author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SEDWRICK TORRY, Defendant-Appellant.
    First District (1st Division)
    No. 1—86—2847
    Opinion filed April 8, 1991.
    Rehearing denied May 7, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Andrea Monsees, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Walter P. Hehner, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant Sedwrick Torry appeals from his conviction and sentence for the murder of Renee Ballard.

We affirm in part and vacate in part.

Sometime in the early morning hours of June 14, 1984, Renee Ballard and her five-year-old son, Lavell, were stabbed to death in the apartment Ballard shared with Robert Brandon, defendant’s brother. Defendant was arrested later that morning. He subsequently gave oral and written statements to police in which he admitted stabbing Ballard during an argument. Following a bench trial in which defendant’s written statement was admitted into evidence, defendant was convicted of murdering Ballard, but was acquitted of murdering her son.

Additional facts pertinent to disposition of the issues raised on appeal are summarized below within the context of our consideration of those issues.

I

Prior to trial, defendant was examined by Dr. Robert A. Reifman, director of the Psychiatric Institute of the Cook County circuit court, pursuant to a court order, to determine whether defendant was mentally fit to stand trial. Reifman concluded defendant was fit and communicated that opinion to the court in a letter dated February 27, 1985.

A fitness hearing was subsequently held. Reifman testified as the sole witness based upon an interview he conducted with defendant and his review of reports of two psychologists, Holub and Kamer, EEC test results, reports of two other doctors, Rabin and Stipes, and police reports.

Reifman testified defendant understood the proceedings and the charges against him, the consequences of a judgment and sentence, the functions of the participants, and was able to recollect and repeat the occurrences involved within acceptable limits. Although defendant appeared “somewhat slow and depressed,” Reifman concluded defendant was fit to stand trial.

Reifman believed defendant exhibited a selective memory. Reifman noted a report of Holub and Kamer indicated defendant remembered certain facts surrounding Ballard’s murder. He remembered being at Ballard’s apartment and using certain drugs. He remembered that the police arrived, and that, after his arrest, the police failed to advise him of his constitutional rights. However, defendant had represented to Reifman that he could not recall anything he had earlier told Holub and Kamer.

Reifman explained that, even if defendant truly experienced memory difficulties, Reifman would have expected defendant to be able to remember facts he had earlier recounted. Reifman therefore con-eluded defendant was lying about his inability to remember and that that suggested his mental fitness.

On appeal, defendant argues Reifman’s testimony lacked an adequate foundation because Reifman did not sufficiently identify the materials he relied upon in forming his opinion or establish they were either independently admissible or of a type reasonably relied upon by experts in the particular field. Without an adequate foundation, defendant contends, Reifman’s testimony should have been excluded.

We do not agree. Pursuant to the adoption of Federal Rules of Evidence 703 and 705 in Illinois (Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322, cert. denied (1981), 454 U.S. 836, 70 L. Ed. 2d 117, 102 S. Ct. 140), the constraints on eliciting an expert’s opinion have been considerably loosened. Experts are permitted to give their opinion without prior disclosure of underlying facts or data. (Wilson, 84 Ill. 2d 186, 417 N.E.2d 1322, cert. denied (1981), 454 U.S. 836, 70 L. Ed. 2d 117, 102 S. Ct. 140.) Even materials otherwise substantively inadmissible may be admitted into evidence for the limited purpose of explaining the basis for an expert’s opinion, where other experts in the particular field reasonably rely on such materials. (People v. Anderson (1986), 113 Ill. 2d 1, 495 N.E.2d 485, cert. denied (1986), 479 U.S. 1012, 93 L. Ed. 2d 713, 107 S. Ct. 658; Wilson, 84 Ill. 2d 186, 417 N.E.2d 1322, cert. denied (1981), 454 U.S. 836, 70 L. Ed. 2d 117, 102 S. Ct. 140.) The burden is placed on the adverse party to elicit facts underlying the expert’s opinion. Wilson, 84 Ill. 2d 186, 417 N.E.2d 1322, cert. denied (1981), 454 U.S. 836, 70 L. Ed. 2d 117,102 S. Ct. 140.

In the instant case, the State was simply not required to elicit, from Reifman, the basis for his opinion. Defendant’s counsel bore that burden in challenging Reifman’s testimony during cross-examination. Further, there is no question but that Reifman properly could have utilized the reports of Holub, Earner, Rabin, and Stipes, and defendant’s EEC test results in forming his opinion. Reports and test results of previous examinations of an individual by medical professionals are clearly materials relied upon by others in the same field to formulate opinions regarding that same individual.

Although we cannot conclude Reifman’s reliance on police reports can be similarly justified, we do not find the admission of his testimony related thereto constitutes reversible error. Reifman’s opinion that defendant was lying about his inability to remember, which in part supported the determination of defendant’s fitness, was based on Reifman’s analysis of defendant’s earlier recounting of particular events of January 14, 1984, contained in the report of Holub and Eamer. The record indicates Reifman relied on the police reports for the same purpose. Because Reifman’s conclusion that defendant selectively remembered events did not depend on Reifman’s testimony related to the police reports alone, we conclude admission of that testimony was harmless. See People v. Smith (1981), 93 Ill. App. 3d 26, 416 N.E.2d 814.

Defendant also argues that the letter stating Reifman’s opinion that defendant was mentally fit to stand trial failed to comport with the statutory requirements of an examiner’s report under section 104 — 15 of the Code of Criminal Procedure of 1963, because it did not contain a diagnosis and supporting information. Ill. Rev. Stat. 1983, ch. 38, par. 104 — 15.

Even accepting defendant’s argument, we do not conclude that that failure here could affect Reifman’s testimony. The report is required only in conjunction with the prehearing examination of a defendant to determine if a bona fide doubt as to fitness exists. (Ill. Rev. Stat. 1983, ch. 38, par. 104—11; see also Ill. Rev. Stat. 1983, ch. 38, par. 104—16(a).) We do not understand how the letter’s failure to comport with the requirements of section 104 — 15 could affect the determination of fitness in light of the subsequent hearing on the issue.

Defendant lastly contends Reifman’s testimony was insufficient to establish defendant’s fitness by a preponderance of the evidence. Ill. Rev. Stat. 1983, ch. 38, par. 104—11(c).

Only Reifman testified regarding defendant’s fitness to stand trial. Defendant stipulated as to Reifman’s qualifications as an expert in psychiatry for that purpose. Reifman testified that defendant was aware of the nature and consequences of the proceedings. Reifman concluded defendant did not suffer from any organic disorder which would render defendant unfit for trial. Instead, based on Reifman’s interview with defendant, as well as review of defendant’s previous interviews with others, Reifman testified defendant was untruthful about his inability to remember, indicating defendant was mentally fit. Defendant called no witnesses to rebut Reifman’s testimony. Based on Reifman’s testimony, we are satisfied defendant’s fitness was established by a preponderance of the evidence.

II

In pretrial motions, defendant sought to quash his arrest and to suppress a pair of blue jeans and a shirt recovered from his mother’s apartment on the grounds that the police lacked the requisite consent to enter and search the premises.

The following pertinent testimony was adduced regarding consent.

Mark Hawkins, a Chicago police officer, testified that he, along with his partner, Kevin McDonald, and Detectives Jimmy Johnson and William Barker, went to defendant’s mother’s apartment at 5 a.m. on June 14, 1984, based on information that defendant was there. They did not have an arrest or a search warrant. The officers were in uniform and arrived in a marked squad car.

Upon their arrival, he and Johnson went to the front door and knocked. Hawkins stated defendant’s sister Olivia answered. Olivia stated defendant had been there at approximately 3 a.m. that morning, had changed clothes, and had left. Olivia told police defendant had had blood on his clothing, but it did not appear he had been injured. Hawkins testified Olivia told the police they could look for defendant in the house. Hawkins could not remember whether either he or the detective with him had their weapons drawn when they entered.

Two young boys also present told the police that defendant had come in with blood on his clothing, washed his clothes in the bathroom, changed, and left.

Hawkins recovered a pair of blue jeans from a bathroom and a purple shirt from the back porch. Both articles were wet with water and blood.

Olivia Minnifield, defendant’s sister, testified that on the morning the police arrived, she was lying on a couch near the door when she heard a knock. She did not answer the door. She stated the police entered the apartment and eventually left with some clothes. She testified that she did not hear the police ask for permission to enter the apartment or ask for permission to take the clothes.

During cross-examination, Olivia remembered that the police had said they were looking for defendant.

Defendant’s mother, Amanda Archie, testified she accompanied the police to her apartment when they went to look for defendant. She had to knock at the door because she did not have her keys with her. Her daughter answered the door, and the police “barged right in” without asking whether they could enter. She stated the police told her they could enter because they were looking for defendant.

Hawkins testified in rebuttal that the police were unaccompanied by any civilian when they went to the apartment that morning.

Defendant contends the State failed to show the entry was consensual and that the subsequent seizure of defendant’s clothing was untainted by the illegal entry. Rather, defendant argues, consent was given only in acquiescence to police authority. Defendant notes the officers were in uniform and observes Hawkins could not recall whether he or the detective with him had a weapon drawn.

It is undisputed that early in the morning of June 14, 1984, two uniformed police officers and two detectives arrived at defendant’s mother’s apartment, looking for defendant. There was a knock at the door, the police subsequently entered, and retrieved a pair of blue jeans and a purple shirt. Beyond those circumstances, the determination of consent here must rest on the trial judge’s assessment of the witnesses’ credibility. The record indicates that the trial judge resolved that issue in favor of the State, determining that voluntary consent was given to the police to enter and search for defendant. Because of his superior position in making that assessment, we must defer to the trial judge’s finding, absent an indication in the record that the decision was manifestly erroneous. People v. Neal (1985), 109 Ill. 2d 216, 486 N.E.2d 898.

The hour the police arrived and the fact that two of the four officers were in uniform are factors to consider in assessing the totality of circumstances to determine voluntariness of the consent. (See People v. Froio (1990), 198 Ill. App. 3d 116, 555 N.E.2d 770.) However, we find those facts, alone, provide insufficient basis to disturb the trial judge’s determination arrived at after having had the opportunity to view the witnesses’ testimony. Further, we decline to accept defendant’s interpretation of Hawkins’ stated inability to remember whether he or the detective with him had a weapon drawn to be an admission of either possibility. The only reasonable conclusion to be drawn from Hawkins’ statement is that he could not remember. Notably, neither defendant’s sister nor his mother testified that either officer had his weapon drawn.

We also determine that the record supports the seizure of defendant’s clothing under the plain view exception to the warrant requirement based upon the lawful entry and search for defendant. (See Horton v. California (1990), 496 U.S. 128, 110 L. Ed. 2d 112, 110 S. Ct. 2301.) Testimony established that defendant’s clothing was recovered from a bathroom and back porch, both locations in which the police could reasonably have expected to find defendant.

Ill

In a further pretrial hearing, defendant sought to suppress his statement in which he admitted stabbing Ballard. During that hearing, Chicago police detective Michael Herigodt admitted that, at some point during his interview with defendant on June 14, 1984, after he had advised defendant of his constitutional rights, he told defendant that blood, which Herigodt believed to be from both victims, was found on defendant’s clothing. Herigodt stated he had received that information from Detective William Johnston, relative to completed laboratory tests.

At trial, Pamela Ann Fish, a police criminologist, testified regarding various blood samples collected in conjunction with the investigation. Fish stated Lavell Ballard’s blood type was Type 0. However, defendant’s blue jeans and shirt contained only Type B blood. Fish testified she had not told any person from the police department that she had discovered blood consistent with Lavell Ballard’s type on defendant’s clothing.

Mary Ann Furlong, a police serologist, testified she did not find blood enzymes particular to Lavell Ballard present in blood extracts taken from defendant’s clothing. Furlong could not remember whether or not she ever conveyed that information to the police.

Defendant contends that, because Fish and Furlong testified they did not indicate to police that Lavell Ballard’s blood was discovered on defendant’s clothing, Herigodt misrepresented that fact to defendant. And, because defendant’s incriminating statement followed Herigodt’s questioning regarding the blood, defendant’s confession was therefore coerced.

First, the record does not conclusively support the assertion that Herigodt made a knowing misstatement to defendant regarding the presence of both victims’ blood on his clothing. Only Fish positively testified that she did not tell police that blood, consistent with Lavell Ballard’s type, was found on defendant’s clothing. Furlong did not remember whether she conveyed information to police regarding the presence of Lavell Ballard’s blood on defendant’s clothing. Although Herigodt did admit he told defendant both victims’ blood was found, Herigodt stated that information came from Johnston. In his own testimony, Johnston stated merely that he had had the laboratory report on June 15, 1984. There is no clear indication in the record that Herigodt was told Renee Ballard’s blood, but not Lavell Ballard’s blood, had been discovered on the clothing.

More importantly, even accepting defendant’s argument, no basis for reversal exists. Police deception is only one of the relevant factors to consider in determining whether a confession has been voluntarily given. (People v. Martin (1984), 102 Ill. 2d 412, 466 N.E.2d 228, cert. denied (1984), 469 U.S. 935, 83 L. Ed. 2d 270, 105 S. Ct. 334.) Misrepresentation is insufficient, alone, to invalidate a knowing waiver of constitutional rights and a subsequent voluntary statement. People v. Holland (1987), 121 Ill. 2d 136, 520 N.E.2d 270, affd (1990), 493 U.S. 474, 107 L. Ed. 2d 905, 110 S. Ct. 803.

Here, the record indicates defendant was advised of his constitutional rights at the time of his arrest, prior to each of his interviews, and prior to making his oral and written statements. The record indicates that defendant acknowledged he understood those rights and voluntarily made a statement regarding the incident to police. Even assuming the police knowingly misrepresented to defendant that Lavelle Ballard’s blood was found on his clothing, we do not believe that misrepresentation is sufficient to disturb defendant’s conviction here.

IV

At trial, the State established, through the testimony of Jordan Moss, that defendant was at Ballard’s apartment prior to the murders. Moss testified he had been with defendant during the late evening of June 13, 1984, and had dropped defendant off at Ballard’s apartment at approximately 12 or 12:30 a.m. on June 14, 1984, before returning home. Shortly after he arrived home, he was arrested and held in police custody for nine hours.

During cross-examination, defendant’s counsel attempted to demonstrate Moss’ bias against defendant by eliciting from Moss that, at the time of his arrest, Moss was angry at defendant for causing Moss’ detention. The trial judge sustained the State’s objections to that questioning.

Defendant now asserts that, by precluding that line of questioning, the trial judge deprived defendant of the opportunity to properly confront Moss.

The record indicates that the trial judge only sustained the State’s objections to defense counsel’s questions related to whether Moss was angry as of the time of his detention by police. Counsel was permitted to ask whether Moss harbored anger toward defendant as of the time Moss testified. Moss answered no. Because counsel was permitted to inquire as to Moss’ motive for testifying against defendant as of the time of trial, the relevant time frame for assessing bias, we are not persuaded by defendant’s argument and do not find defendant was prejudiced by the trial judge’s limitation of Moss’ cross-examination. See People v. Halteman (1956), 10 Ill. 2d 74, 139 N.E.2d 286.

V

Over the objections of defense counsel, the trial judge permitted the State to elicit Pamela Ann Fish’s testimony regarding tests she performed on vaginal, rectal, and oral swabbings of Ballard’s body for the presence of semen. Fish established that the vaginal swabbing tested positive, but could not determine the age of the sperm present.

Defendant contends that it was error to permit Fish to testify regarding the presence of semen because that evidence was irrelevant to the murder charge. Defendant points out he was not charged with a sexual offense. Further, because the age of the sperm could not be determined, no inference could be drawn that sexual intercourse played any role in the events surrounding Ballard’s murder.

We agree Fish’s testimony should not have been admitted. Nevertheless, the admission of that testimony appears insufficient to disturb the judgment against defendant. The record does not indicate the trial judge relied in any way on that testimony in finding defendant guilty. In light of the evidence presented at trial, including defendant’s statement, we deem the error harmless. See People v. Taylor (1984), 101 Ill. 2d 508, 463 N.E.2d 705, cert. denied (1984), 469 U.S. 866, 83 L. Ed. 2d 140, 105 S. Ct. 209.

VI

At trial, through the testimony of Anterior Charles, a friend of Robert Brandon, defendant’s brother, defendant attempted to establish that Ballard was the aggressor in the fight during which she was stabbed. Charles stated that on June 13, 1984, he had been with Ballard at her apartment. At some point, Ballard left the apartment, giving him the apartment keys. He later met Ballard at her grandmother’s house. Apparently there, Charles and Ballard each took a pill containing codeine and drank cough syrup. He stated that after Ballard drank the syrup, she became angry.

Charles returned to Ballard’s apartment with a woman at approximately 5 p.m. He testified he knew Ballard had a gun and also kept an ivory-handled knife in her bedroom. Charles stated he saw the knife on the headboard in the bedroom when he had been in the room with the woman who accompanied him to the apartment.

Charles later accompanied Amanda Archie when she posted bail for her son, Robert Brandon. He and Brandon had discovered the victims’ bodies upon their return. Charles stated that after they discovered the bodies, he saw Brandon remove a bottle of cough syrup from :a purse on a dresser in the bedroom. Charles testified that the bottle of syrup was not full.

On cross-examination, Charles stated he did not remember having told police that Ballard had given him her apartment keys at a location other than her apartment while she was sitting in a car with another man. Charles also stated he did not remember whether he told the police about Brandon and the purse or about seeing the knife earlier.

In rebuttal, the State presented a stipulation that either Officer Johnston or Detective Ernest Halverson would testify that they had a conversation with Charles on June 14, 1984, in which he told them that, in the early evening of the previous day, he had seen Ballard in the vicinity of her mother’s house and that she had given him the apartment keys while she was sitting in an automobile with a man. Furthermore, the officers would testify that Charles stated he went to Ballard’s apartment at approximately 11:40 p.m. on June 13,1984.

Defendant contends the State improperly engaged in innuendo during its cross-examination of Charles by suggestion that Charles had given police a different explanation of where he obtained the apartment keys from Ballard. Defendant argues further improper innuendo attached to Charles when the State was permitted to ask Amanda Archie whether she had ever told the police that Charles was her boyfriend.

We do not conclude the State’s questioning of Charles was improper. During his cross-examination, Charles answered he could not remember telling police that Ballard had given him the apartment keys at a different time, and at a different location, from what he indicated in his direct testimony. Through the stipulated testimony, the State properly attempted to impeach Charles by establishing Charles told police he was at Ballard’s apartment at a later time than when he stated he saw the knife in Ballard’s bedroom. Nor do we find the State’s questioning of Amanda Archie to be improper. There is sufficient basis in the record to support a reasonable belief that Charles might have been Archie’s boyfriend, justifying the limited questioning by the State in an attempt to show Charles’ bias.

VII

Defendant’s written statement, in which defendant indicated he had been advised of, and understood, his constitutional rights, was admitted into evidence. Defendant’s statement recounts that, at approximately 10:30 p.m. on June 13, 1984, he was with Ballard, at her apartment. He briefly left with Jordan Moss, but returned at approximately 10:45 p.m. Only defendant, Ballard, and her son were in the apartment. He and Ballard smoked two marijuana cigarettes. An argument ensued between defendant and Ballard regarding defendant’s brother, Ballard’s boyfriend. At some point, Ballard retrieved a knife from underneath the mattress of her bed and swung it at defendant. Defendant grabbed Ballard’s hand. Both he and Ballard had their hands on the knife. Defendant started pushing the knife toward Ballard, and the knife went into her. In the continuing struggle, defendant stabbed Ballard in the chest. Defendant went home. He told his brothers Antoine and Ronald and his sister Olivia that the blood on his clothes resulted from a fight. He took his clothes off and tried to wash the blood out.

Here, defendant argues his statement placed the knife in Ballard’s hands throughout the struggle and otherwise indicated Ballard was the aggressor. Defendant therefore contends he was not proven guilty beyond a reasonable doubt because the State failed to prove the requisite mental state for murder.

We do not agree. Intent may be inferred from the character of a defendant’s actions and the circumstances surrounding the commission of the offense. (People v. Terrell (1989), 132 Ill. 2d 178, 547 N.E.2d 145, cert. denied (1990), 495 U.S. 959, 109 L. Ed. 2d 749, 110 S. Ct. 2567.) In addition to his statement, the record contains sufficient evidence supporting the inference that defendant possessed the requisite mental state to support a murder conviction.

The testimony of Dr. Eupil Choi, the medical examiner who performed the autopsy on Ballard, established the nature and extent of Ballard’s stab wounds. His testimony, alone, is sufficient to support the inference of intent.

Ballard suffered a total of 26 stab wounds. Five of the wounds were to her back. Three of those wounds were deep enough to penetrate her lungs. Additionally, Assistant State’s Attorney Frank Gaughan testified at trial that defendant had represented oraUy to him that he had obtained control of the knife in the bedroom and had followed after Ballard out of the room. Viewing that evidence in a light most favorable to the State, we conclude defendant was proven guilty of murder beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.

VIII

Following a sentencing hearing, the trial judge sentenced defendant to an extended-term prison sentence of 70 years, finding Ballard’s murder resulted from “exceptionally brutal or heinous behavior indicative of wanton cruelty.” Ill. Rev. Stat. 1983, ch. 38, par. 1005—5—3.2(b)(2).

Defendant now argues that his sentence was excessive in view of his age, family, and personal background, the circumstances of the crime, and the absence of any prior adult criminal convictions.

We find no reason to disturb the sentence imposed by the trial judge. The evidence of the nature and extent of Ballard’s stab wounds is sufficient to support defendant’s extended-term sentence. The record indicates the murder scene was exceedingly bloody and that defendant used such force in stabbing Ballard that he broke the knife handle. The record contains no indication that the trial judge failed to consider all relevant factors mitigating against an extended term.

IX

The record indicates that defendant was convicted of murder under both section 9 — 1(a)(1) and section 9 — 1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, pars. 9—1(a)(1), (a)(2)).

Defendant points out that because he killed only one individual, one of the two convictions must be vacated. The State concedes the point and elects to retain the conviction pursuant to section 9— 1(a)(1), based upon defendant’s intent to kill or cause great bodily harm or knowledge that his acts would cause death. Because defendant raises no objection to the State’s election, we vacate defendant’s conviction under section 9 — 1(a)(2).

For the reasons above, we affirm defendant’s conviction for murder pursuant to section 9 — 1(a)(1) and his sentence and vacate defendant’s conviction pursuant to section 9 — 1(a)(2). As part of this judgment, we also grant the State’s request that the defendant be assessed $75 as costs for the State’s defense of this appeal.

Affirmed in part and vacated in part.

CAMPBELL and BUCKLEY, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE SANDERS, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—0106
    Opinion filed April 8, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Ruth McBeth, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Monica L. Willis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

After a bench trial, Willie Sanders was found guilty of four counts of murder (Ill. Rev. Stat. 1985, ch. 38, pars. 9—1(a)(1), (a)(2), (a)(3)) for killing Sidney Tate and guilty of invading Lillie Moore’s home (Ill. Rev. Stat. 1985, ch. 38, par. 12—11(a)(1)). Sanders was sentenced to 30 years in the Illinois Department of Corrections.

At trial, Moore testified to the following: On October 10, 1984, Tate had been living with her and her two sons, Kenneth and Dwyrl, for two months at 3653 N. Federal in Chicago, Illinois. At approximately 11:30 p.m., October 10, 1984, Moore and Tate went to sleep in her bedroom while Moore’s sons were asleep in their bedroom. Moore stated that about midnight, she was awakened by a smoke detector in her apartment, at which time she went into the living room and saw smoke seeping into her apartment under the front door. Thereafter, Tate and her sons came into the living room and she called the fire department. After the fire was extinguished, the front door was charred and hanging by one hinge. At this time, Moore secured the door by latching the security chain and pushing her kitchen table and chairs against it. Around 3 a.m., Moore’s sons had gone to sleep in her bedroom because there was smoke in theirs, while Moore and Tate went to sleep on the living room floor to guard the apartment and wait for someone to repair the door.

Moore stated that she was awakened again in the early morning hours of October 11, 1984, when her back was hit, at which time she rolled over, saw Sanders standing over her, and stood up. She testified that she struggled with Sanders for about 10 minutes. After fighting with Sanders, Moore ran to a friend’s apartment to call the police. After the police arrived, they went into Moore’s apartment and retrieved a rusty pipe that she had never seen before.

Moore’s son Kenneth was 12 years old on October 11, 1984. He testified at trial to the following: He was awakened a second time in the early hours of October 11, 1984, by his mother’s scream. After hearing her scream, he went into the living room, where he saw Tate and Sanders. Kenneth stated that Tate was lying on his back while Sanders was stomping Tate’s head with his feet and hitting him with a pipe. At this time, he went back into the bedroom to retrieve his brother, and they both left the apartment through the living room. As he left the apartment, he saw Tate lying on the floor making choking noises. Tate’s face was swollen and his face and arms were bloody. Blood was on the walls. When Kenneth saw Sanders standing over Tate hitting him with the pipe and stomping him, Sanders said, “[Y]ou think youf’re] slick, I’m slicker.” As the boys were leaving the apartment, they encountered two police officers who took them to Moore’s friend?s apartment. Lastly, Kenneth testified that the shock absorber the police found in Moore’s apartment was the pipe Sanders used to hit Tate.

Moore’s second son, Dwyrl, was seven years old on October 11, 1984, and also testified at the trial. His testimony was substantially similar to Kenneth’s testimony.

Next, police officer Gregory Klichowski testified. Officer Klichowski stated that when he entered the apartment building, he saw Kenneth and Dwyrl; that when he entered Moore’s apartment, he saw that the door was charred and hanging by a chain; and that he saw Tate lying on his back in a pool of blood with a television set on his face.

Then, police officer Richard Popovits testified. His testimony was substantially similar to Officer Klichowski’s testimony. However, he also stated that he saw a car’s shock absorber in the living room and that the shock absorber was a very rusty, two-foot-long metal object.

Additionally, Dr. Shaku Teas was called as a pathology expert. The doctor testified that he performed a post-mortem examination on Tate and found multiple abrasions and lacerations to the face, multiple fractures of facial bones, rib fractures and skull fractures. The doctor further testified that the cause of Tate’s death was cerebral injuries due to blunt trauma, such as being hit by a blunt instrument. On cross-examination, Dr. Teas said that a television antenna could have been the instrumentality of death.

Sanders testified during his defense. He stated that he was one of Moore’s boyfriends; that he had five pairs of pants, five shirts, socks, and shorts in Moore’s apartment; that in 1977, he lived with Moore in his apartment, in 1980, in her apartment for three months, and from June to September of 1984 in her apartment; that he knew that Moore was seeing other men and did not like it; that he knew Moore was seeing Tate on October 11, 1984; that he did not know Moore was living with Tate; and that on October 11, 1984, he did not personally know Tate.

Further, Sanders testified to the following. On October 11, 1984, he went to Moore’s apartment at 5:30 a.m. He knocked hard on Moore’s apartment door, but the door fell in. He bent over, went under the door and entered the apartment. Moore was standing at the entrance of the hallway. When Moore saw him, she called for Tate. Tate lunged at Sanders with “some object” in his hand. The object hit Sanders on his shoulder and both men fell on the floor and fought. Moore reached under the mattress and retrieved a gun, but she panicked and ran out the door with the gun in her hand. Sanders stated that he was still fighting with Tate when Tate grabbed a chair and started swinging. When Sanders backed up and bumped into a television, he grabbed the television and threw it at Tate because Sanders was afraid for his life. The television hit Tate and he fell to the floor. When Tate did not get up, Sanders walked out the door. On cross-examination, Sanders denied beating Tate on October 11, 1984, and denied hitting anyone with the shock absorber.

At the close of the evidence, the trial judge found Sanders guilty of four counts of murder and one count of home invasion and sentenced Sanders to 30 years’ imprisonment. Sanders appeals his conviction. We affirm.

Initially, Sanders argues that the State failed to prove beyond a reasonable doubt that he did not act in self defense, contending that “the State’s evidence was *** conflicting, confused and uncertain.” We disagree.

A reviewing court will not substitute its judgment for that of the trial court and will not set aside a criminal conviction unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt concerning the defendant’s guilt. (People v. McGrath (1989), 193 Ill. App. 3d 12, 28, 549 N.E.2d 843, citing People v. Jimerson (1989), 127 Ill. 2d 12, 43, 535 N.E.2d 889, cert. denied (1990), _U.S._, 111 L. Ed. 2d 796, 110 S. Ct. 3288.) When considering a defendant’s challenge to the sufficiency of the evidence, a reviewing court will not retry the defendant, because determinations concerning the credibility of witnesses, the weight to be given their testimony and the reasonable inferences drawn from the evidence presented are the trial court’s responsibilities when a jury is waived. (McGrath, 193 Ill. App. 3d at 28, citing Jimerson, 127 Ill. 2d at 43.) The relevant inquiry on review is whether, 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. Jimerson, 127 Ill. 2d at 43-44.

Generally, once the issue of self-defense is interposed by the introduction of some evidence (a requirement satisfied by Sanders’ testimony), it becomes the State’s burden to prove Sanders guilty beyond a reasonable doubt regarding self-defense as well as all other elements of the offense. (People v. Harmon (1990), 200 Ill. App. 3d 411, 413, 558 N.E.2d 173.) The elements of self-defense include the following:

“(1) that force is threatened against a person; (2) that the person threatened is not the aggressor; (3) that the danger of harm is imminent; (4) that the force threatened was unlawful; (5) that the person threatened must actually believe: (a) that a danger exists, (b) that the use of force is necessary to avert the danger, (c) that the kind and amount of force which he uses is necessary; and (6) that the above beliefs are reasonable.” (People v. Ross (1981), 100 Ill. App. 3d 1033, 1038, 427 N.E.2d 955.)

When, in the judgment of the trier of fact, any of the evidence presented at trial negates the existence of any one of these elements beyond a reasonable doubt, the State has carried its burden. Harmon, 200 Ill. App. 3d at 413, citing People v. Seiber (1979), 76 Ill. App. 3d 9, 394 N.E.2d 1044.

Here, there is insufficient reason for this reviewing court to substitute its evaluation of the evidence for that of the trial court because the evidence, particularly Moore’s, Kenneth’s and Dwyrl’s testimony, was not so improbable or unsatisfactory to create a reasonable doubt concerning Sanders’ guilt. His murder conviction is affirmed.

Next, Sanders argues that the State failed to prove beyond a reasonable doubt that he was guilty of home invasion, because it did not prove that he entered Moore’s apartment “without authority,” contending that everyone in the apartment was asleep so that permission was not possible; that he knocked on the door and it caved in; and that because he had a long-standing relationship with Moore and her sons, he entered the apartment to cheek on their safety. Additionally, Sanders urges us not to follow the limited authority doctrine. (People v. Hudson (1983), 113 Ill. App. 3d 1041, 448 N.E.2d 178; People v. Strong (1984), 129 Ill. App. 3d 427, 472 N.E.2d 1152; People v. Sanders (1984), 129 Ill. App. 3d 552, 472 N.E.2d 1156.) That doctrine states that consent given for a defendant’s entry is vitiated by criminal actions engaged in by the defendant after entering, thus making his entry unauthorized. (Hudson, 113 Ill. App. 3d at 1044-45; Strong, 129 Ill. App. 3d at 430; Sanders, 129 Ill. App. 3d at 560.) We find that Sanders’ entry was not authorized. It is uncontested that he was not living with Moore on October 11, 1984; that he had not lived with her in her apartment since September of 1984; and that neither Moore nor Tate gave Sanders permission to enter Moore’s apartment. Moreover, assuming that Sanders had authority to enter Moore’s apartment to check on her and her sons’ safety, it became vitiated when he began a series of criminal activities which ended with Tate’s murder. The home invasion conviction is affirmed.

For the reasons set forth above, Sanders’ murder and home invasion convictions are affirmed.

Affirmed.

MANNING, P.J., and BUCKLEY, J., concur.


author: PRESIDING JUSTICE MANNING

text:
    MARIA ZAJAC, Plaintiff-Appellant, v. ST. MARY OF NAZARETH HOSPITAL CENTER, Defendant-Appellee.
    First District (1st Division)
    No. 1—8—1932
    Opinion filed April 8, 1991.

      Law Offices of Jeffrey M. Marks and David A. Novoselsky & Associates, both of Chicago (Peter E Zullo, David A. Novoselsky, and Kathleen M. Krist, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (E. Michael Kelly, Kevin J. Burke and Nancy G. Lischer, of counsel), for appellee.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Plaintiff, Maria Zajac, initially brought this action against defendants, St. Mary of Nazareth Hospital Center (hereinafter St. Mary’s Hospital), Dr. Mohammed Sirajullah and Dr. Timothy Watson, alleging medical malpractice. On January 22, 1988, prior to trial on this matter, a settlement was reached between Dr. Sirajullah and plaintiff for $900,000. Thereafter, Dr. Sirajullah was dismissed with prejudice. Dr. Watson was also dismissed as a party defendant, since he was never served, and the trial proceeded solely against St. Mary’s Hospital on a theory that the hospital had been negligent by its failure to review and monitor the treatment provided by Dr. Sirajullah. On March 24, 1988, the jury returned a verdict in favor of the defendant. Thereafter, the trial court entered a judgment on the jury’s verdict and denied plaintiff’s post-trial motion for a new trial. Plaintiff appeals the jury’s verdict, contending that; (1) the trial court erred in precluding plaintiff’s expert from testifying regarding the hospital review procedures and bylaws; (2) Dr. Sirajullah should have been treated as an adverse witness; (3) the course of treatment rendered by Dr. Sirajullah at St. Mary’s Hospital was relevant to establish the hospital’s duty to review and supervise the medical care administered to a patient; and (4) the trial court erred in precluding Dr. Landon’s additional expert opinion.

On June 21, 1985, Maria Zajac, plaintiff, 65 years old at the time of trial, filed a medical malpractice complaint against Dr. Sirajullah, Dr. Watson and St. Mary’s Hospital. The complaint alleged that between November 19, 1982, and September 4, 1984, plaintiff was treated by Dr. Mohammed Sirajullah and Dr. Timothy Watson at St. Mary’s Hospital for an arthritic problem with her right knee. During surgery performed on the knee, Dr. Sirajullah and Dr. Watson unnecessarily removed an additional one-half inch of plaintiff’s femur while preparing the knee for an insertion of a prosthesis device. Over the next two years following the surgery, plaintiff suffered from infection problems. In 1984 plaintiff transferred to Rush-Presbyterian-St. Luke’s Hospital for further treatment. The complaint further alleges an agency relationship between the hospital, Dr. Sirajullah, and Dr. Watson, contending that the hospital was negligent by its failure “to provide adequate personnel in the operating room; to examine the plaintiff; to order proper tests of the plaintiff; to provide a non-defective prosthetic device; to properly treat the plaintiff; and to advise the plaintiff of the hospital’s negligence.” Plaintiff also alleged that as a proximate cause of defendant’s alleged negligent conduct, plaintiff has suffered from many injuries, including a shortening of her leg, necrosis of the leg due to inadequate blood supply, bone grafts, skin grafts and infections. Additionally, there is a possibility that plaintiff’s right leg will have to be amputated. The record discloses that the following evidence was adduced at trial.

Henry Pachura, plaintiff’s son-in-law, testified that on April 4, 1983, after discovering that the plaintiff was very ill, he called an ambulance and accompanied her to St. Mary’s Hospital. On April 14, 1983, Mr. Pachura sought help for the plaintiff through the hospital administration by informing Mr. Ulaszek, vice-president of administration, that he was worried about the decisions being made in regards to the plaintiff, who was scheduled to be operated on that morning. Mr. Ulaszek consulted with Dr. Robert Swastek, head of internal affairs, who assured Mr. Pachura that they would look into the matter. Mr. Pachura testified that he relied on Mr. Ulaszek’s representation that the matter would be taken care of and did not complain any further.

Barbara Pachura, plaintiff’s daughter, testified that prior to the time that plaintiff experienced problems with her knee in 1979, she was very mobile and self-sufficient. She further testified that prior to surgery, Dr. Sirajullah advised plaintiff that the only alternative was a total knee replacement, which carried certain risks. After knee surgery in 1982, plaintiff experienced pain when she walked and became limited in the things that she could do. Ms. Pachura testified that she inquired after the April 14, 1983, surgery as to “why there were so many surgeries in a short period of time.” Dr. Watson told her that the hospital environment was one possibility. Ms. Pachura further testified that she asked in April 1983 whether another doctor could be assigned to plaintiff’s case and was told by Dr. Swastek that Dr. Sirajullah is a competent doctor. Ms. Pachura testified that in April 1983, her mother developed boils on her leg and her condition did not improve until she began getting medical help at Rush-Presbyterian-St. Luke’s Hospital. Plaintiff’s medical bills at St. Mary’s Hospital totaled $214,269.71.

Dr. Steven Gitelis testified that he is a board-certified orthopedic surgeon who treated plaintiff in 1984 when she came to Rush-Presbyterian-St. Luke’s Medical Center from St. Mary’s Hospital with an infected total knee arthroplasty. He testified in his capacity, not as plaintiff’s expert witness, but as plaintiff’s treating physician at Rush-Presbyterian-St. Luke’s Medical Center, stating that the long-term result of the use of the type of prosthesis plaintiff had was a higher incidence of infection. Dr. Gitelis stated that prophylactic antibiotics should be used when a surgeon puts in a hinged prosthesis and there is a need to revise the patella. The prophylactic antibiotic was not used in this case. Dr. Gitelis testified that the development of infection is a known complication of total knee replacement.

Dr. Glen Landon testified that he is a board-certified orthopedic surgeon at Rush-Presbyterian-St. Luke’s Hospital and he treated the plaintiff after her treatment at St. Mary’s Hospital. Dr. Landon testified that the hinge prosthesis used on the plaintiff was identified with numerous risks and problems. It is disfavored due to mechanical problems, and this type of prosthesis is only used in exceptional cases where a patient has tumors or a large amount of bone removed. The prosthesis has been replaced by codylar types which utilize the patient’s own ligaments to stabilize the knee. Dr. Landon testified that, based on a reasonable degree of medical certainty, in his opinion, St. Mary’s Hospital deviated from acceptable standards of hospital practice while plaintiff was being treated in its facility. Moreover, when the family of the plaintiff went to the hospital administration requesting an investigation of plaintiff’s knee replacement, the hospital incorrectly reassured the family that everything was fine. He stated that the plaintiff had developed a bad infection in her knee and she did not receive proper antibiotic treatment or proper treatment in general. He further stated that Dr. Pelicore deviated from the standard of care by his failure to conduct a thorough investigation of plaintiff’s care. Moreover, Dr. Pelicore should have reviewed the plaintiff’s chart, X rays, and her culture reports. Dr. Landon acknowledged that the type of prosthesis device used was a decision made solely by Dr. Sirajullah. Also, the decisions regarding the antibiotic management and post-operative management of the plaintiff were judgment calls made by Dr. Sirajullah. Dr. Landon stated that every surgeon who operates can have complications such as post-operative infection.

Dr. Henry Danko, an internal medicine doctor at Rush-Presbyterian-St. Luke’s Hospital, was asked by Dr. Landon to be a consultant on the plaintiff’s case when she first arrived at the hospital. Dr. Danko testified that plaintiff’s infection could have happened “at any time to any patient to any doctor,” but he disagreed with Dr. Sirajullah’s choice of antibiotics. He further testified that, with a reasonable degree of medical certainty, it was his opinion that the severity of plaintiff’s condition in September 1984 was caused by her infection being improperly approached prior to her admittance to Rush-Presbyterian-St. Luke’s Hospital.

Dr. Raymond Pelicore, chairman of the department of orthopedics and an expert witness for St. Mary’s Hospital, testified that he served on several of the hospital committees and on April 14, 1983, he was called upon to investigate a concern expressed by plaintiff’s family regarding plaintiff’s care. Dr. Pelicore testified that as a physician on staff and department head at St. Mary’s Hospital, he was familiar with the hospital’s bylaws. Additionally, as chairman of the department of orthopedics, he was responsible for overseeing the overall practice of orthopedics, including reviewing charts, conducting monthly meetings and discussing cases. The cases to be discussed included new infection cases similar to the plaintiff’s case. Dr. Pelicore stated that monthly meetings were held with members of the hospital’s medical executive committee, which was comprised of department heads. These meetings addressed the medical treatment of all patients and provided an opportunity to discuss morbidity and mortality or an opportunity for anyone to discuss problem cases or ask advice. A patient or family’s complaint could also be discussed at the monthly meetings.

Dr. Pelicore testified that he was responsible for looking into complaints made about patient treatment to the hospital administration. If the family continued to complain about a problem after the problem had been looked into by Dr. Pelicore, he would take the complaint to another doctor for review. A report would be written and submitted to the hospital committee for a consensus of opinion and if significant he would submit it to the hospital administration. In a life-threatening situation, the hospital would become responsible to the patient. Dr. Pelicore described the patient-care audit procedure which analyzed whether the care received deviated from the normal. He further testified that he consulted with Dr. Sirajullah in his capacity as a private physician, not as the chairman of the orthopedics department. Dr. Pelicore testified that in plaintiff’s case, both leaving the prosthesis in and removing the prosthesis posed great risk. However, when the family questioned Dr. Sirajullah’s treatment in April, it was Dr. Pelicore’s opinion that the treatment was correct.

Dr. Mohammed Sirajullah testified that he is an attending physician with consulting privileges at St. Mary’s Hospital. In 1982, he was the treating physician who performed the total knee replacement surgery on the plaintiff and placed an “offset hinge prosthesis” in plaintiff’s knee during the operation. Prior to performing surgery on the plaintiff he explained the risks of such surgery, including the loosening of the prosthesis and infection. In March 1983, he removed two-thirds of plaintiff’s knee, and in April 1983, he removed “unwanted material” from plaintiff’s knee due to the development of an infection after surgery. Dr. Sirajullah testified that he did not remember anyone from the administration reviewing his care of plaintiff. He did, however, recall that Dr. Pelicore had questioned him about the surgery for a minute or two.

Dr. Sirajullah testified that he saw the plaintiff on several occasions regarding treatment for her infections. On October 31, 1983, plaintiff was admitted to the hospital, and on December 12, 1983, Dr. Sirajullah noted that plaintiff had a chronic infection of which he informed the family. By January 7, 1984, plaintiff’s surgical wound had healed. However, by the end of February plaintiff had developed another flare-up of the infection. Dr. Sirajullah noted that a month later the wound was healed. On May 2, 1984, an infection had developed in a different location. Dr. Sirajullah prescribed another antibiotic and told plaintiff to return in one week. Instead, plaintiff returned in six weeks. X rays were taken of the plaintiff’s knee, and the X rays showed that the prosthesis was protruding and by August 1, 1984, the prosthesis was loose. On that same date, after several additional flareups of the infection, an orthopedic conference was held at St. Mary’s Hospital to discuss plaintiff’s case. The consensus was “to remove the prosthesis, and set up the irrigation system in an attempt to kill the infection.” Dr. Sirajullah stated that it was his decision as to how much bone was to be removed during surgery on the plaintiff and which prosthesis to use. Dr. Sirajullah further stated that throughout plaintiff’s care, she was advised of all options and accepted Dr. Sirajullah’s treatment. However, the final decisions were made by the plaintiff. He testified that as an independent staff physician, he is required to follow hospital rules, regulations, and bylaws. Dr. Sirajullah further testified that it is the doctor’s responsibility, not the hospitals’, to make all decisions regarding the patient’s treatment and care.

Dr. Robert Swastek testified that between 1982 and 1984 he was the vice-president of medical affairs at St. Mary’s Hospital. In that capacity he served as a liaison between the medical staff and the administration. He stated that in 1983, he conducted a review of plaintiff’s care when the family expressed concern about the surgical procedure she was about to undergo. Dr. Swastek consulted with Mr. Ulaszek, an administration representative, and subsequently discussed the family’s concerns with Dr. Pelicore, chief of orthopedic service. Dr. Swastek stated that Dr. Pelicore was a member of the staff of St. Mary’s Hospital medical staff and received a minor salary. Dr. Swastek further testified that the family only expressed their concern about the surgical procedure. They did not present their question as a complaint against the attending physician. If a complaint had been made against Dr. Sirajullah, a formal investigation would have been conducted.

Dr. Dennis Gates, a board-certified orthopedic surgeon and an expert witness for St. Mary’s Hospital, testified that in 1982 the plaintiff was a candidate for full knee replacement. He stated that it is the orthopedic surgeon performing a full knee replacement who decides what type of prosthetic device should be used. About 1 of 20 total knee replacements results in infection, and surgeons can disagree on the course of treatment for patient care. In his opinion, the closed suction, irrigation, and antibiotic management of plaintiff on April 14, 1983, was reasonable and appropriate. Moreover, he opined that, based upon a reasonable degree of medical certainty, St. Mary’s Hospital complied with the standard of care for hospitals when it provided care to the plaintiff. Dr. Gates testified that a surgeon is totally independent from the hospital which grants a surgeon the privilege of practicing there. Moreover, the chairman of the department is administratively responsible for overseeing the department but has no authority over the decisions of independent doctors. Dr. Gates stated that there was nothing that the hospital did which resulted in harm to the patient.

Plaintiff initially argues on appeal that the trial court erred in precluding plaintiff’s expert from testifying regarding the hospital’s review procedures and bylaws. Defendant argues that the trial court correctly ruled on the scope of testimony and the matters at issue. We agree with the defendant. The information sought to be discovered by plaintiff is protected by section 8 — 2101 of the Code of Civil Procedure (the Medical Studies Act or Act) (Ill. Rev. Stat. 1987, ch. 110, par. 8— 2101). Defendant correctly argues that evidence regarding a hospital’s review procedures is not admissible under the Medical Studies Act, which provides in pertinent part:

“All information, interviews, reports, statements, memoranda or other data of the *** committees of licensed or accredited hospitals or their medical staffs, including Patient Care Audit Committees, Medical Care Evaluation Committees, Utilization Review Committees, Credential Committees and Executive Committees *** used in the course of internal quality control or of medical study for the purpose of reducing morbidity or mortality, or for improving patient care, shall be privileged, strictly confidential and shall be used only for medical research, the evaluation and improvement of quality care, or granting, limiting or revoking staff privileges, except that in any hospital proceeding to decide upon a physician’s staff privileges, or in any judicial review thereof, the claim of confidentiality shall not be invoked to deny such physician access to or use of data upon which such a decision was based.” Ill. Rev. Stat. 1987, ch. 110, par. 8—2101.

The purpose of the Medical Studies Act is to make certain kinds of material confidential and nondiscoverable in order to encourage candid and voluntary studies and programs which are used to improve patient care and hospital conditions or used to reduce the rate of death and disease. (Niven v. Siqueira (1985), 109 Ill. 2d 357, 366, 487 N.E.2d 937.) Therefore, any materials in the possession of a hospital used as a part of a program or study designed to improve quality control, patient care or to reduce morbidity or mortality are protected by the Act. (Niven, 109 Ill. 2d at 366.) Moreover, both the discovery and use of such confidential information are prohibited under the Act (Ill. Rev. Stat. 1987, ch. 110, par. 8—2102), and the improper disclosure of such information constitutes a Class A misdemeanor. (Ill. Rev. Stat. 1987, ch. 110, par. 8—2105.) A further purpose of the Act “ ‘is to ensure the effectiveness of professional self-evaluation, by members of the medical profession, in the interest of improving the quality of health care.’ ” Pritchard v. SwedishAmerican Hospital (1989), 191 Ill. App. 3d 388, 397, 547 N.E.2d 1279, quoting Jenkins v. Wu (1984), 102 Ill. 2d 468, 480, 468 N.E.2d 1162.

Plaintiff asserts that the trial court’s ruling prohibited counsel from presenting evidence and expert testimony that would establish that the bylaws of St. Mary’s Hospital required: “(1) a mortality and morbidity review; (2) a monthly peer review committee meeting; (3) a patient care audit; and (4) an infection control mechanism meeting and these deviations proximately caused plaintiff’s injuries.” However, the nature and content of an internal review process are privileged and confidential information. (Pritchard, 191 Ill. App. 3d at 399.) Moreover, the trial court is granted broad discretion regarding the admission of evidence, and its decision will not be reversed on appeal unless that discretion has been clearly abused. Greene v. Rogers (1986), 147 Ill. App. 3d 1009, 1018, 498 N.E.2d 867; In re Estate of Weir (1983), 120 Ill. App. 3d 18, 458 N.E.2d 134.

In the present ease, the hospital review procedures were used for internal quality control, to improve patient care and to reduce mortality and morbidity by conducting reviews and studies. In order to determine whether the hospital properly conducted a review of Dr. Sirajullah and thereby followed its review procedures, it would be necessary to obtain information on the content of the review procedures which falls within the scope of information protected by section 8 — 2101 of the Medical Studies Act. The plain language of the Medical Studies Act expressly protects all information obtained by the patient care audit committee or the medical care evaluation committee used in the course of internal quality control or for the purpose of improving patient care and such information shall be privileged and confidential. (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 2101.) To allow discovery of such information would contravene the statutory prohibition. “We will not subject hospital staff review committees to the ever impending threat of public or judicial scrutiny under the auspices of the discovery process. For us to rule otherwise would gravely hamper the effectiveness of such committees as well as defeat the legislative intent in this area.” Mennes v. South Chicago Community Hospital (1981), 100 Ill. App. 3d 1029, 1031-32, 427 N.E.2d 952.

Plaintiff further argues that defendant waived its right to raise the Medical Studies Act privilege at trial by its failure to object to this evidence during Dr. Pelicore’s evidence deposition testimony. The privilege set forth in the Act cannot be waived. To the contrary, criminal penalties are imposed for the disclosure of such privileged information. (See Sakosko v. Memorial Hospital (1988), 167 Ill. App. 3d 842, 845, 522 N.E.2d 273.) Section 8 — 2102 provides:

“Admissibility as evidence. Such information, records, reports, statements, notes, memoranda, or other data, shall not be admissible as evidence, nor discoverable in any action of any kind in any court or before any tribunal, board, agency or person. The disclosure of any such information or data, whether proper, or improper, shall not waive or have any effect upon its confidentiality, nondiscoverability, or nonadmissibility.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 110, par. 8—2102.)

Even if the trial court would have erroneously granted plaintiff’s request regarding the hospital’s review procedures, evidence retains its confidential and privileged status whether or not it has been properly or improperly disclosed. (Ill. Rev. Stat. 1987, ch. 110, par. 8—2102; Sakosko, 167 Ill. App. 3d at 846.) Moreover, the record does not reveal that plaintiff raised the issue in her complaint regarding whether the hospital was negligent based on a violation of its review procedures pursuant to its bylaws. Instead, the issue pleaded in the amended complaint was that the hospital was liable under an agency theory for the improper care and treatment of the plaintiff. It is well established that plaintiff cannot plead one cause of action in her complaint and during trial attempt to prove another cause of action. (Greene, 147 Ill. App. 3d at 1021; Curry v. Summer (1985), 136 Ill. App. 3d 468, 480, 483 N.E.2d 711.) In any event, we believe that the hospital’s review procedures are protected by the Medical Studies Act. Thus, the trial court did not abuse its discretion in disallowing evidence pertaining to the hospital’s review procedures.

Plaintiff next argues that the trial court erred in its refusal to allow plaintiff to cross-examine Dr. Sirajullah, a former party to the action, as an adverse witness. Whether to allow a witness to be treated as a hostile witness is within the discretion of the trial court. (People v. Pittman (1973), 55 Ill. 2d 39, 59, 302 N.E.2d 7; Mazzone v. Holmes (1990), 197 Ill. App. 3d 886, 896, 557 N.E.2d 186.) Section 2—1102 (Ill. Rev. Stat. 1987, ch. 110, par. 2—1102) provides in pertinent part:

“Examination of adverse party or agent. Upon the trial of any case any party thereto or any person for whose immediate benefit the action is prosecuted or defended, or the officers, directors, managing agents or foreman of any party to the action, may be called and examined as if under cross-examination at the instance of any adverse party. The party calling for the examination is not concluded thereby but may rebut the testimony thus given by counter testimony and may impeach the witness by proof of prior inconsistent statements.”

It should be noted that dismissal of a party from a suit terminates any interest that party may have in the suit. (Cummings v. Chicago Transit Authority (1980), 86 Ill. App. 3d 914, 920, 408 N.E.2d 737.) In the present case, Dr. Sirajullah was dismissed from this cause of action with prejudice. As a result of that dismissal, his interest in the action was also terminated. Therefore, Dr. Sirajullah was not a party to the action before the court. Moreover, the action was not brought for the benefit of Dr. Sirajullah, nor does the record reveal that he was serving as an officer, director, managing agent or foreman of St. Mary’s Hospital. Actually, the record does not reveal that he served in any supervisory capacity with St. Mary’s Hospital. Consequently, since Dr. Sirajullah did not fall under any of the categories set forth in section 2 — 1102, plaintiff was not automatically entitled to examine Dr. Sirajullah as if under cross-examination. However, Supreme Court Rule 238 (107 Ill. 2d R. 238(b)) provides that: “If the court determines that a witness is hostile or unwilling, he may be examined by the party calling him as if under cross-examination.” It is well established that Rule 238 only applies to witnesses who prove to be hostile, uncooperative, or unwilling while on the witness stand. (Mazzone, 197 Ill. App. 3d at 896; Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, 926-27, 419 N.E.2d 578.) In the present case, the record reveals that plaintiff requested permission to examine Dr. Sirajullah as an adverse witness in a motion in limine prior to the commencement of trial. The record does not disclose that the trial court determined that Dr. Sirajullah was a hostile or unwilling witness while on the witness stand. Furthermore, the fact that Dr. Sirajullah may have given testimony unfavorable to the plaintiff is insufficient to invoke the provisions of Rule 238. (Mazzone, 197 Ill. App. 3d at 896-97; Jensen, 94 Ill. App. 3d at 926.) We, therefore, conclude that the trial court did not abuse its discretion in denying plaintiff’s request to cross-examine Dr. Sirajullah as an adverse witness.

Plaintiff next contends that the trial court erred in its ruling absolving St. Mary’s Hospital of its responsibility for Dr. Sirajullah’s performance of his duties since plaintiff maintains that a hospital may be liable for a physician’s conduct under a respondeat superior theory. Specifically, plaintiff argues that the hospital has a continuing duty to supervise the medical care administered to a patient. It is well settled that a hospital may be liable for injuries suffered by a patient in its care where: (1) under a respondeat superior theory there exists an employer-employee or principal-agent relationship between the hospital and the physician; and (2) the hospital may owe an independent duty to supervise and review the medical care administered to the patient. Alford v. Phipps (1988), 169 Ill. App. 3d 845, 857, 523 N.E.2d 563; Reynolds v. Mennonite Hospital (1988), 168 Ill. App. 3d 575, 578, 522 N.E.2d 827; Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253, cert. denied (1966), 383 U.S. 946, 16 L. Ed. 2d 209, 86 S. Ct. 1204.

At trial, plaintiff premised the hospital’s liability on a theory of vicarious liability based on the hospital’s alleged negligence in its failure to review and monitor Dr. Sirajullah’s treatment. A hospital is not an insurer of a patient’s safety, but a hospital does owe the patient a duty of protection, and it must exercise a degree of reasonable care toward the patient as his or her known condition requires. (Alford, 169 Ill. App. 3d at 857; Pickle v. Curns (1982), 106 Ill. App. 3d 734, 739, 435 N.E.2d 877.) However, a hospital does not have an independent duty to insure that each of its staff physicians will always perform his duty of due care to the patient. (Alford, 169 Ill. App. 3d at 858; Reynolds, 168 Ill. App. 3d at 579; Barton v. Evanston Hospital (1987), 159 Ill. App. 3d 970, 973, 513 N.E.2d 65.) Moreover, the manner in which to treat a patient is a medical decision solely within the discretion of the treating physician, not the hospital. (Alford, 169 Ill. App. 3d at 857-58; Johnson v. St. Bernard Hospital (1979), 79 Ill. App. 3d 709, 714, 399 N.E.2d 198.) It has been further determined that the negligence of a physician in treating a patient cannot be imputed to the hospital in instances where the physician is not an agent or under the direction of the hospital. (Johnson, 79 Ill. App. 3d at 714.) Illinois courts have also traditionally concluded that a hospital is not liable for the acts of an individual who renders medical care as an independent agent beyond the control of the hospital. Alford, 169 Ill. App. 3d at 858; Hundt v. Proctor Community Hospital (1972), 5 Ill. App. 3d 987, 284 N.E.2d 676.

Plaintiff asserts that, if the hospital would have used its normal procedures of review, then it would have discovered that the treating physician was using a type of prosthesis which was no longer used except for a few special patients. However, “ ‘a hospital will not be held liable for an act of malpractice performed by an independently retained healer unless it had reason to know the act of malpractice would take place ***.’ ” (Reynolds, 168 Ill. App. 3d at 579, quoting Pickle v. Curns (1982), 106 Ill. App. 3d 734, 739.) In the instant case, the record does not establish that the hospital had reason to know that Dr. Sirajullah would commit the alleged malpractice.

Dr. Sirajullah testified that he was an independent staff physician with consulting privileges at St. Mary’s Hospital, and it is the doctor’s, not the hospital’s, responsibility to make all decisions regarding patient treatment and care. Dr. Dennis Gates, a board-certified orthopedic surgeon, testified that a surgeon is totally independent of the hospital and that St. Mary’s Hospital had complied within a reasonable degree of medical certainty with the standard of care for hospitals when it provided care to the plaintiff. Dr. Landon, plaintiff’s expert witness, testified that the type of prosthesis device used was a decision made solely by Dr. Sirajullah. He further testified that infection is a complication that every surgeon who operates may have. Moreover, Dr. Danko testified that plaintiff’s infection could have happened “at •any time to any patient to any doctor.” Finally, Dr. Pelicore, chairman of the department of orthopedics and responsible for reviewing complaints made to the hospital administration regarding patient treatment, opined that the treatment rendered by Dr. Sirajullah was correct.

Since the manner in which plaintiff was treated in the instant case was a medical decision solely within the discretion of Dr. Sirajullah, we are of the opinion that the evidence does not establish that the hospital had control over Dr. Sirajullah’s performance relative to plaintiff’s total knee replacement. The absence of control over the decisions of Dr. Sirajullah establishes an independent relationship between Dr. Sirajullah and the hospital. Although plaintiff asserts that the hospital, through its agent, Dr. Sirajullah, was negligent, the record does not support the existence of an agency relationship. Instead, the evidence established that Dr. Sirajullah was an independent physician, responsible for making all decisions regarding the plaintiff’s medical treatment. Therefore, we conclude that, under the facts of this case, the trial court correctly determined that the hospital was not liable for Dr. Sirajullah’s course of treatment for the plaintiff.

Plaintiff finally argues that she was denied a fair and impartial trial when the trial court precluded Dr. Landon, plaintiff’s expert witness, from giving an additional opinion at trial as to whether the hospital nursing staff also deviated from the acceptable standard of care in light of Dr. Pelicore’s evidence deposition that was taken in West Palm Beach, Florida, just prior to trial. It should, however, be noted that plaintiff acknowledged in her appellate brief that Dr. Landon’ s testimony actually covered the additional opinion which plaintiff sought to have expressed at trial pertaining to the hospital nursing staff. A party cannot complain of evidence being excluded where the same evidence is admitted. Tomaszewski v. Godbole (1988), 174 Ill. App. 3d 629, 637, 529 N.E.2d 260.

Defendant contends that the trial court properly excluded Dr. Landon’s additional opinion since it was not disclosed pursuant to Illinois Supreme Court Rule 220. Supreme Court Rule 220(c) requires the party retaining or employing an expert witness, to be called to testify at trial, to respond to written interrogatories by stating the subject matter on which the expert is expected to testify, the expert’s conclusions, opinions and the bases thereof, and the expert’s qualifications. (107 Ill. 2d R. 220(c)(1).) Rule 220 further requires the party retaining the expert to seasonably supplement the expert’s answers to the interrogatories when additional information becomes known to the party or the party’s counsel. (107 Ill. 2d R. 220 (c)(3).) Rule 220(b) specifically provides that failure to disclose the identity of experts and their opinions or the failure to comply with discovery in accordance with Rule 220 will result in the disqualification of the expert as a witness. (107 Ill. 2d R. 220(b)(1); Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 237, 529 N.E.2d 525.) However, whether the trial court imposes sanctions for discovery violations and disqualifies the expert as a witness is within the sound discretion of the trial court and that decision will not be disturbed on review absent a clear showing of an abuse of that discretion. See Scheibel v. Groeteka (1989), 183 Ill. App. 3d 120, 143-44, 538 N.E.2d 1236; Ramos v. Pyati (1989), 179 Ill. App. 3d 214, 228, 534 N.E.2d 472; Romano v. Bittner (1987), 157 Ill. App. 3d 15, 34, 510 N.E.2d 924.

We have previously held that an expert’s direct testimony at trial may not be inconsistent with, nor go beyond the fair scope of, the facts known or the opinions disclosed during discovery. (Bart v. Union Oil Co. (1989), 185 Ill. App. 3d 64, 69, 540 N.E.2d 770.) The record in the instant case reveals that Rule 220 interrogatories were propounded to the plaintiff on September 24, 1986, requesting the identity of any expert witnesses and their opinions. Plaintiff responded to the Rule 220 interrogatories on November 18, 1986, stating that the experts’ opinions and the bases for their opinions were disclosed in the experts’ depositions. During the next 18 months prior to trial, plaintiff failed to supplement the opinions of her experts as required by Rule 220. The purpose of Rule 220 is to allow litigants to discover and rely upon the opinions of the experts retained by their adversaries. (107 Ill. 2d R. 220, Committee Comments; Bart, 185 Ill. App. 3d at 69.) Hence, an expert’s testimony is restricted to the opinions expressed in the expert’s deposition. Therefore, any opinion expressed by an expert in addition to any opinion expressed in his deposition was properly excluded. See Ramos, 179 Ill. App. 3d 214, 534 N.E.2d 472.

In the case at bar, the trial court allowed Dr. Landon to testify in accordance with his opinion expressed in his deposition. If Dr. Landon desired to express an additional opinion, he was required to supplement his deposition testimony prior to trial in accordance with Rule 220. We conclude that the trial court did not abuse its discretion in refusing to allow Dr. Landon to testify beyond the scope of his deposition testimony.

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

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN BULMAN, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—2657
    Opinion filed April 8, 1991.

      Ramsell & Associates, of Schaumburg (Donald J. Ramsell, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Judith M. Gilson, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Kevin Bulman appeals from an order denying his petition to rescind a statutory summary suspension of his driver’s license.

Defendant, Kevin Bulman, was arrested on May 1, 1988, for: (1) driving with a blood-alcohol concentration over .10 (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501(a)(1)); (2) driving under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501(a)(2)); and (3) driving off the roadway (Ill. Rev. Stat. 1987, ch. 95½, par. 11—704). Bulman was issued a notice of summary suspension pursuant to section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95½, par. 11—501.1). Subsequently, pursuant to section 2 — 118.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 2—118.1), Biilman petitioned the circuit court of Cook County for a judicial hearing with respect to the suspension. For the reasons set forth below, we affirm the suspension.

It was uncontested that on May 1, 1988, at approximately 1:30 a.m., Bulman had an auto accident in which he was injured; that he received a ride home from an individual who passed by the accident scene; and that 30 minutes later Sergeant Steiner arrived at Bulman’s home.

At the hearing, Sergeant Steiner testified to the following: He was employed by the Village of Mount Prospect police department, and on May 1, 1988, he responded to an accident scene where a car had struck a pole. The car was severely damaged. He observed blood and flesh on the driver’s seat and did not find anyone in the car. When he ran a “check” on the license plates, he discovered that Bulman owned the car and learned Bulman’s address.

Additionally, Officer Steiner testified to the following: After examining the accident scene, Officer Steiner went to Bulman’s home around 2:15 a.m. When he knocked on Bulman’s front door, Bulman answered. When Officer Steiner told Bulman that Bulman’s car had been involved in an accident, Bulman admitted that he was driving the vehicle at the time. Officer Steiner told Bulman that an accident report had to be filled out, that Officer Edwards was the investigating officer and that Officer Edwards would be at the police station. Officer Steiner asked Bulman to accompany him to the police station to complete the accident report because Officer Edwards would be at the police station. Bulman had cuts and lacerations on his chin and face. Bulman was not given sobriety tests in his home. He was not handcuffed, “patted down” or arrested in his home. Officer Steiner observed Bulman walk and talk and he believed that Bulman was under the influence of alcohol.

Further, Officer Steiner testified to the following: After about five minutes at Bulman’s home, Bulman accompanied Officer Steiner to the police station in the back seat of his squad car. The door handles in the back seat did not work, but Officer Steiner testified that he would not have prohibited Bulman from leaving the car. ..When they arrived at the police station, Bulman was neither fingerprinted nor photographed. Bulman sat in an unlocked police interview room, which is generally where accident victims sit. He never indicated to Bulman that Bulman was not free to leave.

Officer Edwards testified to the following: He was also employed by the Mount Prospect police department, and he met Bulman on May 1, 1988, at about 2:30 a.m. in the interview room. He arrested Bulman around 2:35 a.m. Bulman was given sobriety tests around 3 a.m. A breath test determined that Bulman had a blood-alcohol content (BAG) of .23. He observed that Bulman had lacerations on his nose and chin. Officer Edwards signed the “law enforcement sworn report,” wherein he stated that probable cause existed “following a traffic accident investigation” because Bulman smelled strongly of alcohol.

Then, Dr. Daniel J. Brown testified as an expert in forensic toxicology and stated the following: He was employed by the Bureau of Forensic Sciences and that a breath testing instrument uses a “simulator solution.” Simulator solution is commonly called “certified control reference samples,” and the Illinois Department of Public Health prepares water and alcohol solutions that are tested for their accuracy. These solutions are used as calibration solutions for breath testing devices. The “certificate of analysis” for the alcohol reference solution lot No. 88 — 139 had a recorded value of 0.100 (mean) for Intoximeter Model 3000. The concentration of lot No. 88 — 139 on the gas chromatograph was 0.1%. He was of the opinion that because the gas chromatographic analysis indicated .1% and the Intoximeter indicated a .1%, one of the instruments was incorrectly recording or not calibrated properly.

Additionally, Dr. Brown admitted that a person who weighs 135 pounds (Bulman’s weight was recorded as 135 pounds on the police report) would have to consúme 12 bottles of beer to achieve a BAG of .23. He stated that a person could “theoretically” achieve a BAG of .23 from a BAG of 0, but that it would “require a heroic effort *** it would have to take, literally, a 16-ounce malt cup full of 100 proof booze, [or] something to that equivalent, and pound it down.”

Dr. Dietmar Grohlich also testified as an expert in forensic toxicology. He stated the following: He is the supervisor of the Office of Toxicology for the Illinois Department of Health. His office produces and tests simulator solution for the use on breath test instruments in the State of Illinois. He signed the certificate of analysis for lot No. 88— 139. The test might be adversely affected if an individual has blood in his mouth and that blood contained alcohol. The following colloquy took place:

“Q. And on the gas chromatograph analysis [of lot No. 82— 112], the concentration there listed is .121 milligram percent, correct?
A. It’s 121 milligrams.
Q. 121. All right, can you explain to the Court the discrepancy between these two documents?
A. Yes, actually referring to lot No. 82 — 112, the concentration which is listed there, 121 milligrams percent refers to the actual alcohol concentration as determined by the gas chromatograph.
Q. All right, alcohol concentration in what?
A. 121 milligrams of alcohol, and the percent sign stands for 100 milliliters of acreage [water] solution.
* * *
Q. On the other 88 — 139, what does the .1 percent stand for?
A. .1 percent as you notice the milligram is missing here, a gram is missing. Shows a concentration equivalent. The gas chromatographic result was deemed to be equivalent to the value recorded for the breathalyzer, 0.10.
Q. Does this reflect a difference in scientific procedure or difference in paper work?
A. No, actually the procedures were exactly the same. It’s a difference of paper work.
* * *
Q. But what exactly does the .1 percent stand for?
A. A concentration equivalent.
Q. Equivalent of what?
A. This is the gas chromatographic equivalent for the breathalyzer reading of .1 percent.”

Bulman testified to the following: He was drinking prior to his accident. As he approached an intersection, a car was on the wrong side of the road. When he tried to go around the car, he hit a fire hydrant. His head hit the steering wheel and he sustained facial lacerations and a broken nose. A “couple” took him home. When he arrived home, he consumed two cocktail glasses of scotch. He did not recall being placed under arrest when the officer came to his house. When he was transported to the police station, he was of the opinion that he was not free to leave of his own volition. At the police station, he did not smoke, eat or place anything in his mouth before taking the breath test but there was still a certain amount of bleeding throughout his sinuses and in his nose. He had a terrible taste of a blood combination in'his mouth which he only “guessed” occurred within the 20 minutes preceding the test.

Then, Richard Tracey testified to the following: He was employed by the Mount Prospect police department and was trained as a breath test operator. On May 1, 1988, he began observing Bulman about 2:55 a.m. He sat about three feet away from Bulman. He noticed a little blood around Bulman’s mouth but did not look inside Bulman’s mouth. When the observation period ended about 3:25 a.m., he gave Bulman the breath test.

The trial court determined that Bulman did not meet his burden by clear and convincing evidence that the breathalyzer results should be excluded despite his assertion that the results were caused by his post-accident drinking. The following were the court’s findings: The court was concerned that at the statutory summary suspension hearing the defendant would simultaneously give evidence that could be used against him in his criminal proceeding. The court felt “comfortable” in ruling in favor of the State on the issue of whether the statutory summary suspension proceeding was followed appropriately and whether the breathalyzer results ought to be admitted in the summary suspension hearing because those issues involved assessing the witnesses’ credibility. However, the trial court summarily held in favor of Bulman with respect to the motion in limine which barred the State from introducing the breathalyzer result in any future related criminal proceeding. As a consequence, the trial court would not assess Bulman’s credibility regarding his testimony that he drank scotch after being involved in the car accident. -In deciding the motion in limine, the trial court did not think it had the right to “fuss around” with the issues of credibility of the witness in a criminal case when the State has the burden of proving its case beyond a reasonable doubt. The court felt “comfortable” dealing with the issue of Bulman’s credibility regarding his testimony about post-accident drinking in the summary suspension hearing.

Specifically, the court found that Sergeant Steiner’s testimony was credible; that Officer Tracey’s testimony was credible; that the arresting officer’s testimony was credible; that Sergeant Steiner was the arresting officer; that Bulman was arrested when Sergeant Steiner said “would you like to come down to the station” because Bulman was not free to leave; that the State proved by clear and convincing evidence that Bulman took a breathalyzer test, that its results were sufficient for the court to believe that his blood-alcohol content was in excess of .10; and that “whatever defects there were [in the breath test], they seemed insufficient to excuse the results on this particular test as to make a finding of .10 or over .10 against the manifest weight of the evidence.”

Bulman appeals the trial court’s order denying his petition to rescind the statutory summary suspension of his driver’s license. For the reasons set forth below, we affirm.

Summary suspension rescission hearings are civil proceedings in which the petitioner bears the burden of proof by a preponderance of the evidence. (Ill. Rev. Stat. 1987, ch. 95½, par. 2—118.1(b); People v. Sanders (1988), 176 Ill. App. 3d 467, 469, 531 N.E.2d 61.) The petitioner must first make a prima facie case that the test results are not reliable. (People v. Gryczkowski (1989), 183 Ill. App. 3d 1064, 1070, 539 N.E.2d 1360, citing People v. Orth (1988), 124 Ill. 2d 326, 340, 530 N.E.2d 210.) Elements of such a prima facie case include: whether the breathalyzer test was properly administered; whether the result was accurate; whether the result was trustworthy (Gryczkowski, 183 Ill. App. 3d at 1070 (and see cases cited therein)); and whether the Illinois Department of Public Health Rules were violated. (People v. Hamilton (1987), 118 Ill. 2d 153, 160, 514 N.E.2d 965.) After the petitioner makes a prima facie case for rescission, the burden shifts to the State. The trier of fact’s finding with respect to whether the petitioner met his burden of proof will only be reversed if it is against the manifest weight of the evidence. (Sanders, 176 Ill. App. 3d at 469.) “A finding is against the manifest weight of the evidence where an opposite conclusion is clearly evident from the record.” People v. Torres (1987), 160 Ill. App. 3d 643, 646, 513 N.E.2d 1142, appeal denied (1988), 118 Ill. 2d 550, 520 N.E.2d 392, citing People v. Jacquith (1984), 129 Ill. App. 3d 107, 117, 472 N.E.2d 107.

Initially, Bulman argues that the trial court erred in sustaining his summary suspension when he introduced evidence: (a) that he consumed alcohol after his accident; (b) that there was blood in his mouth immediately preceding the breath test; and (c) that the Illinois Department of Public Health Rules were violated.

Bulman argues without merit that the trial court erred in not rescinding his summary suspension because he testified that he consumed two cocktail glasses of scotch after the car accident and, thus, the State did not sufficiently establish that his blood-alcohol content was .10 or more at the time of driving. Bulman cites People v. Kappas (1983), 120 Ill. App. 3d 123, 458 N.E.2d 140, and People v. Malik (1983), 113 Ill. App. 3d 206, 446 N.E.2d 931, as authority for his argument. However, Kappas and Malik plainly do not pertain to summary suspension hearing issues. In Kappas and Malik, both defendants were appealing their criminal convictions of driving under the influence of alcohol, which presents different issues. While it is clear that Bulman may challenge the validity of the breath test (People v. Hamilton (1987), 118 Ill. 2d 153, 161, 514 N.E.2d 965; Ill. Rev. Stat. 1987, ch. 95½, par. 2—118.1), the trial court determined that Bulman’s testimony regarding his alleged post-accident drinking was not credible and that the breath test results were sufficient to find that his blood-alcohol content was in excess of .10. The trial court’s finding is supported by Bulman’s admission that he was drinking before his accident, his own expert’s testimony that a “heroic effort” (e.g., a 16-ounce malt cup of 100 proof alcohol) was necessary to consume enough alcohol to achieve a BAG of .23 from a BAG of 0, and Bulman’s testimony that he only consumed two cocktail glasses of scotch following the accident. Bulman did not introduce any evidence that the two scotches, combined with his admitted pre-accident drinking, could have resulted in a BAG of .23, while still being below .10 at the time of the accident. Therefore, we do not have to reach the issue of whether Bulman’s blood-alcohol level was .23 at the time of driving, rather than at the time of the breath test, because if the relevant time is at the time of driving, by defendant’s own admission and his expert’s testimony, he did not consume enough post-accident alcohol to result in a BAG of .23. For the foregoing reasons, the trial court properly determined that Bulman did not establish a prima facie case for rescission based upon his alleged post-accident drinking.

We also are not persuaded by Bulman’s argument that the trial court erred in not rescinding his summary suspension because he introduced evidence that blood was allegedly in his mouth immediately before the breath test, thereby affecting the tests results, and that the State did not rebut the evidence. The trial court specifically determined that “whatever defects there were [in the breath test], they seemed insufficient to excuse the results on this particular test as to make a finding of .10 or over .10 against the manifest weight of the evidence.” There is insufficient reason for this court to second-guess the trial court’s assessment of Bulman’s credibility with respect to Bulman guessing that he tasted a blood “combination” in his mouth prior to taking the test. It is the function of the trier of fact to determine the credibility of the witnesses, the weight of their testimony and the inferences to be drawn from the evidence. (People v. Akis (1976), 63 Ill. 2d 296, 298, 347 N.E.2d 733.) Consequently, this court will not substitute its judgment for that of the trier of fact regarding questions involving the evidence’s weight or the witnesses’ credibility.

Then, Bulman argues that the trial court erred in not rescinding his summary suspension on the grounds that the Illinois Department of Public Health Rules were violated. Bulman’s argument is premised upon Dr. Brown’s opinion that the certificate of analysis for lot No. 88 — 139 was scientifically inaccurate because one of the instruments was incorrectly recording or not calibrated properly. Consequently, Bulman asserts that the breath machine was not properly certified pursuant to Illinois Department of Public Health Rules. We disagree. The trial court’s determination is supported by Dr. Grohlich’s opinion. Dr. Grolich signed the certificate of analysis for lot No. 88— 139, and he was of the opinion that the gas chromatographic result was “equivalent” to the value recorded for the breathalyzer; that the value recorded was different because of “a difference in paper work”; and that .1% stood for a concentration equivalent for the breathalyzer reading of .1 %. Moreover, the finder of fact was allowed to accept one expert’s opinion over another. (People v. Bouchard (1989), 180 Ill. App. 3d 26, 35, 535 N.E.2d 1001.) With respect to the alleged violation, the trial court’s determination was not against the manifest weight of the evidence.

While Bulman contends that the trial court correctly determined that Officer Steiner arrested him in his home, he contends that Officer Steiner did not have probable cause. Section 11 — 501.1(a) of the Vehicle Code requires that a defendant must have been arrested for driving under the influence. (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501.1(a).) Section 11 — 501.1 of the Illinois Vehicle Code provides, in pertinent part:

“(a) Any person who drives or is in actual physical control of a motor vehicle upon the public highways of this State shall be deemed to have given consent, subject to the provisions of Section 11 — 501.2, to a chemical test or tests of blood, breath, or urine for the purpose of determining the alcohol, other drug, or combination thereof content of such person’s blood if arrested, as evidenced by the issuance of a Uniform Traffic Ticket, for any offense as defined in Section 11 — 501 or a similar provision of a local ordinance. The test or tests shall be administered at the direction of the arresting officer. The law enforcement agency employing said officer shall designate which of the aforesaid tests shall be administered.” (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501.1(a).)

An arrest for driving under the influence, of course, requires that the arresting officer have actual probable cause to believe that the defendant was driving under the influence, not whether the officer correctly articulated the basis for the arrest. People v. Wolff (1989), 182 Ill. App. 3d 583, 586, 538 N.E.2d 610.

Thus, as a preliminary issue, we must determine when Bulman was arrested. The test for arrest is whether, considering all of the circumstances surrounding the incident, a reasonable man, innocent of any crime, would have considered himself under arrest. (People v. Goodman (1988), 173 Ill. App. 3d 559, 561, 527 N.E.2d 1055.) Such circumstances may include the continuing possession of an individual’s driver’s license by a police officer, the handcuffing of the individual, or the placing of the individual into a squad car. (Goodman, 173 Ill. App. 3d at 561.) “The duration of the individual’s detention also bears on whether the stop is merely investigatory or constitutes an arrest.” Goodman, 173 Ill. App. 3d at 561.

We do not believe that a reasonable man, innocent of any crime, would have considered himself under arrest after considering: that Bulman was in fact involved in a severe car accident; that he deserted his car at the accident scene; that he voluntarily answered his home’s front door about 15 minutes after he arrived home; that he invited Officer Steiner into his house; that he admitted that he voluntarily agreed to go the police station to fill out an accident report; that he stated that he did not recall being placed under arrest when Officer Steiner came to his house; and that he voluntarily accompanied Officer Steiner to the police station in the squad car because his car was damaged and deserted at the accident scene. These acts constituted an officer’s investigation of a traffic accident. Consequently, we believe that Bulman was arrested by Officer Edwards at the police station and reverse the trial court’s findings to that extent.

We address Bulman’s erroneous argument that the arresting officer lacked probable cause. Probable cause exists where the facts and circumstances known to the arresting officer are sufficient to warrant a man of reasonable caution to believe an offense was committed. (People v. Sanders, 176 Ill. App. 3d at 470.) The officer’s subjective belief does not control. (Wolff, 182 Ill. App. 3d at 586.) The standard requires more than mere suspicion, but does not require the officer to have in hand evidence sufficient to convict. (People v. Sanders, 176 Ill. App. 3d at 470.) Additionally, circumstances observed after the act of driving can offer reasonable grounds upon which to conclude a defendant was driving while under the influence. (Sanders, 176 Ill. App. 3d at 470.) Further, “[a] court may place itself in the position of the arresting officer and, in light of the objective evidence, substitute its judgment on the issue of probable cause for the officer’s judgment.” People v. Wolff (1989), 182 Ill. App. 3d 583, 586, 538 N.E.2d 610.

Based upon Officer Edwards’ sworn report, probable cause existed to arrest Bulman for driving under the influence when Officer Edwards’ investigation established that Bulman was driving his car when he had an accident and that Bulman smelled strongly of alcohol. Similarly, in People v. Wolff (1989), 182 Ill. App. 3d 583, 538 N.E.2d 610 (where a police officer was informed that defendant Wolff had run his car off the road and that when the officer went to his home, the officer noticed a strong alcohol odor on defendant Wolff’s breath), this court found that the combination of these factors was sufficient probable cause to believe that the defendant was driving under the influence. (Wolff, 182 Ill. App. 3d at 586.) Based on the foregoing, we conclude that the arresting officer had probable cause.

Again, Bulman contends that Officer Steiner was the arresting officer and that because Officer Edwards signed the law enforcement sworn report as the arresting officer, his summary suspension should be rescinded. As discussed above, this argument is without merit because Officer Edwards was the arresting officer.

For the reasons set forth above, the circuit court of Cook County’s order denying Bulman’s petition to rescind the statutory summary suspension is affirmed.

Affirmed.

MANNING, P.J., and BUCKLEY, J., concur.

      However, Bulman later testified that his car hit a fire hydrant.