author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JESSIE VEAL et al., Defendants-Appellants.
    First District (2nd Division)
    No. 81—800
    Opinion filed November 23, 1982.

      James J. Doherty, Public Defender, of Chicago (Judith A. Stewart, Assistant Public Defender, of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David L. King, and Peter M. DeLongis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

Defendants, Jessie Veal (Jessie) and his brother Willie Veal (Willie), were charged in a seven-count information with murder, attempted murder, aggravated battery and armed violence. In a bench trial, both defendants were found guilty of voluntary manslaughter. Jessie was also convicted of one count of aggravated battery. Jessie was sentenced to serve two concurrent terms of three years and four months in the Illinois Department of Corrections. Willie was sentenced to serve three years and four months on his conviction of voluntary manslaughter. Both defendants have appealed. On appeal, Jessie, who was represented by court-appointed counsel, contends that he was unconstitutionally denied free investigative services; Willie contends that he was not proved guilty beyond a reasonable doubt of voluntary manslaughter. For the reasons hereinafter stated, we affirm both defendants’ convictions.

The Public Defender’s Office was initially appointed to represent both defendants. Because of a potential conflict of interests, however, the court, on February 11, 1980, appointed separate counsel for Jessie. The Public Defender’s Office continued to represent Willie.

On May 6, 1980, Jessie’s court-appointed counsel made a pretrial motion requesting the court to authorize funds for the hiring of an investigator to interview the State’s witnesses. Counsel contended that he did not himself have the time or the resources to investigate the case, and he believed that Jessie would be prejudiced if he were not allowed to hire a special investigator. The judge denied this motion. On July 2, 1980, Jessie’s attorney filed a written motion again stating that he had need of an investigator not only to interview the State’s witnesses but also to locate and interview other possible occurrence witnesses. The judge refused to reconsider his earlier denial of Jessie’s requests.

Subsequently, the case was transferred to a different judge for trial. At the conclusion of the State’s case-in-chief, the trial court denied defendants’ motions for directed findings. Jessie’s attorney then moved orally to dismiss the information because of the prior judge’s refusal to authorize funds for an investigator. After defendants were found guilty, Jessie’s counsel, in a written post-trial motion, again moved to dismiss the information because of the court’s refusal to provide him with funds for an investigator. The court denied the post-trial motion but the judge commented that in cases involving indigent defendants represented by court-appointed counsel, it would be a “better practice” to grant investigative funds.

At trial, the State’s evidence showed that in the late afternoon of August 2, 1979, Jessie and his brother Willie met with Aubie Mc-Beath (McBeath) and a man called “Fox” at the comer of St. Louis Avenue and Jackson Boulevard in Chicago. After a short discussion, McBeath agreed to sell some pills (“T’s and Blues”) to the Veals for $38. McBeath gave the money to Fox, and Fox left supposedly to get the pills. Fox failed to return, and McBeath told the Veals that Fox “ran off” with their money. When the Veals expressed anger, Mc-Beath said he would take them to where Fox might be found.

McBeath, Jessie and Willie got into the car of Louis Veal (Louis), a cousin of the Veal brothers. Louis drove the three men to the intersection of Lawndale Avenue and Roosevelt Road to search for Fox. There they met with Marion Luckett (Luckett), Lee Lattimore (Lattimore) and Steven Roebuck (Roebuck), friends of McBeath. An argument ensued when Luckett denied knowing the whereabouts of Fox.

At trial Luckett, Roebuck and McBeath all testified to the following: during the argument, Jessie put his hand behind his back and motioned as if he was pulling a gun on Luckett. Luckett asked Jessie why Jessie was making “a pistol play” and Lattimore explained that Jessie did not have a gun but he did have a knife. Luckett then crossed the street and picked up a brick.

Shortly thereafter, the police arrived and dispersed the group. After the police left, Jessie and Luckett resumed their argument. Jessie displayed a knife and pushed McBeath into Louis’ car. Willie also struck McBeath over the head with a beer bottle. Jessie put his knife to McBeath’s throat and told Willie to get the shotgun out of the car trunk. Luckett, Lattimore and Roebuck then approached the car and told McBeath to get out. McBeath jumped out of the car and began throwing bricks at the Veal brothers. Luckett, Roebuck and Lattimore also picked up some bricks and together with McBeath chased the Veal brothers east towards Independence Boulevard and Roosevelt Road. There they stopped, turned around and started to walk west towards Lawndale Avenue.

Luckett, Roebuck and McBeath testified that they looked back east and saw Jessie stabbing Lattimore with a knife. McBeath indicated that Jessie stabbed Lattimore on the left side and back whereas both Luckett and Roebuck stated that Jessie stabbed Lattimore in the stomach.

The witnesses also saw Willie stabbing or slashing Lattimore with a broken beer bottle. Luckett and McBeath both were unsure where Willie stabbed Lattimore, but Roebuck stated it was in Lattimore’s chest. The autopsy report, which was admitted into evidence but not made part of the record on appeal, apparently indicated that Lattimore suffered three wounds from which he died. The record before us does not reflect the location of these wound's, although at trial both the State and defendants agreed that Lattimore sustained no wounds to his back.

Luckett and Roebuck pulled the Veal brothers away from Lattimore. Roebuck testified that when he went to help Lattimore, Jessie cut him with a knife. Lattimore escaped while Luckett and Roebuck continued to fight with the Veal brothers. At trial, McBeath, Luckett and Roebuck each admitted having used drugs on prior occasions.

Chicago police officer David Snethen (Snethen) testified that he was “flagged down” by Lattimore, and Snethen noticed that Lattimore was bleeding. Snethen then heard someone yell “he’s getting away” and observed Jessie running into a vacant lot. He apprehended Jessie and brought him back to where Lattimore was lying. Snethen asked Lattimore if Jessie had stabbed him. On the basis of Lattimore’s answer, Snethen arrested the defendants. Snethen estimated that a crowd of approximately 100 persons had gathered at the scene. Lattimore later died from his wounds.

Chicago police officer Roy Dahlberg twice interviewed Willie and Jessie at the police station. The defendants related similar accounts regarding their attempted purchase of pills and the subsequent fight. Jessie told Dahlberg that he kicked Lattimore and knocked him to the ground, but he denied using a knife. Furthermore, Jessie told Dahlberg that he heard someone in the crowd accuse him of stabbing Lattimore, but Jessie did not respond to that accusation.

Louis Veal testified that he and the Veal brothers met Aubie Mc-Beath and then went to the intersection of Lawndale and Roosevelt. Louis remained in the car while McBeath and the Veals talked with Luckett. Following the first argument between the Veals and Luckett, McBeath got into the car but left when Roebuck, Luckett and Lattimore approached and threw sticks and rocks at the car. Louis was “scared” and also got out of the car. He testified that nine or 10 men closed in on Willie and Jessie and that a fight broke out which was observed by more than 50 persons. Louis saw Willie and Jessie using their hands and feet to fight, but according to Louis, neither brother had a weapon. Not until after the police arrived the second time did Louis see any injured person.

Jessie Veal testified that he and his brother gave McBeath money for “T’s and Blues.” When Fox did not return, they went looking for him. McBeath directed the Veals to Roosevelt and Lawndale where McBeath spoke privately with Luckett. Jessie pushed McBeath into Louis’ car because McBeath said that he would take the Veal brothers to Fox’ house. At this point Luckett, Lattimore and Roebuck started throwing bricks and rocks at the car and McBeath jumped out and hit the car with a piece of pipe. Willie, Jessie and Louis also got out of the car. When the other men started beating Willie, Jessie jumped into the fight. When Willie suffered a cut on his hand, the two brothers ran towards Independence Boulevard, chased by Luckett, Lattimore and Roebuck who were again throwing bricks at them. Two other men joined the fray and a second fight started at Independence Boulevard. Jessie testified that neither he nor his brother used a knife or a bottle but used their hands and feet only since both of them were skilled in karate. Willie Veal did not testify.

The trial court found both defendants guilty of voluntary manslaughter, Willie being convicted on the basis of accountability. The court found Jessie guilty also of one count of aggravated battery. Jessie was sentenced to serve two concurrent terms of three years and four months in the Department of Corrections. Willie was also sentenced to serve three years and four months.

I

Defendant Jessie Veal contends the trial court’s refusal to provide free investigative services to his court-appointed counsel denied him several constitutional rights. Defendant argues that his right to the effective assistance of counsel was denied because counsel could not fulfill his duty to investigate; that his right to compel witnesses to testify on his behalf was impaired because he was unable to identify and to question witnesses crucial to his defense; and that he was denied equal protection under the law because, unlike an indigent defendant represented by the Public Defender’s Office, an indigent represented by court-appointed counsel does not have access to free investigative services. The defendant also contends that the statute authorizing compensation for court-appointed attorneys representing indigent defendants (Ill. Rev. Stat. 1979, ch. 38, par. 113 — 3) should be construed as authorizing payment for investigative services.

The State responds that indigent defendants do not have a constitutional right to free investigative services; that the defendant’s right to equal protection was not violated because Jessie had the opportunity of cooperating with the Public Defender’s Office and their investigators who worked on behalf of his brother Willie; and that section 113 — 3 of the criminal code does not provide for free investigative services.

Initially, we note that in other jurisdictions there are differing opinions as to an indigent defendant’s constitutional right in a criminal case to be provided with free investigative services. Compare Mason v. Arizona (9th Cir. 1974), 504 F.2d 1345 (providing that free investigative services may be necessary to ensure that .an indigent defendant is not denied effective assistance of counsel) with Watson v. Patterson (10th Cir. 1966), 358 F.2d 297 (contra); see Annot., 34 A.L.R.3d 1256 (1970), and supplementary cases for a thorough discussion of the cases involving free investigative assistance.

The Illinois Supreme Court, in People v. Watson (1966), 36 Ill. 2d 228, 221 N.E.2d 645, considered the related issue of free “expert” assistance. The court held that an indigent defendant had a right to free expert assistance where expert assistance is deemed by the trial judge to be necessary to prove a crucial issue. (36 Ill. 2d 228, 234.) In addition, the defendant must show that the lack of funds necessary to employ the expert will prejudice the defendant. People v. Glover (1971), 49 Ill. 2d 78, 82-83, 273 N.E.2d 367.

Illinois’ recognition of an indigent defendant’s constitutional right to free expert assistance in certain circumstances does not suggest that a similar right exists for free investigative services. At oral argument, both parties advised the court they have been unable to find any Illinois cases that deal with the issue of free investigative services for indigent defendants.

While we have found no case directly on point, we note the case of People ex rel. Walker v. Pate (1973), 53 Ill. 2d 485, 292 N.E.2d 387. In Walker, the defendant was convicted of the attempted murder of an Illinois State trooper. The defendant claimed the gun he was carrying discharged accidentally when he fell; that the bullet struck him in the thigh and then ricochetted off of an unknown surface before wounding the officer. (53 Ill. 2d 485, 488-91.) Prior to trial, the defendant asked the court to appoint a Lake County deputy sheriff as a special investigator to retrieve certain evidence which the defendant had concealed and to search for other evidence concerning the defendant’s gun. The motion was denied. The defendant also moved for free expert assistance of a weapons expert and of a physician skilled in gunshot wounds. The trial court determined that the evidence of the weapons expert was important to the defendant’s defense theory and granted the motion as to that expert. The motion was denied as to the physician. 53 Ill. 2d 485, 494-95.

The Illinois Supreme Court ruled that the trial court properly denied both the appointment of an investigator and of the physician under the standards set out in Watson. The court determined that neither the appointment of the investigator nor the physician was “sufficiently related” to the defendant’s theory of defense, and there was, therefore, no showing of an unconstitutional denial of expert assistance. (53 Ill. 2d 485, 495.) While the court did not state what circumstances may entitle an indigent defendant to free investigative services, the court applied the same analysis it had employed in Watson. By analogy, Walker appears to suggest that (1) where necessary to prove a crucial issue and (2) where the lack of funds necessary to provide investigative services will substantially prejudice the defendant, a constitutional right to such services may be established.

In the case sub judice, we find that Jessie Veal has failed to establish a need for the court’s providing of an investigator. At the time of the crime, there were between 50 and 100 persons present. None of the State’s occurrence witnesses, who were friends of the victim and were involved in the fight, testified as to how the fight began. The defendant wanted to locate unknown persons who may have witnessed the start of the altercation between the victim and the Veal brothers.

It is apparent that, unlike Walker, the defendant did not seek appointment of an investigator to find physical evidence alleged to exist. Rather, the investigator was to locate and identify other possible occurrence witnesses. Whether any such witness existed or would have been helpful to defendant’s theory of the case is mere speculation.

We note that despite the denial of an investigator, Jessie Veal was able to present his self-defense theory at trial. The defendant testified in his own behalf and his testimony was supported by that of his cousin Louis. Officer Dahlberg related the accounts Jessie and Willie gave to him, and these accounts were consistent with Jessie’s defense. In sum, there was no showing that denial of an investigator prevented Jessie Veal from presenting his case.

Even assuming, arguendo, that the need for an investigator in this case was not mere speculation, we do not find a sufficient showing that Jessie was deprived of any crucial investigation. The assistant public defender representing Willie Veal stated at trial that he had directed his investigators to concentrate their efforts on Willie Veal because of a potential conflict of interest between Willie and Jessie. However, there was no showing of an actual conflict, and we find no evidence to such effect.

The record before us does not indicate when the Public Defender’s investigation took place. There was a period of approximately six months between the naming of the Public Defender’s Office to represent Jessie Veal and the substitution of his court-appointed attorney. We do not know, and we cannot speculate what investigation took place during such period nor do we know whether Jessie Veal asked for or received investigative services from the Public Defender’s Office. Further, we do not know what investigative efforts were made by Jessie’s new counsel between the date of his appointment and the date, approximately three months later, when counsel made his motion for appointment of an investigator. The record also does not reflect any discovery undertaken by Jessie’s court-appointed counsel. Finally, it would seem reasonable to assume that an effort could have been made by the Veals’ friends or relatives to locate additional witnesses. At oral argument, counsel for defendant contended that the ordinary person would not possess the skill or training to know what questions to ask. Any person, however, should be able to attempt to locate a potential witness. In such case, a report could be made to the attorney who could then conduct a more thorough interview. The record before us does not persuade us that the defendant was denied access to essential investigation.

The defendant also raises an equal protection argument. He argues that the denial of investigative services to him was unjust discrimination because a defendant represented by the Public Defender would have received such assistance. Again, there is no showing that defendant was denied access to any investigation made by the Public Defender’s Office.

Jessie also argues that he was denied equal protection in this case because the very same court-appointed attorney who represented Jessie Veal in this case requested and received $250 for investigative services in another case where that attorney represented a different indigent defendant. (People v. Jacobs, Circuit Ct. No. 78 — 1—2773.) That free investigative services may have been granted in an unrelated case does not establish that such services are necessary in each case or in this case wherein counsel has failed to show the need for an investigator. We conclude that defendant’s right to equal protection was not violated in this case.

Finally, Jessie Veal argues that the statute authorizing compensation for court-appointed attorneys (Ill. Rev. Stat. 1979, ch. 38, par. 113 — 3) should be interpreted so as to include expenses for investigative services. The statute provides that court-appointed counsel shall receive a reasonable fee for his services based on prescribed hourly rates with a maximum amount of $150 in misdemeanor cases and $1,000 in felony cases (Ill. Rev. Stat. 1979, ch. 38, par. 113 — 3(c)). Section 113 — 3(c) continues:

“*** prjn addition to expenses reasonably incurred as hereinafter in this Section provided, except that, in extraordinary circumstances, payment in excess of the limits herein stated may be made if the trial court certifies that such payment is necessary to provide fair compensation for protracted representation.” (Emphasis added.)

Subsection (d) of section 113 — 3 provides for payment of expert witnesses in capital cases, and subsection (e) states that in counties of 1,000,000 or more, an indigent defendant may be entitled to general trial expenses not exceeding $50 for each defendant.

The defendant argues that “expenses reasonably incurred” should be interpreted as including investigative services. However, he overlooks the statutory proviso “expenses reasonanbly incurred as hereinafter in this Section provided.” (Emphasis added.) Where the language of the Act is certain and unambiguous, the function of the courts is to enforce the law as enacted by the legislature. (Certain Taxpayers v. Sheahen (1970), 45 Ill. 2d 75, 84, 256 N.E.2d 758.) Nowhere does the statute provide for investigative services.

The defendant argues that section 113 — 3 is modeled after its Federal counterpart, 18 U.S.C. sec. 3006A(d) through (e). While the Federal statute expressly provides for investigative services, the Illinois statute does not. Where a State statute expresses an intent to the contrary, the State statute precludes the application of the Federal court interpretation. (34 Ill. L. & Prac. Statutes sec. 135 (1958).) Since section 113 — 3 does not expressly provide for investigative services, any reliance on the Federal statute (or cases construing it) is misplaced. We must assume that our legislature was aware of the provisions of the Federal statute, but chose to omit investigative services.

The defendant also argues that the section of the statute which allows “fair compensation” in addition to the statutory maximum legal fee should be interpreted so as to include investigative services. Although our supreme court has held that reasonable compensation should include overhead and other expenses (People v. Johnson (1981), 87 Ill. 2d 98, 105, 429 N.E.2d 497) and “fair compensation” as used in the statute may include the services of legal personnel (People v. Atkinson (1977), 50 Ill. App. 3d 860, 866, 366 N.E.2d 94), it is our opinion that where the need for an investigator is not firmly established, a defendant is not entitled to free investigative services. We find no error in the trial court’s denial of defendant Jessie Veal’s motion for free investigative services.

II

In his appeal, Willie Veal contends that he was not proved guilty beyond a reasonable doubt of voluntary manslaughter. Willie avers that the State’s occurrence witnesses testified that Willie hit Lattimore in the back whereas the medical examiner found no wounds in the back. He cites People v. Lindsey (1979), 73 Ill. App. 3d 436, 392 N.E.2d 278, in which multiple convictions of a defendant were reversed partly because the testimony of the State’s witnesses was contradicted by the autopsy report. In the instant case, the medical examiner’s report was admitted into evidence but is not part of the record on appeal. At trial, however, both the State and the defendants agreed that the medical examiner’s report did not indicate any wounds to Lattimore’s back. While the three occurrence witnesses disagree as to where Willie struck the victim, a review of the record indicates that, contrary to Willie’s assertions, none of them testified that Willie hit the victim in the back. Thus, none of the testimony conflicts with the medical examiner’s report.

Willie also argues that his claim of self-defense was not contradicted by the physical or medical evidence, and that the only evidence to the contrary was provided by the three occurrence witnesses who were friends of the deceased and were former drug users.

However, Willie was found guilty on the theory of accountability and not of voluntary manslaughter directly. To prevail on a charge by accountability, the State must prove beyond a reasonable doubt that: (1) the defendant aided, abetted, solicited, agreed or attempted to aid another person in the planning or commission of the offense; (2) the participation must have taken place either before or during the commission of the offense; and (3) it must have been with the concurrent and specific intent to promote or facilitate the commission of the crime. People v. Ware (1980), 82 Ill. App. 3d 297, 306, 402 N.E.2d 762.

On the evidence presented, the trial court could well have concluded that Willie Veal should be held accountable for voluntary manslaughter. The accounts of the three occurrence witnesses are consistent in that a fight occurred between themselves and the Veal brothers. They each testified that during the fight, Jessie Veal stabbed the victim with a knife and Willie Veal hit the victim with a broken beer bottle. Thus, there is evidence that Willie Veal acted in concert with his brother and thereby helped facilitate his brother’s crime.

While it may be that there were minor inconsistencies in the testimony of the three occurrence witnesses and that such witnesses were friends of the decedent and were drug users, such facts go to the credibility of the witnesses. The weight to be accorded such testimony is within the province of the trial court sitting as the trier of fact. (People v. Coulson (1958), 13 Ill. 2d 290, 295-96, 149 N.E.2d 96.) On review, the appellate court will not substitute its judgment for that of the trial court. (13 Ill. 2d 290, 296.) A conviction will be reversed only where the evidence is so improbable as to create a reasonable doubt of the defendant’s guilt. (People v. Gasner (1979), 79 Ill. App. 3d 964, 973, 398 N.E.2d 1122.) Our examination of the record in this case does not indicate that the evidence is so improbable, and we conclude that Willie Veal was proved guilty beyond a reasonable doubt of voluntary manslaughter.

For the foregoing reasons the judgments of the circuit court of Cook County are affirmed.

Affirmed.

STAMOS, P.J., and HARTMAN, J., concur.

      We believe a distinction must be made between expert assistance and investigative services. “Expert assistance” refers to the services of a person with special knowledge or expertise in a technical aspect of the defendant’s case, e.g., a psychiatrist in a case where the defendant is pleading insanity. “Investigative services” refers to the gathering of physical evidence or the locating and interviewing of occurrence witnesses. In the latter instance, it is not essential that the investigator possess any special knowledge or training. A relative or friend of the defendant might as effectively serve the purpose of an investigatorf


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH J. KOSIK, Defendant-Appellant.
    First District (1st Division)
    No. 81—1233
    Opinion filed November 29, 1982.
    Rehearing denied January 5, 1983.

      Louis B. Garippo, Ltd., of Chicago (David A. Novoselsky, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Daniel E. Jordan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant Joseph J. Kosik was convicted of armed violence and aggravated battery after a jury trial. He was sentenced to a term of six years for the armed violence conviction. He appeals, contending (1) identification testimony should have been suppressed because of a suggestive in-court identification during the preliminary hearing; (2) identification testimony at trial was insufficient as a matter of law; (3) the State’s theory of accountability was not proved beyond a reasonable doubt; (4) he was denied due process of law by the State’s suppression of information within its possession; (5) testimony of the investigating officer was improper hearsay testimony used to bolster a •weak identification of defendant; and (6) the conviction and sentence based on the charge of armed violence must be vacated.

On July 22, 1979, four men were standing on the northwest corner of Division Street and Cicero Avenue in Chicago at about 1 a.m. A dark colored car made a left-hand turn onto Division Street from the northbound lane of Cicero Avenue. Shots were fired from the passenger side of the car. As a result of the shooting, Saul James, Jr., was paralyzed below the waist.

The key witness for the State during the trial was Charles Lemon. He was one of the men standing on the corner at the time of the shooting. He is also the victim’s cousin. Lemon testified that he observed a black Buick Century, with two people in it, pass through the intersection. He also observed that there was a little flower, or flowers, hanging from the rear view mirror. He heard shots fired and fell to the ground. He saw the license plate on the car as it traveled westbound on Division Street. It had the letters “JJK” and the first number was a “2.” There were six to eight shots fired. Lemon testified that the incident did not last a long time, alternately saying six to seven seconds or 10 to 15 seconds.

Lemon testified that, after leaving the hospital where his cousin was taken, he went back to the scene of the shooting to look for the car from which the shots were fired. In his own car he traveled west to Central Avenue and then drove back to Cicero Avenue on the next street. He traveled back and forth between Cicero and Central Avenues until he reached St. Paul Street. On this street he found the car he was looking for near the intersection of St. Paul Street and Cicero Avenue. He felt the car’s hood and engine. Both were hot. He observed the car from a short distance until he saw somebody come out of a nearby house. Lemon recognized this individual as the driver of the car at the shooting incident. He also stated that the person he saw was the defendant. Later in the day, he again observed defendant come out of the same house. After he followed him around the block, Lemon testified, he saw defendant talking with another person he identified as the passenger who fired the shots.

During his testimony Lemon said that he identified a photograph of defendant from an array of seven or eight photographs shown to him by Chicago Police Officer Hook. In that photograph defendant looked the same as he did on July 22, 1979. Lemon also identified photographs of defendant’s car and the license plate from that car. On cross-examination, Lemon admitted that he failed to identify defendant at a lineup.

The victim, Saul James, Jr., also testified at trial that he saw a black Buick Century in the turn lane on Cicero Avenue. He stated that the car turned slowly and shots were fired from the front seat of the car. He also remembered that the license plate started with “JJK” because his last name starts with a “J.” James stated that he viewed both occupants of the car at the time of the shooting. He had a profile view of the right side of the driver. He described defendant as having curly long hair, with a beard. He indicated he saw defendant the first time he had gone to court in this matter. At that time defendant had shaved. James made an in-court identification of defendant as the driver of the car.

On cross-examination, James stated there were two lines of fire. He gave his first description to the police after his second operation, over 2V2 weeks after the incident. He never told the police about the two lines of gunfire. James also stated that the car was stopped for five to 10 minutes at the most. There were at least six shots fired before the car stopped. He stated he could only make a tentative identification of defendant when he was shown an array of photographs by the police.

James Boyking and Lee Dean were the other two men at the intersection during the incident. Boyking stated that the car was a two-door hardtop and it could have been black. He could not make an identification of anyone in the car, other than the fact the two occupants were white males. He estimated the incident took “about a second.” He never saw the car stop. He stated that about four to six shots were fired in rapid succession.

Lee Dean testified that he fell to the ground when he heard one or two shots. He said the shots were fired until the gun was empty and the clicks of the empty gun chamber could be heard. As the car completed its turn, he noticed the brake lights go on and then off quickly. He described the car as a black or dark blue Regal or Century. It was a two-door car with opera side windows.

During cross-examination, Dean stated that the car never appeared to stop. He testified that the whole incident, from the time he first saw the car until it left his sight, took one to two minutes, perhaps less. He also stated that he was visited by a police investigator about two weeks after the incident. He was shown some photographs of cars and he identified one as looking like the car he saw the night of the incident. Dean said the investigator wrote down what he had to say.

Detective Edmund Mook was the Chicago police officer who investigated the shooting incident. He said he talked to Saul James four to six days after the incident in the hospital. He testified to what James told him. James described two white males in the car from which two shots were fired. The driver was described as being in his twenties, with dark hair and a moustache. The car was described by James as being dark colored, dark green, black or dark blue. It was a 1975 or 1976 model Buick Century with opera windows. Detective Mook testified that James remembered two letters from the license plate, “JJ.”

Detective Mook stated he talked to Lemon relative to the incident on August 4 or 5. Lemon gave him the license plate number “JJK 235” as belonging to the car at the incident. Mook found this number was registered to defendant at an address on St. Paul Street. Mook talked with defendant at Area 5 headquarters on August 25, 1979. At that time, he had a picture of defendant taken. Defendant was asked to come back on August 27. Mook stated that defendant did not come back on that date.

Mook identified defendant in court as the person he had a picture taken of in Area 5 headquarters. He stated that defendant looked different at trial, having shaved a moustache and cutting his hair shorter. Mook then testified that he showed a series of photographs to Lemon. Out of these photographs, which were marked as exhibits for the State, Mook stated Lemon identified a photograph of defendant. Mook further stated, though, that Lemon failed to identify defendant in a lineup. Lemon did, however, identify several pictures of defendant’s car.

On cross-examination, Mook stated Lemon told him he only had a partial license plate number at the time of the incident, he had gone looking for the car in the neighborhood and had seen the person who had done the shooting. Mook admitted he did not include these statements in any of his written reports. He also stated that James failed to make an identification of defendant when shown an array of photographs.

Upon redirect examination, Mook said the photographs were shown to James when he was in the hospital; that James picked out a photograph he was not sure of; that this was a photograph of defendant; and that James was in serious condition at the time of the viewing. Again, on re-cross-examination, Mook admitted he failed to include in his report the fact that James was unsure of his identification of defendant’s photograph.

Defendant testified in his own behalf at trial. He admitted that he owned a 1975 Buick Century with license plates “JJK 235” but denied being in the area of Division Street and Cicero Avenue at the time of the incident. He testified that on the evening of July 22, 1979, he went to a lounge looking for his friends with whom he was involved in a softball tournament the next day. He left the lounge about midnight or 12:15. When he got home, his parents were not in. Defendant denied any involvement in a shooting that night.

On cross-examination, defendant said the lounge he went to is a 10-minute ride from his home and that Division Street and Cicero Avenue is about seven blocks from his home. He admitted he had a poppy or “donut thing” which he received from a Veteran’s Day handout or similar event. He also identified certain photographs as those of his car.

He stated that he had a moustache and his hair was longer at the time of the incident. On August 25, 1979, when his picture was taken by Detective Hook, he had a moustache and beard. He testified that he periodically shaved this off, which he did a day or two after talking with Detective Hook.

Several witnesses testified to defendant’s good character and reputation in the community. One witness was with defendant in the lounge early in the evening of July 22, 1979. He testified defendant was not intoxicated at the time. He did not leave with defendant that night and he did not know where defendant went after leaving. Dr. Ralph Haber, a Ph.D. and professor in psychology, testified to the effects that light, time and violence have on human perception and memory.

Defendant’s attorney during the preliminary stages of this case, Walter Donat, also testified. He attended a lineup in which defendant participated. Charles Lemon was present to observe this lineup. Donat testified that Lemon could not identify anyone in the lineup. A second lineup, with the same people, was held the same day a short time later. Again Lemon could not identify anyone. Donat also stated he represented defendant at the preliminary hearing and testified that, with defendant standing at his side before the bench, an identification of defendant was made.

The record of the proceedings for the preliminary hearing shows that defense counsel made a motion to allow defendant to sit in the gallery and to exclude the witnesses. The basis of this motion was to avoid prejudice, in that it was asserted there had not been an identification of defendant at a lineup. The State countered, arguing there had been an identification by the victim at the scene and that the motion was more properly the subject of a later motion to suppress identification. At this hearing, James testified to the extent of his injuries and that he received them during the shooting incident. James was not asked to identify defendant. Questions by defense counsel as to the circumstances of the shooting were not allowed as beyond the scope of direct examination. Although James stated that defendant did not shoot him, he did say, “His friend shot me.”

Charles Lemon identified defendant at the preliminary hearing. He also described the car at the incident as a 1975 or 1976 black Buiek Century. Cross-examination as to his opportunity to see the license plate number was prohibited upon objection by the State. Lemon did state that the car stopped for about a minute.

Prior to trial, a hearing on defendant’s motion to suppress was ’ held. Defendant argued that the identification procedures at the preliminary hearing were suggestive and that the court had been misinformed as to prior identifications. The court heard testimony from James and Detective Hook. James identified defendant but also stated that he did not identify a picture of defendant when shown an array of photographs by Detective Hook. Hook testified that he received a description of the assailants from Charles Lemon approximately a week after the incident. He stated that a photograph identification of defendant was made prior to the preliminary hearing. After entertaining arguments from counsel, the court denied the motion to suppress.

Defendant argues the court erred when it denied his motion to suppress the identification testimony. He contends the identifications made at the preliminary hearing were made under suggestive conditions, therefore denying him a right to a fair trial. The suggestive nature of a preliminary hearing identification was recognized in Moore v. Illinois (1977), 434 U.S. 220, 54 L. Ed. 2d 424, 98 S. Ct. 458. (People v. Torres (1981), 100 Ill. App. 3d 931, 427 N.E.2d 329, appeal denied (1982), 88 Ill. 2d 554.) In Moore, the Supreme Court held that “petitioner’s Sixth Amendment rights were violated by a corporeal identification cpnducted after the initiation of adversary judicial criminal proceedings and in the absence of counsel.” (434 U.S. 220, 231, 54 L. Ed. 2d 424, 435, 98 S. Ct. 458, 466.) The case was reversed and remanded for a determination of whether this violation was harmless constitutional error. Defendant contends there are remarkable factual and legal parallels between Moore and this case.

In Moore, the defendant appeared at a preliminary hearing without representation of counsel. He stood before the bench as the charges were read and the victim called to testify. The victim identified Moore as her assailant. In her testimony at trial she was allowed to testify that she had identified Moore at a preliminary hearing. The court noted that “[i]t is difficult to imagine a more suggestive manner in which to present a suspect to a witness for their critical first confrontation than was employed in this case.” (434 U.S. 220, 229, 54 L. Ed. 2d 424, 434, 98 S. Ct. 458, 465.) In a footnote, the opinion suggested that with counsel (1) a continuance might have been obtained until a proper lineup had been conducted, (2) an order might have been obtained requiring the victim to remain out of the courtroom until her testimony was sought or permitting the accused to be seated among the spectators while he was in the presence of the victim until she had attempted an identification, or (3) counsel might have cross-examined the victim to test her identification before it hardened. 434 U.S. 220, 230 n.5, 54 L. Ed. 2d 424, 435 n.5, 98 S. Ct. 458, 465-66 n.5; see also People v. Stingley (1978), 65 Ill. App. 3d 768, 382 N.E.2d 861; People v. Bolden (1978), 59 Ill. App. 3d 32, 374 N.E.2d 1307, appeal denied (1978), 71 Ill. 2d 618.

Defendant points out that he was represented by counsel at the hearing and precautions were requested. He argues that the refusal to take the precautionary steps led to a suggestive identification procedure. The State takes the position that Moore is not applicable to this case and that, in any case, there was no violation since defendant was represented by counsel. While the State’s position is untenable, we are not constrained to make a per se application of Moore as defendant seems to argue.

The same footnote suggesting possible precautions to be taken at preliminary hearings also stated that such requests are within the sound discretion of the preliminary hearing court. (Moore v. Illinois (1977), 434 U.S. 220, 230 n.5, 54 L. Ed. 2d 424, 435 n.5, 98 S. Ct. 458, 465-66 n.5.) On the motion to suppress here, the trial court was presented with the circumstances of the identification made at the preliminary hearing. We cannot say the court’s denial of the motion or the preliminary hearing court’s refusal to take the procedures requested was an abuse of discretion.

Defendant next contends the identification testimony at trial was weak and insufficient as a matter of law. He points to several factors supporting this argument, urging us to consider (1) two eyewitnesses, Boyking and Dean, were unable to identify anyone in the car during the incident, (2) the identifications of both James and Lemon are based solely on a profile view while looking into a moving vehicle, (3) the duration of the incident was a short time, just a matter of seconds rather than minutes, and (4) James’ testimony is contradictory and self-contradictory.

Defendant compares the facts of this case to those found in People v. Cullotta (1965), 32 Ill. 2d 502, 207 N.E.2d 444, where the Illinois Supreme Court reversed a conviction based upon identifications made by two police officers. In that case, the police officers' opportunity to view the defendant occurred as they drove by a laundromat during a snowstorm. The court further found fault with these identifications because they occurred more than an hour before the crime. 32 Ill. 2d 502, 505.

The supreme court reiterated the rule that a conviction cannot stand if an identification is vague, doubtful and uncertain. (32 Ill. 2d 502, 504.) Where “the evidence is irreconcilably conflicting, it is the peculiar prerogative of the trier of fact *** to ascertain the truth.” (People v. Hammond (1970), 45 Ill. 2d 269, 278, 259 N.E.2d 44.) A reviewing court may not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of witnesses unless the evidence is so improbable as to raise a reasonable doubt of guilt. People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513; People v. Wade (1977), 51 Ill. App. 3d 721, 366 N.E.2d 528, appeal denied (1977), 66 Ill. 2d 641; People v. McIntosh (1979), 70 Ill. App. 3d 188, 388 N.E.2d 142.

Although the entire incident occurred quickly, both James and Lemon were positive in their identifications of defendant at trial. Lemon identified defendant’s picture to Detective Hook when shown an array of photographs. The incident occurred at an intersection well lighted by street lights on every corner. James and Lemon were able to see the license plate number of the car. James recalled that the license number started with the letters “JJ.” Lemon also remembered a partial number and was able to find the car in his search several hours after the incident. Lemon also was able to observe a little flower hanging from the rear-view mirror of the car at the incident. We are of the opinion that there was sufficient credible evidence for the jury to conclude defendant was the driver of the car.

Defendant asserts the evidence is insufficient to prove that the driver of the car is legally accountable for the acts of the passenger. At best, he argues, the State’s evidence proves nothing more than the driver’s presence at the scene and the fact that he did not stop the car after the shots were fired by his passenger. He then argues that mere presence at the scene and flight, without other circumstances showing a common design to do an unlawful act, does not establish accountability. He relies on In re Woods (1974), 20 Ill. App. 3d 641, 314 N.E.2d 606, appeal denied (1974), 56 Ill. 2d 591, People v. Ivy (1979), 68 Ill. App. 3d 402, 386 N.E.2d 323, People v. Lopez (1979), 72 Ill. App. 3d 713, 391 N.E.2d 105, and People v. Dorris (1980), 90 Ill. App. 3d 707, 413 N.E.2d 441, aff’d sub nom. People v. Evans (1981), 87 Ill. 2d 77.

In People v. Torres (1981), 100 Ill. App. 3d 931, 427 N.E.2d 329, appeal denied (1982), 88 Ill. 2d 554, this court was presented with circumstances similar to those in this case. There, two men drove by a group of children during evening hours and shot one of them. The entire incident occurred quickly as the car drove away. In response to defendants’ argument that the evidence did not prove accountability, the court stated:

“To be accountable for the acts of another, one must have a specific intent to promote or facilitate the commission of a crime. (Ill. Rev. Stat. 1975, ch. 38, par. 5 — 2.) Such an intent can be proved by evidence that the defendant shared the criminal intent of the principal or that there was a community of unlawful purpose. The latter is shown by prior deliberation to commit the specific offense or by the spontaneous and combined participation of a group in the perpetration of the offense. (People v. Bolden; see People v. Richardson (1965), 32 Ill. 2d 472, 207 N.E.2d 478, cert. denied (1966), 384 U.S. 1021, 16 L. Ed. 2d 1023, 86 S. Ct. 1935.) Mere presence or negative acquiescence are insufficient to prove guilt. However, one may aid or abet without actively participating in the overt act; and if proof shows he was present at the crime without disapproving or opposing it, this conduct together with other circumstances can be considered by the trier of fact in concluding that such person assented to the criminal act, lent his countenance and approval and was thereby aiding and abetting the crime. (People v. Nugara (1968), 39 Ill. 2d 482, 236 N.E.2d 693, cert. denied (1968), 393 U.S. 925, 21 L. Ed. 2d 261, 89 S. Ct. 257; People v. Clark (1963), 30 Ill. 2d 67, 195 N.E.2d 157; People v. Bartlett (1980), 91 Ill. App. 3d 138, 414 N.E.2d 253.) Similarly, a close affiliation with the co-defendants after the commission of the crime, and a failure to report the incident is relevant to establishing accountability. People v. Lopez (1979), 72 Ill. App. 3d 713, 391 N.E.2d 105.” 100 Ill. App. 3d 931, 938.

There was ample evidence to show that defendant aided and abetted the crime by creating conducive conditions and by failing to oppose or prevent its occurrence. (People v. Torres (1981), 100 Ill. App. 3d 931.) The evidence shows defendant was convicted beyond a reasonable doubt of armed violence and aggravated battery.

Defendant did not learn of Lemon’s personal investigation during the early morning hours on the day of the incident until the commencement of the trial. During opening arguments, the prosecutor recounted the details of Lemon’s search. Defendant also did not learn that James was unable to identify his photograph until the middle of the trial. None of this information was contained in any police report, particularly that of Detective Mook, the investigating officer.

Defendant charges that these factual matters relating to the identification of defendant were suppressed by the State and even misstated to the court and defense counsel at the preliminary hearing. He argues that this suppression of evidence denied him due process of law. Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194; People v. Nichols (1976), 63 Ill. 2d 443, 349 N.E.2d 40.

In order to prove a Brady violation, it must be shown that the evidence was suppressed following a request for it by defendant and that the evidence was favorable to defendant and material either to guilt or to punishment. (People v. Williams (1980), 91 Ill. App. 3d 631, 414 N.E.2d 1235; People v. Nichols.) Materiality in a constitutional sense is not the mere possibility that the undisclosed information might have helped the defense or affected the outcome of the trial. (People v. Williams.) Omitted evidence is material if, when evaluated in the context of the entire record, it creates a reasonable doubt of the defendant’s guilt. People v. Williams; United States v. Agurs (1976), 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392.

Detective Mook was identified as a prospective witness by the State in its discovery answer. The record does not reflect that defense counsel made any effort to interview Mook prior to trial. As a general rule, a witness will not be disqualified from testifying simply because the State, in good faith, did not draft memoranda of the witness’ pretrial oral statements. People v. Abbott (1977), 55 Ill. App. 3d 21, 370 N.E.2d 286.

Furthermore, during his testimony, James was cross-examined as to his selection of defendant’s photograph from an array. The testimony reveals that it was tentative at best. Detective Mook was also cross-examined on this point. He did not include this in his report because he did not think it imperative to do so. Before Lemon testified as to his search for the car, defense counsel was allowed to interview him about these facts. Defendant has not shown the materiality of the alleged violations. Nor do we believe the violations, if they do exist, create a reasonable doubt as to defendant’s guilt.

Defendant next argues Detective Mook’s testimony was hearsay improperly used to bolster the weak identification testimony of the eye-witnesses. First, we note defendant failed to object to the testimony at trial. Since he was effectively cross-examined by counsel we cannot say whether this was due to tactical considerations or simply to oversight.

Detective Mook testified generally to his investigation of this incident. On direct examination he also testified that Lemon identified a photograph of defendant but failed to make an identification at a lineup. On cross-examination he stated that James did not identify a photograph of defendant. This testimony was cumulative to that of James and Lemon themselves. In light of their testimony and the fact that all the witnesses were subject to cross-examination, we find the admission of this testimony harmless. People v. Robinson (1978), 73 Ill. 2d 192, 383 N.E.2d 164.

Defendant finally argues that his conviction for armed violence must be vacated because of the “double enhancement” doctrine of People 'v. Harón (1981), 85 Ill. 2d 261, 422 N.E.2d 627. The State likens this case to People v. Ross (1981), 100 Ill. App. 3d 1033, 427 N.E.2d 955, appeal denied (1981), 85 Ill. 2d 560. In the latter case, we let stand a conviction for armed violence where the count did not specify which of two aggravated battery counts it was based upon.

In this instance, we agree with defendant's contentions. He was charged with several counts of aggravated battery based on different theories of aggravation, including the use of a deadly, weapon. (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4(bXl).) He was also charged with one count of armed violence based on the use of a handgun. This charge was specifically predicated upon aggravated battery (deadly weapon). People v. Ross is inapposite.

Therefore, defendant’s conviction and sentence for armed violence are vacated. However, because the trial court did not sentence defendant for his aggravated battery conviction we remand the cause for a new sentencing hearing on that matter.

Affirmed in part; reversed in part; remanded for resentence.

GOLDBERG and McGLOON, JJ., concur.


author: JUSTICE ROMITI PRESIDING JUSTICE JOHNSON,

text:
    THE CITY OF PARK RIDGE, Defendant-Appellant, v. RICHARD R. BEGG, Plaintiff-Appellee.
    First District (4th Division)
    No. 81—3114
    Opinion filed November 24, 1982.

      JOHNSON, P.J., specially concurring.
    Paul N. Keller, of Park Ridge, for appellant.
    Stanley H. Jakala, of Berwyn, for appellee.
    Wayne W. Schmidt, of South San Francisco, California, and William E. Hornsby, Jr., and James P. Manak, both of Chicago, and James A. Murphy, of Peoria, for amici curiae.

   JUSTICE ROMITI

delivered the opinion of the court:

Plaintiff Richard Begg, a police officer with the city of Park Ridge, was suspended without pay for three days by order of the city’s director of public safety because he failed to meet certain job performance standards relating to the number of traffic tickets he issued and the number of nontraffic activities he performed. That order was affirmed following an evidentiary hearing before the Park Ridge Fire and Police Commission. However, plaintiff then filed an administrative review action and the circuit court of Cook County reversed the commission, finding that plaintiff was suspended on the basis of a traffic quota system which was against public policy. On appeal to this court defendants contend that the circuit court’s finding was not supported by the record.

We reverse.

At the hearing before the Fire and Police Commission the following pertinent evidence was adduced. In December 1977, Captain John Baudek, commander of the field operations bureau of the city’s police department, issued an order setting traffic enforcement standards for patrol officers. The order stated, inter alia:

“With the number of miles that a patrol officer drives during a watch and the high volume of traffic in the Park Ridge area *** it is reasonable for an officer to observe one traffic violation during a watch. Keeping in mind the midnight watch and other consideration [sic], a patrol officer will be expected to issue .80 [traffic] citations per day of patrol over a standard three-month watch cycle.”

The order noted that the standard was below that presently performed by many officers. Baudek also stated in the order:

“While a deviation below the standard does not automatically mean the officer is below an acceptable level of performance, I would expect his supervisor to be able to explain such a deviation if the officer is given a acceptable rating in that area of performance on his evaluation.”

In his testimony at the hearing Baudek explained that his purpose in issuing the order was to set standards which were quantifiable and measurable rather than having totally subjective personal opinion standards of evaluation. Another reason for setting the standards was to reduce the number of accidents. On this latter point he testified that the number of accidents in Park Ridge had increased since the standard was set, but also stated that the traffic count had also increased in that period. According to Baudek the traffic citation standards were required to be met unless there were extenuating circumstances.

Baudek also testified that there existed a second category of activities used to judge the officers. These activities included nontraffic violations and such tasks as checking doors at the homes of vacationing residents of Park Ridge. There was no set standard established for this category, but supervisors were told what the averages were for each watch and department. According to Baudek these two categories constituted only one small part of the overall evaluation of the officers. Evaluation forms were completed by the officer’s watch commander.

Lieutenant George Teune, plaintiff’s watch commander, testified that those evaluation forms included matters such as the officer’s initiative, promptness, and the amount of sick time he used in addition to the two categories of objective performance statistics. He estimated that those two categories counted for 40% to 50% of the evaluation. It was his opinion that establishing the objective standards had reduced the number of accidents in Park Ridge. He also noted that another purpose of those standards was to establish a norm from which superior performance could be identified. He conceded that those standards amounted to a quota system.

In an order issued April 24, 1980, plaintiff was warned that his performance on the police department was not at an acceptable level. He had used an unacceptable amount of sick time and had been suspended for one day earlier that year for the misuse of sick time. His traffic index score for 1979 was .40. His score in that category for the first quarter of 1980 was .15, the lowest in the department and well below the departmental average of .829. His score for nontraffic activities for 1979 was .76, while the departmental average for that period was 1.75. His first-quarter 1980 score for that index was .99, while the departmental average was 1.50. Plaintiff was informed in the order that for the second quarter of 1980 he had to achieve traffic index and nontraffic index scores of .80 and 1.50 respectively. He was also instructed to reduce his sick time usage, barring serious illness or injury, not to do anything requiring disciplinary action to be taken against him, and to obtain a departmental physical exam. (It is conceded that he met the latter three requirements.)

It was established without contradiction at the hearing that plaintiff failed to meet the index requirements for the second quarter of 1980. His traffic index average was .59, while the departmental average was .92 and his watch’s average was also .92. His nontraffic index average was .97 while his watch’s average was 1.86 and that of the department was 1.66. Accordingly, a letter of reprimand was issued and he was suspended without pay for three days.

Plaintiff testified that he was in his 18th year with the Park Ridge police force. It was his opinion that the index requirements constituted a quota and that 90% of the evaluation of officers was based on fulfillment of those index requirements. He stated that the indexes did not reflect all that he did, such as referring young drivers to their parents rather than issuing citations to them the first time. He had issued only one traffic ticket in 21 days in April because he saw none others that were “of a hazardous nature that would require a ticket.” He gave as an example of such a nonhazardous violation a rolling stop with no traffic present. He conceded that in May he made a special attempt to bring up his traffic index; that month his traffic index was 1.80. According to plaintiff the highest volume activity performed by officers in relation to their nontraffic activity index was checking on vacant homes. He testified that he had seen officers marking down the time, date, location and condition of homes before they went on patrol; however, he could not recall the names of the officers he saw doing this. Plaintiff called as -witnesses a number of Park Ridge police officers who testified that they considered the index requirements to be quotas and who believed that fulfillment of those quotas constituted the most important part of their evaluations. Several officers also testified that they had observed other officers noting in police records that they had checked vacant houses before they even went on patrol; however, none of the officers testified that those homes were in fact not subsequently checked.

Based on this evidence the Fire and Police Commission found that plaintiff had not met the required performance standards for traffic citations and nontraffic activities and further found that he had not established any mitigating circumstances sufficient to excuse his performance below those standards. Accordingly, his three-day suspension without pay was affirmed. The sole basis for the circuit court’s reversal of this decision was its finding that plaintiff was suspended on the basis of a traffic quota system which was against public policy.

The sole issue before us is the validity of the circuit court’s determination that the city of Park Ridge could not require plaintiff to meet the standards at issue. In determining this issue we note that administrative regulations, like statutes, are presumptively valid and one attacking such regulations has the burden of establishing their invalidity. (Midwest Petroleum Marketers Association v. City of Chicago (1980), 82 Ill. App. 3d 494, 402 N.E.2d 709.) Moreover, such regulations will be set aside by a reviewing court only if they are found to be clearly arbitrary, capricious or unreasonable. Rlinois Coal Operators Association v. Pollution Control Board (1974), 59 Ill. 2d 305, 319 N.E.2d 782; Shell Oil Co. v. Pollution Control Board (1976), 37 Ill. App. 3d 264, 346 N.E.2d 212.

Plaintiff’s central challenge to the regulations at issue appears to be that they establish an absolute quota to be met by police officers and that such quota systems are per se against public policy. For that proposition plaintiff cites People v. Patterson (1980), 88 Ill. App. 3d 144, 410 N.E.2d 223, and Bodenschatz v. State Personnel Board (1971), 15 Cal. App. 3d 775, 93 Cal. Rptr. 471. But neither of those cases even involved quota systems. In Patterson, despite uncontradicted testimony from a police officer that the defendant was initially stopped for speeding, the trial court had suppressed evidence discovered as the result of that stop on the ground that the officer lacked probable cause for the stop. In reversing that holding the appellate court noted that the fact the motorist was not charged by the officer with speeding but was only issued a warning did not justify the circuit court’s disbelief of the officer. The court noted that an officer may always issue a warning or reprimand without citing a motorist. We find nothing in that statement of the discretion invested in a police officer to support the proposition that the regulation at issue here is against public policy. Nothing in the record indicates that plaintiff was not free to exercise his discretion in a similar manner in any individual case. In Bodenschatz a police officer was dismissed because his enforcement activity was well below the average for his fellow officers. The officer challenged his dismissal in part because he contended that his level of activity was low only because the police department had a policy of requiring its officers to engage in more enforcement activity than circumstances warranted. The appellate court agreed that such a policy would be improper as contrary to the public interest but noted that the officer had failed to meet his burden of proving that such a policy was in existence. In this cause there was no evidence to suggest that plaintiff was being asked to meet standards which were unreasonably high. Nor was there any testimony that other police officers or the plaintiff would have had to issue unjustified citations to meet the standards.

Plaintiff contends that the traffic index requirement was improper because it had not resulted in reducing accidents in Park Ridge, one of the stated goals set for it. But no such evidence was presented at the hearing. Captain Baudek conceded that the number of accidents had increased, but he also testified that traffic had also increased. Lieutenant Teune specifically testified that he believed establishing objective standards had reduced the number of accidents in Park Ridge. Moreover, there were other stated goals intended to be achieved by these objective standards. They provided a means of evaluating officers in terms of minimal performance as well as identifying superior performance.

Finally plaintiff contends that too much emphasis was placed on the objective standards rather than overall police performance. However, Captain Baudek testified that the two objective categories were only a small part of the evaluation of officers. Lieutenant Teune estimated that the objective standards comprised less than half of the total evaluation. The commission was free to accept these lesser estimates as opposed to the greater percentages testified to by plaintiff’s witnesses who of course did not conduct the evaluations. Furthermore plaintiff has failed to demonstrate that even great reliance on such objective standards would be unreasonable.

Clearly plaintiff failed to meet his burden of establishing that the challenged regulations were arbitrary or unreasonable.

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

LINN, J., concurs.

PRESIDING JUSTICE JOHNSON,

specially concurring:

I concur with the result reached by the majority that the judgment of the circuit court must be reversed. The effect of this decision is to restore plaintiff to his original position. I believe, however, that the case should be remanded to the circuit court for a determination of whether there is sufficient basis for suspension of plaintiff without regard to plaintiff’s failure to satisfy the requirements of the traffic ticket quota system.

The cases cited by defendants in support of their position, with the exception of Bodensckatz v. State Personnel Board (1971), 15 Cal. App. 3d 775, 93 Cal. Rptr. 471, deal with the administrative regulations as such and not with the problems of traffic ticket quota systems, which raise questions of a different nature. In Bodensckatz, the administrative regulation in question had a quantity requirement as does the regulation in this case. However, in Bodensckatz, the overriding function of the administrative regulation was traffic law enforcement and not a straight numerical requirement such as is present in this case.

In the instant case, the circuit court held that traffic ticket quota systems are “against public policy” and set aside the decision of the Park Ridge Fire and Police Commission suspending plaintiff. The majority here did, indeed, subject the Park Ridge traffic ticket quota system to judicial scrutiny, but, in so doing, applied the usual test for a judicial examination of the validity of administrative regulations. That test is'(l) presume the regulation to be valid and (2) invalidate it only if it is arbitrary and unreasonable. By applying this test mechanically to this situation, the majority ignores serious public policy objections to a traffic ticket quota system. Although I agree in general that the “arbitrary and unreasonable” test is appropriate for cases involving the validity of administrative regulations, when a regulation requires a police officer to charge members of the public with a certain number of quasi-criminal infractions per day, far more serious questions are raised. It is no longer simply a question of whether the statute is arbitrary and unreasonable. For example, if it could be shown statistically that an increased issuance of traffic tickets reduces traffic accidents, then the quota system would arguably survive the arbitrary and unreasonable test applied by the majority to the quota system in this case. Nonetheless, if a police officer, to keep his job, to get promoted and/or to gain favor with his superiors, issues traffic tickets to innocent people, serious public policy concerns arise. Public policy, of course, is a vague notion encompassing many different ideas. Due process under both the Federal and State constitutions requires officers of the State to act in a fundamentally fair and objective manner. A traffic ticket quota system interjects an extraneous and irrelevant, yet personally important, factor into the decision-making process. The real question should be whether the police officer had reasonable grounds to believe that a traffic ordinance had been violated — not how many tickets the officer must issue that month in order to retain his job.

In my opinion, this court correctly reversed the decision of the circuit court, but we should remand the case to the trial court to determine whether the decision of the Park Ridge Fire and Police Commission can be upheld without regard to the quota system.


author: JUSTICE GOLDBERG

text:
    GARBE IRON WORKS, INC., Plaintiff-Appellant, v. GEORGE J. PRIESTER, Indiv. and d/b/a George J. Priester Aviation Service, et al., Defendants-Appellees.
    First District (1st Division)
    No. 82—0482
    Opinion filed November 22, 1982.
    Rehearing denied December 27, 1982.
    Drendel, Schanlaber, Horwitz and Oakes, and Edwards, Parker and Jordan, both of Aurora (Richard L. Horwitz, David J. Chroust,. and James Edwards, of counsel), for appellant.
    Ned Danger, of Chicago (Stuart Finkle, of counsel), for appellees.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Garbe Iron Works, Inc. (plaintiff), filed this action against George J. and Veta L. Priester, National Precast, Inc., Precast’s trustee in bankruptcy, and other parties (defendants) to enforce a mechanics’ lien (Ill. Rev. Stat. 1979, ch. 82, par. 1 et seq.). On motion of defendants, the trial court dismissed counts I and II of the amended complaint with prejudice. Plaintiff appeals.

In passing upon a motion to dismiss, the well-pleaded facts in plaintiff’s amended complaint are to be taken as true. (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 545, 370 N.E.2d 223.) The pleadings established the following chronology:

December 1, 1978: Acting under a contract with George and Veta Priester (owners), National Precast, Inc. (contractor), entered into an agreement with plaintiff whereby plaintiff would furnish labor and materials for the property of the owners.

February 2, 1979: Plaintiff completed performance under the contract.

May 2, 1979: Plaintiff filed a claim for mechanics’ lien with the recorder of deeds of Cook County. The property owners were served with a copy of the lien. Ill. Rev. Stat. 1979, ch. 82, par. 21.

August 11, 1980: The contractor filed a petition in bankruptcy under chapter XI in the Federal District Court. This automatically stayed all proceedings in the State court. 11 U.S.C. sec. 362(a) (Supp. II 1978).

December 23, 1980 (133 days later): The bankruptcy court entered an order modifying this stay to permit plaintiff to file and pursue its suit to attempt foreclosure of its mechanics’ lien.

March 16, 1981: Plaintiff filed the instant suit.

Count I of the amended complaint sought to foreclose plaintiff’s mechanics’ lien. Count II sought damages from the property owners for payments made to the contractor allegedly in violation of plaintiff’s rights under section 32 of the Mechanics’ Liens Act. Ill. Rev. Stat. 1979, ch. 82, par. 32.

On November 12, 1981, various defendants moved to strike and dismiss the amended complaint for failure to state a cause of action. The defendants contended the complaint should be dismissed because plaintiff failed to file its suit to enforce the lien within two years after the completion of the contract. (Ill. Rev. Stat. 1979, ch. 82, pars. 9, 28.) The trial court dismissed plaintiff’s amended complaint with prejudice.

Plaintiff contends the two-year limitation period for foreclosure of a mechanics’ lien (Ill. Rev. Stat. 1979, ch. 82, pars. 9, 28) was tolled by the filing of the bankruptcy petition by the contractor. The Federal Bankruptcy Act states (11 U.S.C. sec. 362(a) (Supp. II 1978)):

“Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title [11 U.S.C.S. secs. 301, 302, or 303] operates as a stay, applicable to all entities, of—
(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other proceeding against the debtor that was or could have been commenced before the commencement of the case under this title [11 U.S.C.S. sec. 1 et seq.], or to recover a claim against the debtor that arose before the commencement of the case under this title [11 U.S.C.S. sec. 1 et seq.];
* * *
(4) any act to create, perfect, or enforce any lien against property of the estate;
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Plaintiff urges this provision prevented plaintiff from proceeding to enforce its lien against the contractor who was a necessary party. (See Ill. Rev. Stat. 1979, ch. 82, par. 28; Capitol Plumbing & Heating Supply, Inc. v. Van’s Plumbing & Heating (1978), 58 Ill. App. 3d 173, 175, 373 N.E.2d 1089.) Plaintiff depends upon and cites section 108(c) of the Bankruptcy Act, which states (11 U.S.C. sec. 108(c) (Supp. II 1978)):

“Except as provided in section 524 of this title [11 U.S.C.S. sec. 524], if applicable law, an order entered in a proceeding, or an agreement fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor, or against an individual with respect to which such individual is protected under section 1301 of this title [11 U.S.C.S. sec. 1301], and such period has not expired before the date of the filing of the petition, then such period does not expire until the later of—
(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; and
(2) 30 days after notice of the termination or expiration of the stay under section 362, 922, or 1301 of this title [11 USCS sec. 362, 922, or 1301], as the case may be, with respect to such claim.”

Defendants contend the filing of the petition in bankruptcy does not toll the two-year limitation of actions to enforce a mechanics’ lien. Defendants cite Muehlfelt v. Vlcek (1969), 112 Ill. App. 2d 190, 193, 250 N.E.2d 14, where this court stated:

“It is well known that the rights afforded by the Mechanics’ Lien Act are in derogation of the common law and must be strictly construed. [Citations.] The provision that suit must be brought within two years of the completion of the contract is not just a limitation on the remedy afforded in the Act but is a condition to the right itself. [Citations.] It is necessary to file suit within the time provided to invoke the jurisdiction of the court. If a contractor does not file his suit within the two years, he has not availed himself of the special rights conferred by the legislature and he has, in effect, no right to a lien.”

The two-year period after completion of performance by plaintiff expired on February 2, 1981. Plaintiff’s suit was filed March 16, 1981. The proceedings were stayed 133 days by the stay from the bankruptcy court. Thus the dispositive issue is whether the stay operated to toll passage of the statutory time for filing the suit. This issue has apparently not been decided by the courts of Illinois.

In our opinion, the complaint should not have been dismissed. The above language of section 362(a)(1) of the Bankruptcy Act is unequivocably clear that the petitioner in bankruptcy is to be protected from all forms of judicial proceedings including the mere “issuance or employment of process ***.” (U.S.C. sec. 362(a)(1) (Supp. II 1978).) This is further emphasized by the legislative history of this section which states (H.R. Rep. No. 95-595 to accompany H. R. 8200, 95th Cong., 1st Sess. (1977), reprinted in 11 U.S.C.S. sec. 362, at 260 (1978)):

“Subsection (a) defines the scope of the automatic stay, by listing the acts that are stayed by the commencement of the case. The commencement or continuation, including the issuance of process, of a judicial, administrative, or other proceeding against the debtor that was or could have been commenced before the commencement of the bankruptcy case is stayed under paragraph (1). The scope of this paragraph is broad. All proceedings are stayed, including arbitration, license revocation, administrative, and judicial proceedings. Proceedings in this sense encompasses civil actions as well, and all proceedings even if they are not before governmental tribunals.”

We believe plaintiff had no alternative but to delay filing of suit until the automatic stay was terminated. Thus, the intervention of section 108(c) of the Bankruptcy Act acted to extend the time period for plaintiff to file its suit. Therefore, the suit was timely filed and should not have been dismissed.

With respect to defendants’ contention that the provisions of the Bankruptcy Act toll only ordinary statutes of limitations and not limitations upon the right itself, this court rejected this distinction by analogy in Levine v. Unruh (1968), 99 Ill. App. 2d 94, 240 N.E.2d 521. In Levine, the issue before us was whether the tolling provisions of the previous Bankruptcy Code could be extended to a cause of action under the Illinois Securities Law of 1953 (Ill. Rev. Stat. 1965, ch. 121V2, par. 137.1 et seq.). We noted the time limitation periods under the Illinois Securities Law of 1953 were conditions precedent to the cause of action as opposed to ordinary statutes of limitations (99 Ill. App. 2d 94, 98). However, citing Dower v. Bomar (5th Cir. 1963), 313 F.2d 596, and United States v. Paul Hardeman, Inc. (M.D. Fla. 1966), 260 F. Supp. 723, we concluded the tolling provisions of the Bankruptcy Act extended to these special limitation periods as well as the usual statutes of limitations. (99 Ill. App. 2d 94, 99-100.) Therefore, we are impelled to reject defendants’ contention.

In our opinion the comparison of a pure statute of limitations to restriction of the time to bring an action by a condition of the right sought to be enforced leads to creation of a distinction without a difference; particularly in the context of the case at bar where we are dealing with a stay of enforcement resulting from the imposition of a binding Federal statute.

The judgment appealed from is therefore reversed and the cause remanded for further proceedings consistent with this opinion.

Judgment reversed; cause remanded.

CAMPBELL, P.J., and McGLOON, J., concur.