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    SEYMOUR KESSLER, Plaintiff-Appellant, v. PAMELA ZEKMAN et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1 — 91—1963
    Opinion filed July 27, 1993.

      Beckett, Crewell & Kelso, P.C., of Urbana (Thomas R. Kelso and Carol A. Dison, of counsel), for appellant.
    Jenner & Block, of Chicago (Linda L. Listrom and Debbie L. Moeckler, of counsel), for appellees Pamela Zekman and CBS, Inc.
    Sweeney & Riman, Ltd., of Chicago (Georgene M. Wilson, of counsel), for appellees Jared E. Frankel and Robert Turf.
    McDermott, Will & Emery, of Chicago (Richard L. Sandler and Anne R. Pramaggiore, of counsel), for appellee Charles L. Jones.
   JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiff Seymour Kessler, a former podiatrist, filed a complaint in the circuit court wherein he alleged that he was defamed by false statements made by defendant Pamela Zekman, an investigative reporter for WBBM-TV, the wholly owned Chicago affiliate of defendant CBS, Inc., and by defendants Drs. Turf, Frankel, and Jones, who were interviewed by Zekman in a two-part report televised by WBBM-TV. He further claimed that the report tortiously invaded his privacy by placing him in a false light. The statements concerned his practice of podiatry and whether his negligence injured former patients.

Defendants brought a motion for summary judgment, contending that plaintiff, as a “limited public figure,” must prove that they misspoke with knowledge that their statements were false or with a reckless disregard for their truth or falsity, and since there was no evidence in the record before the court which tended to show that any of them harbored such knowledge or were guilty of such recklessness, there existed no genuine issue of material fact in the case. The circuit court granted the motion. Plaintiff appeals from that judgment, urging reversal on the following grounds: (1) that the court erred when it determined that the United States Supreme Court’s “actual malice” standard applied to the allegedly false statements made and/or aired by defendants; and alternatively (2) that the court erroneously concluded that there was no genuine issue of fact as to whether defendants acted with actual malice. We disagree with both contentions and, accordingly, affirm.

In 1984, plaintiff filed a 10-count complaint in the circuit court of Cook County naming nine podiatrists, including defendants Frankel and Jones, alleging that they had violated various provisions of the Illinois Antitrust Act (Ill. Rev. Stat. 1983, ch. 38, par. 60 — 1 et seq.), the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1983, ch. 121½, pars. 261 through 272), and the Illinois Uniform Deceptive Practices Act (Ill. Rev. Stat. 1983, ch. 121½, pars. 311 through 317). It also alleged that the doctors committed the common law torts of commercial disparagement, unfair competition and interference with prospective economic advantage.

Plaintiff’s action grew out of a controversy which raged among the practitioners of podiatric medicine. Plaintiff was the self-described “pioneer” of ambulatory or minimal incision foot surgery (MIS). By using MIS, he claimed that podiatrists could perform a good many surgical procedures in their offices, thus saving the patient the added expense of extensive post-operative hospitalization which accompanied the traditional approach of in-patient surgery. The defendants in that case were traditional-technique podiatrists who used large incisions in order to treat foot ailments and who, according to plaintiff, feared MIS because it and its advocates, the principal one ’of whom was plaintiff, threatened the future economic viability of traditional podiatric methods. Plaintiff alleged that the defendants began a concerted attack on MIS in professional circles and lobbied to ensure that MIS practitioners could not become fully accredited members or diplomates of the American Podiatry Association (APA). They also purportedly conspired to dissuade insurers, hospitals and governmental agencies from recognizing podiatrists who were not diplomates of the APA. Plaintiff further asserted that the defendants created a scheme to foment litigation against him and other podiatrists who used MIS whereby former patients would file spurious medical malpractice actions in which defendants would voluntarily serve as experts, testifying that the mere use of MIS was per se malpractice, all the while knowing the falsity of those assertions. He alleged that he had been a victim of this scheme on many past occasions and that many of the malpractice claims then pending against him were the fruit of this conspiracy.

While the parties underwent discovery in the action, in early July 1984, WBBM-TV televised a two-part report, entitled “The Walking Wounded,” which was investigated, composed and narrated by Zekman. Prior to the broadcasts, CBS had aired four commercials promoting the broadcasts. The tenor of these ads was that a successful Chicago-area podiatrist was injuring his patients with a controversial new procedure and yet State regulators did nothing to prevent this malpractice. Before the Zekman piece aired, the in-studio anchor, Harry Porterfield, introduced it by stating:

“A controversial method of performing foot surgery is sweeping the country. It’s never undergone rigorous scientific evaluation. But the surgery is being used nationally by 2,000 foot doctors. Many of them were trained by the Chicago podiatrist who developed the technique. Well[,] tonight Pam Zekman and the Channel Two Investigative Team look at some of the deserving [sic] results of his surgery. Surgery that has turned some patients into The Walking Wounded.”

In the report itself, Zekman began by describing plaintiff as a successful Chicago-area foot doctor who claimed to have perfected a new, cheaper and less painful means to alleviate many commonplace foot maladies. She went on to state that in her investigation she spoke to many former patients who were pleased with plaintiff’s work and she advised of the plentiful and favorable publicity generated by MIS and the financial success of plaintiff’s clinics, while at the same time contrasting those publicized successes with failures which were not as generally well known.

Zekman disclosed that at the time of the report there were over 60 lawsuits pending which charged plaintiff with negligence, use of improper surgical techniques and the performance of unneeded procedures. The report then went into depth with regard to the complaints registered by four of the plaintiffs in those lawsuits. The first one interviewed alleged that plaintiff overcharged her approximately $5,000 for the removal of two bunions; and a podiatrist at the Mayo Clinic, after viewing X rays of the foot, opined that because at the outset the patient needed to have only two toes straightened, the surgery on all 10 toes as performed by plaintiff was “excessive.”

The patient also complained that the method plaintiff employed to ensure that the bones healed properly was ineffective. Unlike the podiatrist who would use the conventional method of inserting surgical screws and pins or employing a plaster cast to ensure that the bones which had been cut mended together correctly, plaintiff bound the treated foot using only tape, bandages and a wooden-soled shoe. Defendant Jones stated in the program that this method of healing could lead to deformed growth of the bones, leaving patients with more severe foot injuries than they had before the procedure was employed. Another former patient described how after she saw plaintiff for removal of a bunion on the sole of her left foot, he convinced her to have the procedure on her right one as well, and that her toes healed by curling upward, destroying the arch of that foot. Zekman reported that the experts who were consulted estimated that the excessive surgery doubled the patient’s costs to $3,500.

The report then focused on another of plaintiff’s former patients who was shown, in obvious pain, limping bare-footed around her workplace. Her toes pointed at nearly a 45 degree angle from the ground. She said that she went to plaintiff for treatment of calluses and bunions, and that after he operated on nine of her toes, at a cost of $4,400, she could no longer flex her big toes because their joints had been destroyed. She concluded the interview by expressing embarrassment at the way she was forced to walk because of plaintiff’s procedure. Defendant Frankel, who treated this patient after plaintiff had performed the operation, stated that “I think the surgery on Mrs. Thompson, ah, essentially was indiscriminately performed.” He later said “There is no way as far as I’m concerned that her foot can be restored to what it was prior to the surgery. Because essentially what has occurred is, ah, the foot has been destroyed.”

A fourth woman related how she had seen plaintiff for treatment of what he had diagnosed as a neuroma, or a benign nerve tumor, which he found between two bones. Zekman stated that experts told her that the normal treatment of a neuroma is an excision of the tumor, but plaintiff’s prognosis was not to remove the tumor but to relieve all pressure on it by repositioning the bones with which it came into contact. Plaintiff surgically altered the position of 10 bones of the foot, and billed the patient approximately $5,500 for the procedure. The patient incurred further expense when, after plaintiff’s efforts did not alleviate the pain, the foot required additional surgery. Defendant Turf was asked to comment on plaintiff’s means of treating a neuroma, to which he responded:

“In all the annals of orthopedics and all the literature everywhere[,] in common sense and good care and quality surgery and quality medicine there has never been anyone that stated that all the metatarsals had to be broken to cure a neuroma. No, [the patient] did not have to have it done.”

He concluded “I find it abhorrent. I find it ah *** indefensible.”

Zekman then informed her audience that plaintiff would not discuss the alleged malpractice disclosed in the report on advice of his attorneys, but he did deny doing unnecessary surgeries, contending that he had more patients now than he could handle. Plaintiff continued by stating that with MIS, complications are lessened because the invasion on the body is less severe, but that generally, any complications which did occur were rooted in his patients’ neglect while following his post-operative directions. He claimed that most of the 60 pending lawsuits were instigated by conspiratorial hospital-based podiatrists who stood to lose their lucrative practices if MIS gained wide acceptance among patients.

The second part of “The Walking Wounded,” which was aired on July 9, 1984, began by informing that the Illinois Department of Public Health (Department) was charged with the responsibility of regulating outpatient surgical centers such as those run by plaintiff. The report accused the Department of being remiss in its duties to ensure that only centers which comport with the statutory requirements continue to operate. It suggested that plaintiff’s clinic was not in compliance with State law, and that if the Department had ensured compliance, one former patient of plaintiff would not have suffered from the infection which resulted in her incurring nearly $38,000 in medical expenses to cure it. Defendant Dr. Jones was of the opinion that the infection progressed as rapidly as it did because it was not treated effectively and that he felt sure that “the doctor [who cared for the patient] did not know what he was doing.”

On October 12, 1984, plaintiff amended his still-pending complaint against the nine podiatrists to include defendants Zekman and CBS, Inc., alleging that their broadcast defamed him and invaded his privacy. He also added Dr. Turf as a defendant, asserting the same torts, and amended his complaint against Doctors Frankel and Jones to include defamation and false light counts against them as well. After a variety of pretrial proceedings which are not salient to the issues on appeal, only the current defendants were named in plaintiff’s fourth amended complaint.

Defendants moved for summary judgment and supported their motion with affidavits maintaining that plaintiff could not establish that they had acted with “actual malice.” In Zekman’s affidavit, she detailed all the information upon which she had formed her belief that the statements she made concerning plaintiff were true. The doctors’ affidavits all avowed that any statements made on the broadcast were based on their firsthand knowledge; that what they stated on the air was the product of their best professional judgment; and that when they made the statements, they believed them to be true. Plaintiff filed briefs in opposition to the motion for summary judgment, but offered no counteraffidavits denying or in any way controverting the factual claims presented in defendants’ affidavits.

Both at oral argument in the circuit court and in his various memoranda in opposition to defendants’ motion for summary judgment, plaintiff never raised or discussed whether there remained a genuine issue of material fact on the existence of actual malice. Instead, he argued only the legal point that since he was not a “limited public figure” for the purpose of the statements in the broadcast, the applicable quantum of fault he must show to prevail in the action was mere negligence. The court rejected this argument, finding a sufficient nexus between the allegedly defamatory statements and the controversy surrounding MIS in which plaintiff was an admitted public figure to warrant the imposition of the actual malice standard. The court further found insufficient evidence to create an issue of fact on actual malice; consequently, it found that summary judgment in favor of all defendants and on all counts of the fourth amended complaint was appropriate, and it entered a final judgment on May 23, 1991. Plaintiff filed a timely notice of appeal from that judgment.

I

The first issue before us concerns whether the trial court correctly determined that before he would be entitled to recover for any alleged injury to his good name, plaintiff must plead and ultimately prove that defendants acted with “actual malice” toward him. In New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710, the United States Supreme Court, in order to remove the inhibitory effect of defamation laws, created a constitutional privilege for good-faith critics of government officials.

“The constitutional guarantees require *** a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times, 376 U.S. at 279-80,11 L. Ed. 2d at 706, 84 S. Ct. at 726.

In Curtis Publishing Co. v. Butts and Associated Press v. Walker (1967), reported together at 388 U.S. 130, 18 L. Ed. 2d 1094, 87 S. Ct. 1975, the Court extended the New York Times’ doctrine to those persons it characterized as “public figures” after recognizing that some individuals, while not in the public employ, are nonetheless “intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.” (Butts, 388 U.S. at 164, 18 L. Ed. 2d at 1116, 87 S. Ct. at 1996 (Warren, C.J., concurring). There was no majority opinion.) Chief Justice Warren reasoned that the New York Times’ standard should apply to this new category of persons simply because they are not subject to the restraints of the political process — “public opinion may be the only instrument by which society can attempt to influence their conduct.” (Butts, 388 U.S. at 164, 18 L. Ed. 2d at 1116, 87 S. Ct. at 1996 (Warren, C.J., concurring).) The variegated nature of the group whom the Court intended to recognize as “public figures” is illustrated by the fact that Walker, who was allegedly defamed by the Associated Press, was a retired Army general, while Butts, who complained of being libeled by the Curtis Publishing Company, was the athletic director of the University of Georgia, a State university, but was employed by the Georgia Athletic Association, a private corporation. _

Later, in Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997, the Court addressed an attempt to extend the first amendment protections of New York Times to all allegedly defamatory statements which addressed matters of public concern regardless of the status of the person allegedly defamed. It rejected this view of the privilege, holding instead that the subject matter of the comments is not to be the sole inquiry in determining whether a statement merits the protection of the “actual malice” standard. Rather, it applies only where the plaintiff, by virtue of his voluntary conduct, “assume[s] [a] role[ ] of especial prominence in the affairs of society *** [which] invitefs] attention and comment.” (Gertz, 418 U.S. at 345, 41 L. Ed. 2d at 808, 94 S. Ct. at 3010.) Accordingly, a person may become a public figure for a limited range of issues if he “voluntarily injects himself or is drawn into a particular public controversy.” (Gertz, 418 U.S. at 351, 41 L. Ed. 2d at 812, 94 S. Ct. at 3013.) Such a person, the Gertz Court reasoned, resembles a public official in that he typically enjoys “significantly greater access to the channels of effective communication” and knowingly “runs the risk of closer public scrutiny” than would have been true had he remained in private life. Gertz, 418 U.S. at 344, 41 L. Ed. 2d at 808, 94 S. Ct. at 3009.

The Gertz Court subdivided the “public figure” category identified in Butts into two types: general purpose and limited purpose public figures. One who falls within the former category was to be treated as though he were a public official and would be required to establish “actual malice” in order to prevail in any action wherein he asserts that he was defamed. Individuals who come within the second classification are those who “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” (Gertz, 418 U.S. at 345, 41 L. Ed. 2d at 808, 94 S. Ct. at 3009.) This latter group need establish actual malice only in those instances where the purported libelous statements were sufficiently connected to controversies in which they have chosen to accept a leadership role, and if unrelated to those issues, these limited public figures are to be treated like the private citizen and may recover for defamatory falsehoods which were negligently made.

In the case at bar, plaintiff conceded that he was a limited purpose public figure in the ongoing controversy surrounding the use of MIS. He argues, however, that the court erred in holding him to the “actual malice” standard because the purported defamatory statements were unrelated to his role in that controversy. Thus, the argument continues, since defendants were not constitutionally privileged, he need establish simple negligence in order to prevail. The Gertz Court did not describe in detail how closely intertwined an alleged defamatory statement maligning a limited public figure must be to the controversy he has entered before it merits New York Times protection. It merely opined that the determination turns on “the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.” Gertz, 418 U.S. at 352, 41 L. Ed. 2d at 812, 94 S. Ct. at 3013.

In what is universally regarded as the benchmark decision in the application of the rule in Gertz, the court in Waldbaum v. Fairchild Publications, Inc. (D.C. Cir. 1980), 627 F.2d 1287, cert. denied (1980), 449 U.S. 898, 66 L. Ed. 2d 128, 101 S. Ct. 266, provided an analytical schema in resolving the legal question of whether a supposedly defamatory statement concerning a limited public figure is sufficiently related to the controversy in which the party has exposed himself to public scrutiny in order to warrant the implementation of the “actual malice” standard. The Waldbaum court set forth a three-step test as a means of guiding a trial court’s inquiry in such an instance. The parties here agree that the circuit court was correct when it found Waldbaum instructive in deciding plaintiff’s status and the degree of fault he need prove to establish his right to recover for the defamation. They disagree only over whether the result it reached comports with the logic of the opinion.

Under the first step, the court must isolate the actual controversy and the extent into which plaintiff has placed himself. As the Court of Appeals for the D.C. Circuit explained in a later case applying Waldbaum, “the scope of the controversy into which plaintiff involves himself defines the scope of the public personality.” (Tavoulareas v. Piro (D.C. Cir. 1987), 817 F.2d 762, 772, cert. denied (1987), 484 U.S. 870, 98 L. Ed. 2d 151, 108 S. Ct. 200.) Second, the court is to look to the plaintiff’s role in the controversy to ensure that he actually has a meaningful part in the debate surrounding it. If the plaintiff’s role is what the Waldbaum court characterized as “trivial or tangential,” he is not a public figure for the purposes of that particular public issue. (Waldbaum, 627 F.2d at 1297.) Here, plaintiff admitted in the trial court and reaffirms on appeal that he was a public figure for the purposes of the controversy raging over minimal incision surgery to treat problems of the foot. He also grants that he is the central advocate of the procedure. Indeed, in a deposition, he referred to himself as the “major general” in “the war over MIS.” Accordingly, since plaintiff asserts no error as to the circuit court’s findings relating to the first two ingredients of the formula advanced in Waldbaum, we consider only the last element.

Waldbaum explained the final part of its test as follows:

“Finally, the alleged defamation must have been germane to plaintiff’s participation in the controversy. His talents, education, experience and motives could have been relevant to the public’s decision to listen to him. Misstatements wholly unrelated to the controversy, however, do not receive the New York Times protection.” (Waldbaum, 627 F.2d at 1298.)

Plaintiff maintains that one could reasonably infer that the content of the broadcasts was unrelated to the MIS debate and served only to paint plaintiff as a fee-gouging, malpracticing podiatrist, and therefore, whether the actual malice standard applied was a question which should have been reserved for a jury’s consideration.

Plaintiff’s arguments are unavailing for several reasons. First, they are premised on his unsupported and incorrect assertion that since a genuine issue of material fact existed on the question of whether the broadcasts were germane to the MIS controversy, the court erred in granting defendants’ motion for summary judgment. However, the United States Supreme Court, in one of the first occasions it had to apply the rule it had announced in New York Times, held that the question of whether one is a public figure is not to be relegated to the trier of fact to decide, but is a question of law to be left to the trial court for its resolution. (Rosenblatt v. Baer (1966), 383 U.S. 75, 15 L. Ed. 2d 597, 86 S. Ct. 669; see also Trotter v. Jack Anderson Enterprises, Inc. (5th Cir. 1987), 818 F.2d 431, 434 (“Whether (and to what extent) a person is a public figure is a matter of law for the court to decide”); Tavoulareas, 817 F.2d at 772; cf. Owen v. Carr (1986), 113 Ill. 2d 273, 280, 497 N.E.2d 1145, 1148 (observing that, in a defamation action, whether a statement is a privileged opinion or an actionable assertion of fact is a question of law).) Consequently, it is irrelevant to this appeal that a rational trier of fact could find that the broadcasts were not germane to the debate on the merits of MIS.

Moreover, applying the Waldbaum test, it is apparent that the broadcasts were intimately connected to the public controversy surrounding MIS; therefore, the trial court correctly held that in order to prevail in the action, plaintiff was required to prove that defendants misspoke while harboring “actual malice” toward him. Waldbaum suggests that statements concerning a limited public figure’s “talents, education, experience and motives could [be] relevant to the public’s decision to listen to [the limited public figure].” (Waldbaum, 627 F.2d at 1298.) Proceeding from that perception, the court in Tavoulareas determined that a story which referred to the fact that the plaintiff had placed his son in a lucrative venture which derived most of its revenue from a contract it held with a large oil company of which the plaintiff was president was germane to an on-going public debate on the need to reform how larger oil companies were managed. It held that the suggestion of the plaintiff’s practice of nepotism was relevant to this debate because the plaintiff was a leading advocate for maintaining the status quo in the oil industry. Since the story impugned his credibility and integrity, it would likely affect the way in which the public perceived his message in that debate. Tavoulareas, 817 F.2d at 774.

Here, likewise, the broadcasts highlighted that plaintiff, the most renowned practitioner of a hotly debated procedure, which plaintiff admitted was commonly referred to as the “Kessler procedure,” had allegedly committed malpractice while employing this controversial method of treating foot ailments. The fact that former patients of plaintiff were harmed by his use of MIS is certainly relevant to the debate about whether MIS is safer than traditional surgery. In addition, it would seem self-evident that former patients alleging that, due to plaintiff’s implementation of MIS, they paid substantially more for foot surgery than they would have if they had undergone traditional foot surgery contradicts plaintiff’s public representations that MIS is preferable to the traditional method primarily because it is more economical. Finally, the results attained by plaintiff in employing his procedure aid the public in its assessment of his credibility when he serves in his voluntarily assumed and self-described role as the “major general” in the “war over MIS.” See Reuber v. Food Chemical News, Inc. (4th Cir. 1991), 925 F.2d 703 (holding that the publication of a letter which reprimanded the plaintiff, a limited public figure in the debate over whether a popular pesticide was a carcinogen, was relevant to his public figure status because it bore on whether he was to be believed), cert. denied (1991), 501 U.S. 1212, 115 L. Ed. 2d 986, 111 S. Ct. 2814.

Plaintiff claims that with regard to a limited public figure, the New York Times’ “actual malice” standard should apply only where a broadcast focuses primarily on the public controversy, and it indirectly and unintentionally challenges the public figure in its midst; but where, as here, the focal point of the broadcast is the limited public figure and it only indirectly touches upon the controversy, the normal negligence standard should apply to statements which defame the limited public figure. However, not only does plaintiff fail to offer authority for such a proposition, but this “primary focus” argument is inconsistent with the rationale of the limited public figure doctrine. The United States Supreme Court has taken the position that those who expose themselves to the public in order to sway opinions “invite attention and comment,” and in so doing, will be deemed by the law to accept the potential risk that the media, while illuminating the controversy, may, perhaps, cast them in an unfavorable light. (Gertz, 418 U.S. at 345, 41 L. Ed. 2d at 808, 94 S. Ct. at 3009.) The Court did not limit this to instances in which the public figure is assailed only obliquely in a report principally devoted to the subject matter of the controversy. Instead, the lesson of New York Times and its progeny is that in order to foster a robust public debate and provide for an informed populace on issues of societal concern, the purveyors of news require “breathing space” to ensure that no self-censorship arises out of a fear of being found liable for defamation.

In all the cases we have discussed to this point, an allegedly defamatory statement had, as its primary focus, an individual deemed to be a limited public figure, but, in not one of those cases was it held that the “actual malice” standard did not apply. Rather, each recognized that where a statement bears on the credibility of a leading proponent of one side of a debated subject, that statement is relevant to that debate because of the effect it may have on the way society perceives the message he advances or the opinion he espouses. Since the “Walking Wounded” broadcast was relevant to plaintiff’s credibility, as well as being highly probative of the actual efficacy of the controversial procedure plaintiff advocated vis-a-vis the one to which he compared it, it was germane to the controversy in which he was a limited public figure; consequently, the trial court did not err when it held that in order to prevail in his defamation action, plaintiff had to establish that defendants acted with actual malice.

II

Plaintiff next contends that there existed a triable issue of fact as to whether defendant acted with actual malice and that, therefore, the trial court erred when it rendered summary judgment in favor of all defendants. Before reaching the substance of plaintiff’s argument, however, we must first decide whether his failure to offer any argument in the trial court on the existence of actual malice and his conscious choice to file no counteraffidavits contradicting defendants’ avowals that they did not act with actual malice toward him when making allegedly false statements constitute waiver of the issue for the purpose of our review.

A

As all defendants emphasized in their respective briefs to this court, “It is axiomatic that questions not raised in the trial court are waived and may not be raised for the first time on review.” (Shell Oil Co. v. Department of Revenue (1983), 95 Ill. 2d 541, 550, 449 N.E.2d 65, 69.) Each defendant also quoted this court’s opinion positing that, “It is well established that summary judgment will be affirmed on review where a party in opposition to the motion had ample opportunity to obtain counteraffidavits but failed to do so.” (Smith v. South Shore Hospital (1989), 187 Ill. App. 3d 847, 854, 543 N.E.2d 868, 871.) In the trial court, plaintiff argued that the “actual malice” standard was not applicable to him, but offered nothing in the event that the court disagreed with this legal conclusion. This conduct could be seen as manifesting an intent to base his entire attack on the propriety of granting summary judgment on the legal question of the mental state he needed to prove in order to establish prima facie defamation, consequently abandoning any contentions regarding the issue of whether the record contained sufficient evidence to create a triable factual question on “actual malice.”

Such a view of plaintiff’s silence in the circuit court on the factual question would be fully consistent with the rule that finds expression in Greves v. Firemen’s Pension Fund (1986), 147 Ill. App. 3d 956, 498 N.E.2d 618. There the plaintiff moved for summary judgment on two issues in an action seeking administrative review. In his motion, he asserted that the defendant board misapplied an amendment to the Illinois Pension Code (Ill. Rev. Stat. 1985, ch. 108½, par. 1 — 101 et seq.), erroneously offsetting his monthly allotment against moneys received from workers’ compensation. He also maintained that he was entitled to a certain rate of prejudgment interest on the amount to be due. In response to the motion, the defendant board quarreled with regard to the first issue, but was silent as to whether and to what extent the plaintiff would be entitled to prejudgment interest. On appeal, the board asserted that the trial court erred on both issues. After affirming the trial court on the first assignment. of error, the appellate court rejected the second issue out of hand, holding that the board’s silence with regard to the prejudgment interest waived the issue for the purpose of appeal.

Plaintiff ignores the applicability of Greves to his appeal, responding to defendants’ waiver argument by citing cases which state generally that an issue is waived on appeal if it went unargued in the trial court or if the court did not resolve it. (Citing Weigel Broadcasting Co. v. Hammer (1978), 67 Ill. App. 3d 805, 384 N.E.2d 811; Harbor Insurance Co. v. Arthur Andersen & Co. (1986), 149 Ill. App. 3d 235, 500 N.E.2d 707, appeal denied (1987), 113 Ill. 2d 574, 505 N.E.2d 353.) He clings to the disjunctive nature of that proposition as supportive of his contention that an issue is properly preserved for review if either of those two events occurs. Since the trial court decided that there was no issue as to whether defendants acted with actual malice, he deduces therefrom that the issue is preserved. However, the cases he cites provide him little comfort, for in neither instance did the court invoke the second clause of the disjunctive in order to find that an issue not asserted by the appellant in the trial court was nonetheless properly before it. Rather, we are led irresistibly to the conclusion that in both instances, the court included that clause without contemplating its implications, as a gratuitous introduction to its core finding that the appellant had waived an issue. We decline to accord any deference to the mechanistically yet unnecessarily bloated rhetoric of those cases. Instead, we find the sounder rule to be that where a party does not argue an issue in the trial court, he will be deemed to have abandoned the point on appeal, absent extraordinary circumstances where justice necessitates review of an issue. (See, e.g., In re Marriage of Rodriguez (1988), 175 Ill. App. 3d 241, 529 N.E.2d 819, rev’d on other grounds (1989), 131 Ill. 2d 273, 545 N.E.2d 731.) Therefore, applying that rule to the facts in the instant case, clearly, plaintiff, who filed nothing squarely addressing the issue of actual malice and who refrained from making any argument in that regard at trial, has waived that issue on appeal.

B

Moreover, assuming arguendo that the issue has not been waived, we would nonetheless find no error because we are impelled to agree with the circuit court that there was no triable issue of fact as to whether defendants acted with actual malice toward plaintiff. The law applicable to the trial court’s resolution of a motion for summary judgment and this court’s subsequent review thereof is, by now, well settled. The motion permits the trial court to determine whether any genuine issue of material fact exists. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.) When deciding the motion, the trial court should construe all the evidence before it strictly against the movant. (Reed v. Bascon (1988), 124 Ill. 2d 386, 393, 530 N.E.2d 417, 420; Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871.) Our supreme court has warned that while summary judgments are to be encouraged in the interests of the prompt disposition of lawsuits, they are a drastic measure. (Bascon, 124 Ill. 2d at 393, 530 N.E.2d at 420; Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871.) Consequently, trial courts should grant summary judgments only where the movant’s right to judgment is so clear as to be free from doubt. Bascon, 124 Ill. 2d at 393, 530 N.E.2d at 420; Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871.

Although, as a general rule, this court reviews the grant of summary judgment de novo (Myers v. Health Specialists (1992), 225 Ill. App. 3d 68, 72, 587 N.E.2d 494, 497, appeal denied (1992), 145 Ill. 2d 635, 596 N.E.2d 630), because this case involves constitutionally protected speech, we must temper our review of the instant judgment with the understanding that

“a court ruling on a motion for summary judgment must be guided by the New York Times ‘clear and convincing’ evidentiary standard in determining whether a genuine issue of actual malice exists — that is, whether the evidence presented is such that a reasonable jury might find that actual malice has been shown with convincing clarity.” (Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 257, 91 L. Ed. 2d 202, 217, 106 S. Ct. 2505, 2514-15.)

(See also Costello v. Capital Cities Communications, Inc. (1988), 125 Ill. 2d 402, 532 N.E.2d 790 (holding that in order to recover in a defamation action, a “public official” plaintiff must prove with clear and convincing evidence that defendant broadcast a defamatory statement with knowledge that it was false or with a reckless disregard of its truth or falsity).) We are also mindful of the fact that like the Butts standard, the actual malice rule often requires inquiry into the defendant’s state of mind and may therefore be difficult to invoke successfully on a motion for summary judgment.

1

Defendants Zekman and CBS, Inc., assert that since the record is devoid of any evidence which would even tend to establish that Zekman acted with actual malice, plaintiff’s cause could not survive a motion for summary judgment even if thé normal preponderance of evidence standard applied. They conclude, therefore, that he is necessarily incapable of meeting the more stringent “clear and convincing” standard which controlled this particular motion. Plaintiff counters by claiming that a deposition Zekman gave, which they now seek to include as a supplement to the record on review, provides sufficient proof that she knew that the statements she aired in her report were false, thus creating a triable issue of fact, warranting preclusion of summary judgment in this instance.

In order to decide whether the plaintiff’s contention merits closer scrutiny, we must first resolve plaintiff’s motion to supplement the record with the deposition, which motion we took with the case. In that motion, he asks us to exercise our power under Supreme Court Rule 366(a)(3) (134 Ill. 2d R. 366(a)(3)) and add to the record on appeal the Zekman deposition which, albeit not presented to the trial court before it granted summary judgment in favor of defendants, is nonetheless necessary, plaintiff argues, to a just resolution of his appeal. However, while it is true that Rule 366(a)(3) allows us to amend the record to correct errors and to supplement by adding matters which it should contain, “it is axiomatic that new evidence not offered during the trial of a cause cannot be introduced for the first time on appeal.” (Catalano v. Pechous (1978), 69 Ill. App. 3d 797, 813, 387 N.E.2d 714, 726, citing H.J. Tobler Trucking Co. v. Industrial Comm’n (1967), 37 Ill. 2d 341, 226 N.E.2d 601; Kohler v. Central & Southern Truck Lines, Inc. (1977), 45 Ill. App. 3d 621, 360 N.E.2d 89; see also In re Application of County Treasurer (1987), 171 Ill. App. 3d 644, 525 N.E.2d 852, appeal denied (1988), 123 Ill. 2d 558, 535 N.E.2d 399; Hall v. Svea Mutual Insurance Co. (1986), 143 Ill. App. 3d 809, 493 N.E.2d 1102.) It is of no consequence that, in the case at bar, the decision appealed from arose from a motion for summary judgment, for the rule of Pechous applies equally to such a case. See James v. Yasunaga (1987), 157 Ill. App. 3d 450, 452, 510 N.E.2d 531, appeal denied (1987), 116 Ill. 2d 559, 515 N.E.2d 109 (denying plaintiff’s motion to supplement record in an effort to show that trial court erroneously granted summary judgment because “[an appellate court] cannot consider upon review that which was not submitted to the trial court when it rendered its decision”).

The one case plaintiff relies upon in support of the novel proposition he advances, Welch v. Chicago Tribune Co. (1975), 34 Ill. App. 3d 1046, 340 N.E.2d 539, does not call for a radical departure from the well-established rule we have cited above. In Welch, without citation to precedent, the court allowed the supplementation of the record to include depositions of the plaintiff and others, and invoked its Rule 366(a)(3) power to do so. It is to be noted, however, that the court indicated that no party had objected to the additional evidence and that both used the additional evidence in order to support or refute points raised on appeal. In contrast here, defendants Zekman and CBS, Inc., vigorously objected to the proffering of the Zekman deposition both in their brief on appeal and in a memorandum in opposition to plaintiff’s motion to supplement the record. Since defendants here do not consent to the additional evidence, Welch is inapposite and Pechous applies, thereby foreclosing plaintiff from including the disputed deposition in the record on appeal; and given that without the supplemental evidence the record is barren of anything which even intimates that she acted with “actual malice,” the trial court’s grant of summary judgment in favor of Zekman and CBS, Inc., is affirmed.

2

Plaintiff additionally urges that the trial court mistakenly granted summary judgment in favor of the doctor defendants because there is evidence in the record from which the court could have inferred that they had a motive to defame plaintiff, creating a factual issue as to their actual malice. He argues that the intent of the doctors was evident from the fact that they made the allegedly false statements about him while a suit, filed by him and which named them as defendants, was pending in the circuit court of Cook County. However, plaintiff urges the presence of these inferences for the first time on review; therefore, in view of his failure to draw them for the benefit of the trial court, he cannot now be heard to complain that the court somehow erroneously overlooked them. See Yasunaga, 157 Ill. App. 3d at 452, 510 N.E.2d at 533 (while reviewing the propriety of a summary judgment, the court declined to consider portions of a deposition because the record was insufficient to manifest that the offered portions were, in fact, brought to the attention of the trial court); Northern Illinois Gas Co. v. Energy Cooperative, Inc. (1984), 122 Ill. App. 3d 940, 461 N.E.2d 1049 (on review of a summary judgment wherein the trial court found that there was no event which excused performance of a contract on impossibility grounds, appellate court refused to consider other force majeure events because they were never presented to the trial court as alternative grounds to excuse performance).

Furthermore, even were we to consider plaintiff’s proffered inferences, we would still be compelled to affirm the trial court’s finding that there was not a genuine issue of material fact regarding whether the defendant doctors misspoke with malice toward plaintiff. As previously noted, where the protections of New York Times apply, in order to withstand a summary judgment motion a plaintiff must present evidence such that a reasonable trier of fact could find that he had established the requisite fault by the clear and convincing evidence standard. (Liberty Lobby, Inc., 477 U.S. at 257, 91 L. Ed. 2d at 217, 106 S. Ct. at 2514-15.) To meet this burden, plaintiff relies solely upon the evil motives of defendants, which, he suggests, can be drawn from the fact that at the time they made the allegedly libelous statements, they were named as defendants in the suit he had filed against them. We have held, however, that proof of personal animosity alone is insufficient to meet the high burden imposed by the New York Times standard. (Winters v. Greeley (1989), 189 Ill. App. 3d 590, 594, 545 N.E.2d 422, 425, appeal denied (1989), 128 Ill. 2d 673, 548 N.E.2d 1079.) Instead, the limited public figure plaintiff must also establish clearly and convincingly that the defendant coupled his rancor toward the plaintiff with a knowledge of the falsity of the statement complained of, or a reckless disregard as to its truth or falsity. Winters, 189 Ill. App. 3d at 594, 545 N.E.2d at 425; Fopay v. Noveroske (1975), 31 Ill. App. 3d 182, 192, 334 N.E.2d 79, 88 (“Thus, at a minimum, plaintiff has the burden of establishing that the libelous materials were published in the face of serious doubts as to the truth of the matter asserted or, stated otherwise, without a good faith belief in the truth of matters published, in order to overcome the protection afforded the published materials by the constitution”).

The defendant doctors all filed affidavits attesting to the fact that they entertained no serious doubts as to the truth of the statements concerning plaintiff when they made them. Although generally a defendant’s self-serving declaration swearing that he subjectively believed the truth of the false assertion will not negate a showing of actual malice (see, e.g., Pease v. International Union of Operating Engineers Local 150 (1991), 208 Ill. App. 3d 863, 879, 567 N.E.2d 614, 625 (Reinhard, J., dissenting)), that truism does not apply in the instant case as plaintiff has not shown all the elements of actual malice; for as we have already noted, where, on review of summary judgment, affidavits are not contradicted by counteraffidavits, this court must accept as admitted those facts averred in the affidavit. (Kellerman v. Mar-Rue Realty & Builders, Inc. (1985), 132 Ill. App. 3d 300, 476 N.E.2d 1259; Harris v. Bethlehem Steel Corp. (1984), 124 Ill. App. 3d 449, 464 N.E.2d 634.) Accordingly, since the doctor defendants’ affidavits stand as admitted on the issue of whether they spoke without any serious doubts as to the truth of their assertions that plaintiff had committed malpractice, plaintiff has failed to establish “actual malice” by clear and convincing evidence; therefore, the court’s grant of summary judgment in favor of the doctors is affirmed as well.

Affirmed.

McCORMICK, P.J., and HARTMAN, J., concur.

      In argument before this court, plaintiff suggested that “Davis IF’ recognized his “primary focus” view of the limited public figure doctrine. We assume from this rather elliptical identification that he was referring to this court’s decision in Davis v. Keystone Printing Service, Inc. (1987), 155 Ill. App. 3d 309, 507 N.E.2d 1358, appeal denied (1987), 116 Ill. 2d 550, 515 N.E.2d 1219. But, after our review of that decision, we find nothing to indicate that the court even implicitly endorsed such a rule. In Davis, the defendant newspaper had published articles concerning the plaintiff tending to suggest that, as a locally prominent minister, he pressured members of his organization into homosexual encounters and coerced large cash contributions from his parishioners. The defendant argued that he was a limited public figure and, to prove its point, it offered articles published before the allegedly defamatory ones. The court disagreed and found that there was nothing in the earlier articles which were in any way related to the subject matter of the libelous articles. It noted:
      “Even if the earlier articles indicate that the plaintiff had injected himself into some public controversy, he would only be a limited purpose public figure for that particular controversy, but not for unrelated subjects.” (Davis II, 155 Ill. App. 3d at 315, 507 N.E.2d at 1363.)
      As we have expressed above, “The Walking Wounded” revolved around the MIS controversy and plaintiff’s concededly influential role therein. Consequently, Davis II is inapposite to the case at bar, and plaintiff's “primary focus” theory still remains unsupported.


source: Caselaw Access Project

author: JUSTICE DiVITO

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TONY JACKSON, Defendant-Appellant.
    First District (2nd Division)
    No. 1 — 92—1645
    Opinion filed July 27, 1993.

      Robert W. Smith, of Hillside (Stuart K. Jones, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, Holly L. Rappin, and Susan Miller, Assistant State's Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court:

Defendant Tony Jackson was indicted for, among other offenses, first degree murder (Ill. Rev. Stat. 1991, ch. 38, pars. 9 — 1(a)(1), (a)(2)) and unlawful use of a firearm by a felon (Ill. Rev. Stat. 1991, ch. 38, par. 24 — 1.1(a)). At his bench trial, the circuit court rejected defendant’s defense of self-defense and defense of another, finding him guilty of second degree murder and unlawful use of a weapon by a felon. Defendant appeals, asserting that (1) the judge misapplied the law of self-defense when she refused to admit his testimony that his friend was scared; (2) the judge assumed the role of advocate for the State; and (3) the State failed to disprove his defense beyond a reasonable doubt. We affirm.

At trial, Calvin Johnson was the State’s first witness. He described himself as a professional gambler, explaining why he carries large sums of money and thus “do[es]n’t go anywhere without anyone” even though he was also a professional boxer. A few days prior to the shooting, defendant’s friend, Dennis. Warren, had indicated that he wanted a gun, and Johnson later noticed that his handgun was missing. Johnson’s brother told him that Warren had it, so Johnson made it known that he wanted to talk with Warren.

Johnson testified that on the evening of April 28, 1991, he, Bruce Jones, Johnnie Lee, Curtis Brown, and Christopher Wilson were at his apartment when Michael Ramsey arrived and told them Warren and defendant, whom Johnson had known all his life, wanted to see Johnson. Johnson and his companions followed Ramsey to the street, where they saw Warren and defendant, who were sitting on adjacent cars in front of a vacant lot on the north side of Lexington Street. Johnson had no weapon with him, and he never saw any of his companions with a weapon the entire evening.

Johnson asked Warren for his gun, but Warren, who was standing beside defendant, denied having it. Johnson then noticed a gun in defendant’s pocket, and he asked to examine it. When defendant proffered the weapon, Johnson realized it was not his. Johnson then said to Warren, “Let me talk to you,” and the two men walked into a vacant lot on the north side of the street. Johnson’s companions and defendant stayed behind. Johnson again asked for his gun, and Warren again denied having it. Noticing that Warren’s coat was wrapped tightly around his waist, Johnson grabbed at the coat, revealing a gun. It was not the missing weapon, but Johnson nevertheless seized it, unloaded it, and threw it five feet behind Warren. Meanwhile, defendant had remained by the car, but when Johnson grabbed Warren’s arm and headed back toward Johnson’s apartment, defendant approached carrying two guns, one of which was Johnson’s missing weapon. He told Johnson to let Warren go. Johnson told defendant, “[Tjhat’s my gun right there. Just give me the gun and we are gone.” He denied threatening to cut off Warren’s wrists.

While defendant was trying to intervene, Jones too had come over to Johnson and Warren. He was not wearing black gloves and had no weapon. Jones, over 6 feet 4 inches and approximately 350 pounds, echoed Johnson, saying, “Punk, give me that gun.” Defendant replied, “[D]on’t walk up on me.” Then, when Jones was within a foot or two of defendant, with his arms outstretched reaching for the gun, defendant fired, aiming first at Jones’ chest. Defendant was firing both guns, at Johnson and at another person in Johnson’s group. Other gunfire erupted. As defendant began shooting, Warren had picked up his gun and bullets.

Johnson fled northwest through the vacant lot and then went toward his house; he saw no one until he went around the block. Soon, an ambulance and police arrived at the scene of the shooting, but Johnson did not talk to them because he was unsure if the area was safe. He and the others got back to his apartment at about the same time, but the police arrived within seconds and arrested the lot, so there was little time to discuss the shooting among themselves. He gave the police a statement.

Ramsey and Brown testified much as Johnson did. Warren had asked Ramsey to tell Johnson to come alone to talk, and Brown testified that Ramsey told Johnson that Warren wanted to talk with him alone. After delivering his message, Ramsey and the others headed for a friend’s house but saw Warren on Lexington Street; defendant was 20 feet away from Warren. The testimony of Wilson, a boxer, was substantially similar, though he testified that defendant ordered Johnson to get away from Warren.

Three police officers who had been to the scene also testified. Detective Kristen Kato arrived within 10 seconds of receiving a radio call that a man had been shot. The 10 or 15 bystanders pointed to Jones, whom Kato had known for several years. He was lying in the vacant lot, rocking and moaning. When Kato asked who had shot him, Jones replied “Little Tony,” defendant’s nickname. Kato saw no gloves or gun and touched nothing. The bystanders gave him no information. Officer Consuelo Morgan and her partner were the first police officers to arrive at the scene. Jones told her too that “Little Tony” shot him. She saw no gloves, no guns, and no other weapons near Jones. Unlike. Kato, however, she noticed several live rounds of ammunition near Jones and several spent casings near the car and the sidewalk as well as by and near the vacant lot and under a car in the street. Albert Pribek, an evidence technician for the Chicago police department, took photographs of and evidence from the scene. He described the various casings and the point from which each was recovered, using photographs, including those taken from near a car in the street. He took swabs from Jones’ palms and the backs of his hands to test for gunshot residue.

Robert Berk, a trace evidence analyst with the Chicago police department, testified as an expert in gunshot residue analysis. One of his tests was to brush a swab against the palm and back of each hand; in Jones’ case, the left palm had more residue than the other three. Berk explained that one would have residue after shooting a gun or handling a recently discharged gun, so the results of his tests indicated that Jones had fired a weapon or handled a recently discharged weapon, or had been in close proximity to a weapon when it was fired. If the latter, Berk estimated that Jones had been within a four-foot radius of a shooter, or within six feet straight ahead of the gun, depending on wind and other weather variables as well as type of bullet and type of firearm. If someone were standing with arms outstretched toward a shooter within a few feet, Berk stated, he would have residue unless he wore a leather glove. Berk agreed that if residue exists and a person puts on and takes off a glove, he will lose residue on that hand. Berk also agreed that a greater amount of residue on the left palm could result from that palm being closer to a shooter.

By stipulation, Dr. Ethel Di Janeo, a medical examiner, testified that she performed the post-mortem examination of Jones, who had sustained one gunshot wound to the chest and a superficial one to the left thigh. He died of the chest wound, which resulted from a gun fired at close range. Jones’ body had come with a black glove.

After the court found defendant not guilty on certain charges not relevant here, Larry Williams, an eyewitness and two- or three-year acquaintance of Johnson, Jones, and defendant, testified for defendant. He stated that defendant was backing up toward the street when Jones began to put on his right glove while talking to defendant and then drew a gun with his right hand before defendant drew his guns. Williams testified that he ducked away between two cars after he saw Jones fire, though he later said he did not know if Jones shot his gun. Williams neither saw defendant fire his guns nor observed Warren pick up a gun. After the shooting stopped, Williams stood up and saw a man, whom he could not identify, pick a gun up from the vacant lot and run away. He believed it was Jones’ gun, which had fallen next to Jones’ hand. He was familiar with Johnson’s reputation in the community, which, like Jones’, was for violence. He did not know defendant’s reputation. Williams also said that after taking the gun from Warren, Johnson had put it in his pants.

Defendant, who is 5 feet 9 inches and weighs approximately 135 pounds, testified in his own defense. In talking with neighbors since 1985, defendant learned that Jones and Johnson had like reputations: “very violent.” On the day in question, defendant and Warren were sitting in a car parked on the north side of Lexington Street in front of the vacant lot when he saw Johnson and his bodyguards approaching from the south. When Johnson asked Warren for his gun, Warren replied that he did not have it. Johnson then grabbed Warren’s arm and shoved him north from the sidewalk to the vacant lot. Defendant moved to about 10 feet north of Johnson and Warren, with Jones to his left and Johnson and Warren to his right. The others were fanned out around him except Wilson, who held a gun and was in the street behind the car. In his waistband, Johnson too had a gun, which defendant did not see until Johnson disarmed Warren. After throwing Warren’s weapon to the ground, Johnson ordered his bodyguards to “[t]ake [Warren] and cut his arms off.” Johnson then grabbed Warren and began trying to force him to move south toward his apartment. At this point, defendant pulled his guns and pointed them at Johnson, telling Johnson that he was not going to take Warrén anywhere. Johnson released Warren, who then picked up his gun and began to reload it. To protect himself and Warren, defendant was pointing one of his guns at Johnson, who he knew was armed.

Jones then approached on defendant’s left, saying, “Fuck this shit, whatever y’all want to do we can do it.” Defendant replied, “Stop, don’t come up on me,” but Jones continued to move closer. When Jones said, “What the fuck you gon’ do with that gun,” defendant again warned him to halt. Jones did not. Defendant did not see a gun in Jones’ hand, though he presumed the others had guns. Finally, when defendant had one gun pointed at Johnson and the other at Jones, who was only three feet away, he heard two shots from the direction of the car; he did not know who had fired them. Defendant then fired twice at Jones, who was closest, because he feared that Jones would try to disarm him or kill him and Warren. The shells ejected to the right and back, about two or three feet away.

The court found that “certain factors *** ha[d] been established without question”: Johnson took the gun from Warren, unloaded it, and dropped the bullets and gun on the ground; defendant shot Jones without knowing if he had a gun; and Jones was dead. The court concluded that it did not believe that defendant’s conduct was reasonable, finding specifically that he had acted “under the unreasonable belief that he had a right to shoot and kill someone even though in his own words he does not know to this day whether or not that person was armed.” The court further commented that it did not believe defendant’s testimony on certain points. The court also determined that the defense failed because Warren had been able to pick up, load, and shoot the gun Johnson had taken from him, so the harm was not imminent. The court then found defendant guilty of murder in the second degree and of unlawful use of a weapon, and it sentenced him to 12 years’ imprisonment.

In his motion for a new trial, defendant raised only one issue: sufficiency of the evidence.

I

Defendant insists that when considering a self-defense question, all surrounding circumstances are relevant in determining whether a defendant reasonably believed that he was in danger of great bodily harm or death, so the court erred in stating that one surrounding circumstance, i.e., whether Warren was scared, was irrelevant to defendant’s case. In defendant’s view, his belief about Warren’s fear after Johnson’s threat to cut off his arms was relevant to whether defendant reasonably believed that Warren was in danger, which in turn would bear on the reasonableness of his action in going to Warren’s defense and on the degree of force required to save Warren. If defendant thought Warren was scared, defendant argues, that fact would make defendant’s conduct more reasonable.

Certainly, a witness may testify that another person was scared if the fact is relevant. As one court has said, a statement like this is just a “shorthand” rendition of facts observed. (Hackett v. State (1981), 2 Ark. App. 228, 230-31, 619 S.W.2d 687, 689; see also People v. Peter (1991), 220 Ill. App. 3d 626, 630-31, 581 N.E.2d 128, 131 (witness permitted to testify that the defendant displayed a “momentary look of panic” because facial expressions are “difficult, if not impossible, to explain or reproduce, and we are generally accustomed to, and capable of, understanding and interpreting such expressions in our everyday life”); State v. Hopper (1905), 114 La. 557, 558, 38 So. 452, 452 (Appearance is a fact, and such testimony “[e]ven in so far as to some extent calling for an opinion — as, for instance, that the [defendant] looked scared— *** was unobjectionable. The opinion of nonexpert witnesses is admissible on a great variety of subjects”); Peterson v. Seattle Traction Co. (1900), 23 Wash. 615, 642, 63 P. 539, 548 (witnesses may say: “ ‘He seemed to be frightened,’ ‘He was greatly excited,’ ‘He was much confused,’ ‘He was agitated,’ ‘He was pleased,’ ‘He was angry.’ All these emotions are expressed to the observer by appearances of the countenance, the eye, and the general manner and bearing of the individual, appearance[s] which are plainly recognized ***”).) Thus, we disagree with the circuit court’s apparent belief that a witness may not testify that another person is scared.

Nevertheless, to be admissible, evidence must be relevant, that is, it must have a tendency “to make the existence of any material fact more probable or less probable than it would be without the evidence.” (People v. Free (1983), 94 Ill. 2d 378, 415, 447 N.E.2d 218, 236.) One of the elements of the defense of self-defense is a defendant’s “reasonable] belie[fj that [deadly] force [or force intended or likely to cause great bodily harm was] necessary to prevent imminent death or great bodily harm to himself or another.” (Ill. Rev. Stat. 1991, ch. 38, par. 7 — 1.) Defendant asserts that Warren’s fear would make more likely the reasonableness of his own belief in the need for deadly force in the face of imminent harm, but his argument fails to persuade. Warren’s assessment of the danger simply had no bearing on the reasonableness of defendant’s belief in the need for deadly force, for defendant’s belief could have been found reasonable even if Warren had been unconscious or otherwise unaware of any danger. Likewise, Warren’s fear carries no weight when determining the reasonableness of defendant’s assessment of the gravity and immediacy of the danger, for defendant might not have shared his belief. Consequently, we hold that this testimony was properly excluded at trial, albeit for a reason different from the circuit court’s ruling.

II

Defendant claims that the trial judge was biased in favor of the State, thereby denying him a fair trial. As evidence of this bias, he cites a number of instances in which the judge made spontaneous objections, in fact and in effect, to defense counsel’s questions. The “first and most egregious” example, he begins, occurred when the judge asked for objections as defense counsel tried to elicit Williams’ testimony about Johnson’s reputation for violence. She also quizzed Williams about his eyesight, thereby “engaging in bald cross-examination *** that severely discredited [the witness’] professed ability to perceive the events leading up to the shooting,” that is, Jones’ donning the gloves and pulling a gun. In addition, defendant argues, the court cut off defense counsel repeatedly when examining witnesses and spontaneously limited his recross-examination.

In what defendant describes as “[t]he judge’s most blatant and shameless venture into the role of prosecutor,” the court cued the prosecutor to object to the lack of a foundation for Johnson’s testimony about the gloves when it intervened during defense counsel’s cross-examination of Johnson after defense counsel elicited without objection by the State that each of Johnson’s companions had no gun. Defendant characterizes this as “tantamount to interposing her own objection” and as “overtly prompting] the State, in effect, to wake up and start objecting to evidence that she thought was inadmissible.” Defendant also claims, without citing support, that this evidence in fact was admissible, “although the judge could give it less weight because no foundation had been laid for the witness’s knowledge.” Indicative that the judge was not merely prone to active participation at trial, defendant maintains, is that the court made no similar spontaneous objections against the State, e.g., to admission of Kato’s conversation with Jones without foundation for application of the dying declaration exception to the hearsay rule. Defendant concedes that each action was perhaps harmless individually, but he insists that they are cumulatively reversible.

As noted above, defendant objected to only one of these incidents. Although generally a defendant waives his right to challenge an alleged error unless preserved by both an objection at trial and inclusion in a post-trial motion, he may invoke the plain error rule (134 Ill. 2d R. 615) if the evidence was closely balanced or was of such constitutional magnitude that defendant was denied a fair trial. (People v. Speight (1992), 153 Ill. 2d 365, 379, 606 N.E.2d 1174, 1180.) Bias in a judge is one of the few trial “errors” that may not be deemed harmless. (Arizona v. Fulminante (1991), 499 U.S. 279, 309, 113 L. Ed. 2d 302, 331, 111 S. Ct. 1246, 1265 (a biased judge is a “structural defect[ ] in the constitution of the trial mechanism, which def[ies] analysis by ‘harmless-error’ standards,” citing Tumey v. Ohio (1927), 273 U.S. 510, 71 L. Ed. 749, 47 S. Ct. 437, and likening judicial bias to deprivation of counsel at trial, unlawful exclusion of members of a defendant’s race from grand jury, right to public trial, and right to self-representation at trial (not harmless), while distinguishing admission of involuntary confession (harmless)).) Moreover, the waiver rule is less rigidly applied when the conduct of a judge herself is the basis for the appeal. (People v. White (1993), 249 Ill. App. 3d 57, 60, citing People v. Davilla (1992), 236 Ill. App. 3d 367, 379, 603 N.E.2d 666, cert. denied (1993), _ U.S. _, 125 L. Ed. 2d 700, 113 S. Ct. 3009.) We therefore reject the State’s urging that we hold that defendant waived this issue.

To warrant reversal on the ground of bias, however, a defendant must demonstrate that “there was active personal animosity, hostility, ill will or distrust toward [him] and, absent such a showing, a court will not conclude that there was actual prejudice which prevented or interfered with a fair hearing.” (People v. Johnson (1990), 199 Ill. App. 3d 798, 806, 557 N.E.2d 565, 570.) Defendant has pointed to nothing in the record that would support such a particularized finding.

Rather than individual bias, it seems, the gist of defendant’s claim is that the court assumed the role of advocate for the State by questioning the witnesses and objecting sua sponte to certain testimony. Such conduct is not per se improper, however, for judges have discretion to question witnesses to clarify obscure matters and elicit the truth, so long as they remain fair and impartial and show no bias or prejudice. (White, 249 Ill. App. 3d at 61; People v. Murray (1990), 194 Ill. App. 3d 653, 658, 551 N.E.2d 283, 286-87 (judge abuses discretion by assuming role of advocate while questioning, but propriety of questioning is decided case by case, especially at bench trial, where there is less chance of prejudice to defendant); see also People v. Trefonas (1956), 9 Ill. 2d 92, 100, 136 N.E.2d 817, 821 (questioning permitted to clear up contradictions between defendants’ signed statements and their testimony); People v. Marino (1953), 414 Ill. 445, 451, 111 N.E.2d 534, 537 (coupled with comments implying disbelief, “extensive sharp questioning” conveyed to jury that witness was unworthy of belief).) This discretion is not absolute, however. People v. Moriarity (1966), 33 Ill. 2d 606, 213 N.E.2d 516 (when prosecutor faltered on direct examination of complainant, court improperly stepped in to ask the critical questions); People v. Santucci (1962), 24 Ill. 2d 93, 180 N.E.2d 491 (judge’s questions to State’s witnesses improperly emphasized testimony detrimental to the defendant).

Here, the court appears to have been genuinely confused about the type of correction Williams’ eyes needed and about what he considered to be a “far” distance. The record makes plain that it was this uncertainty that prompted its questions to Williams to expand on his explanations about his eyesight and to compare distances in the courtroom with distances between him and the shooting. Thus, those questions cannot be held an abuse of discretion. Similarly, telling defense counsel to “move it,” though inartfully phrased, is not necessarily a show of partiality toward the State. (People v. Perry (1989), 183 Ill. App. 3d 534, 546, 540 N.E.2d 379, 387 (“How much longer do you have to go” and “[w]here is the impeach[ment]” during cross-examination not improper and defense counsel was able to make his points), appeal denied (1989), 127 Ill. 2d 633, 545 N.E.2d 124.) Too, any error that might have occurred when the State was allowed to present Jones’ statement that defendant shot him would be harmless, for defendant admitted that he had done so.

As for the judge’s sua sponte objections and exclusion of evidence, a judge is not a mere referee, and she has wide discretion to control the course of the trial. (People v. Martin (1974), 24 Ill. App. 3d 710, 716, 321 N.E.2d 368, 373.) Moreover,

“ ‘[i]t is the judge’s duty to see that justice is done, and where justice is liable to fail because a certain fact has not been developed or a certain line of inquiry has not been pursued it is his duty to interpose and either by suggestions to counsel or an examination conducted by himself avoid the miscarriage of justice ***.’ ” (People v. Franceschini (1960), 20 Ill. 2d 126, 132, 169 N.E.2d 244, 247, quoting People v. Lurie (1917), 276 Ill. 630, 641, 115 N.E. 130,134.)

We believe that the court followed these precepts and did not abuse its discretion in refusing to admit certain testimony even though the State had not objected to it. In Martin, for example, the court found nothing wrong in the judge’s decision to exclude irrelevant matters even though there had been no objection. Likewise here, the court had the power to refuse on its own to take into account irrelevant evidence.

Even if the court’s conduct were improper, reversal would be warranted only if the court’s conduct played a material role in defendant’s conviction or prejudiced him. (People v. Enoch (1989), 189 Ill. App. 3d 535, 543, 545 N.E.2d 429, 436, appeal denied (1990), 129 Ill. 2d 567, 550 N.E.2d 561.) We note that given that this was a bench trial, prejudice was far less likely to result. (People v. Griffin (1990), 194 Ill. App. 3d 286, 296, 550 N.E.2d 1244, 1250.) More importantly, however, Williams eventually did testify about Johnson’s reputation for violence, so no prejudice could have resulted from the court’s involvement in this area of inquiry. Furthermore, although defendant claims that the court’s cutting him off prejudiced him, he made no offer of proof at trial (or on appeal) of the questions he claims he was prevented from asking. Similarly, he is unable to demonstrate how, had the court admitted any of the other evidence he claims was improperly excluded, the State’s case would have failed. Thus, we conclude that the court’s sua sponte participation constituted no error.

Ill

When a criminal defendant challenges the result of a trial on the ground of insufficient evidence, he has a heavy burden, for he cannot prevail if this court finds that “ ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis omitted.) (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.) Defendant claims that the State did not disprove beyond a reasonable doubt that (1) force was threatened against him or Warren; (2) he was not the aggressor; (3) danger of harm to him or Warren was imminent; (4) the force threatened was unlawful; (5) he actually believed that (a) the danger existed, (b) use of force was necessary to avert the danger, and (c) the kind and amount of force used was necessary; and (6) these beliefs were reasonable, citing People v. Henry (1980), 86 Ill. App. 3d 602, 408 N.E.2d 228. The test, he asserts, is what a defendant, as a reasonable person, believed under the circumstances, not what a fact finder thinks a reasonable person would believe, even if the defendant was mistaken as to the danger. Here, the evidence showed that Johnson threatened to use force against Warren when he said “cut off his arms” and Jones threatened defendant with force when he continued to approach him. Defendant claims that Jones’ conduct was an indirect threat of force against Warren as well, for Warren would have been helpless if defendant had been disarmed. Johnson and his band were obviously the aggressors, defendant continues, having come up to defendant and Warren intending to repossess Johnson’s stolen gun, not to mention Johnson’s shoving Warren and stripping him of a gun as well as Jones’ threats while approaching defendant. The danger of death or grave harm to himself and Warren was imminent, defendant contends, given Jones’ proximity and Wilson’s shots. Furthermore, defendant testified that he actually believed that the danger existed and that use of deadly force was necessary to avert the danger, for he thought that Jones, a very large man with a violent reputation, was going to disarm him, leaving him helpless before Johnson’s gang, and then kill him and Warren. It matters not if Jones had no weapon, defendant contends, because even use of fists by a decedent can justify use of deadly force. Under these circumstances, defendant concludes, his beliefs were reasonable.

Here, the court found that defendant’s belief in the need for deadly force was unreasonable because the threat of harm to defendant and Warren was neither imminent, given that Warren had time to pick up his gun and load it, nor deadly, given that defendant only presumed that Jones was armed. From the evidence adduced at trial, including Warren’s ability to reload his gun and defendant’s own admission that he did not know if Jones had a gun, any rational trier of fact could have found both these facts to be true beyond a reasonable doubt. Thus, the State satisfied its burden of proof. People v. Hooker (1993), 249 Ill. App. 3d 394, 400 (State meets its burden if able to disprove beyond a reasonable doubt even one of the elements of self-defense).

For the reasons stated above, we affirm the judgment of the circuit court.

Affirmed.

McCORMICK, P.J., and SCARIANO, J., concur.

      Defendant was tried concurrently with Tommie Harrison, who was charged with, among other things, attempted murder in connection with the shooting of another person at the same time.

      “Q. [Defense Attorney:] Mr. Williams, how long have you been hanging around that neighborhood?
      A. I was born and raised over there. I have been up there for years.
      Q. And how long have you known Calvin Johnson?
      A. I really, don’t really know him. I just seen him. Maybe about two years now that I just know of him.
      Q. During all the time that you have been hanging around that neighborhood, have you had an opportunity to discuss, have you had an opportunity to engage in conversations with people who are from that neighborhood regarding Calvin Johnson’s reputation for violence or peacefulness in a community?
      A. Ain’t no peacefulness.
      THE COURT: Excuse me for one moment, but there’s no objection to this?

      [Assistant State’s Attorney]: We’ll object.” (Emphasis added.)

      “THE WITNESS: I need my glasses.
      THE COURT: He can’t really see it. Do you wear glasses?
      THE WITNESS: Yes, ma’am.
      THE COURT: For reading.
      THE WITNESS: Yes, ma’am, and I’m nearsighted.
      THE COURT: You have the glasses? Nearsighted is when you can’t see far.
      THE WITNESS: I can’t see things like when they are blurry.
      Could I stand here and look at [the board]?
      THE COURT: Yes.
      * * *
      [Assistant State’s Attorney]: And let me guess, sir, would it be fair to say, as today, you didn’t have your glasses on [during the shooting]?
      A. Don’t need glasses to see a pistol. To read something, yes, or a billboard or something, but not to see a gun.
      Q. I see.
      A. I need glasses, but not that bad, sir.
      Q. I got you. Now, let me ask you this, sir.
      After you saw or heard the shooting, you talked to the police?
      A. Yes, I did.
      Q. And do you remember telling the police you were there to help the police about this incident, right.
      A. No, I was not there to help them. I was just there when they picked him up over there and everything, and they came and asked who saw it. I said I was standing over here, and he asked me what did I see.
      THE COURT: You have difficulty seeing things for [sic] away, or things that are close to you?
      THE WITNESS: I have difficulty reading things. When they are far away, they are blurry to me.
      Things that’s far away, reading only, but a human being, I’m quite able to see a human being from the distance I was.
      THE COURT: Well, do you have difficulty seeing things in a distance, or is it your eye problem that you can’t see things close up, or do you have a general overall vision problem where you need glasses basically for everything?

      THE WITNESS: No. I don’t need glasses for reading, for things that’s near. Things that’s far away is blurry to me. I need glasses for things far away from me.
      THE COURT: All right. So, how far were all these people from you?
      THE WITNESS: Just like I said, maybe a little farther than the court door[, which was at least 50 or 60 feet away],
      THE COURT: And you don’t consider that far away?

      THE WITNESS: No, ma’am.
      THE COURT: All right. You may continue.” (Emphasis added.)

      As explained in Part I, when defense counsel was examining defendant concerning Warren’s appearance and state of mind when the gun was taken from him, defendant replied that Warren was scared. The State objected and the court sustained the objection. As defense counsel began to resume his questioning, the following occurred:
      “[Defense Counsel]: Well tell me—
      THE COURT: How about if we just go to what happened. That would be — Could we hear about that? Just what happened out there.
      [Defense counsel asks for a sidebar; defendant leaves stand temporarily-]
      [Defense Counsel]: Judge, several times during cross-examination of witnesses you’ve asked me and [codefendant’s counsel] [‘A]re you finished yet, are you finished yet, any more questions[,'] and on each of those occasions we stopped our questioning. Even though we had a lot of questions left and I *** I don’t know exactly how to — When you do that that sends a signal and it tells me to stop, and I mean, as you know—
      THE COURT: I’m not telling you to stop but for [defendant] to sit here and say that [Warren] looked scared is improper. They objected and I sustained the objection.
      * * *
      THE COURT: All right. I mean I’m not trying to cut you off. It's just that, you know, we have spent many hours on this case and we can spend many more, but I’m just asking you to move on. I don’t think that’s improper. And from now on you can ask any question you want. Okay. I’ll let you go forever if you think I’ve been cutting you off. I haven’t been. I don’t need to.”

      The court asked “Could we just confine ourselves to the redirect,” which defendant claims was in effect the judge’s sua sponte objection to questions beyond the scope of re lirect even though the State made no such objection.

      The court commented:
      “No one has objected to some of the things that have already been testified to, but I don’t think [the witness is] in a position to testify as far as whether any of the other people had guns. As far as I’m concerned, that’s not evidence. His statement that no one had guns — these other people did not have guns is not evidence unless it’s brought out he went through some systematic frisking and searching all the people with him to make his own determination that none of the people with him had guns. As far as I'm concerned, that’s not evidence. I’m not considering it.
      As far as whether anybody else had gloves, again this is not something within this person’s actual knowledge until otherwise established. So it’s not evidence. It’s not evidence at this point that nobody else had guns because there’s been no foundation to show that [Johnson] can testify for anyone else accept [sic] himself and not what he saw on the street.”