author: PRESIDING JUSTICE JOHNSON

text:
    THE PEOPLE ex rel. TYRONE C. FAHNER, Attorney General, Plaintiff-Appellee, v. COLORADO CITY LOT OWNERS AND TAXPAYERS ASSOCIATION et al., Defendants.—(MARK P. BINSTEIN, Defendant-Appellant.)
    First District (4th Division)
    No. 81 — 1218
    Opinion filed July 22, 1982.
    Rehearing denied August 25, 1982.

      Stephen J. Spitz, of Sperling, Slater & Spitz, of Chicago, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Kathleen Hogan Morrison, Assistant Attorney General, of Chicago, of counsel), for appellee.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Mark P. Einstein, appeals the decision of the trial court holding him in contempt of court for violation of a consent decree and fining him $4,500. He raises the following issues for review: (1) whether his activities constituted contempt; (2) whether the trial court erred in finding that he could not purge himself of contempt; (3) whether plaintiff’s conduct constituted estoppel or waiver of its rights under the consent decree; and (4) whether plaintiff’s conduct constituted bad faith, thus, precluding a finding of contempt.

We affirm and modify.

On December 20, 1978, the Illinois Attorney General filed a complaint for injunctive and other relief against the Colorado City Lot Owners and Taxpayers Association (Colorado City Lot Owners), Myron R. Luehshyn and Mark P. Einstein under the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1977, ch. 121V2, par. 261 et seq.). On February 2, 1979, a consent decree was entered between the Attorney General and Einstein. Findings in the decree were as follows:

(1) Einstein advertised, solicited and enrolled property owners of land located in Colorado City, Colorado, residing in the Chicago area, for the purpose of conducting litigation against Great Western Cities, the owner and developer of Colorado City;
(2) On November 22, 1978, Einstein mailed a “Notice of Urgent Meeting” to about 3,000 Chicago area lot owners;
(3) At a November 30, 1978, meeting, Einstein represented to lot owners that he had won large sums of money from land developers in similar circumstances when in fact those cases were still pending;
(4) Einstein represented himself to be a land sales and land fraud expert when in fact he specialized in organizing lawsuits against land developers; in 1971 he had been fined $1,000 for violating Federal securities laws;
(5) Einstein represented that large sums of money were necessary for research and legal fees, and that he received only a consultation fee when in fact he had been accused in Indiana of misappropriating most of the funds collected and not paying the attorneys retained by the lot owners’ association;
(6) Einstein represented to lot owners that he performed valuable research into alleged land sale frauds of Great Western Cities, but it has not been proved whether his research has value in proving such frauds;
(7) Einstein claimed that he had negotiated with the Chicago Bar Association and various law firms to represent the lot owners, but in fact no representation agreements had been completed and no local attorneys retained;
(8) Einstein represented that past actions have been very successful when in fact no actions have been concluded and no money has been refunded to lot owners;
(9) Einstein represented that no other avenue of recovery was open to lot owners except to join the association organized by Einstein;
(10) Einstein failed to disclose that in June 1978 he executed a stipulation amounting to an assurance of voluntary compliance preventing him from soliciting funds in Wisconsin as agent for lot owners;
(11) Einstein imparts a sense of urgency when none may be necessary since most owners purchased their lots around 1970.

The decree provided the following:

(1) Einstein was permanently injoined from controlling the management, affairs and conduct of Colorado City Lot Owners;
(2) Einstein was permanently enjoined from organizing any business entity for the purpose of soliciting litigants for a lawsuit against Great Western Cities or any other business entity without entering into an assurance of voluntary compliance with the Attorney General;
(3) Einstein was permanently enjoined from any organizational role in a lot owners’ association “where he might solicit, collect, negotiate, disburse, or deposit funds,” on behalf of a lot owners’ association “as opposed to his acting as an agent or employee of that entity”;
(4) Einstein was enjoined from taking any action of any nature whatsoever relating to any Colorado City Lot Owners’ funds.

On January 30, 1981, the Attorney General filed a petition for a rule to show cause why Einstein should not be held in contempt of court and a petition for emergency supplemental relief. The first petition alleged that Einstein violated the terms of the February 2, 1979, consent decree by the following acts:

(1) The Rotonda Lot Purchasers Association mailed a letter to Illinois residents who owned lots in Rotonda subdivisions in Florida. According to the letter:
(a) Lot owners were urged to attend a meeting on January 24, 1981;
(b) Lot owners were victims of a massive land fraud scheme perpetrated by the Rotonda developer, Cavanagh Communities;
(c) The Rotonda association was formed to start litigation based on exhaustive research by a research service;
(d) The association had retained the investigator responsible for research in other successful lawsuits against fraudulent land developers.
(2) The lawsuits described in the letter involved Colorado City and Cochiti Lake developments, and the investigator was defendant Einstein.
(3) On January 24, 1981, Einstein represented the Rotonda association at the meeting and solicited funds to start litigation. Lot owners were given a document called “Cavanagh Communities and Its Rotonda Subdivisions - A Report Prepared by Mark P. Einstein ‘Interstate Land Sales Research.’ ”
(4) Lot owners also received a “Recovery Action” which informed them that Einstein had been retained to conduct research and investigation and participate in legal proceedings as directed by the association and its law firms and which also solicited funds.
(5) Einstein did not enter into an assurance of voluntary compliance with the Attorney General before engaging in the conduct described above.

The Attorney General prayed that Einstein be held in contempt and restrained from attending meetings, soliciting and collecting funds, and from further dealings with the Rotonda association.

At a hearing on January 30, 1981, the court stated:

“THE COURT: The State of Illinois cannot take the position that they will not negotiate with Mr. Einstein to secure an assurance of voluntary compliance. And on the other hand, Mr. Einstein cannot take the position that he unilaterally, without the protection of the Court can engage in conduct contrary to the consent decree which he entered into, deciding for himself that the State’s conduct is improper.
So, gentleman [sic], there is no equity on either side. As of this date, I’d urge both parties to engage in negotiations that are necessary to develop the assurance of voluntary compliance.
I’m not unwilling to foreclose Mr. Einstein from participating in his February 1 meeting because that activity is surely precluded by the consent decree until such time as an assurance of voluntary compliance is obtained. I believe it was incumbent upon Mr. Einstein to refrain from any Illinois conduct until he had indeed secured the assurance of voluntary compliance from the Attorney General or until he had secured relief from the Court under this consent decree that that assurance was being denied him unreasonably.
He didn’t take any action, so his rights in Illinois are still dictated by the consent decree and that is that he shall not engage in activities in Illinois without this assurance.
MR. SPITZ [defense attorney]: Do I understand that we’re to attempt to reach an agreement this afternoon.
THE COURT: Yes.
MR. SPITZ: If possible.
THE COURT: That’s correct.”

At the conclusion of the hearing, the court ordered that if Einstein appeared at meetings of the Rotonda association, his remarks must be limited to the Rotonda investigation and no funds could be solicited or collected. Funds could be solicited and collected in his absence. The Attorney General was directed to begin negotiations on the assurance of voluntary compliance.

On February 6, 1981, Einstein filed a purported assurance of voluntary compliance to which the Attorney General objected because he (the Attorney General) did not sign it and because its terms were not acceptable. On February 11, 1981, Einstein moved to dismiss the contempt petition on a theory of unclean hands. The trial court denied this motion and ordered defendant to answer the petition.

On February 1981, Einstein made several motions involving discovery which were opposed by the Attorney General. The trial court quashed Einstein’s notices to depose William P. Oberhardt, an assistant Attorney General, and Tyrone C. Fahner, the Illinois Attorney General, and ordered defendant to make no further attempts to seek discovery from them.

On February 13, 1981, the contempt hearing began. The trial court defined the issues as “whether or not Mr. Einstein’s conduct was in violation of the consent decree” and "whether or not the Attorney General is withholding a reasonable attempt to negotiate a reasonable assurance of voluntary compliance.”

Testimony at the hearing established the following.

Plaintiff called Mark Einstein as an adverse witness. Einstein testified that he signed assurances of voluntary compliance for Colorado City Lot Owners and the Cochiti Lake association. At the time of the contempt proceeding, he was employed by the Rotonda association and had signed an employment contract in January 1981. In March or April 1980, Einstein began to research for Rotonda lot owners and spent about half his time on this investigation until November 1980. Then Einstein presented his initial report and began to meet with Ro-tonda owners every week. The formation of the Rotonda Lot Purchasers Association was discussed at some of these meetings.

Einstein helped draft letters to Rotonda lot owners informing them of meetings on January 24 and February 1, 1981. In December 1980, he prepared a recovery action letter which included the following provision: “The Association met with the Illinois Attorney General and provided full disclosure of all plans, proposed actions, this Recovery Action, and Association agreements with law firms, investigator, accountant and others.” This letter was given to lot owners who attended the meeting on January 24, 1981.

Einstein stated that he met with Darek Gilna, an assistant Attorney General, at least 20 times between the signing of the consent decree in February 1980 and November 1980. Einstein claimed that he telephoned William Oberhardt, Gilna’s replacement, twice in November or December 1980, but his calls were not returned. On January 8, 1981, Einstein delivered to Oberhardt’s office a cover letter and documents concerning Einstein and the Rotonda association. At the time of trial, Einstein had rejected the Attorney General’s proposed assurance of voluntary compliance as false and defamatory.

Four Rotonda lot owners testified for the People. John Otten, former president of the Rotonda association, attended meetings in November and December 1980. On January 3 or 13, 1981, the association was incorporated and Einstein was hired. Willis Young, Robert Szyka and Stanley Gordon went to the January 24, 1981 meeting. About 500 or 600 persons attended that meeting which lasted from about 1:30 to 5:30 p.m. Einstein spoke most of the time, discussing his investigative report on Rotonda, litigation against other developers, and membership dues.

Derek Gilna was employed as an assistant Attorney General in the Consumer Protection Division of the office of the Attorney General from April 1978 to mid-December 1980. He helped prepare the consent decree and the Cochiti Lake assurance of voluntary compliance. On December 15 or 16, 1980, Einstein telephoned Gilna on an unrelated matter and the latter told Einstein that he was leaving the Attorney General’s office immediately to enter private practice. Einstein said that he was involved with another real estate developer. Gilna had no other conversations about a proposed assurance of voluntary compliance and was unaware of a November meeting of Rotonda lot owners.

The plaintiff rested and Einstein called John Bowlus, the attorney for the Colorado City Lot Owners. Bowlus stated that although Einstein “is probably given to hyperbole,” the actual land fraud is worse than the allegations in his report. In Bowlus’ opinion, Einstein was one of the foremost experts in the area of land fraud, totally reliable, dependable and completely honest. After Bowlus’ testimony, the hearing was adjourned.

When the trial resumed on March 5, 1981, officers of the Colorado City Lot Owners association, Agnes Kelly, Thomas J. Meegan and Marlene Roseeranz, testified as to Einstein’s good character. Leonard Pierce attended the Rotonda meetings and stopped payment on a membership check when he heard televised remarks by the Attorney General. Pierce later rejoined the association.

Sharon Tucker, a litigation assistant for the Attorney General’s office, testified that she received about five complaints against Einstein from Cochiti Lake owners and five from Rotonda owners.

Einstein then testified in his own behalf. He tried to introduce a videotape in which Attorney General Fahner made remarks about him. The trial court stated: “I have previously placed on the record in this case my dismay at Mr. Fahner's TV appearance and his own media statements. They are, however, not relevant to the record before us today, and the video tape will not be shown for the court.”

Einstein stated that he had a telephone conversation with his defense lawyer, Stephen Spitz, on January 8, 1981. Spitz told him that he had talked to assistant Attorney General Oberhardt. Einstein offered to prove the substance of these conversations in order to show Oberhardt’s indifference to obtaining an assurance of voluntary compliance.

Charles Perlman, an attorney, testified that he had discussions with Einstein and attorney Spitz in early January 1981 about a possible meeting with the Attorney General’s office on an assurance of voluntary compliance.

After closing arguments, the trial court stated:

“From the testimony presented here, it’s clear that Mark P. Einstein was in violation of the consent decree when he met with Mr. Otten, Mr. Langtry, and other Rotonda lot owners in November 1980, when he participated in weekly meetings which led to the organization of the association in November, December, and January; when he drafted for and on behalf of the association the notice of meeting letter and the recovery action document for the association; and when he conducted as agent or employee of the association the January 24, 1981, Hillside, Illinois meeting. He was at that time an employee or an agent of the association and was by that conduct required to have previously secured an assurance of voluntary compliance. To suggest that this array of conduct is not prohibited under the consent decree is to deny the clear meaning of the terms of the consent decree.
Mr. Einstein may not, as he has done here, first embark upon prohibited activities and attempt to get an assurance later. Having previously secured assurances from the Attorney General, Mr. Einstein is not unfamiliar withs the procedure. Chronology of events is everything, if Mr. Einstein is to be engaged in any Illinois activities. Illinois contacts are not to be made until after the assurance is secured. That is the deal Mr. Einstein made with Illinois, and that is the deal the Attorney General here seeks to compel him to abide by.
If the procedure in securing a needed assurance gets bogged down or demands are made which Mr. Einstein questions, his resort is to the Court for relief or interpretation. He cannot, as he did here, take matters into his own hands and embark upon prohibited activities. He agreed not to do so. And when he does so, he flirts with contempt.
His filing of a unilateral assurance in this court on February 6th does not comply with the terms of the consent decree. It does not explain away or justify his earlier conduct of November, December, and January, and does not bind the Attorney General. Violation of the consent decree is tantamount to contempt of Court and will not be lightly countenanced by this Court enforcing the decree of Judge Nathan Cohen.
The consent decree protects Mr. Einstein from an arbitrary or unreasonable demand by the Attorney General. With judicial guidelines available as to the interpretation and construction of the consent decree, there is virtually no excuse for disregard of its clear terms. It should be clearly understood that the consent decree here being enforced was negotiated for by Mr. Einstein, was agreed to and signed by Mr. Einstein, was the basis upon which pending case action against Mr. Einstein was terminated and had previously been adhered to by Mr. Einstein in his earlier Illinois dealings regarding Cochiti Lake property owners.
In short, Mr. Einstein is no stranger to the terms of the consent decree. For all of these reasons, I find from all of the evidence and testimony presented and considered that the Respondent, Mr. Mark R Einstein, has since November 1980 and through January 24, 1981, been engaged in a course of conduct within Illinois in violation of the consent decree of February 2, 1979. The totality of his conduct reflects an awareness of his activities under that decree and a conscious and calculated disregard of those responsibilities as to amount to contempt of Court.
I find the Respondent, Mark R Einstein, guilty of civil and direct contempt of Court, contempt of the order which he had voluntarily assented to and which was entered by Judge Cohen on February 2, 1979.”

On March 24, 1981, the trial court fined Einstein $4,500, stating: “It’s my judgment that any lesser sanction would deprecate the seriousness of the respondent’s actions and would not serve the ends of justice.” On April 22, 1981, the trial court denied Einstein’s motion to reconsider and vacate the sanction and contempt. Einstein appealed and his motion to stay enforcement of the fine pending appeal was granted.

The first issue raised by defendant Einstein is whether his activities constituted contempt. Defendant argues that his activities did not violate the consent decree because that decree did not prohibit Illinois contacts. Einstein contends that he could do anything in Illinois except organize an entity without an assurance of voluntary compliance, that he organized no entities, and that the Attorney General did not prove nor did the court find that defendant organized a business entity.

A consent judgment is generally regarded as one entered by a court reciting a settlement agreement reached as an independent undertaking by the parties which may supercede pleadings and evidence and limit the relief to be granted. (Lubowsky v. Skokie Valley Community Hospital (1979), 79 Ill. App. 3d 909, 913, 398 N.E.2d 1037, 1040.) Like any other agreement, the law of contract controls its interpretation and its meaning should be determined by the language chosen by the parties. (Clark v. Standard Life & Accident Insurance Co. (1979), 68 Ill. App. 3d 977, 983, 386 N.E.2d 890, 896.) Thus, a consent decree should be enforced as written, is conclusive upon the parties and cannot be varied without the consent of each party. Dunaway v. Storm (1975), 30 Ill. App. 3d 880, 884, 334 N.E.2d 825, 829.

The consent decree required Einstein to enter into an assurance of voluntary compliance with the Attorney General of Illinois before he either (1) organized an entity to solicit litigants for a lawsuit or (2) acted as an employee or agent for an entity which solicits litigants for a lawsuit. The trial court found that defendant violated the consent decree by participating in the weekly meetings of Rotonda lot owners which led to the organization of the association, by drafting a notice of meeting letter and the recovery action document for the association, and by conducting the meeting on January 24, 1981. Thus, defendant organized and acted as an employee or agent for an entity which solicits litigants for a lawsuit without first entering into an assurance of voluntary compliance with the Attorney General. Einstein’s only contact with the Attorney General consisted in dropping off documents with a secretary in January 1981. As the trial court stated, “[t]o suggest that this array of conduct is not prohibited under the consent decree is to deny the clear meaning of the terms of the consent decree.”

A finding of willful contempt is a matter of fact to be determined by the trial court and it will not be disturbed on review unless there is a clear abuse of discretion. (Frank B. Hall & Co. v. Payseur (1981), 99 Ill. App. 3d 857, 860, 425 N.E.2d 1002, 1005.) We find no abuse of discretion, and based on the record before us we hold that the trial court properly found that defendant’s activities in violating the consent decree constituted contempt.

The second issue raised by defendant is whether the trial court erred in finding that defendant could not purge himself of contempt. Defendant urges that his contempt was civil, that the contempt was purged when he entered into an assurance of voluntary compliance, and that no sanction was justified.

Contempt proceedings, while usually called civil or criminal, are, strictly speaking, neither. They may best be characterized as sui generis and may partake of the characteristics of both. (People ex rel. Chicago Bar Association v. Barasch (1961), 21 Ill. 2d 407, 409, 173 N.E.2d 417, 418.) Proceedings in the nature of civil contempt ordinarily are prosecuted to enforce the rights of private parties and to compel obedience to orders or decrees for the benefit of opposing parties. (47th & State Currency Exchange, Inc. v. B. Coleman Corp. (1977), 56 Ill. App. 3d 229, 233, 371 N.E.2d 294, 297-98.) Proceedings in the nature of criminal contempt are directed to the preservation of the dignity and authority of the court, or a judge acting judicially. (47th & State Currency Exchange Inc. v. B. Coleman Corp. (1977), 56 Ill. App. 3d 229, 233.) A sanction for civil contempt is coercive in nature and is instituted to compel obedience to a court order. The contemnor can avoid the sanction by compliance with the order. The sanction invoked, such as incarceration, will continue in effect until there is compliance or termination of the sanction by the terms of the order itself. (In re Estate of Shlensky (1977), 49 Ill. App. 3d 885, 891-92, 364 N.E.2d 430, 435.) A sanction for criminal contempt is punitive in nature and is instituted to punish, as opposed to coerce, a contemnor for contumacious conduct. In re Estate of Shlensky (1977), 49 Ill. App. 3d 885, 891.

In a civil contempt proceeding, the contemnor is given the opportunity to purge himself of the contempt. (Continental Illinois National Bank v. Brach (1979), 71 Ill. App. 3d 789, 792-93, 390 N.E.2d 373, 376.) In the instant case, the contempt sanction was punitive and, thus, criminal in nature and represented the trial court’s determination that Einstein was being punished for his failure to abide by the terms of the consent decree. The trial court, based on the evidence presented to it, could reasonably conclude that Einstein was in contempt and that a punitive measure should be invoked.

However, the fine of $4,500 must be reduced under the holding of County of McLean v. Kickapoo Creek, Inc. (1972), 51 Ill. 2d 353, 282 N.E.2d 720. In that case, our supreme court held that in all cases of criminal contempt the trial court’s refusal to honor defendant’s demand for a jury trial or its failure to sufficiently inquire whether defendant wished to waive this right will limit the maximum penalty which may be imposed upon conviction to incarceration for a period of 6 months or less and limit any find to a maximum of $500. (51 Ill. 2d 353, 356.) Only in those circumstances where the penalty actually imposed exceeds 6 months incarceration or a fine in excess of $500 must the record reflect that defendant was afforded a jury trial or knowingly and understanding^ waived his right in open court. 51 Ill. 2d 353, 356.

An examination of the record reveals that the trial court did not inquire whether the defendant wished to waive his right to a jury trial in the contempt proceedings, and that his defense counsel did not expressly state that a jury trial was waived. We conclude, therefore, that under County of McLean v. Kickapoo Creek, Inc., defendant’s fine must be reduced to $500 because he did not knowingly waive the right to a jury trial.

The next issues raised by defendant involve his defenses to a finding of contempt. Defendant claims that the trial court erred in not upholding his affirmative defense of waiver and estoppel and bad faith. In support of his defense of waiver and estoppel, defendant contends the Attorney General encouraged contacts by Einstein with Cochiti Lake lot owners without an assurance of voluntary compliance. Einstein claims that he relied on this encouragement and that he was not informed that the Attorney General had taken the new position of no Illinois contacts with any lot owners without an assurance. In support of his defense of bad faith, defendant contends that the Attorney General was trying to drive him out of the State of Illinois.

According to defendant, he could not prove these defenses because the trial court denied his motions for discovery and section 60 notices and because it refused to allow the admission of certain hearsay evidence. Defendant attempted to depose the prosecutor, assistant Attorney General Oberhardt, to procure admissions from him and to call him as an adverse witness. Defendant also tried to depose and call as an adverse witness the Attorney General, the trial court has wide discretion in refusing to permit attorneys to testify at a trial wherein they also serve as advocates. (People v. Tate (1978), 64 Ill. App. 3d 1, 10, 380 N.E.2d 976, 983.) It is a proper exercise of judicial discretion to refuse to allow a defendant to call a prosecuting attorney as a defense witness. (People v. Gendron (1968), 41 Ill. 2d 351, 358, 243 N.E.2d 208, 213.) We have examined the record and find no abuse of discretion in the trial court’s denial of defendant’s motions for discovery. We hold that the trial court properly denied defendant’s attempts to depose and call as witnesses Fahner and Oberhardt.

Defendant attempted to introduce into evidence a videotape of televised remarks by Fahner which purported to show the latter’s intent to drive Einstein out of the State. The trial court refused to let defendant play the videotape because Fahner’s remarks, made after the dates with which the contempt proceedings were concerned, were irrelevant. Evidence, in order to be relevant, must have a reasonable tendency to prove some material fact in issue. (Pitrowski v. New York, Chicago & St. Louis R.R. Co. (1955), 6 Ill. App. 2d 495, 499, 128 N.E.2d 577, 578.) We hold that the trial court properly refused to admit into evidence the televised remarks of the Attorney General.

Defendant also attempted to introduce into evidence a conversation between himself and his defense attorney, Stephen Spitz, in which the latter repeated purported conversations with the prosecuting attorney, William Oberhardt. These conversations were inadmissible as hearsay, an out-of-court declaration offered as proof of the matter asserted. (Simon v. Plotkin (1977), 50 Ill. App. 3d 603, 607, 365 N.E.2d 1022, 1025.) We hold that the trial court properly refused to admit into evidence defendant’s telephone conversation.

We reject defendant’s arguments of waiver and estoppel and bad faith. A waiver is the intentional relinquishment of a known right. (Allstate Insurance Co. v. National Tea Co. (1975), 25 Ill. App. 3d 449, 461, 323 N.E.2d 521, 529.) Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded from asserting rights which might otherwise have existed as against another person who has, in good faith, relied upon such conduct and has been led thereby to change his position for the worse and who on his part acquires some corresponding right. (Johnson v. Johnson (1975), 26 Ill. App. 3d 64, 67, 324 N.E.2d 450, 452.) Estoppel against the public is little favored, is found only in rare and unusual circumstances and will not be applied to defeat the effective operation of a policy adopted to protect the public. County of Cook v. Patka (1980), 85 Ill. App. 3d 5, 12-13, 405 N.E.2d 1376, 1381.

We have examined the record in this case and find no support for defendant’s contentions that the Attorney General acted in bad faith, waived the right to enforce the consent decree and is, therefore, estopped from prosecuting defendant for violation of its terms. As the trial court stated, “[i]f the procedure in securing a needed assurance gets bogged down or demands are made which Mr. Einstein questions, his resort is to the Court for relief or interpretation. He cannot *** take matters into his own hands ***.”

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed, but the $4,500 find is reduced to $500.

Affirmed as modified.

LINN and ROMITI, JJ., concur.

      Since extrinsic evidence was required to establish the allegedly contemptuous conduct of Binstein, the contempt was indirect rather than direct. See United States v. Wilson (1975), 421 U.S. 309, 44 L. Ed. 2d 186, 95 S. Ct. 1802; People v. Javaras (1972), 51 Ill. 2d 296, 281 N.E.2d 670; People v. Jashunsky (1972), 51 Ill. 2d 220, 282 N.E.2d 1.


source: Caselaw Access Project

author: PRESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BILLY STAMPS et al., Defendants-Appellants.
    First District (5th Division)
    Nos. 81 — 40, 81 — 41 cons.
    Opinion filed July 23, 1982.

      Sam Adam and Richard Stopka, both of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and David L. King, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

In a jury trial, defendant Hilmon Stamps (Hilmon) was convicted of illegal possession and delivery of more than 30 grams of cocaine, a controlled substance, and defendant Billy Stamps (Billy) was convicted of illegal possession and delivery of more than 30 grams of a substance containing cocaine and of more than 30 grams of a substance containing heroin. (Ill. Rev. Stat. 1977, ch. 561/2, pars. 1401(a)(1), (2), 1402(a)(1), (2).) Merging the convictions for possession into the convictions for delivery, the trial court sentenced Hilmon to 12 years imprisonment and Billy to concurrent terms of 15 years for delivery of cocaine and delivery of heroin.

On appeal, defendants contend that (1) the seizure of the narcotics was improper; (2) Billy was not proved guilty beyond a reasonable doubt; (3) the trial court erred (a) in permitting a bank trust officer to give explanatory and opinion testimony as to a land trust agreement involving Billy, which purported error was compounded by the prosecutors’ remarks in closing argument, (b) in barring the defense from cross-examining the arresting police officers as to bias and motive, and (c) in denying them the right to present a defense; (4) the jury (a) was not instructed on Billy’s theory of defense, and (b) was improperly instructed that defendants could be convicted of illegal possession if they controlled the “area” where the substances were found; and (6) the trial court abused its discretion by sua sponte modifying the instruction defining possession.

Investigator Zito testified that in the early morning hours of November 21, 1977, he and Investigators Mokstead and DeSimone drove to a building located at 4654 West Madison Street after being informed that a large narcotics transaction would take place; that when their squad car was about 100 feet from the building, he observed three people standing at the doorway, and when they were 40 to 60 feet away he saw one of the individuals — identified as Carl Branch — with his arm outstretched holding a plastic bag which he was giving to the others; that when the squad car was 25 to 30 feet away, Branch dropped the container and ran into the building while the other two individuals fled east on the street; that Zito picked up the plastic container of white powder and put it into his pocket, and getting no response to a request to open the door he forced it open with a pry bar and sledgehammer; that he entered the building — a furniture warehouse — and followed an individual to the top of a stairway where he saw Branch and another man — identified by Zito in court as Hilmon — who was carrying a brown leather case with a strap; that Branch went into an office section, and he followed Hilmon into a lavatory where on a wastebasket under the sink he saw the leather case in which he found several plastic containers of white powder similar to the one recovered on the sidewalk; that he turned Hilmon and the case over to Mokstead and, when there was no reply to his demand to open the office door, he forced it open with the sledgehammer; that upon entering, he saw Branch throwing plastic bags of white powder against the wall and Billy crouching down and running to the right to Zito; that when Billy refused his order to stop, Zito threw the sledgehammer and reached for his revolver; that when the lights went on, he observed Billy on the floor holding his head; that he (Zito) had no intention of hitting Billy with the sledgehammer; that there was white powder on Branch’s hands and clothing and on the floor immediately in front of him and on the wall; that on a desk in the room there were two plastic bags containing white powder, a scale, and several weapons; and that on another desk there were a number of plastic bags containing white powder.

Investigator Mokstead testified that at the request of Ruby Fay Thomas he obtained a wet wash cloth for Billy’s face and then searched the office and secured the items which were lying on the desks, which included a mixer; that he searched a hole in the ceiling and recovered a brown paper bag containing three plastic bags of brown powder; and that, after Billy made a telephone call, his brother-in-law Paul Jackson arrived and was given a set of keys by Billy.

It was stipulated that the bag of powder recovered on the sidewalk contained 19.74 grams of cocaine; that the bags in the leather case contained 282 grams of cocaine; that the two plastic bags recovered from one of the office desks contained 49.29 grams of cocaine; and that the bags of brown powder recovered from the ceiling contained 45.13 of heroin. There was also testimony that telephone, gas, and electric company records listed Stamps Brothers Furniture at 4654 West Madison Street as a customer; that the telephone and gas service was billed to “Johnny Stamps” and the electricity billed to “W. Stamps doing business as Stamps Brothers Furniture”; and that no one in the Stamps family had a first name beginning with “W” aside from Billy.

Asserting that he was merely present at the warehouse at the time in question, Billy testified that he was a licensed trainer of horses, having sold a trucking business he had previously owned; that he had no interest in the building in question and had never obtained telephone, gas, water, or electrical service for it; that at the time in question (November 21, 1977), he was with Hilmon, Ruby Thomas, and Edna Jackson (his sister) in her bar next door to the warehouse; that Hilmon and Ruby left and went to the warehouse while he remained in the lounge to borrow $150 from Edna, who told him that while she was getting the money he was to wait for her at the warehouse; that since he had no keys, he knocked and Paul Jackson let him in; that Ruby and Hilmon were there along with two men whom he later learned were Carl Branch and George Washington; that he was on the second floor when he heard a door slam and a loud noise, as though someone was trying to break in; that Hilmon left the room, and Branch came in carrying a leather bag from which he pulled “stuff” out and threw it "every which way”; that Zito then entered and ordered him to “get upside the wall”; that when Billy asked what he had done, Zito shouted a profanity and again ordered him against the wall, this time striking him above the right eye with the sledgehammer and rendering him unconscious; that he was first taken to a hospital where he received treatment and then to the police station; and that, while Zito had originally intended to charge him with “disorderly,” after Billy threatened to sue Zito he was charged with illegal possession.

Opinion

We first consider the legality of the police conduct during the seizure of the narcotics. Defendants contend that the police illegally entered the warehouse and arrested Hilmon Stamps without probable cause and that the warrantless seizure of the leather case and of the items in the office area was illegal. Based on the record before us, however, we conclude that the trial court properly denied defendants’ motion to suppress the evidence.

In Mancusi v. DeForte (1968), 392 U.S. 364, 367-68, 20 L. Ed. 2d 1154,1158-59, 88 S. Ct. 2120, 2123-24, it was stated:

“This Court has held that the word ‘houses,’ as it appears in the [Fourth] Amendment, is not to be taken literally, and that the protection of the Amendment may extend to commercial premises. *** [C]apacity to claim the protection of the Amendment depends not upon a property right in the invaded place but upon whether the area was one in which there was a reasonable expectation of freedom from governmental intrusion.”

With respect to the warrantless searches of commercial or business premises, the court further stated that except in certain carefully defined classes of cases, a nonconsensual search of private property can only be made on the authority of a search warrant. (392 U.S. 364, 370, 20 L. Ed. 2d 1154, 1161, 88 S. Ct. 2120, 2125.) Consistent with Man-cusi, the courts of this State have recognized that the protection of the fourth amendment may extend to places other than private residences. In People v. Davis (1980), 86 Ill. App. 3d 557, 407 N.E.2d 1109, it was held that the police acted illegally in entering the premises of a grinding company without a warrant. The court found that those premises did not permit general public access and that the arrest of defendant, who was a part-time employee, was without probable and sufficient exigent circumstances. Similarly, in People v. Clark Memorial Home (1969), 114 Ill. App. 2d 249, 252 N.E.2d 546, the court required suppression of evidence seized in a nonconsensual and nonexigent entry of law enforcement officials into an American Legion Post occupied by a veterans’ organization open only to members and guests and found not to be public in nature. By contrast, in People v. Boyle (1977), 51 Ill. App. 3d 320, 366 N.E.2d 600, police entry upon Chicago Transit Authority premises, over which accused had no legal control, did not require suppression of evidence seized without a warrant. The accused allegedly conducted gambling operations in a CTA building in potential view of employees and others using the facility, and the officer had previously been on the premises, implying CTA approval of his presence. Likewise, in People v. Johnson (1974), 21 Ill. App. 3d 769, 315 N.E.2d 579 (abstract), the court held that no warrant was required for police entry into a pool hall open to the public (also see People v. Lerch (1966), 77 Ill. App. 2d 151, 221 N.E.2d 664 (abstract), in which the court held that it was not a search where a police officer without warrant “caught a glimpse” of a slot machine through a partially open door of a room in a gasoline filling station). Thus, the question before us here is whether the warrantless, nonconsensual entry into the furniture warehouse was permissible.

The law is clear that police officers may make a warrantless entry of a private residence to effectuate a felony arrest if probable cause and exigent circumstances exist. (Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371; People v. Abney (1980), 81 Ill. 2d 159, 407 N.E.2d 543.) Furthermore, we interpret Mancusi as providing fourth amendment protection to business or commercial premises against warrantless searches and seizures if there exists “a reasonable expectation of freedom from government intrusion.” Although it did not address the question of a warrantless entry by the police for the purpose of making a felony arrest, by reading Mancusi in the light of Payton and Abney, we believe that defendants here did have a reasonable expectation of freedom from governmental intrusion into the warehouse to make an arrest. While such expectation may be diminished in the context of commercial or business premises, it is unnecessary to decide that question since the standards of Payton and Abney, as applied to private residences, were satisfied in the present case.

It is apparent, first of all, that probable cause existed to arrest Carl Branch. As stated in People v. Thompson (1981), 93 Ill. App. 3d 995, 1001-02, 418 N.E.2d 112,118:

“A police officer has probable cause to arrest without a warrant, ‘when the facts and circumstances within his knowledge and of which he has reasonable and trustworthy information are sufficient in themselves to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested is guilty.’ [Citation.] Whether probable cause for an arrest exists depends upon the totality of the facts and circumstances known to the arresting officer when the arrest is made. [Citation.] In deciding the question of probable cause, courts are not disposed to be unduly technical, and the determination is to be based on the factual and practical considerations of everyday life on which reasonable men, not legal technicians, act. *** Where a trial court conducts a lengthy hearing on this issue and determines that the officers had probable cause to arrest the defendant, courts of review will not disturb this finding unless manifestly erroneous. [Citation.] A ruling on a motion to suppress is not final and may be changed or reversed at any time. [Citation.] Consequently, a reviewing court in passing upon the trial court’s ruling may consider testimony adduced at trial as well as at the pretrial hearing. [Citation.]”

In the present case there was testimony at the hearing on the motion to suppress that Investigator Zito had received an informant’s tip that a large narcotics transaction was to occur in the area of the warehouse, possibly involving persons who were armed and dangerous. Later, as the investigators approached the building, they observed Carl Branch holding a plastic container of white powder in his hand with his arm outstretched toward two other individuals. When the squad car was 25 to 30 feet away, Branch dropped the container and fled into the building. Then Zito, who had made some 500 narcotics retrievals, picked up the container — believing the substance to be cocaine or heroin. A police officer investigating possible criminal conduct may rely upon his knowledge and experience and the reasonable inferences drawn from observed facts. (People v. Crawford (1978), 64 Ill. App. 3d 861, 381 N.E.2d 1183.) Accordingly, we conclude that the officers had probable cause to believe Branch had committed the offense of illegal possession of a controlled substance.

Applying the criterion of exigent circumstances,' we note that several factors have been set forth in determining if such circumstances exist. As stated in People v. Sakalas (1980), 85 Ill. App. 3d 59, 65-66, 405 N.E.2d 1121, 1127, the following factors are considered in order to justify a nonconsensual entry into a home to arrest a suspect:

“ ‘ “(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect ‘is reasonably believed to be armed1; (3) ‘a clear showing of probable cause *** to believe that the suspect committed the crime’; (4) ‘strong reason to believe that the suspect is in the premises being entered’; (5) ‘a likelihood that the suspect will escape if not swiftly apprehended’; and (6) the peaceful circumstances of the entry.” ’ [Citations.]”

Additional factors considered are (1) the need for prompt action by the arresting officers after receiving information establishing probable cause; (2) no deliberate or unjustified delay by the police during which time a warrant could have been obtained; and (3) the reasonable belief that the suspect may be armed and violent. (People v. Abney (1980), 81 Ill. 2d 159, 407 N.E.2d 543; also see People v. Patrick (1981), 93 Ill. App. 3d 830, 417 N.E.2d 1056.) All such factors need not be established but only satisfied on balance. People v. Thompson (1981), 93 Ill. App. 3d 995, 418 N.E.2d 112; People v. Sakalas (1980), 85 Ill. App. 3d 59, 405 N.E.2d 1121.

Here, in addition to having probable cause to arrest Branch, the officers had reason to believe he was inside the premises and possibly armed. Although Branch’s possession of a controlled substance might not be regarded as a grave crime, the officers had reason to fear violence based on the informant’s tip and the circumstances of the transaction. Their actions also were prompt, and there was no undue delay between the time probable cause was established and their entry of the premises. Moreover, upon seeing the officers, Branch immediately fled into the warehouse, thereby creating the likelihood he would escape if not swiftly apprehended. We conclude, therefore, that the officers’ entry into the building was, on balance, consistent with the requirements of Payton and Abney.

Furthermore, we think it clear that in light of the above stated principles, there was probable cause to arrest Hilmon Stamps. The record indicates that the investigators had been informed of a narcotics transaction, and when they entered the building they were in pursuit of Branch, whom they had observed in possession of narcotics. Significantly, Zito first observed Hilmon on the second floor, standing near Branch, and after Zito announced his office and ordered Hilmon to stop, Hilmon failed to comply but, instead, fled into the lavatory carrying the leather bag. Deliberately furtive actions and flight at the approach of police officers are properly considered strong factors in the decision to make an arrest. (People v. Addison (1977), 56 Ill. App. 3d 92, 371 N.E.2d 1025.) When Zito entered the lavatory, he observed the bag lying on top of the wastebasket under the sink and Hilmon standing to his right. Thus, based upon the totality of the circumstances, we find there were reasonable grounds for the officers to believe that Hilmon had committed the offense of illegal possession.

Concerning the search and seizure of the leather bag, we further conclude that the arresting officers’ conduct here obviated the warrant requirement on two grounds. The search was, first of all, incident to a lawful custodial arrest. In Chimel v. California (1969), 395 U.S. 752, 762-63, 23 L. Ed. 2d 685, 694, 89 S. Ct. 2034, 2040, the supreme court defined the scope of a proper warrantless search incidental to an arrest:

“When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.”

In the present case, when Zito entered the lavatory in pursuit of Hilmon, he observed the leather bag lying on top of a wastebasket underneath the sink and defendant standing to his right. Under those circumstances, it was reasonable for Zito to conclude that Hilmon could have gained possession of a weapon or destroyed the evidence in the bag. Indeed, seeing Hilmon run into the lavatory, Zito could have inferred that he would have flushed the narcotics down the toilet or poured it down the sink. (Cf. People v. Blake (1981), 93 Ill. App. 3d 538, 417 N.E.2d 682.) Given the evasive conduct of Branch, Zito also was warranted in believing that another person might come to the assistance of Hilmon, a factor which may be considered in defining the permissible scope of a search incident to an arrest. See People v. Williams (1974), 57 Ill. 2d 239, 311 N.E.2d 681, cert. denied (1974), 419 U.S. 1026, 42 L. Ed. 2d 302, 95 S. Ct. 506.

Our decision here is consistent with other cases which have applied the Chimel standard. In People v. Williams (1974), 57 Ill. 2d 239, 244, 311 N.E.2d 681, 684, the search of a dog food bag 7 to 10 feet from defendant was upheld. In People v. Robinson (1978), 62 Ill. App. 3d 900, 379 N.E.2d 1264, the search of a bag in a closet 6 to 8 feet away from defendant was found valid. Similarly, in United States v. Wysocki (5th Cir. 1972), 457 F.2d 1155, cert. denied (1972), 409 U.S. 859, 34 L. Ed. 2d 105, 935 S. Ct. 145, the court upheld the search of a box inside a bag in a closet 6 feet away from defendant who was seated in a chair and was guarded by a police officer. Finally, in United States v. Patterson (10th Cir. 1971), 447 F.2d 424, cert. denied (1972), 404 U.S. 1064, 30 L. Ed. 2d 752, 92 S. Ct. 748, the search of a kitchen shelf 4 to 6 feet from defendant was upheld although 5 police officers were guarding defendant. We think it clear, therefore, that in light of the particular facts presented and of the case law, the search of the bag conducted contemporaneously with the arrest of Hilmon was proper.

The circumstances of this case also satisfy the requirements of the plain view exception to the warrant requirement. (See Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022.) Applying Coolidge, the court in People v. Montgomery (1980), 84 Ill. App. 3d 695, 698, 405 N.E.2d 1275, 1278, stated:

“[A]n arresting officer may seize evidence within a dwelling that inadvertently comes into plain view, even though outside the area under the immediate control of the arrestee. [Citations.] However, this seizure is proper only when three conditions are met: (1) the object seized is in plain view; (2) the officer views the object from a position where he has a right to be; and (3) the facts and circumstances known to the officer at the time he acts give rise to a reasonable belief that the object seized constitutes evidence of criminal activity. [Citation.]”

It appears from the record that Zito observed the bag from a place where he had a right to be. Having made a lawful entry into the building and having determined that probable cause existed to arrest Hilmon Stamps, the officer had the right to enter the lavatory to make the arrest. Secondly, given the informant’s tip, Hilmon’s evasive behavior, and Zito’s own observation of the bag as an experienced narcotics investigator, he had reason to believe that the leather bag was evidence of illegal possession of a controlled substance. It also seems clear from Zito’s testimony at trial that the leather bag together with its contents of plastic bags of white powder were in plain view. Accordingly, we believe that the narcotics were properly seized in accordance with the requirements of the plain view doctrine.

Applying the same principles as discussed above to the seizure of the items from the room in which Billy Stamps was found, we also think it clear that those items were seized in a search incident to a lawful custodial arrest and that they were in plain view. As noted previously, after Zito apprehended Hilmon and turned him over to Mok-stead, he entered the office area of the warehouse. There he observed Branch throwing plastic bags of white powder against the wall and Billy crouched down and running to Zito’s right. Zito ordered Billy to stop, but he failed to comply; consequently, Zito threw the sledgehammer and reached for his revolver. After the lights went on, Zito observed Branch with white powder on his hands and clothing. The floor immediately in front of him was covered with white powder, and more white powder was spread on the wall. On one desk there were a scale, a mixer, and two plastic bags of white powder, and on the other desk there were a large plastic bag of white powder and numerous other plastic bags — some of which contained quantities of white powder. Two revolvers also were recovered from a desk drawer in the office. The three individuals in the room were then arrested and the room secured while Mokstead searched for weapons. Seeing an open section in the ceiling, Mokstead recovered the brown paper bag containing brown powder, while Branch, Billy, and Ruby Thomas — none of whom had as yet been handcuffed — were standing almost directly underneath the area.

It is thus apparent from those facts that the seizure of the items in question was made pursuant to a lawful custodial arrest. The search was carried out contemporaneously with the arrest of Billy and when none of the three individuals were handcuffed. The items were only a few feet away and thus in an area from within which the arrestees might obtain a weapon or destructible evidence. Indeed, when Zito entered, he could reasonably have inferred that Branch was in the process of destroying evidence and that Billy was going toward a desk containing revolvers. It is also significant that when Mokstead recovered the bag from the ceiling, the three arrestees were standing almost directly below.

We think it equally clear that the powder on the wall, the clear plastic bags, the mixer, and the scale were in plain view of the arresting officers; that the items were seen from a position where they had a right to be; and that, in light of the circumstances before them and their experience, they could reasonably believe the items constituted evidence of criminal activity.

In summary, a trial court’s ruling on a motion to suppress evidence should not be disturbed unless manifestly erroneous. (People v. Clay (1973), 55 Ill. 2d 501, 304 N.E.2d 280.) Based on the record before us, we hold that the evidence in question was not improperly seized, and denial of the motion to suppress was not error.

We next consider Billy Stamps’ contention that he was not proved guilty beyond a reasonable doubt of the offenses of possession and delivery of controlled substances. He maintains that the State’s evidence proved only his mere presence at the scene.

Proof of the crime of unlawful possession of controlled substances requires that the State establish that the accused had knowledge of the presence of the narcotics and that the narcotics were within his immediate and exclusive control. (People v. Nettles (1961), 23 Ill. 2d 306, 178 N.E.2d 361, cert. denied (1962), 369 U.S. 853, 8 L. Ed. 2d 12, 82 S. Ct. 939; People v. Miller (1981), 97 Ill. App. 3d 970, 423 N.E.2d 1152.) Because knowledge is seldom susceptible of direct proof, it may be proved by evidence of acts, declarations, or conduct from which it is reasonable to infer that the accused knew of the existence of the narcotics at the place they were found. (People v. Bell (1972), 53 Ill. 2d 122, 290 N.E.2d 214.) Moreover, actual physical possession need not be demonstrated in order to sustain such conviction if constructive possession can be inferred from the facts. (People v. Matthews (1959), 18 Ill. 2d 164, 163 N.E.2d 469; People v. Townsend (1980), 90 Ill. App. 3d 1089, 414 N.E.2d 483.) Constructive possession has been defined as “that which exists without actual personal present dominion over a chattel, but with an intent and capability to maintain control and dominion.” People v. Fox (1962), 24 Ill. 2d 581, 585, 182 N.E.2d 692, 694.

The significance of the element of control in establishing constructive possession was explained in People v. Nettles (1961), 23 Ill. 2d 306, 308-09,178 N.E.2d 361, 363, wherein the court stated:

“[WJhere narcotics are found on premises under defendant’s control, it may be inferred that the defendant had both knowledge and control of the narcotics. This inference is based largely upon the nature of the commodity and the manner in which its illegal traffic is conducted. *** [S]ince [the] mere possession [of narcotics] may subject [a] person to severe criminal consequences, the narcotics traffic is conducted with the utmost secrecy and care. Human experience teaches that narcotics are rarely, if ever, found unaccountably in a person’s living quarters.
We are of the opinion, therefore, that where narcotics are found on the premises under the control of defendant, this fact, in and of itself, gives rise to an inference of knowledge and possession by him which may be sufficient to sustain a conviction for unlawful possession of narcotics, absent other facts and circumstances which might leave in the mind of the jury *** a reasonable doubt as to his guilt.”

As the reasoning of Nettles suggests, making illegal the constructive possession of controlled substances reflects the widely-held judicial belief that such possession is evidence of illicit purposes on the part of the accused and that the mass distribution of those substances poses a public danger. (See G. Fletcher, Rethinking Criminal Law sec. 3.4, at 200-01 (1978).) Finally, the questions of knowledge and possession are decisions for the trier of fact, and its findings will not be disturbed on review unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of guilt. People v. Galloway (1963), 28 Ill. 2d 355, 192 N.E.2d 370, cert. denied (1964), 376 U.S. 910, 11 L. Ed. 2d 608, 84 S. Ct. 665; People v. Ortiz (1980), 91 Ill. App. 3d 466, 414 N.E.2d 1072.

In our view, the evidence establishes that Billy Stamps, through the control he exercised over the premises where the narcotics were found, not only had knowledge of the presence of the narcotics but also that he had constructive possession of them. The control which Billy exercised over the premises where the substances were found was demonstrated primarily through evidence of a land trust agreement involving Billy. That agreement was presented in evidence as the State’s Group Exhibit No. 11 and viewed by the jury during deliberations, and it was explained through the testimony of Steven Dixon, a law graduate employed as a trust officer at the American National Bank (the Bank). Dixon testified that he was familiar with the procedures and purposes for the Bank’s keeping of land trust records; that the warehouse located at 4654 West Madison Street was held in a land trust with the Bank as trustee, which trust was recorded at the Bank; that the records for the instant trust had been made in the ordinary course of business; that it was the Bank’s ordinary course of business to make such records; that under the terms of the trust, Billy and his mother had the “power of direction” by which they could direct the trustee to sell the property or to execute other documents pertaining to title to the property, including the execution of a lease or mortgage. Thus, while it appears that Billy and his mother exercised joint control over the building, such control is sufficient, in our view, for purposes of proving unlawful possession. (See People v. Embry (1960), 20 Ill. 2d 331, 169 N.E.2d 767; People v. Miller (1981), 97 Ill. App. 3d 970, 423 N.E.2d 1152; People v. Kline (1976), 41 Ill. App. 3d 261, 354 N.E.2d 46.) The requirement of exclusive control of the premises on the part of the accused does not permit him to defeat prosecution under facts similar to those presented here simply by a showing of joint control. See People v. Ortiz (1980), 91 Ill. App. 3d 466, 414 N.E.2d 1072.

We further conclude that, contrary to the contention of Billy Stamps, the testimony of Dixon was admissible. Although defendants objected to the introduction of the land trust agreement records, they failed to specify that issue in their post-trial motion for a new trial and, thus, waived consideration thereof on review. (See Ill. Rev. Stat. 1979, ch. 38, par. 116-1; People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Assuming no waiver, it is nonetheless apparent that the trust agreement and Dixon’s explanation of it were properly admissible.

As to the trust agreement documents, it is clear that such were admissible under the business records exception to the rule excluding hearsay. That exception requires that, to be admissible, a business record be made in the regular course of business and that it is in the regular course of business to make a record. (Ill. Rev. Stat. 1979, ch. 38, par. 115-5; 73 Ill. 2d R. 236; People v. Lewis (1977), 52 Ill. App. 3d 477, 367 N.E.2d 710.) Both foundational requirements were satisfied here through Dixon’s testimony. Further, while Dixon was not qualified as an expert witness, his testimony was admissible for the purpose of explaining certain terms of the trust agreement. The opinions and conclusions of a nonexpert witness are admissible if the witness has special knowledge of and familiarity with a given subject matter. (Lawson v. Belt Ry. Co. (1975), 34 Ill. App. 3d 7, 339 N.E.2d 381; State Farm Mutual Automobile Insurance Co. v. Short (1970), 125 Ill. App. 2d 97, 260 N.E.2d 415.) In the present case, we think there was substantial need for Dixon’s explanation of various terms of the trust agreement in order to make the trust comprehensible to the jury and aid them in their deliberations. It was, therefore, properly admissible.

We also reject Billy Stamps’ contention as to remarks of the prosecutors in closing argument concerning Billy’s control of the premises. Defendants specifically maintained that the prosecutors improperly argued that Billy controlled the premises where the narcotics were found. In our view, however, the trust agreement and Dixon’s explanatory testimony were evidence of such control which the jury could properly consider. Great latitude is allowed the prosecution in closing argument, and the trial court’s determination of the propriety of such remarks will not be disturbed on review absent an abuse of discretion. (People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 379 N.E.2d 847.) Arguments and statements based upon the facts in evidence or upon legitimate inferences drawn therefrom are within the bounds of proper argument. (People v. Dominique (1980), 86 Ill. App. 3d 794, 408 N.E.2d 280.) Evidence of the trust agreement and of Dixon’s testimony, combined with that of Billy’s presence on the premises at the time of his arrest, leads us to conclude that the prosecutors’ remarks were not beyond the scope of proper comment.

Furthermore, Billy’s control over the premises is supported by several additional factors. First, the electricity service was billed to “W. Stamps, doing business as Stamps Brothers Furniture,” and aside from Billy, no one else in the Stamps family had a first name beginning with the letter “W“. Secondly, Billy was present inside the warehouse at approximately 3:30 a.m. when the police arrived. Thirdly, after being arrested and prior to being taken to the police station, Billy handed his brother-in-law Paul Jackson a set of keys, which act the jury could infer was intended to secure the warehouse, and defendants do not contend that those keys did not belong to Billy.

Other evidence also corroborates Billy’s possession of the narcotics. The police discovered him in the office area along with quantities of controlled substances. Objects such as a mixer and a scale also were recovered, and the jury could infer that those objects were related drug paraphernalia. Neither was it unreasonable for the jury to infer that defendant’s presence in the office under those circumstances established that he possessed the narcotics with the intent to sell and distribute them. (See People v. Kline (1976), 41 Ill. App. 3d 261, 354 N.E.2d 46.) Furthermore, Billy’s furtive and evasive actions in crouching and running when Zito entered and his refusal to halt when ordered to do so could reasonably be regarded as indicative of a man aware of the unlawful presence of controlled substances. If the fact of possession is proved, suspicious behavior in the vicinity of narcotics, while not sufficient to show constructive possession, is sufficient to show guilty knowledge. People v. Ortiz (1980), 91 Ill. App. 3d 466, 414 N.E.2d 1072.

With regard to Billy’s account, although he testified that his presence was coincidental and that it was Branch, and not Hilmon, who had the leather bag and who, upon entering the office, threw “stuff” from it “every which way,” the jury rejected that testimony. Resolution of such questions of credibility rests with the trier of fact. (People v. Galloway (1963), 28 Ill. 2d 355, 192 N.E.2d 370, cert. denied (1964), 376 U.S. 910, 11 L. Ed. 2d 608, 84 S. Ct. 665.) Moreover, we believe the jury could have properly concluded that the narcotics were in the office prior to Branch’s entry, based on the evidence of the bag of heroin found in the ceiling, and the mixer, the scale, and the other untouched bags of white powder found on the desks.

In our view, the evidence at trial was not so palpably contrary to the verdict or so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of guilt for the crime of unlawful possession. We note, parenthetically, the stipulation as to the quantity of the substances involved and that such quantity found in the possession of the accused is circumstantial evidence from which the jury could properly conclude that the substances were not intended for personal use but were possessed with the intent to deliver. People v. Goodman (1979), 75 Ill. App. 3d 369, 393 N.E.2d 1233, aff’d (1980), 81 Ill. 2d 278, 408 N.E.2d 215; People v. Kline (1976), 41 Ill. App. 3d 261, 354 N.E.2d 46; also see People v. Perine (1980), 82 Ill. App. 3d 610, 402 N.E.2d 847.

Defendants next contend that the trial court erred in preventing them from questioning the arresting officers as to an alleged Federal investigation into the officers’ conduct, for the purpose of showing bias and motive. Defendants further contend that in quashing their subpoena for information possessed by the Federal government relating to the alleged investigation, they were precluded from showing, by Billy’s testimony, the interest of the officers in securing convictions. We find no merit in those contentions.

The record discloses that prior to trial, Billy Stamps moved for a continuance and, in support thereof, he testified that two FBI agents had served him with a subpoena to appear before a Federal grand jury. Billy further stated that the agents told him that the subpoena pertained to a Federal investigation into the arresting officers’ conduct during the arrest in question. It also appears that Billy had subpoenaed the FBI and the United States Attorney’s Office for information regarding the alleged Federal investigation into the arrest of defendants. The trial court denied the motion for a continuance. At trial, defense counsel was permitted to argue police misconduct but was barred from mentioning the alleged investigation and from cross-examining Officer Zito on that matter. Following the close of the State’s case, an assistant U.S. Attorney moved to quash the subpoenas and submitted a memorandum of law therewith, arguing that defendants had failed to comply with certain Federal statutes in connection with the subpoena and that the Federal government had no documents which were responsive thereto except those exempted from disclosure. The trial court granted the motion to quash. The trial court also granted the State’s motion in limine barring Billy from testifying as to the Federal subpoena he had received and the alleged conversations he had had with Federal agents. The offer of proof as to what Billy’s testimony would be was in substance the same as that asserted with the motion for a continuance, and the State’s offer of proof was, in essence, that if called the Federal agents would deny having made such statements to Billy.

It is unnecessary to address each point asserted by the parties with respect to this issue inasmuch as the offers of proof as to the alleged Federal investigation were based principally on the hearsay declarations of Billy Stamps. In addition, the barring of cross-examination into the alleged investigation was not, in our view, prejudicial to Billy since the record demonstrates that Zito was extensively cross-examined as to his conduct during the arrest. Thus, the opportunity to establish that Zito had a motive to lie or was biased was fully explored. Wide latitude is generally given a defendant in cross-examination for purposes of establishing a witness’s bias or motive to give false testimony (People v. Mason (1963), 28 Ill. 2d 396, 192 N.E.2d 835), and a court of review will not disturb the trial court’s ruling as to the scope of such cross-examination absent an abuse of discretion resulting in manifest prejudice to defendant (People v. Bradford (1979), 78 Ill. App. 3d 869, 397 N.E.2d 863). In the instant case, we find no abuse of discretion. We also believe the trial court properly quashed the subpoena served upon the U.S. Attorney, since it is undisputed that the documents sought consisted of confidential information protected from disclosure. (See 5 U.S.C. sec. 552b(c)(7)(d) (1976); Fed. R. crim. R6(e).) Finally, we conclude that the trial court properly granted the State’s motion in limine since the excluded testimony consisted principally of hearsay, so that there was in essence nothing properly before the court. Accordingly, we find no reversible error in the trial court’s rulings. See People v. Williams (1978), 60 Ill. App. 3d 529, 377 N.E.2d 367; People v. McClain (1978), 60 Ill. App. 3d 320, 376 N.E.2d 774; People v. Devine (1977), 55 Ill. App. 3d 576, 371 N.E.2d 22.

Turning next to the question of the jury instructions, Billy first contends that the trial court erred in refusing to give a defense non-IPI instruction to the effect that one’s mere presence at the scene where narcotics are found is insufficient evidence to prove possession. We disagree.

It is well settled that mere presence at or about the scene of a crime does not alone establish guilt (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) and that the accused and the State are entitled to appropriate instructions which present their respective theories of the case to the jury if such theories are supported by the evidence (People v. Unger (1977), 66 Ill. 2d 333, 362 N.E.2d 319; People v. Lefler (1967), 38 Ill. 2d 216, 230 N.E.2d 827) even though the quantum of such evidence is slight (People v. Kalpak (1957), 10 Ill. 2d 411, 140 N.E.2d 726; People v. Rodriguez (1981), 96 Ill. App. 3d 431, 421 N.E.2d 323). In the present case, however, we believe that the instructions given incorporated Billy’s theory of defense and adequately informed the jury of the parties’ respective theories of the case.

Among the instructions of record, the following are pertinent:

“Possession is a voluntary act if the offender knowingly procured or received the thing possessed, or was aware of his control thereof for a sufficient time to have been able to terminate his possession.” State’s No. 11, Illinois Pattern Jury Instructions, Criminal, No. 4.15 (1968).
“A person commits the offense of possession of a controlled substance when he or she knowingly and unlawfully possesses a controlled substance.” State’s No. 14 (non-IPI).
“A person is in possession of a thing when it is knowingly in his or her immediate and exclusive control.
Possession may be actual or constructive. When a person knowingly has direct physical control over a thing, he or she is then in actual possession. A person who lacks actual physical possession of a thing but who has control over the area where a thing is found, (either directly or through another person) is then in constructive possession.
Such control may be shared jointly with others and still be exclusive.” State’s No. 15 (non-IPI).
“To sustain the charge of possession of a controlled substance, the State must prove the following proposition:
That a defendant knowingly and unlawfully possessed 30 grams or more of a controlled substance.
If you find from your consideration of all the evidence that this proposition has been proved beyond a reasonable doubt as to a defendant, then you should find that defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that this proposition has not been proved beyond a reasonable doubt as to a defendant, then you should find that defendant not guilty.” State’s No. 16 (non-IPI).

In our view, those instructions were accurate statements of the law of possession, as discussed hereinabove and as applicable to the instant facts. Further, they informed the jury that if it found Billy knowingly exercised immediate and exclusive control over the narcotics, he was guilty of illegal possession. Conversely, the jury also was informed that if Billy did not knowingly exercise such immediate control, he was not guilty. Thus, we believe the jury was fully aware that Billy’s “mere presence” was insufficient to convict — a conclusion which is evident from the jury’s acquittal of Ruby Fay Thomas and from the closing arguments of Billy’s and her counsel to that effect. We note, in addition, that a mere-presence instruction, like the one tendered here, has in a similar context been held to be redundant. People v. Craig (1979), 79 Ill. App. 3d 584, 399 N.E.2d 168; also see People v. Mancl (1977), 55 Ill. App. 3d 41, 370 N.E.2d 664.

Furthermore, the decision whether to give a non-IPI instruction rests within the sound discretion of the trial court (People v. Larson (1980), 82 Ill. App. 3d 129, 402 N.E.2d 732; People v. Blackwell (1979), 76 Ill. App. 3d 371, 394 N.E.2d 1329), and only if there is no IPI instruction which accurately states the applicable law should a non-IPI instruction be given (73 Ill. 2d R. 451(a); People v. Dordies (1978), 60 Ill. App. 3d 621, 377 N.E.2d 245). Accordingly, we conclude that the trial court did not abuse its discretion in refusing Billy’s proffered instruction.

Finally, we find no merit to the contention that the trial court erred in giving the State’s No. 15 instruction, which provided that defendants could be convicted of illegal possession if they controlled the “area” where the narcotics were found rather than the “premises,” as defendants requested in their tendered instruction. As stated in People v. Dordies (1978), 60 Ill. App. 3d 621, 625, 377 N.E.2d 245, 249:

“The sole function of instructions is to convey to the minds of the jury the correct principles of law applicable to the evidence submitted to it in order that, having determined the final state of facts from the evidence, the jury may, by the application of proper legal principles, arrive at a correct conclusion according to the law and the evidence. [Citation.] Further, jury instructions should be neither misleading nor confusing, and should fully and fairly inform the jury of the applicable law. [Citations.]”

We note in this regard that the particular term required in the definition of constructive possession is determined by the factual setting. (See, e.g., People v. Rhoades (1979), 74 Ill. App. 3d 247, 392 N.E.2d 923 (possession may be inferred where narcotics are found in an “area” under defendant’s control); People v. Day (1977), 51 Ill. App. 3d 916, 366 N.E.2d 895 (constructive possession requires showing that defendant had immediate exclusive control of area or premises where items were situated); People v. Kane (1975), 31 Ill. App. 3d 500, 333 N.E.2d 247 (the presence of narcotics in a “place” over which defendant has control permits inference of possession).) The State’s No. 15, as set forth above, when viewed in the entirety of the jury instructions, adequately explained the applicable law. Moreover, the definition of constructive possession as control over the “area” was, in our view, more applicable to the instant set of facts than defendants’ tendered instruction using “premises,” since the State’s No. 15 more accurately set forth the circumstances upon which an acquittal was required.

The record discloses that Ruby Thomas and Billy Stamps were discovered in an office area which contained controlled substances and apparently related drug paraphernalia. Within that context and in light of the jury instructions as a whole, the jury was to determine who controlled the office area where the narcotics were found. The instruction as given also avoided potential confusion. Had possession been defined as control over the premises, counsel for Ruby Thomas could have argued that since Billy controlled the “premises,” i.e., the warehouse, Ruby Thomas could not have been found guilty under a theory of constructive possession. As to Hilmon Stamps, there was a question of the credibility of Investigator Zito’s testimony that Hilmon actually possessed the bag containing narcotics as opposed to Billy’s testimony that Branch possessed the bag. Defining constructive possession in terms of the “area” was beneficial to Hilmon since the evidence indicated that he was not in the office. Had the term “premises” been used, Hilmon could have been convicted on a constructive possession theory since he was in the building — even though he was not in the office and apparently had no knowledge of what transpired. Thus, the instruction as given avoided prejudice to him. Accordingly, through the inclusion of the word “area,” the jury’s attention was directed to the immediate area where the narcotics were found, as well as to the question of who controlled the warehouse. We conclude, therefore, that the giving of the State’s No. 15 was proper.

It should be noted, however, that we do not hold it proper for a trial court in all situations to modify an instruction sua sponte after argument and without the conference with the attorneys, as required by section 67 of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 67.) We have found only that under the facts and circumstances here, defendant was not prejudiced by the modification, because the instruction as given was proper.

For the reasons stated, the convictions and the sentences as to both defendants are affirmed.

Affirmed.

LORENZ and MEJDA, JJ., concur.

      Indicted with Billy for the same offenses was Ruby Fay Thomas, who was acquitted of all charges.

      The State’s No. 15 was incorrectly designated as IPI Criminal No. 17.01, a mistake we believe to be inconsequential.