1976).

In cases involving statutory protection for public employees, “cause” has been defined as a substantial shortcoming which renders the employee’s continuance in his position in some way detrimental to the discipline and efficiency of the employer and which the law and sound public policy recognize as good cause for no longer holding the position. Kreiser v. Police Board (1977), 69 Ill. 2d 27, 30, 370 N.E.2d 511, 513.

We next apply the above principles to the facts in this case. On the one hand Staton maintains that: the fishing party occurred on a Friday evening after he had finished work; Amax did not have a clear policy defining “cause” or listing acts of misconduct and appropriate forms of discipline; Amax had used graduated or progressive discipline in the past; there is evidence of prior unauthorized use of explosives by employees for “shooting fish”; and other employees involved in the party to a similar extent as Staton were not disciplined in a similar manner. On the other hand Amax maintains that, as a high level management employee, Staton’s misconduct set a bad example for those he supervised. Amax further maintains that detonation of the explosives by Staton exposed Amax to substantial risk of liability to the persons at the party and that its reputation was damaged by adverse publicity resulting from the incident.

After applying the above principles to the facts in this case, we believe that a genuine issue of material fact exists as to whether Amax discharged Staton for reasonable or good cause. While the facts surrounding Staton’s conduct on May 28, 1982, are not in dispute, fair-minded persons could draw different inferences from these facts. Therefore a triable issue exists. However, we do not decide on appeal whether in fact Amax did or did not discharge Staton for reasonable or good cause.

For the foregoing reasons, the judgment of the circuit court of Fulton County granting the defendant’s motion for summary judgment is reversed.

Reversed.

ALLOY, P.J., and SCOTT, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEAVEY JOHNSON, JR., Defendant-Appellant.
    Third District
    No. 3—83—0263
    Opinion filed March 9, 1984.
    Robert Agostinelli and Frank W. Ralph, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Larry S. Vandersnick, State’s Attorney, of Cambridge (John X. Breslin and John M. Wood, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Leavey Johnson, was arrested and taken into custody on May 1, 1982, and was charged by information on May 3, 1982. The defendant retained private counsel, Daniel Bonnett, who represented him until August 6, 1982, when Bonnett’s motion to withdraw as defendant’s attorney was granted by the circuit court of Henry County. The reasons given for withdrawal were that Bonnett had not been paid and he was having trouble with the defendant. At the hearing on August 6, 1982, the Henry County Public Defender was appointed to represent the defendant. Two weeks later, on August 20, 1982, two working days before trial was scheduled to commence, the trial court granted the public defender’s motion to withdraw as defendant’s attorney because of a conflict of interest in simultaneously representing the defendant’s brother who was charged with the same crime. After granting the public defender’s motion to withdraw, the trial judge appointed Bonnett as defendant’s attorney. In the course of discussing whether Bonnett had time to prepare for the trial three days hence, the public defender mentioned that the defendant wanted a bench trial. The trial judge then asked the defendant whether he wanted a bench trial or a jury trial, to which the defendant replied that he wanted to be tried by a judge. The trial judge proceeded to question the defendant further as to the waiver of his right to jury trial, during the course of which questioning the trial judge asked the public defender, “You are still representing him (referring to defendant) at this point?” to which the public defender replied, “That is true that is what he told me.” The trial judge then granted the jury waiver.

On August 23, 1982, Bonnett filed a motion for continuance which the court granted. On the same day Bonnett filed a motion to withdraw the defendant’s waiver of jury trial which was denied. On August 30, 1982, the defendant filed another motion to withdraw which was denied. The defendant then filed a motion to dismiss because he had been incarcerated in excess of 120 days without being brought to trial. The motion to dismiss was denied on September 16, 1982.

The defendant raises two issues on appeal. First he argues that the trial court erred in failing to dismiss this case because he was not brought to trial within 120 days through no fault of his own in violation of section 103 — 5 of the Code of Criminal Procedure of 1963 (111. Rev. Stat. 1981, ch. 38, par. 103 — 5). Defendant’s second assertion is that the trial court erred in not granting defendant’s motion to withdraw his jury waiver.

We disagree with defendant’s first assertion of error. Section 103 — 5 provides in part:

“(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5.)

The defense argues that because the trial commenced 139 days after defendant was incarcerated that defendant is entitled to be discharged pursuant to section 103 — 5. The defendant relies upon the withdrawal of the public defender on August 20 as the sole reason for the continuance which Bonnett requested on August 23, 1982, the day before defendant’s jury trial was scheduled to begin. Because the pub-lie defender withdrew due to a conflict of interest, the defendant argues that the subsequent continuance requested by Bonnett was not attributable to the defendant. We do not agree, largely because this is not a complete reflection of what transpired in this case. The record reflects that Bonnett withdrew initially on August 6 because he had not been paid and the defendant was not cooperating. The public defender had been assigned to this case for only two weeks when he withdrew because of a conflict of interest two working days before the jury trial was to commence. On the same day the defendant’s motion to waive a jury was also heard and granted and, therefore, the jury trial scheduled for August 23 could not have taken place. We believe that the rescheduling of the trial which had been set for August 23, 1982, well within the 120-day period, was delay attributable to the defendant because defendant moved to waive a jury two days before the jury trial was to commence. In People v. Fosdick (1967), 36 Ill. 2d 524, 224 N.E.2d 242, the Illinois Supreme Court found that rescheduling a trial to accommodate a request for a bench trial the day before a jury trial was to commence was delay occasioned by the defendant and, therefore, the delay caused by the jury waiver and subsequent motion to withdraw his jury waiver was properly attributed to the defendant. Therefore the jury waiver tolled the 120-day period on August 20, and all time between August 20 and September 16 was time attributable to the defendant. No delay which occurred on or after August 20, 1982, was attributable to either the State or the court. We, therefore find that there was no violation of the 120-day provision of section 103 — 5 and that no violation of defendant’s right to a speedy trial occurred.

As to the defendant’s second allegation of error, he argues that the trial court .should have granted his motion to withdraw his jury waiver. We agree. The trial court should not have considered defendant’s motion to waive the jury trial immediately after granting the public defender’s motion to withdraw. At this point in the proceedings the court had considered but had not appointed Bonnett, and Bonnett was certainly not available to advise the defendant. Far from waiving his right to be represented by counsel, the defendant expressed a desire to have Bonnett appointed to represent him immediately before the judge began discussing waiver. Nor was it proper for the court to question the public defender as to whether he still represented the defendant after allowing the public defender’s motion to withdraw. We believe that the defendant had a right to be represented by counsel and that such representation was essential in order for the defendant to knowingly and intelligently waive his right to jury trial. Therefore, the trial court should have granted defendant’s motion to withdraw his jury waiver.

We, therefore, reverse the decision of the circuit court of Henry County and remand this case for a trial by jury.

Reversed and remanded.

SCOTT and HEIPLE, JJ., concur.


author: JUSTICE ALLOY

text:
    WASTE MANAGEMENT OF ILLINOIS, INC., Petitioner, v. THE POLLUTION CONTROL BOARD et al., Respondents.-BOARD OF TRUSTEES OF JOLIET TOWNSHIP, Petitioner, v. WASTE MANAGEMENT OF ILLINOIS, INC., et al., Respondents.
    Third District
    Nos. 3—83—0325, 3—83—0339 cons.
    Opinion filed March 9, 1984.
    Louis R. Bertani and Thomas R. Wilson, both of Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet, and Richard V. Houpt and Donald J. Moran, both of Pedersen & Houpt, of Chicago, for Waste Management of Illinois, Inc.

      James Yoho, of Champaign, for Board of Trustees of Joliet Township.
    Edward F. Petka, State’s Attorney, of Joliet (Scott E. Nemanich and Richard J. Siegel, Assistant State’s Attorneys, of counsel), for respondent Will County Board.
    Lesley R. Harr, of Elwood, for respondent Lesley R. Harr, pro se.

    Martha C. Lembcke, of Elwood, for respondent Martha C. Lembcke, pro se.

    Norma T. Rourke, of Joliet, for respondent Norma T. Rourke, pro se.

    Gisela Topolski, of Joliet, for respondent Gisela Topolski, pro se.

   JUSTICE ALLOY

delivered the opinion of the court:

Waste Management of Illinois, Inc., seeks review over the decision of the Illinois Pollution Control Board (hereinafter PCB), which affirmed the decision of the County Board of Will County (hereinafter Board). Waste Management had filed a request for site approval with the Board for expansion of their existing Will County ESL landfill, which is a regional pollution control facility. The Board denied Waste Management’s request for expansion, finding, after hearings, that Waste Management had failed to show that the facility was necessary to accommodate the waste needs of the area it was intended to serve and that it had failed to show that the facility was so designed, located and proposed to be operated so as to protect the public health, safety and welfare. (POLLUTION CONTROL BOARD. Rev. Stat. 1983, ch. HV-k, pars. 1039.2(a)(1), 1039.2(a)(2).) Upon review, the PCB affirmed the denial of the permit request, based upon Waste Management’s failure to show that the facility was necessary. The PCB did not rule upon the second basis for denial of the Board, that being the safety aspects, concluding that the decision was technical and not within the purview of the Board. Waste appeals from the PCB ruling affirming the Board’s decision denying the permit on the issue of necessity, while the county and other interveners have cross-appealed the PCB’s decision that the Board did not have the power to determine the safety-related questions.

The record reveals that Waste has operated a sanitary and special and hazardous waste landfill on a 110-acre site in unincorporated Will County. This ESL landfill receives municipal solid waste as well as special and hazardous wastes. Waste Management’s request to the Will County Board was for site approval of an expansion of the existing landfill operation. The proposed expansion facility, to replace the existing facility, would be operated on 110 acres of land adjoining the existing ESL facility. The testimony before the County Board’s landfill advisory committee covered 17 days and the transcript runs to 2833 pages. The pertinent part of the record for this appeal is that concerning the evidence relating to the issue of the need for the facility.

At the heart of the county’s rejection of Waste Management’s application on the basis of a lack of need, was its conclusion that other landfills in the area had sufficient capacity to accommodate the waste needs of the area. Waste Management, on the other hand, emphasized its evidence that the capacity of the existing ESL facility would be used in from two to four years, and further that other facilities were insufficient to handle the waste loads accepted at the existing facility. Waste Management argued strenuously to the PCB that economic considerations, centering upon the costs of transportation, made use of other, non-Will County landfills undesirable for handling Will County wastes.

There was a dispute between the county staff and Waste Management concerning which other landfills should be considered in computing available alternatives, as well as concerning the future capacities of those other sites. Illustrative of the differences in the figures emphasized by each side are those used by each side for the Land and Lakes landfill, which at the time of the presentation had been issued a one-year experimental permit. Waste Management took the one year as the projected life of Land and Lakes, while the county staff, and the PCB on review, accepted as accurate an 18-year life. Similarly, Waste Management did not present detailed information respecting hazardous and special waste landfills in the area outside of Will County, even though a substantial amount of such wastes were accepted at the existing ESL in Will County. The county staff, based upon its review and assessment of existing facilities available to handle waste currently disposed of at the existing ESL facility, concluded that existing, available landfills were sufficient to handle the waste production for over 10 years. Based upon this conclusion, the county found that the proposed extension of the ESL facility was not necessary to accommodate the waste needs of the area intended to be served, which petitioner had set as the area currently being served. The county’s conclusion was affirmed by the PCB. In its findings, the PCB expressly noted its concurrence with the figures and analysis set forth by the county staff, rejecting contradictory conclusions by Waste Management’s experts. The PCB in its opinion and order was specific in addressing the basis for its affirmance:

“Regarding the municipal/special waste, the Board finds that the manner in which the County addressed the ESL and other available sites in the area intended to be served (in terms of receipts, capacity, remaining life, capacity and location) more than adequately buttresses its rejection of Waste Management’s arguments. The applicant can hardly complain that the County failed to include sites that the applicant itself failed to include. The County’s analysis *** projected an 11.1 year remaining life for the sites, but reduced that to 10 years in a footnote on a hypothetical assumption that the ESL site would be dedicated solely to hazardous waste.
In its analysis, the County Staff listed the same sites and projected the same remaining life as did the applicant with two important differences. It assumed an 18-year remaining life for the Land and Lakes site, rather than the projected 1 year experimental permit life utilized by the applicant. Additionally, the County listed the Hamman site, although it did not use a capacity or remaining life figure for this site in its projections.
The applicant insisted that the Land and Lake landfill was operating under a one-year experimental permit and, thus, argued that projecting a remaining life of 18 years is premature ***. On the other hand, the County included an 18-year remaining life for Land and Lakes in making its determination that 10 years of overall landfill capacity remain for the disposal of ‘municipal/sanitary and non-hazardous special wastes in Will County.’ ***
The Board concurs with the County’s inclusion of the Land and Lakes site in its analysis. Since the Land and Lakes site had been issued a developmental permit as well as an experimental permit to operate by the Agency, the County could have a reasonable expectation that the Land and Lakes site would operate for its projected 18-year life.
Since the Hamman site also had been issued a developmental permit, the County could also have had a reasonable expectation of its 18-year projected life, and thus included this site also, although it did not do so. ***
* * *
Regarding the economics of going to other sites, the County staff (and presumably the County Board) did not dispute the applicant’s assessment that, from an economic standpoint, it is preferable to have disposal sites in proximity to the population in industrial areas ***. While not controlling, the economics of greater hauling distances can be germaine to criterion #1. In this case, however, the Board finds that the economics question was not developed fully enough by the applicant to challenge the County Board’s determination that the site was not ‘necessary.’
The applicant focused on the remaining life, capacity and proximity of only some of the potential alternate sites, and only generally on the potential for greater hauling costs. However, the applicant did not evaluate what the potential impact would be on those who actually paid for garbage pick-up. Even if an increased economic burden were assumed, (especially in the Joliet area if the ESL site were able to accept municipal waste only for five more years) the applicant’s arguments were generalized and incomplete. For example, the applicant failed to describe the potential economic tradeoffs regarding the service areas of other sites within and without the county that might be available to those within the ESL service area.
Regarding hazardous waste disposal needs, the earlier noted misfocus by the County on the ‘fair share’ concept became especially troublesome since the area intended, to be served extended far beyond the boundaries of the County. Again, however, the Board notes that it was not the County’s responsibility to demonstrate need, it was the applicant’s, and the Board finds that it failed to do so. While the Board feels the applicant satisfactorily delineated the area intended to be served (which naturally become less precise as the service area grows in scope), the applicant failed to present any satisfactory waste ‘needs’ information about the intended service area with which the County could deal.
The applicant’s demonstrations of remaining life and capacity at its own existing site begged the question as to whether other available sites, even those confined to the urban area of northeastern Illinois, could ‘pickup the slack’ upon its closing.
* * *
Additionally, the applicant failed to explain why it focused primarily on sites only within a 50-mile radius from its site rather than, say, a 100-mile radius. Indeed, the applicant noted that its own site received wastes from an area considerably beyond 50 miles ***. The County had no real data to evaluate the potential service areas of alternate sites, and apart from its fair share arguments *** the applicant primarily analyzed the need to expand the present ESL site in order for the site to continue serving its ESL customers. It is not the intent of SB 172 that an applicant has a right to expand a site in order to stay in business. ***”

The question before the PCB was whether the County’s decision was contrary to the manifest weight of the evidence (E & E Hauling, Inc. v. Pollution Control Board (1983), 116 Ill. App. 3d 586, 608, 451 N.E.2d 555), and the PCB concluded that it was not. The manifest weight standard of review also governs appellate court review of decisions by the PCB. (Getty Synthetic Fuels, Inc. v. Pollution Control Board (1982), 104 Ill. App. 3d 285, 289, 432 N.E.2d 942.) We find the PCB’s decision on the question of necessity not to be contrary to the manifest weight of the evidence, and therefore affirm.

At the center of the dispute is the proper construction to be given section 39.2(a)(i) of the Environmental Protection Act (Ill. Rev. Stat. 1983, ch. 111½, par. 1039.2(a)(i)), which states:

“(a) The county board of the county or the governing body of the municipality *** shall approve the site location suitability for such new regional pollution control facility only in accordance with the following criteria:
(i) the facility is necessary to accommodate the waste needs of the area it is intended to serve ***.”

Relying upon the recent decision in E & E Hauling, petitioner Waste Management contends that “necessary” as used in section 39.2(a)® means only “expedient” or “reasonably convenient.” (E & E Hauling v. Pollution Control Board (1983), 116 Ill. App. 3d 586, 609.) Using this construction, Waste Management argues that the evidence before the PCB and the county sufficiently demonstrated that the proposed expansion facility was necessary. Waste contends that the county and the PCB improperly imposed an absolute necessity standard in the case, contrary to proper construction. In the E & E Hauling case, the Second District Appellate Court affirmed a county board decision which found that a proposed expansion of an existing facility was necessary. The evidence in the record indicated that without the expansion, the waste needs of Du Page County would not be met when the existing facility reached its capacity. (116 Ill. App. 3d 586, 608-09.) The construction by the court in E & E Hauling, wherein it adopted the expedient or reasonably convenient approach, must be viewed with the facts in the case, which demonstrated that the proposed expansion was more than expedient or reasonably convenient to meet the waste needs of Du Page County. Rather, there was evidence of real need for the facility. In the instant case, the facts, as found by the county and by the PCB, with support in the record, show that the waste needs of Will County can be handled for 10 years with existing available facilities within the area now served, without additional facilities being necessary. We agree with the court in E & E Hauling that a construction of the pertinent statutory language which required a petitioner to prove absolute necessity would be unworkable and unreasonable. However, we disagree with its statement that “necessary” means only “expedient” or “reasonably convenient.” The legislature used the term “necessary” and some of its core meaning, connoting a degree of requirement or essentiality, must be assigned to that use of the word. While we do not construe the language to mean that landfills must be shown to be absolutely necessary, nevertheless we find that they must be shown to be reasonably required by the waste needs of the area intended to be served, taking into consideration the waste production of the area and the waste disposal capabilities, along with any other relevant factors. The evidence in this case, as found by the PCB and the county, indicated that other available facilities were sufficient to meet the future waste needs of the area served, and, therefore, this proposed expansion was not reasonably required to meet those needs. The decision does not foreclose future applications for the site, based upon changes in the relevant factors, whether waste production, other sites, or economic costs of transportation. On this record, however, the PCB is affirmed.

We would also note that had we reversed the PCB on the necessity issue, we would nevertheless have remanded the case back to the PCB for its consideration of the second basis set forth by the county for denying the application. The County had determined that the facility was not so designed, located and proposed to be operated that the public health, safety and welfare would be protected. (Ill. Rev. Stat. 1983, ch. 111½, par. 1039.2(a)(ii).) The PCB concluded that the safety assessment was beyond the county’s jurisdiction and did not reach the issue in its review. In City of East Peoria v. Pollution Control Board (1983), 117 Ill. App. 3d 673, 452 N.E.2d 1378, we determined that the county board did have jurisdiction to decide that issue. While Waste Management has requested that we decide the issue, on the facts in the record, we believe the preferable procedure is to remand to the PCB in such cases, so as to receive the benefit of their expertise on review. However, given our affirmance on the issue of necessity, we need not remand this case.

For the reasons stated, the decision of the PCB is affirmed.

Affirmed.

HEIPLE and BARRY, JJ., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOHN F. SAIN, Defendant-Appellee.
    Second District
    No. 83—204
    Opinion filed March 27, 1984.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner and Diana Fischer-Woods, Assistant State’s Attorneys, of counsel), for the People.
    John P. DeRose, of DeRose & Russo, of Oak Brook, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

The State appeals under Supreme Court Rule 604(a)(1) (87 Ill. 2d R. 604(a)(1)) from a written order of the trial court granting .the motion of defendant, John E Sain, to suppress evidence seized from his home in a search conducted pursuant to a search warrant. The search warrant had been issued on the complaint of Officer Steven Arp, who had observed cannabis in defendant’s living room when Officer Arp had entered defendant’s home in a previous unsuccessful attempt to execute an arrest warrant for defendant on an unrelated charge. As a result of the seizure, defendant was charged by information with unlawful possession of more than 500 grams of a substance containing cannabis. (Ill. Rev. Stat. 1981, ch. 56Vz, par. 704(e).) Defendant’s motion to suppress was granted, and the State filed a certificate of impairment and notice of appeal.

The only issue raised on appeal by the State is whether the trial court erred in granting defendant’s motion to suppress evidence where it is contended the cannabis was discovered during an earlier, reasonable entry into defendant’s residence by police who had an arrest warrant for defendant.

Defendant’s written motion to suppress alleged that Officer Arp had obtained the information leading to the search warrant “without lawful authority” because he entered defendant’s home to execute an arrest warrant with “no reason to believe Defendant was physically present in the domicile.” The motion also alleged that impermissible force was used to gain entry and that no exigent circumstances existed to justify the entry.

At the hearing on the motion to suppress Steven Arp, a village of Lisle police officer testified that on June 29, 1982, at approximately 9:30 p.m. he received a dispatch that Sue McLennon was receiving harassing telephone calls again. The dispatcher told him McLennon believed the harassing calls were coming from defendant’s residence. Arp had become aware on the previous day of an arrest warrant for defendant. The warrant was for assault (Ill. Rev. Stat. 1981, ch. 38, par. 12 — -1(a)), a Class C misdemeanor, against Sue McLennon. After receiving the dispatch, Arp went to defendant’s residence where he could see light coming from inside the small, single-story house. Curtains covered the front windows which prevented his seeing inside. Officer Bandy arrived at defendant’s home at approximately the same time as Arp arrived. Arp did not know the defendant and had never been to the house before.

Arp went to the back door and knocked. He did not recall how many times he knocked but believed it would have been more than one tap. After knocking he did not identify himself as a police officer nor announce that he was there to execute an arrest warrant.

While Arp was at the back door, Bandy called him over the radio and told him there had been no answer at the front door.

Fifteen to twenty seconds after Arp started knocking, and after Bandy had called him on the radio, Arp tried the door handle and discovered that the door was unlocked. Arp then opened the door and walked into an enclosed porch. He walked to another unlocked door, opened it, and walked into the kitchen. The kitchen lights were on. While in the kitchen he called out “hello, Police, [or] something to that effect” but received no response to this call, nor had he previously heard anything from inside the house.

He then walked into the living room, which was illuminated by the kitchen lights. In the living room, next to a chair, he observed a plastic bag containing a brown leafy substance that appeared to be cannabis. After observing the cannabis, Arp went to the front door, had a conversation with Bandy, then left the house by retracing his steps and leaving through the back door. He did not search any other rooms in the house concluding he “did not feel he [defendant] was in there” because the rest of the house was dark and he heard no noises.

Arp drove away but returned a few minutes later. On his return, he observed that defendant’s car was there. Defendant came to the door and, after some conversation, came out and went with Arp to the police station. Arp did not enter the house at this time.

Arp later prepared a complaint for a search warrant based on the information he had gained while inside defendant’s house. Arp executed this search warrant on July 1, 1982.

Timothy R. Bandy, a village of Lisle police officer, testified that he met Officer Arp at defendant’s residence to assist him in executing the arrest warrant. Bandy knocked on the front door several times while Officer Arp went to the rear of the house. Bandy stood and knocked at the front door for no more than two or three minutes. He received no response. Later, while he was standing at the door, Officer Arp opened the front door from inside and told him defendant was not home. Bandy did not recollect seeing lights emanating from the premises.

Defendant testified that he got home on June 29, 1982, between 9 and 10 p.m. While he was sitting in a chair he saw flashing red lights, went outside, met Officer Arp, was arrested and taken to the police station. Later, he discovered that he had to use a hammer and nails to “beat the [back] door facing back together” and stated that the “door to the utility room which leads to the kitchen was broken.” He testified that Sue McLennon formerly was his fiancee.

The trial court granted defendant’s motion to suppress finding that there was “little in this record to suggest that the officer in this case held a reasonable belief that defendant was within his home ***.” The trial court also specifically found that the officers did not use force in gaining entry.

Generally, a trial court’s ruling on a motion to suppress will not be disturbed unless it is manifestly erroneous. (People v. Garcia (1983), 97 Ill. 2d 58, 74, 454 N.E.2d 274.) However, when neither the facts nor the credibility of witnesses is in issue the question is a legal one subject to de novo consideration by the reviewing court. (People v. Abney (1980), 81 Ill. 2d 159, 168, 407 N.E.2d 543; People v. Klimek (1981), 101 Ill. App. 3d 1, 4, 427 N.E.2d 598.) Here, the trial court accepted the officers’ testimony but found that the facts as related by the officers did not show that the entry was constitutionally reasonable. Thus, we consider de novo the question whether the evidence should have been suppressed.

In Payton v. New York (1980), 445 U.S. 573, 603, 63 L. Ed. 2d 639, 661, 100 S. Ct. 1371, 1388, the United States Supreme Court, in dicta, noted that “for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” (See also State v. Loftin (1981), 276 S.C. 48, 275 S.E.2d 575.) While our supreme court has not comprehensively addressed the issue, it has recognized that when an officer is authorized to make an arrest, he is also authorized to break open a door or window of any building in which the person to be arrested is or “is reasonably believed to be,” if he is refused admittance after he has announced his authority and purpose. (People v. Sprovieri (1969), 43 Ill. 2d 223, 227, 252 N.E.2d 531; People v. Barbee (1966), 35 Ill. 2d 407, 411, 220 N.E.2d 401.) One Illinois Appellate Court decision, People v. Stibal (1978), 56 Ill. App. 3d 1048, 1051, 372 N.E.2d 931, has stated the rule to be:

“An officer executing an arrest warrant is authorized to enter a building where the person is ‘or is reasonably believed to be’ if he is refused admittance after announcing his authority and purpose (People v. Barbee (1966), 35 Ill. 2d 407, 411, 220 N.E.2d 401), and an officer is justified in eliminating all places where the arrestee may be hiding before moving on. (People v. Sprovieri (1969), 43 Ill. 2d 223, 227, 252 N.E.2d 531.)”

In Stibal, the arrest warrant being executed was for a misdemeanor offense, as is the case here, and no apparent distinction in the test of reason to believe the suspect is within is made in the case law whether the arrest warrant be for felony or misdemeanor offense. It has been stated that the Illinois rule is that the police who have probable cause to arrest a suspect may enter the suspect’s home and garage unless they know he is absent. Haddad, Arrest, Search and Sei zure: Six Unexamined Issues in Illinois Law, 26 DePaul L. Rev. 492, 512 (1977).

There is some authority in other jurisdictions, however, that the police can enter a suspect’s dwelling for arrest purposes only if they have probable cause to believe that the suspect is within. (See generally 2 W. LaFave, Search & Seizure sec. 6.1, at 374-76 (1978); Haddad, Arrest, Search and Seizure: Six Unexamined Issues in Illinois Law, 26 DePaul L. Rev. 492, 512-14 (1977).) Although the Illinois decisions cited above are not of relatively recent origin, antedate Pay-ton v. New York, and do not make any analysis of whether a probable cause test, or the less rigid reason-to-believe test, should be applied, we perceive no persuasive logic in requiring the higher probable cause test in the situation present here where a valid arrest warrant issued by a judge for defendant exists and the place to be searched is the defendant’s own residence. This view is consistent with that expressed by the United States Supreme Court, in dicta, in Payton v. New York. Thus, the question we must next address here is whether the officers had reason to believe defendant was at home and thus were justified in entering in an attempt to execute a warrant for his arrest.

Officer Arp had received a call from the dispatcher telling him that a woman, defendant’s ex-fiancee, had just received a harassing telephone call and that the woman believed the call had come from defendant’s home. Arp knew that a warrant was outstanding for defendant and proceeded to defendant’s residence. He observed a light on in defendant’s home, but could not see within. When neither Arp nor Officer Bandy received an answer to his knocking, Arp turned the back door knob and discovered it was unlocked. It was only then that Arp entered the premises.

Defendant argues that these factors were insufficient to give the officers reason to believe defendant was home. He argues that the information received from the dispatcher does not support the conclusion he was at home because, as the trial court found, his ex-fiancee did not state any facts to support her belief that the calls were coming from defendant’s home.

While the trial court did find that the basis for the ex-fiancee’s belief was not established, the important question in this regard is not whether the ex-fiancee’s information was ultimately proved to be correct, but whether the officers could rely on that information as a basis for having reason to believe defendant was at home.

In an analogous context, where police officers receive information from a private citizen or victim, they may rely on that information without independent verification of the citizen’s reliability for the purpose of determining whether probable cause to arrest exists. (People v. Jones (1983), 119 Ill. App. 3d 615, 623, 456 N.E.2d 926; People v. Spencer (1982), 107 Ill. App. 3d 835, 838, 438 N.E.2d 603.) The fact that this citizen’s information might later prove to be inaccurate should not affect the officer’s reliance upon the average citizen’s representations. 1W. LaFave, Search & Seizure sec. 3.4, at 592 (1978).

Here, probable cause is not in issue. However, it is appropriate to apply this reasoning to the question whether the officers had reason to believe defendant was at home. Defendant’s ex-fiancee, the victim of the purported crime, reported to the police that she had received a harassing telephone call and that she believed it had come from defendant’s home. When Officer Arp received this information, he had no reason to doubt its reliability.

Even if we were not to consider this particular information, other sufficient reason to believe defendant was at home is present here. It is reasonable to look to defendant’s residence as a place he might be found. (People v. Sprovieri (1968), 95 Ill. App. 2d 10, 14, 238 N.E.2d 115, aff’d (1969), 43 Ill. 2d 223, 252 N.E.2d 531.) When the officers arrived at defendant’s home, Officer Arp observed a light on in the house. Considering the information he had received from the dispatcher, the presence of the light gave further reason to believe defendant was home.

After knocking at the back door and after Officer Bandy had been knocking at the front door, Arp tried the doorknob and discovered it was unlocked. An unlocked door is another factor that may be considered to give a police officer reason to believe that the person sought is within the premises. Defendant’s contention that Sabbath v. United States (1968), 391 U.S. 585, 20 L. Ed. 2d 828, 88 S. Ct. 1755, held that the turning of the knob is itself an entry, and therefore, that Arp could not consider this information, is an incorrect interpretation of that case. Sabbath held that entry through an unlocked door was subject to the Federal statute requiring an officer to announce his purpose prior to breaking open a door or window. For purposes of the statute, entry through an unlocked door was held to be equivalent to breaking open the door and entering. Sabbath did not hold that the turning of the knob was itself an entry. Thus, Arp could consider the unlocked door as a factor in forming a reason to believe defendant was home.

Defendant also maintains that the presence of light inside the house and the unlocked door did not give the officers reason to believe defendant was within the house. He contends that people who are not at home leave lights on and doors unlocked and, therefore, that his presence could not be inferred from these facts. However, the guiding principle is the reasonableness of the belief, not the certainty. Defendant also contends that the officers did not have reason to believe he was within because they heard no movement inside, defendant’s car was not in the driveway, and they had no information that he had been seen entering the house but not leaving it. While these factors may be relevant generally, they certainly are not the only appropriate considerations, and their absence, in view of other evidence tending to show defendant’s presence in the house, does not compel a contrary result.

Here, the presence of the light and the unlocked door gave the officers reason to believe defendant was within the house. There is no indication in this record that the entry by police to execute the arrest warrant was a pretext to enter for some other purpose. In addition, the trial court found Officer Arp’s entry was peaceable through an unlocked door. Accordingly, we hold that the entry to execute the warrant was constitutionally reasonable because the officers had reason to believe under the particular facts present here that defendant was within his house.

Defendant also contends that the failure of the officers to announce their presence renders the entry constitutionally unreasonable. The trial court considered this failure to announce to be “fairly significant in assessing this entry constitutionally unreasonable.”

Illinois does not have a statutory “knock and announce” rule and no constitutional authority requires an officer to announce his authority and purpose prior to entering a dwelling to make an arrest. (People v. Cobb (1983), 97 Ill. 2d 465, 486, 455 N.E.2d 31.) While “the mere failure of police to announce their authority and purpose does not per se violate the Constitution, it may influence whether subsequent entry to arrest or search is constitutionally reasonable.” (People v. Wolgemuth (1977), 69 Ill. 2d 154, 166, 370 N.E.2d 1067.) Whether the action taken by the police was constitutionally reasonable must be determined from the totality of the circumstances known to the officers at the time they acted. People v. Cobb (1983), 97 Ill. 2d 465, 485, 455 N.E.2d 31.

We believe that People v. Wolgemuth (1977), 69 Ill. 2d 154, 370 N.E.2d 1067, is controlling on the facts before us. In Wolgemuth, officers with an arrest warrant knocked on defendant’s door for 10 minutes. A short time later they knocked for five minutes then entered with a pass key. The officers did not recall whether they announced their authority and purpose as they entered. They walked inside and found defendant asleep. They noticed pills in a plastic bag and scattered on the floor. The court held that the entry was proper and that the pills were admissible under the “plain view” doctrine.

Here, though the officers did not knock for as long a period as was done in Wolgemuth, they did knock for a period sufficient to allow defendant to respond to the knocks. When no such response was forthcoming, given the other indicia that defendant was at home, Arp’s entry without announcing his authority was constitutionally reasonable. It was reasonable to conclude, from the officers’ perspective at that time, that further efforts to notify defendant of their presence would have been superfluous. (See People v. Wolgemuth (1977), 69 Ill. 2d 154, 166, 370 N.E.2d 1067.) Thus, the officers’ failure to announce their authority and purpose was not enough to render the entry constitutionally unreasonable.

We recognize that the arrest warrant in Wolgemuth was for a felony offense whereas in the case at bar the arrest warrant was for a misdemeanor offense. While this distinction has some bearing on whether the entry is reasonable, in view of the greater public interest in apprehension of a felon, we conclude that under the circumstances here, where the entry was peaceable after knocking and receiving no response, and upon reason to believe defendant was present in his residence, this entry to execute a misdemeanor arrest warrant was reasonable.

For the foregoing reasons the order of the trial court granting defendant’s motion to suppress is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

SEIDENFELD, P.J., and LINDBERG, J., concur.