text:
    ALI GUZELDERE, Special Adm’r of the Estate of Denise Guzeldere, Deceased, Plaintiff-Appellant, v. PAUL WALLIN, Defendant-Appellee.
    First District (3rd Division)
    No. 1—90—1716
    Opinion filed April 15, 1992.

      Goldberg & Goldberg and David A. Novoselsky & Associates, both of Chicago (David Novoselsky and Tammy A. Koester, of counsel), for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago (Richard J. Hickey and Joann Smith Johnston, of counsel), for appellee.
   JUSTICE CERDA

delivered the opinion of the court:

On April 26, 1990, a jury found in favor of defendant, Dr. Paul Wallin, and against plaintiff, Ali Guzeldere, special administrator of the estate of Denise Guzeldere, deceased. After the trial court denied all of plaintiff’s post-trial motions, he filed a timely notice of appeal. On appeal, plaintiff asserts that: (1) reversible error occurred due to evidentiary rulings that were inconsistent with the trial court’s rulings on plaintiff’s motions in limine; (2) the trial court erred in refusing to discharge the jury panel after a settlement was reached with other defendants; (3) the defense counsel’s closing arguments were so prejudicial that they deprived plaintiff of a fair trial; and (4) the jury’s verdict was against the manifest weight of the evidence. We affirm.

The principal issue in this case is whether a motion in limine, which properly barred a medical expert from giving an opinion that a nurse’s negligence was a cause of death, also barred the expert from testifying to whether a nurse’s omissions did not give the defendant doctor the opportunity to attend to a patient.

. On March 14, 1980, 41/2-month-old Denise Guzeldere had a fever and difficulty breathing. At 12:15 a.m. on March 15, 1980, her father took her to the La Grange Community Hospital emergency room. Denise died at 6:15 a.m. on March 16, 1980. Her father, Ali Guzeldere, sued Dr. Paul Wallin, Nurse Eulah Draudt, and La Grange Community Hospital, among others.

After jury selection began during the trial, plaintiff reached a settlement with Nurse Draudt and the hospital. After the trial court approved the settlement, plaintiff requested that the entire jury panel be discharged because it had already been told that Nurse Draudt and the hospital were defendants. After determining that there was no evidence anyone would suffer prejudice if the jurors were not discharged, the trial court denied the motion.

The trial court then heard plaintiff’s motion in limine requesting that Dr. Given, a defense expert witness, be barred from testifying that Nurse Draudt’s failure to call Dr. Wallin when Denise’s condition deteriorated was a cause of her death. Because Dr. Given’s deposition did not include such testimony, the trial court ruled that he could not testify that Nurse Draudt’s failure to call Dr. Wallin was a cause of Denise’s death. He could testify, however, that Nurse Draudt did not call even though she should have called and that Dr. Wallin did not have the opportunity to be at the hospital when Denise’s condition deteriorated because he was not contacted.

Plaintiff’s counsel also made an oral motion barring defense counsel from making reference to former defendants, such as Nurse Draudt and La Grange Community Hospital, regarding their being defendants or former defendants. That motion was granted without objection from the defense counsel.

At trial, Dr. Mohommed Arain, a general surgeon who was the emergency room physician when Denise was brought in, testified that he examined Denise. After speaking with Mr. Guzeldere, he called Dr. Paul Wallin, who was Denise’s pediatrician. Dr. Arain then examined Denise and ordered an X ray and a complete blood count. He made no notations in the emergency room record that there was retraction of the chest or cyanosis, which he would have done if they had existed.

Dr. Arain concluded that Denise was dehydrated and listed his diagnosis as acute bronchitis, possible pneumonia in the left lung. He did not intubate Denise, administer oxygen, place her on a monitor, or start an intravenous line because he did not feel that it was necessary. He was still in the process of evaluating the situation when Dr. Wallin, whom Dr. Arain considered to be more qualified, arrived.

Plaintiff called Dr. Paul Wallin as an adverse witness. Dr. Wallin testified that he went to the hospital at 12:30 a.m. on March 15, 1980, after being called about Denise. When he arrived at the emergency room, he talked to Dr. Arain, reviewed the record, spoke with Mr. Guzeldere, and examined Denise. Mr. Guzeldere told Dr. Wallin that Denise had vomited at 9:30 p.m., but had eaten normally earlier that day. Based on that information and the fact that Denise urinated while she was in the emergency room, Dr. Wallin concluded that Denise did not show signs of dehydration.

Dr. Wallin reviewed the X rays, which showed atelectasis, which is less air in the lung tissue than normal, air trapping, a rotation of the heart, and bilateral pneumonia. It did not show consolidation, which exists with bacterial pneumonia. He ordered repeat X rays, which also did not show consolidation. The blood test showed an elevated white blood cell count of 17,300. Based on that count alone, Dr. Wallin stated, he could not discern whether the infection was viral or bacterial. Although he believed that the infection was bacterial in nature, he was concerned about both possible types of infection.

Dr. Wallin diagnosed Denise’s condition as bronchiolitis, an inflammation or irritation of the bronchioles. He later prepared a two-page report of the history and physical, noting the following: Denise was irritable; had strong crying with good aeration; good skin color; no cyanosis (blue color); no substemal retractions; the fontanel was soft and pulsatile; she was alert; the tympanic membranes were clear; the throat was moderately inflamed; the pupils were equal and reactive to light; the chest was symmetrical; there was marked general broncho-spasm with good aeration of the chest; the heart tones were normal; there was no murmur; and the neurological examination was normal. Dr. Wallin also testified that Denise’s skin elasticity and mucous membranes were normal. At that time, Dr. Wallin did not consider Denise to be in a life-threatening condition.

Dr. Wallin admitted Denise at 2:35 a.m. on March 15, 1980, and gave orders directing the nursing staff to take vital signs every four hours; to push fluids to encourage her to drink; to record intake and output of fluids; to administer Quibron, a bronchodilator; to administer Ampicillin intramuscularly on admission and every six hours thereafter; and to place Denise in a high humidity tent without oxygen. He then left.

Dr. Wallin returned to the hospital between 7 and 8 a.m. on March 15, 1980. When he arrived, he reviewed the hospital records, including the nurses’ notes, talked to the nurses assigned to Denise, and examined Denise. He was aware that Denise had been crying earlier, had refused a feeding, and had labored respirations. When he examined her, however, her vital signs were stable, she was afebrile, had taken in fluids, and was sleeping with good respiratory effort. Given her condition of bronchiolitis, Dr. Wallin expected Denise to experience respiratory distress and to not take fluids very easily. Therefore, he decided to continue the same course of therapy.

At 10:30 a.m., Dr. Wallin called the hospital. Upon learning that Denise had taken and retained four ounces of formula at 10 a.m., he changed her medication slightly, increasing the Quibron dose. When Dr. Wallin visited Denise around 12 noon, he observed that her color was normal. Mr. Guzeldere also testified that Denise’s color was normal at that time.

Later, when Dr. Wallin visited Denise from 5 to 7:30 p.m., he reviewed the hospital chart and spoke with Denise’s parents. During that time, Denise had been playing with her parents and had taken four ounces of formula and two ounces of apple juice. Dr. Wallin’s examination indicated that Denise was taking fluids fairly well, her temperature was down, her respiratory efforts were easier, her color was normal, without cyanosis, and that she still had some intercostal retractions with generalized bronchospasm with some improvement. Because he concluded that Denise’s condition had somewhat improved, Dr. Wallin continued the same course of therapy, but asked the nurses to try giving Denise rice or barley cereal twice daily. Dr. Wallin testified that he was not present during the resuscitation efforts at 6:10 a.m. on March 16,1980.

Dr. Paul Chasnoff, one of plaintiff’s expert witnesses, testified that, in his opinion, Dr. Wallin had deviated from the standard of care in seven ways, including that Dr. Wallin failed to (1) assess the severity of Denise’s illness; (2) order arterial blood gas tests; (3) put in an intravenous line; (4) provide oxygen; (5) adequately monitor Denise; (6) leave an order for the nurse as to when he should be called; and (7) transfer Denise to the intensive care unit. As a basis for those opinions, Dr. Chasnoff stated that Denise’s condition steadily deteriorated throughout her hospitalization.

On cross-examination, however, he admitted that there were major inconsistencies in her hospital chart regarding whether Denise’s condition steadily deteriorated during that time. Dr. Chasnoff further testified that generally there was a low mortality rate for bronchiolitis, that Denise’s condition deteriorated after Dr. Wallin last saw her, and that it was not reasonable to expect Dr. Wallin to change his course of treatment if he was not notified of changes in his patient’s condition.

Dr. Chasnoff stated that Nurse Draudt should have called Dr. Wallin on March 16, 1980, at 2:45 a.m. when Denise refused her feeding and regurgitated a thick white mucous, at 3:30 a.m. when her respirations increased to 68, and at 3:45 a.m. when her respirations increased to 72. Dr. Chasnoff explained that signs of severe life-threatening illness are central cyanosis, respirations over 70, listlessness,

and apneic spells. Dr. Chasnoff opined that Denise’s condition was reversible from the time she entered the emergency room until the last time Dr. Wallin saw her at 7 p.m. on March 15, 1980. When asked whether Denise would have survived if Dr. Wallin had been called and given a chance to institute appropriate therapy, plaintiff objected, and the trial court sustained the objection because Dr. Chasnoff’s deposition did not contain that testimony.

Another plaintiff expert witness, Dr. Michele Monaco, testified that Dr. Wallin deviated from the standard of care in six ways, including that he failed to (1) adequately monitor Denise’s heart and respiratory rates; (2) administer oxygen; (3) order an arterial blood gas test; (4) leave orders as to when he should be called; (5) start an intravenous line; and (6) transfer Denise to the intensive care unit.

On cross-examination, Dr. Monaco stated that the increases in the respiratory rate from 48 to 68 to 72 between 2:30 a.m. and 3:45 a.m. on March 16, 1980, were significant. He acknowledged that Nurse Draudt should have called Dr. Wallin when the respiratory rates increased. Even though the nurse did not call, Dr. Monaco expressed that the doctor was still directly in charge of his patient. Dr. Monaco admitted that there would have been a 96% to 99% chance of survival if Dr. Wallin were able to intervene before 5:30 a.m. on March 16,1980.

When asked whether Nurse Draudt’s failure to call Dr. Wallin caused or was a contributing cause to Denise’s death, plaintiff objected, and a sidebar was held. The trial court stated that its ruling on plaintiff’s motion in limine did not include Dr. Monaco’s testimony about the nurse’s standard of care. Because proximate cause was within the scope of the direct examination, the trial court allowed the witness to answer the question. Dr. Monaco responded, however, that he could not answer the question because it was too speculative.

Dr. John Dainauskas, the pathologist who wrote the final autopsy summary, testified that the cause of Denise’s death was listed as bronchopneumonia, most likely bacterial pneumonia even though the postmortem cultures did not grow any bacteria.

Because former nurse Eulah Clay Draudt was unavailable to testify, her evidence deposition, taken on January 14, 1988, was read to the jury. On March 15 and 16, 1980, Nurse Draudt was employed as a registered nurse at La Grange Community Hospital on the 11 p.m. to 7 a.m. shift. She was assigned to care for Denise during that time. Nurse Draudt considered it her responsibility to assess Denise throughout her shift and to report to Dr. Wallin any changes in the physical condition that might be a risk to the patient. When the doctor was not present, Nurse Draudt stated, it was her responsibility to give Denise adequate fluids. If she had any questions, problems, or concerns, she could report to her immediate supervisor.

During her first shift on the morning of March 15, 1980, Nurse Draudt noted that Denise’s color had improved. Before Nurse Draudt came on duty at 11 p.m. the next night, Denise’s temperature was 99.4 degrees; her pulse was 160; and her respiration was 48. At 2:45 a.m., Denise refused her feeding and regurgitated a thick white mucous. At that time, her respiration was 68. At 3:30 a.m., Denise’s temperature was 98.6 degrees; her pulse was 156; and her respiration was 68. Fifteen minutes later, her pulse was 146 and her respiration was 72. Although Nurse Draudt considered an 8- to 10-point increase in respiration to be a drastic change, she did not contact Dr. Wallin about any change in Denise’s condition from 11 p.m. on March 15, 1980, through 6 a.m. on March 16, 1980, when she found Denise unresponsive. Nurse Draudt explained that nothing she observed during that time made her feel it was necessary to contact the night supervisor or Dr. Wallin. When Denise’s respirations increased during the night, she attributed the increase to the fact that Denise had vomited. At 6 a.m. on May 16, 1980, when Nurse Draudt discovered Denise not breathing, a code blue was called. The attempt to resuscitate her was unsuccessful.

Defendant called Jacqueline Ramirez, who had been a pediatric nurse at La Grange Community Hospital on the 3 to 11 p.m. shift during 1980. Nurse Ramirez explained that the pediatric nurse was the primary caretaker for the child when the doctor was not present. The nurse’s assessment of the child included vital signs, respiratory rate, state of alertness, and skin elasticity. The nurse would check for dehydration by examining the skin condition, mouth, lips, diaper, and whether the child was fatigued.

Nurse Ramirez testified that she had cared for infants with bronchiolitis who had been placed in a high humidity tent. Not all infants with bronchiolitis were given an intravenous or oxygen, Ramirez stated. Based on her experience caring for children with respiratory distress, Nurse Ramirez discussed that signs of respiratory distress included labored breathing, retractions, change in color, nasal disturbances, and congestion. Respiratory distress may increase as a result of moving or changing the child. She considered an increase in a sleeping child’s respiratory rate from 48 to 68 significant. If an infant had rapid respirations and wheezing, then started to grunt, as the hospital records indicated happened with Denise, Nurse Ramirez believed that the respiratory distress was becoming more serious.

If a child’s condition were deteriorating, Nurse Ramirez would notify the doctor even without an order requiring her to do so. Although it was not a regular practice in 1980 for doctors to write orders to nurses requesting them to call the doctor if the patient’s condition deteriorated, Nurse Ramirez believed that it was Dr. Wallin’s practice in 1980 to be contacted by the nurse if any of his patients showed signs of deterioration.

Nurse Ramirez did not observe Denise grunting from 3 to 11 p.m. on March 15, 1980. Between 5 and 7 p.m., Denise’s condition improved. The fact that Denise had taken six ounces of fluid and urinated three times during the shift was a good sign.

Dr. Given, a pediatrician, was the defense’s expert witness. He testified to a reasonable degree of pediatric certainty that the care and treatment Dr. Wallin gave Denise was within the standard of care. Because Denise’s condition was stable and had not worsened as of 8 a.m. on March 15, 1980, Dr. Wallin’s decision to not intubate her, administer oxygen, order blood gases or electrolyte studies, or to transfer her to the intensive care unit was within the standard of care. Dr. Given noted that Denise’s parents acknowledged that Denise’s condition had improved, that she was playing with them, and that she was aware of her environment. At that time, Denise was moving air nicely and was less distressed.

Furthermore, Dr. Given testified, the two X rays indicated that Denise’s condition had not significantly changed. Dr. Given agreed with Dr. Wallin’s assessment that Denise had viral pneumonia because she did not have a high fever, which is associated with bacterial pneumonia, and the blood culture was negative for bacterial growth. Given the amount of fluid voided and normal urination concentration, Dr. Given indicated that Denise was not dehydrated during her hospitalization. Dr. Given also testified that the autopsy findings were consistent with viral pneumonia or bronchiolitis.

Due to plaintiff’s objection, Dr. Given was not permitted to give his opinion whether the outcome would have been different if Nurse Draudt had called Dr. Wallin when Denise’s condition worsened at 2:45 a.m. on March 16, 1980. During the sidebar, an offer of proof was made that Dr. Given would testify that Dr. Wallin would have changed the course of treatment and the outcome would have been different if Nurse Draudt had called him. The trial court ruled that Dr. Given could not testify to causation, but could be asked whether Nurse Draudt should have called Dr. Wallin at specific times during her shift.

Dr. Given then testified that Dr. Wallin did not breach the standard of care by not leaving an order for the nurses to call him. That was not the standard procedure and nurses were professionals who knew when to call the doctor. Dr. Given opined that Nurse Draudt should have called Dr. Wallin at 3:30 a.m. when Denise’s pulse was 156 and her respirations were 68 while asleep. At 3:45 a.m., Nurse Draudt should have called Dr. Wallin when Denise’s pulse was 146 and respiratory rate was 72 while asleep. Dr. Given explained that those signs demonstrated a drastic change in Denise’s condition and implied that she was tiring, which was a serious concern.

Dr. Wallin then testified in his own defense. In addition to the evidence presented during his earlier testimony, Dr. Wallin explained that the manner in which bronchiolitis is treated depends on the extent of the disease in the particular patient. Dr. Wallin stated that he had treated several hundred children who suffered from bronchiolitis, the majority as outpatients. Dr. Wallin never knew of a child to die from bronchiolitis other than Denise.

Dr. Wallin explained that pneumonia, an inflammation of the lungs, can be either viral or bacterial in nature. Signs and symptoms of bacterial pneumonia include high fever for an extended period of time and infrequent wheezing. Although bronchiolitis may initially involve a high fever, it tapers off. On X rays, bacterial pneumonia appears consolidated while bronchiolitis appears scattered and sparse. Since Denise’s X rays did not show consolidation and the blood culture did not grow bacteria, Dr. Wallin testified, it appeared that Denise did not have bacterial pneumonia. He was concerned, however, about both viral and bacterial infection. Since the antibiotic of choice for treating a four-month-old infant suffering from bronchiolitis or bacterial pneumonia was Ampicillin in 1980, Dr. Wallin ordered that drug for Denise.

Based on his physical examination of Denise, the X rays, and the blood culture, Dr. Wallin concluded that neither intubation, oxygen, blood gases, nor mechanical monitors were necessary. He determined that Denise was not in impending respiratory failure and was breathing adequately on her own.

Dr. Wallin had worked with both Nurse Draudt and Nurse Ramirez for many years at La Grange Community Hospital. He trusted them and believed they were experienced and well trained. Dr. Wallin stated that the hospital’s policies and procedures did not require that he write orders to nurses asking them to call if- a patient’s condition significantly deteriorated. According to the hospital record, Denise first showed increased signs of fatigue and respiratory difficulties between 2:45 and 3:45 a.m. on March 16,1980.

Dr. Wallin testified that signs of severe respiratory distress include a respiratory rate of over 70, extreme respiratory difficulty with marked retractions, nasal flaring, grunting, and poor aeration of the lungs. The hospital record showed grunting only once during the early hours of March 15, 1980. The record did not indicate any nasal flaring or extreme respiratory difficulty. Denise had taken fluids throughout her stay, was playing peek-a-boo with her mother, and was playing with her father.

When Denise regurgitated a thick white mucous at 2:45 a.m. on March 16, 1980, Dr. Wallin stated, Nurse Draudt should have called him. At 3:30 and 3:45 a.m., when Denise’s respiration rate increased to 72 and her pulse dropped to 146, Nurse Draudt should have called him. He did not receive a call until 6:10 a.m. on March 16, 1980, when he was told that a code blue had been called on Denise. Although Dr. Wallin was not allowed to testify about what he would have done for Denise if he had been called, he did testify that normally, he would go to the hospital if he was called during the night about a patient’s deteriorating condition. After evaluating the situation, Dr. Wallin would consider changing the course of therapy to stop the deterioration.

After consideration of all the evidence, the jury returned a unanimous verdict in favor of Dr. Wallin. After the trial court denied plaintiff’s post-trial motion, his motion for new trial, and his motion for judgment notwithstanding the verdict and a trial for damages only, plaintiff filed a timely appeal.

On appeal, plaintiff asserts that several evidentiary rulings made during the trial were reversible error because they were inconsistent with the trial court’s rulings on motions in limine. Plaintiff claims that the record includes numerous instances of defense counsel creating inferences and innuendo to the jury that Nurse Draudt’s failure to call and advise Dr. Wallin of Denise’s changed condition was a cause or contributing cause of death. Many of those instances were questions to which objections were sustained. Plaintiff argues that the trial court ignored its own ruling and allowed the improper testimony, resulting in reversible error.

Plaintiff’s argument has no merit. Prior to trial, the trial court ruled that Dr. Given, defendant’s expert witness, could not testify that Nurse Draudt’s failure to call Dr. Wallin was a cause of Denise’s death. He could testify, however, that Nurse Draudt did not call even though she should have called and that Dr. Wallin did not have the opportunity to be at the hospital when Denise’s condition deteriorated because he was not contacted. The trial court explained that the issue of Nurse Draudt not calling Dr. Wallin would be allowed in for the doctor’s standard of care, but not for the nurse’s standard of care, which was not an issue. The trial court concluded that Dr. Wallin not having the opportunity to come to the hospital because he was not called was different from the nurse’s failure to call him being a cause of death.

The trial court’s ruling was based on the fact that, in his deposition, Dr. Given stated that the cause of death was cardiac arrest secondary to bronchiolitis. He said nothing about third parties causing Denise’s death. Since the purpose of Supreme Court Rule 220 (134 Ill. 2d R. 220) is to permit litigants to ascertain and rely on the opinions of experts retained by their adversaries, the scope of an expert’s testimony at trial is limited to those opinions expressed in response to discovery. Bart v. Union Oil Co. (1989), 185 Ill. App. 3d 64, 69.

Since motions in limine cannot restrict defendant from presenting a valid defense (Duffy v. Midlothian Country Club (1985), 135 Ill. App. 3d 429, 436), the trial court’s ruling on plaintiff’s motion in limine was proper. It concerned Dr. Given’s testimony based on his opinions expressed during discovery. It did not bar any testimony related to causation. It also was very specific that evidence could be presented that Nurse Draudt should have called Dr. Wallin when Denise’s condition deteriorated and her failure to call did not give Dr. Wallin the opportunity to alter Denise’s treatment. At the same time, the trial court ruled that evidence could not be presented that Nurse Draudt’s failure to contact Dr. Wallin was a cause or contributing cause to Denise’s death.

The trial court’s evidentiary rulings regarding evidence of causation and the doctor’s standard of care were proper. They conformed to its earlier rulings on plaintiff’s motion in limine.

The evidence was also proper because plaintiff introduced evidence during the trial that Dr. Wallin breached the standard of care by not leaving an order for Nurse Draudt to call him if the child’s condition changed. In his defense, defendant contended that the standard of care did not require him to leave Nurse Draudt a note to call him if Denise’s condition deteriorated. Even without such a note, the nurse should have contacted him. Because she did not, Dr. Wallin argued, he did not have the opportunity to intervene in Denise’s care. Once plaintiff introduced that evidence, he could not later complain of defendant’s evidence in response. Romanek-Golub & Co v. Anvan Hotel Corp. (1988), 168 Ill. App. 3d 1031,1040.

Plaintiff also asserts that defendant violated the trial court’s ruling on his oral motion barring defense counsel from making reference to former defendants, such as Nurse Draudt and La Grange Community Hospital, regarding their being defendants or former defendants. Since plaintiff makes no argument, cites no authority, nor cites the record, he has waived that issue.

Next, plaintiff asserts that the trial court’s refusal to discharge the jury panel after settlement was reached with Nurse Draudt and the hospital was reversible error. Because the entire jury panel was aware that they had originally been defendants, plaintiff argues, he was prejudiced. Plaintiff claims that, once the jury saw that they were no longer defendants in the lawsuit, it would know that there had been a settlement, thus tainting the jury. Plaintiff’s only authority is that matters concerning compromise and settlement are not admissible at trial. Barkei v. Delnor Hospital (1988), 176 Ill. App. 3d 681, 694.

Plaintiff’s argument is meritless. The trial court did not err in not discharging the jury. There is no evidence in the record that the jury had any knowledge that a settlement had been reached with Nurse Draudt or the hospital. Moreover, the trial court told the jury to not speculate about why those defendants were no longer present and to decide the case on the evidence and the law. Because there was no evidence that the jury was aware of the settlement or that there was any prejudice to plaintiff, the trial court did not err in refusing to discharge the jury panel.

Although there was no error in not discharging the jury panel, it would have been better if the trial court had discharged the entire jury venire. Since only one panel had been chosen, it was Friday afternoon, and there would have been no prejudice to any party if the jury had been discharged, it would have been preferable to discharge the jury and begin jury selection anew on Monday. This was a different situation from cases where a settlement occurs with some parties during the trial.

Asserting that the defense counsel’s closing arguments were unreasonable and highly prejudicial, plaintiff claims that the cumulative effect of the improper statements was so prejudicial that he was denied a fair trial. Plaintiff contends that the defense counsel erroneously changed the issue from whether Dr. Wallin’s actions met the standard of care to whether Nurse Draudt’s failure to call Dr. Wallin was the true cause of Denise’s death. Plaintiff complains of the defense counsel’s argument that Dr. Wallin should not be held liable for Denise’s death since he did not have the opportunity to make a decision after Denise’s condition deteriorated. Plaintiff also asserts that the defense counsel’s comments concerning the qualifications of plaintiff’s expert witnesses and how much they had been paid were so inflammatory and prejudicial that they deteriorated the judicial process. We disagree.

An attorney is permitted wide latitude in closing argument. For a judgment to be reversed, a closing argument must be clearly improper and prejudicial. (In re Salmonella Litigation (1990), 198 Ill. App. 3d 809, 820.) Comments on evidence during closing argument are proper if they are either proved by direct evidence or are a fair and reasonable inference from the facts and circumstances proven. People v. Mullen (1990), 141 Ill. 2d 394, 404.

The record establishes that the defense counsel’s closing argument remarks were proper. He argued the evidence presented at trial and reasonable inferences to be drawn. The defense presented the theory that Dr. Wallin’s treatment of Denise complied with the applicable standard of care. The trial court had earlier ruled that the issue of the doctor’s standard of care included that Nurse Draudt did not call, she should have called, and Dr. Wallin did not have the opportunity to be at the hospital because he was not called. The trial court stated that Dr. Wallin’s lack of opportunity to come to the hospital was different from the nurse’s failure to call him being a cause of death.

Furthermore, the defense counsel’s comments complied with the jury instructions given, including Hlinois Pattern Instructions, Civil, No. 12.04 (2d ed. 1981) (hereinafter IPI Civil 2d), which was tendered by plaintiff. That instruction stated:

“More than one person may be to blame for causing an injury. If you decide that the defendant was negligent and that his negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame.
However, if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant.” IPI Civil 2d No. 12.04.

It was also proper to argue that Dr. Wallin’s not being contacted about Denise’s deteriorating condition had a bearing on his actions. All the experts who testified at trial agreed that Nurse Draudt should have called Dr. Wallin when Denise's condition deteriorated. Therefore, it was a reasonable inference that Dr. Wallin did not have the chance to intervene on Denise’s behalf.

The defense counsel’s comments about plaintiff’s expert witnesses were also proper. Contrary to plaintiff’s assertion, defense counsel did not state that plaintiff’s experts were prostituting their services. He properly commented on the amount of compensation each expert witness received (Sears v. Rutishauser (1984), 102 Ill. 2d 402, 408), the difference in the compensation paid to plaintiff’s experts and defendant’s expert, and that defendant’s expert was more qualified than plaintiff’s experts. Those comments were very different than the comments made in Belfield v. Coop (1956), 8 Ill. 2d 293, which was cited by plaintiff. The Belfield verdict was reversed because the attorney referred to the opposing parties as “thieves,” “usurpers,” and “defrauders.” 8 Ill. 2d at 312.

In determining whether a party has been denied a fair trial because of improper closing argument, a reviewing court gives considerable deference to the trial court because it is in a superior position to assess the accuracy and effect of counsel’s statements. (In re Salmonella, 198 Ill. App. 3d at 820.) The defense counsel’s closing argument remarks were proper since they were based on the evidence and were not contrary to the trial court’s rulings on plaintiff’s motion in limine.

Finally, plaintiff asserts that he is entitled to a new trial because the jury’s verdict was against the manifest weight of the evidence, or, in the alternative, to a judgment notwithstanding the verdict. Plaintiff contends that the record proves that Dr. Wallin breached the standard of care and that his failures caused Denise’s death.

It is the jury’s function to weigh contradictory evidence, judge the credibility of the witnesses, and draw the ultimate conclusion from the facts. (Lee v. Grand Trunk Western R.R. Co. (1986), 143 Ill. App. 3d 500, 512.) There was ample evidence to support the jury’s finding in favor of defendant. Since the verdict is not against the manifest weight of the evidence, the trial court properly denied plaintiff’s motion for a new trial. Mizowek v. De Franco (1976), 64 Ill. 2d 303, 310.

The trial court also properly denied plaintiff’s motion for judgment notwithstanding the verdict. A judgment notwithstanding the verdict should be granted if the evidence, viewed in the light most favorable to the nonmovant, overwhelmingly favors the movant so that no contrary verdict could stand. (Gillespie v. Chrysler Motors Corp. (1990), 135 Ill. 2d 363, 383.) After reviewing the evidence in the light most favorable to defendant, it does not so overwhelmingly favor plaintiff that no contrary verdict based on the evidence could stand.

Based on the foregoing, the circuit court judgment is affirmed.

Affirmed.

GREIMAN, P.J., and RIZZI, J., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VINCENT BRUMLEY, Defendant-Appellant.
    First District (4th Division)
    No. 1—90—2326
    Opinion filed April 16, 1992.
    Rehearing denied May 15, 1992.

      Rita A. Fry, Public Defender, of Chicago (Cheryl K. Lipton and Karen E. Tietz, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Marie Quinlivan Czech, and Jeanne Lobelson, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

Defendant Vincent Brumley and two codefendants, Steven Anderson and Lome Gray, were charged in a 22-count indictment and separate trials were conducted. Following a jury trial in the circuit court of Cook County, defendant was found guilty of murder, armed robbery, and aggravated kidnapping (Ill. Rev. Stat. 1989, ch. 38, pars. 9— 1, 18 — 2, 10 — 2). He was sentenced to concurrent terms of imprisonment of 55 years for murder, 30 years for armed robbery, and 15 years for aggravated kidnapping. On appeal, defendant contends that (1) the trial court erred in considering evidence outside the record at the suppression hearing and at the sentencing hearing; (2) the State made several improper statements during closing argument which denied him a fair trial; and (3) the trial court erred in refusing to give his proposed jury instruction on accountability.

We affirm.

At trial, Derrick Hendrix testified that on June 13, 1986, he was driving home from work when he saw two men holding a gun on another man near the intersection of Roosevelt Road and 13th Street. He told a police officer about what he had seen and the two returned to the scene. No one remained at the scene nor were there any witnesses in the area. The officer later learned that a white car was seen speeding away from the parking lot.

Stephanie Morgan, a clerk at the Kedzie-Ogden Currency Exchange, testified that on June 13, 1986, she received a telephone call regarding the type of identification needed to cash a check. Approximately 30 minutes later, the witness stated that a customer, whom she identified as Allen Cypin (the victim), came into the exchange. She recognized the victim’s voice as that of the same person who had called earlier about identification. The witness also stated that the victim was wearing a jacket, in spite of the heat. She further testified that the victim appeared to be frightened and nervous and was sweating. The witness further testified that while she was processing the check she noticed that a man was insistent upon standing closely behind the victim and that on three separate occasions she had to ask the man to step back. She stated that the man did not transact any business and that both men left the currency exchange at the same time.

Detective James Mercurio testified that he found the victim’s body and that it had a gunshot wound to the head. The victim’s white car was recovered approximately one mile from where the body was found.

Willie McCoy testified that he knew Gray, Anderson and defendant. He stated that he saw Gray in a white car in the parking lot near his apartment. He further stated that the police had asked him about the car because its owner had been murdered. The witness testified that he did not speak to the police because he was afraid.

McCoy further testified that he did not see Gray again until about 16 months after the police first asked him about the white car. He stated that after seeing Gray again and completing a drug abuse program, he decided to inform the police about what he had seen. The witness identified Gray’s photo and pointed out Gray’s house. The witness agreed to testify provided the State relocate him.

Detective Terrance Thedford testified that after speaking with Willie McCoy on October 14, 1987, he interviewed Gray. He further stated that, as a result of his conversation with Gray, he and his partner attempted to locate Steven Anderson and defendant. The witness stated that he interviewed Anderson and went to defendant’s home, where he interviewed defendant’s mother. After returning to defendant’s home a second time, defendant voluntarily accompanied the officer to the police station. Defendant and Anderson were placed under arrest. Defendant denied being involved in the homicide, even after being confronted with incriminating statements made by Gray. Several hours after being taken into custody, defendant made a court-reported statement.

Defendant stated that Anderson and Gray pulled up beside him in a white car in June of 1986. They asked him to get in the car and he got into the back seat. Defendant stated that there was a “man balled up” on the floor in the rear of the car. He stated that they drove around for awhile and then went to a currency exchange. Defendant stated that Anderson, Gray and the victim went into the currency exchange while he stayed in the car. Defendant stated that when they returned, Anderson gave Gray some money. He further stated that he did not receive any money. Anderson then drove the car to a lot near some railroad tracks. He saw Anderson with the gun standing over the victim and heard a gunshot. Defendant stated that he ran when he heard the shot.

Assistant State’s Attorney Inge Fryklund testified that she interviewed defendant for approximately 20 minutes on October 23, 1987. The witness stated that near the end of the interview she asked defendant if he was surprised to be arrested 18 months after the event. The witness stated that he said, “Yes, I thought we got away with it.”

The jury found defendant guilty of murder, aggravated kidnapping and armed robbery. At the sentencing hearing, the State asked the court to consider hearsay statements of Gray and Anderson which indicated that defendant shared in the proceeds of the cashed payroll check and that defendant had been active in controlling the victim while in the back seat of the car. The court found the acts in this case to be exceptionally cruel and sentenced defendant to concurrent terms of imprisonment of 55 years for murder, 30 years for armed robbery and 15 years for aggravated kidnapping. This appeal followed.

Initially, we note the State contends that defendant has waived objection to every issue on appeal because he failed to object at trial or raise them in his motion for a new trial. Generally, an issue which has not been objected to during trial and raised in a post-trial motion is not preserved for appeal unless the issue is plain error. (People v. Enoch (1988), 122 Ill. 2d 176, 187.) “The [plain error] doctrine will be applied in criminal cases if the evidence was closely balanced or the alleged error was so serious that it deprived defendant of a fair trial.” (People v. Priola (1990), 203 Ill. App. 3d 401, 417.) We will review the alleged errors to ascertain whether they so seriously prejudiced defendant as to deprive him of a fair trial.

Defendant first argues that he should be given a new hearing on his motion to quash arrest and suppress evidence because the trial court relied on evidence outside the record in finding probable cause to make the arrest. Defendant argues that since the substance of Gray’s statement was not introduced into evidence at the hearing, it was reversible error for the trial judge to rely on the statement. The State argues that the trial judge did not rely on the content of the statement but on the fact that Gray made a statement which implicated himself as well as defendant.

“There is a presumption that a trial court relied only on proper evidence in reaching its conclusion” (People v. Brock (1989), 184 Ill. App. 3d 595, 599) and disregarded evidence which is inadmissible in forming conclusions (People v. Harris (1974), 57 Ill. 2d 228, 231). Further, “[a] reviewing court will not disturb a trial court’s finding on a motion to suppress unless that finding is manifestly erroneous.” People v. Thompson (1991), 215 Ill. App. 3d 514, 519.

In the present case, the court based its finding of probable cause on facts in the record that Gray made an inculpatory statement, implicating both himself and defendant in the crime. The trial judge specifically stated that the contents of the statement were not admitted into evidence because they were not relevant. Defendant’s speculation that the trial court relied on evidence outside the record, without more, is insufficient to overcome a presumption that the trial court considered only proper evidence in reaching its decision.

In finding probable cause, the court’s determination may be based on both factual and practical considerations of everyday life. (People v. Thompson (1991), 215 Ill. App. 3d 514, 519.) The record amply supports a finding that Gray made a statement implicating defendant in the crime. We believe the circumstances under which the statement was made are a factor which the trial court could properly take into consideration in finding probable cause. We therefore find that the trial court did not rely on evidence outside the record in finding probable cause to arrest defendant.

Defendant contends that it was error for the trial judge, at the sentencing hearing, to consider hearsay issues and statements by Gray and Anderson that defendant shared in the proceeds of the armed robbery. In People v. Tigner (1990), 194 Ill. App. 3d 600, the court stated as follows:

“It has long been held that a sentencing judge will be given wide latitude in his discretionary determination of the types and sources of evidence that may be admitted to assist him in determining the kind and extent of punishment to be imposed within the statutory limits. [Citations.] The only requirement for admission is that the evidence be reliable and relevant, and this is a decision left to the discretion of the sentencing court. [Citation.] *** The relaxation of the formal rules of evidence at the sentencing stage is intended to provide the sentencing judge with a wide range of information concerning the defendant’s life, character, criminal history and a propensity to continue to commit other offenses. [Citations.] Even hearsay evidence is not per se inadmissible at a sentencing hearing. [Citations.] A hearsay objection will go to the weight and not the admissibility.” Tigner, 194 Ill. App. 3d at 607.

We do not believe the trial court committed error in considering hearsay evidence and statements by Gray and Anderson that defendant shared in the proceeds of the robbery. The court found the statements to be reliable and relevant to the sentencing of defendant. As we previously discussed, in determining the reliability of the statement, the court considered the fact that Gray implicated himself when he made the statement. In addition, the fact of whether defendant shared in the proceeds of the robbery is relevant to his culpability. We therefore find that the judge did not abuse his discretion in admitting evidence at the sentencing hearing.

Thirdly, defendant contends that he was denied a fair trial by the prosecutor’s uninvited, improper statements during closing arguments. The State argues that the statements were proper comments on the evidence and were invited by defense counsel's argument. We agree with the State. In People v. Tipton (1990), 207 Ill. App. 3d 688, the court set forth the standard of review as follows:

“It is settled that a prosecutor is given great latitude in making closing arguments, and the trial court’s determination of the propriety of the argument will stand absent a clear abuse of discretion. [Citations.] The prosecuting attorney may not make arguments or assumptions which have no basis upon the evidence. [Citations.] *** Generally, improper comments or remarks made by a prosecutor do not constitute reversible error unless they are a material factor in the conviction [citation], or result in substantial prejudice to the accused [citations].” (Tipton, 207 Ill. App. 3d at 699-700.)

In addition, our supreme court has held that it is proper for a prosecutor to draw inferences from facts in evidence. People v. Franklin (1990), 135 Ill. 2d 78, 100.

Defendant contends that it was error for the prosecutor to comment on what the victim was experiencing when he was forced out of the car by the three men who had abducted him. Although defendant was not involved in the abduction, the evidence establishes that he was one of the three people present when the victim was taken to a parking lot where he was murdered. We find that the prosecutor’s statements were reasonable inferences drawn from the record and invited by defense counsel’s argument. We also find that the other alleged errors in closing argument are immaterial and are therefore waived. See People v. Enoch (1988), 122 Ill. 2d 176, 187.

Lastly, defendant contends that it was reversible error to refuse to modify the jury instruction on accountability with the following language: “[M]ere presence of the defendant at the scene and even knowledge that an offense being committed does not establish responsibility for the acts of others.” The trial judge instructed the jury as follows:

“A person is legally responsible for the conduct of another person when, either before or during the commission of an offense, and with the intent to promote or facilitate the commission of that offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid another person in the planning or commission of the offense.” See Illinois Pattern Jury Instructions, Criminal, No. 5.03 (2d ed. 1981).

“Illinois courts have consistently held that IPI Criminal No. 5.03 properly advises the jury on the law [regarding] accountability.” (People v. Underwood (1982), 108 Ill. App. 3d 846, 853.) We believe the trial court’s instruction contained a clear explanation of the law of accountability. Defendant could not have been found guilty of an offense under an accountability theory unless he had the intent to promote or facilitate the commission of the offense. We therefore find that the trial court did not err in refusing to give defendant’s proposed jury instruction on accountability.

For the foregoing reasons, we affirm the ruling of the circuit court.

Affirmed.

JIGANTI, P.J., and LINN, J., concur.


author: JUSTICE LaPORTA

text:
    ALL SEASONS EXCAVATING COMPANY et al., Plaintiffs and Counter-defendants-Appellees, v. EDWARD J. BLUTHARDT, Indiv. and d/b/a E.J. Bluthardt, et al., Defendants and Counterplaintiffs-Appellants.
    First District (6th Division)
    No. 1—90—1823
    Opinion filed April 20, 1992.

      Steven Messner, of Wilmette, for appellants.
    Ronald G. Zamarin, of Des Plaines, for appellees.
   JUSTICE LaPORTA

delivered the opinion of the court:

This case presents the second interlocutory appeal filed by defendants in a chancery action brought by plaintiffs, who sought an accounting, injunctive relief, and damages occasioned by the alleged misconduct of defendant, Edward Bluthardt, in relation to his position with plaintiff All Seasons Excavating Co. In this appeal, defendants challenge the trial court’s refusal to dissolve an injunction originally entered on January 13, 1989. Defendants contend that the trial judge abused her discretion by entering the injunction because plaintiffs failed to establish irreparable harm or the inadequacy of a remedy at law.

The record reveals that on January 13, 1989, plaintiffs filed a six-count complaint against defendants, asserting that Edward Bluthardt was an employee of All Seasons Excavating Co. (All Seasons) and that Bluthardt had been employed to operate the business of All Seasons at the direction of plaintiffs William and Carl Roppolo.

Count I of the complaint alleged improper and fraudulent acts by defendants, including the failure to cease activities on behalf of the company. Count II sought an accounting of amounts collected and paid by or on behalf of defendant related to the business of All Seasons and requested judgment for amounts due plus interest. Count III sought compensatory and punitive damages for fraud and breach of duty for fraudulent concealment of work performed using company equipment and for conversion of company funds. Count IV sought compensatory and punitive damages for conversion. Count V sought damages plus interest for Bluthardt’s alleged breach of a promise to repay loans totalling $12,006.66.

Count VI of the complaint, to which this appeal relates, sought to enjoin defendants from transferring or encumbering two parcels of real property owned by defendants and located in Prospect Heights, Illinois, and in Michigan, respectively. Count VI also sought damages for fraudulent inducement and breach of an oral agreement, alleging that in July 1987, defendants enlisted William Roppolo to co-sign a $70,000 promissory note pursuant to a mortgage on defendants’ residence in Prospect Heights, Illinois. Count VI alleged further that Roppolo was induced to co-sign the note by defendants’ representation that the loan was needed only until they sold their Michigan property and that the proceeds of that sale would be used to repay the $70,000 note. Count VI also asserted that defendants failed to sell the Michigan property and to keep the note co-signed by Roppolo in good standing and that the note was in default.

On January 13, 1989, the trial court granted plaintiffs’ emergency motion for an ex parte temporary restraining order prohibiting transfer or encumbrance of both parcels of real property.

On January 17, 1989, defendants filed a counterclaim against plaintiffs. In summary, the counterclaim asserted that in September 1986, Carl Roppolo, William Roppolo, and Edward Bluthardt entered into a verbal agreement to form a partnership for a land excavation business and that each partner was to have a one-third interest. The counterclaim alleged further that without Bluthardt’s knowledge or consent, Carl and William Roppolo incorporated the excavating business, assigning to themselves each a 50% share in an attempt to deprive Bluthardt of his interest in the business. The counterclaim sought a declaration of partnership, an accounting from plaintiffs, an assignment to Bluthardt of a beneficial interest in one-third of the business and its assets, compensatory and punitive damages, and payment of a sum of money or property equal to Bluthardt’s share of the partnership assets. The counterclaim also sought injunctive relief to restrain plaintiffs from taking any action with regard to the business property, to prevent its sale or transfer without court supervision, and generally to maintain the status quo while this action was pending.

On January 17, 1989, the trial court granted defendants’ motion and entered an ex parte temporary restraining order against plaintiffs, precluding them from selling, disposing of, or assigning the assets and equipment of All Seasons.

On March 14, 1989, defendants were ordered to return to plaintiffs $8,300 transferred in January 1989 from a company bank account to defendants’ personal bank account.

In April 1989, the trial court modified its order of January 13, 1989, and permitted defendants to pledge the Illinois property as security for another loan in the amount of $15,000, on the condition that the proceeds of the loan be used to repay funds which defendants had diverted from the corporate plaintiff subsequent to and in violation of the January 13, 1989, order. The court ordered further that after the diverted funds had been repaid to plaintiffs, the remaining proceeds of the loan be held in escrow by defendants’ counsel.

In July 1989, defendants, without the knowledge of the trial court or the plaintiffs, sold the Michigan property, in violation of the order entered January 13, 1989. This matter is the subject of a rule to show cause before the trial court.

On October 30, 1989, defendants filed a motion to dissolve the injunctive orders entered in April 1989. Upon the denial of that motion and of a motion for reconsideration, defendants filed the first interlocutory appeal before this court. That appeal challenged the propriety of the trial court’s order that defendants’ counsel hold in escrow the amount remaining from the proceeds of the second loan after defendants repaid the funds diverted from All Seasons’ business account.

On July 5, 1991, this court affirmed the trial court’s decision, holding that the injunctions were properly issued because the real property securing both loans was part of the subject matter of the litigation and that the court acted properly in enjoining the defendants’ activity with respect to this realty in order to maintain the status quo of the property. See All Seasons Excavating Co. v. Bluthardt (1991), 216 Ill. App. 3d 504, 576 N.E.2d 372.

On January 18, 1990, the same day on which the first interlocutory appeal was filed, defendants filed with the trial court a motion to dissolve the injunction entered January 13, 1989. This motion challenged the sufficiency of the proof presented by plaintiffs to support the issuance of the injunction.

On May 31, 1990, the trial court entered a memorandum opinion denying defendants’ motion to dissolve the January 13, 1989, injunction, finding that it was necessary to preserve the funds ordered to be held in escrow in order to preserve the status quo. The memorandum opinion noted that “[a]t the last peaceable and uncontested moment these funds and property had not been distributed. In addition, a party seeking injunctive relief need not make out a case which would entitle him to relief on the merits. Rather, he need only show that he raises a fair question about the existence of his right and that the court should preserve the status quo until the case can be decided on its merits. [Citation.] In application *** plaintiff has raised such a question.” Accordingly, the trial court denied the defendants’ motion to dissolve the existing injunction.

Before a preliminary injunction may issue, the petitioner must establish (1) a clear right or interest needing protection, (2) the absence of an adequate remedy at law, (3) irreparable harm if the injunction is not granted, and (4) a reasonable likelihood of success on the merits. Blackman Kallick Bartelstein v. Sorkin (1991), 214 Ill. App. 3d 663, 669, 574 N.E.2d 121.

In establishing a likelihood of success on the merits, the plaintiff is not required to make out a case which will in all events warrant relief at a final hearing. The petitioner need only (a) raise a fair question as to the existence of the right claimed, (b) lead the court to believe that he probably will be entitled to the relief prayed for if the proof should sustain his allegations, and (c) make it appear advisable that the position of the parties should stay as they are until the court has had an opportunity to consider the case on the merits. (Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 500, 422 N.E.2d 1166; Wessel Co. v. Busa (1975), 28 Ill. App. 3d 686, 690, 329 N.E.2d 414.) Thus, a preliminary injunction serves the purpose of preserving the status quo until the trial court can consider the case on its merits. (Lindsey v. Board of Education (1984), 127 Ill. App. 3d 413, 419, 468 N.E.2d 1019.) The status quo is the last, actual, peaceable, uncontested status that preceded the pending controversy. Lindsey, 127 Ill. App. 3d at 419.

Defendants have filed this second interlocutory appeal, contending that the trial judge abused her discretion by entering the injunction because plaintiffs failed to establish irreparable harm or the inadequacy of a remedy at law. This argument is without merit.

In count VI of the complaint, plaintiffs alleged that defendants fraudulently induced William Roppolo to co-sign the $70,000 promissory note secured by a mortgage on defendants’ residence in Prospect Heights, Illinois, based upon defendants’ representation that the note was to be repaid from the proceeds of the sale of defendants’ Michigan property. Count VI also asserted that defendants failed to sell the Michigan property and that the note co-signed by Roppolo was in default.

It is clear that defendants’ failure to keep the $70,000 promissory note in good standing put Roppolo at risk of being responsible for the full amount of the note. The note was secured by the property in Prospect Heights, Illinois, and, according to the agreement between Roppolo and Bluthardt, was to be repaid from the proceeds of the sale of the Michigan property. Defendants did not, however, pay off the note out of the proceeds of the sale of the Michigan property, and the record contains a notice of default on the note. Although defendants have asserted that the Illinois property was valued at $140,000, there is no evidence in the record to substantiate this claim. If defendants permitted the mortgage on the Illinois property to go to foreclosure, Roppolo may have been subject to a deficiency judgment in order to satisfy the $70,000 note.

Thus, if the trial court had denied plaintiffs’ request for injunctive relief, defendants would have been free to jeopardize Roppolo’s position through their conduct with regard to these two parcels of property. Indeed, the record indicates that this is precisely what happened with regard to the Michigan property. Moreover, there is no evidence in the record that defendants held any other asset against which Roppolo could have proceeded, and defendants have filed an affidavit attesting to the fact that they are impecunious.

As noted above, the record contains a notice of default on the promissory note co-signed by Roppolo. Absent an injunction, defendants would have been free to systematically dispose of or encumber all of their assets and, in effect, render themselves judgment-proof. A denial of plaintiffs’ request for injunctive relief would, therefore, have irreparably harmed William Roppolo in that he would have been obligated for the full amount owed under the note without the ability to recover against defendants. (See Kanter & Eisenberg v. Madison Associates (1987), 116 Ill. 2d 506, 516, 508 N.E.2d 1053; Exchange National Bank v. Harris (1984), 126 Ill. App. 3d 382, 390, 466 N.E.2d 1079.) We find that the record supports the determination that Roppolo would suffer irreparable harm if the request for injunctive relief had been denied.

We must also reject defendants’ claim that the trial court should have denied plaintiffs’ request for injunctive relief because they failed to establish the inadequacy of a remedy at law. It has been held that the existence of a remedy at law does not deprive equity of its power to grant injunctive relief unless the remedy is adequate, i.e., the remedy at law must be clear, complete, and as practical and efficient to the ends of justice and its prompt administration as the equitable remedy. (K.F.K. Corp. v. American Continental Homes, Inc. (1975), 31 Ill. App. 3d 1017, 1021, 335 N.E.2d 156.) Consequently, the fact that plaintiffs’ ultimate relief may be a money judgment does not deprive a court of equity of the power to grant a preliminary injunction. K.F.K. Corp., 31 Ill. App. 3d at 1021.

In the instant case, the defendants’ Illinois property secured the promissory note, and the Michigan property was intended to generate the cash which would pay off the note. Thus, the dispute between the parties centered around the real property owned by defendants and the funds to be generated therefrom. The record establishes that a notice of default had been issued on the the promissory note and that defendants were impecunious. If plaintiffs’ request for injunctive relief had been denied, a judgment against defendants would have been meaningless, and the legal remedy would have been entirely inadequate. (See Kanter & Eisenberg, 116 Ill. 2d at 514-15; Exchange National Bank, 126 Ill. App. 3d at 390-91; K.F.K. Corp., 31 Ill. App. 3d at 1021; Keeshin v. Schultz (1970), 128 Ill. App. 2d 460, 469, 262 N.E.2d 753.) Consequently, the trial court had a duty to prevent dissipation or destruction of the property and funds in controversy so that any success by plaintiffs would not result in a meaningless victory. Gannett Outdoor v. Baise (1987), 163 Ill. App. 3d 717, 721, 516 N.E.2d 915; D. Nelsen & Sons, Inc. v. General American Development Corp. (1972), 6 Ill. App. 3d 6, 9, 284 N.E.2d 478; Keeshin, 128 Ill. App. 2d at 468-69.

The issuance of a preliminary injunction rests within the sound discretion of the trial court and will not be set aside absent an abuse of that discretion. (Carriage Way Apartments v. Pojman (1988), 172 Ill. App. 3d 827, 835, 527 N.E.2d 89.) Based upon the record before us, we find that the trial judge did not abuse her discretion in entering the injunction against defendants.

For the foregoing reasons, the order of the circuit court of Cook County is affirmed.

Affirmed.

McNAMARA and RAKOWSKI, JJ., concur.


author: JUSTICE TULLY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DOLLIE PERRY, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—0083
    Opinion filed April 22, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Cheryl K. Lipton, Karen E. Tietz, and Carol Howard, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Howard D. Weisman, and Rohit Sahgal, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE TULLY

delivered the opinion of the court:

This is the second time that this case has come before this court for review. Following an earlier trial, wherein the defendant, Dollie Perry, was found guilty of murder, this court remanded the case for a new trial with instructions to the trial court to disallow certain testimony of a pathologist regarding the manner of the victim’s death. (People v. Perry (1986), 147 Ill. App. 3d 272, 498 N.E.2d 1167.) We considered this testimony to be unfairly prejudicial to the defendant. On retrial, wherein Dollie Perry was found guilty of involuntary manslaughter and sentenced to 8V2 years’ imprisonment, similar testimony by the same pathologist was allowed admissible over the objections of defense counsel. On appeal, the defense argues that this testimony was admitted in violation of our prior ruling, and therefore, the case must once again be remanded for a new trial, excluding the testimony at issue. The Honorable William Cousins, Jr., presided over both trials. The defendant has served her original sentence and is no longer in custody.

On September 5, 1983, defendant, Dollie Perry, an 18-year-old high school student, attended a Labor Day picnic and then returned home to care for her 16-month-old son, Mark, who had been previously attended that afternoon by her mother, Catherine Perry. While at the picnic, the defendant consumed unknown quantities of alcohol and marijuana. Upon arriving home at approximately 6 p.m., Dollie laid Mark on the bed in her bedroom, while she applied moisturizer to her hair, covering it with a shower cap. She then lay down on the bed next to Mark to take a nap.

Catherine Perry testified that around 6:30 p.m. she looked in the bedroom and saw Dollie lying across the bed with Mark’s feet protruding outward from underneath Dollie’s torso. From the waist downward, Dollie’s body was not on the bed. Catherine shook Dollie to awaken her, but when she did not respond, she pulled Dollie off of Mark to find a pillow over his face. After removing the pillow, she found Dollie’s shower cap over Mark’s face and noticed that he was not breathing. Mark was later pronounced dead at the hospital.

Police detective Robert McGuire interviewed Dollie while she was in custody at the police station. At trial, she testified that she told McGuire and an assistant State’s Attorney that she did not know what happened to Mark and remembered nothing after lying down on the bed with him. She also said that McGuire continuously called her a “lying bitch” and a “murdering bitch.” The next day she was questioned by Sergeant Joseph Murphy. She repeated her story to him and he responded that her mother and the doctor had told the police that she had killed Mark. She claims that it was only after finding this out that she began making self-incriminating statements. She cried and thought if her mother said she killed Mark, then she must have done it.

Sergeant Murphy testified he informed the defendant that Dr. Kirschner, the pathologist, had determined the cause of death to be suffocation due to asphyxiation. He denied telling her that her mother and the doctor said she had killed Mark. After that, he said defendant wanted to tell the “whole story” about what happened to Mark. She said that a short while after laying Mark on the bed, he began to cry. She then placed a pillow over his face and held it there for five minutes. When she removed the pillow the baby was no longer crying or breathing. When asked why she did it, she replied that she was tired of being Mark’s mother and did not want him around any longer. Defendant repeated this story in the presence of a court reporter, except that she stated she smothered Mark because she was tired of hearing him cry.

On the day following Mark’s death, Dr. Kirschner, a forensic pathologist, performed the autopsy. Dr. Kirschner performed an internal and external examination of the body as well as an investigation into the circumstances surrounding the death. As part of this investigation, he read the police reports, spoke with police officers and visited the death scene, the home of the defendant, where he spoke with the defendant’s mother, Catherine Perry. Dr. Kirschner testified that he could not determine the cause or manner of death based solely upon the results of the autopsy. Immediately following the autopsy, he spoke with police officers about the facts of the case and then prepared a death certificate, listing the cause of death as asphyxiation and the manner of death as “undetermined.”

Later the same day, Kirschner visited the defendant’s home and spoke with her mother. He testified that Catherine Perry described to him how Mark’s legs protruded outward from underneath the defendant’s body. She explained that the defendant’s body was lying on a pillow and beneath this pillow, on top of the child’s face, was a shower cap. After this discussion, Kirschner withdrew the earlier death certificate and issued a new one, changing the manner of death from “undetermined” to “homicide.” He also changed his prior description as to the nature of the injury from “lying by mother on bed” to “smothered by mother.” He based these changes entirely upon his conversation with defendant’s mother, Catherine Perry.

In its closing argument to the jury, the State reiterated Dr. Kirschner’s finding of “homicide” and argued that the defendant should be found guilty of killing her son. The State also told the jury that in order to find the defendant not guilty, it would have to find that all of the State’s witnesses had lied and engaged in a massive conspiracy to convict the defendant.

When we previously reviewed this case, we reversed and remanded for a new trial, finding that it was reversible error to allow Dr. Kirschner to testify that in his expert opinion Mark “did not die as a result of an accident.” At the first trial, Kirschner based his opinion on the fact that he could not accept “the assumption that a sleeping mother would take a pillow and roll over on top of an active child and the child would not then be able to make its distress known.” Perry, 147 Ill. App. 3d at 275, 498 N.E.2d at 1168.

We previously held that the testimony of Dr. Kirschner invaded the province of the jury, since the jury was competent to determine whether the defendant could have accidentally rolled over onto her child in her sleep and remain there for the five minutes necessary to suffocate him. Moreover, we stated that “there is no indication in the record that [Dr.] Kirschner’s expertise extended to determining the ability of a sleeping mother to feel her child.” Perry, 147 Ill. App. 3d at 275, 498 N.E.2d at 1169.

In arriving at this prior holding, we relied upon Harvey v. Norfolk & Western Ry. Co. (1979), 73 Ill. App. 3d 74, 390 N.E.2d 1384, wherein the court stated:

“Expert testimony is proper when the subject matter of the inquiry is of such a character that only persons of special skill or experience in that area are capable of forming a correct judgment with respect to the applicable facts. [Citation.] On the other hand, if the jury is competent to determine the facts in issue, then the expert opinion is of no special assistance to the jury and should not be admitted. [Citations.]” Harvey, 73 Ill. App. 3d at 83, 390 N.E.2d at 1390.

The defense contends that Dr. Kirschner’s opinion as to homicide, based upon his interview with the defendant’s mother, represents nothing more than his own assessment of the credibility of this witness who testified at trial. Therefore, it invades the province of the jury and violates our earlier order, reversing and remanding for a new trial. The State counters that Dr. Kirschner’s opinion as to homicide did not interfere with the jury’s ability to determine whether the defendant could have accidentally rolled over onto Mark in her sleep, suffocating him.

In our previous ruling, we held that whether or not Mark’s death was the result of an accident was a “central issue” in the case and, therefore, properly left to the jury. We now must decide whether or not the conclusion that Mark died as the result of a “homicide” was a central issue in the case, which should have been properly left for the jury to decide. The accepted legal definition of homicide is death by the agency of another. This definition encompasses both intentional and accidental deaths caused by the agency of another. In a murder case such as this, the State has the burden of proving death by the criminal agency of another.

The defense argues that the average jury member, not otherwise versed in legal terminology, equates the word “homicide” with the meaning of “murder,” and therefore, this testimony invaded the province of the jury. Moreover, the opinion was unreliable and therefore inadmissible because it was based upon a conversation with the defendant’s mother. The State counters that this was reliable expert testimony properly admissible and that the jury was not required to accept the opinion of Dr. Kirschner.

The defense relies upon the case of People v. Murphy (1987), 157 Ill. App. 3d 115, 509 N.E.2d 1323, which held that out-of-court statements made by the defendant’s mother were inadmissible hearsay, and although introduced for the limited purpose of having them evaluated by medical experts, they could not be presented to the jury as substantive evidence. The instant case is distinguishable from Murphy. In Murphy, the defendant’s mother was unavailable to testify at trial. In the case sub judice, the defendant’s mother testified that she saw the defendant lying across her infant son’s body. After removing the defendant, she then removed a pillow, sandwiched between the defendant and her son. She also removed a shower cap which was covering the little boy’s face. These statements were identical or very similar to the ones relied upon by Dr. Kirschner. No contradictory evidence was presented. The defendant herself does not remember what happened.

Dr. Kirschner’s opinion as to homicide, caused by the defendant’s body being positioned on top of her sleeping son, did not in any way add to the evidence already presented to the jury or assist it in reaching its own conclusions. In fact, it might be construed as prejudicial, since a layperson might equate the word homicide with murder. However, even if the trial court erred by admitting this testimony, such an error may not be prejudicial where other, unquestionably competent evidence in the record is sufficient to prove beyond a reasonable doubt that the death of Mark was caused by the agency of his mother. (People v. Jones (1961), 22 Ill. 2d 592, 177 N.E.2d 112.) The jury was still able to determine whether or not Dollie Perry accidentally rolled over onto her infant son, or whether the infant himself pulled the shower cap over his face.

We next consider whether the closing argument of the State was unduly prejudicial, warranting reversal. In closing argument, the prosecutor stated:

“Dr. Kirschner *** viewed the death scene *** [and] what did he do after speaking to Catherine? Did he list the manner of death as suicide? Did he list it as an accident? *** After he spoke to her own mother, he listed the manner of death as homicide.

* * *

He wanted to determine the manner of death because that’s his job. And, again, manner refers to the circumstances, suicide, homicide, accident. And what did he do after he concluded the second phase of his investigation at the scene after he talked to her mother? Did he say this was suicide? No. Did he list it as an accident? No. Did he say this was reckless? No. He said it was homicide, and that’s his job.”

Closing arguments which reflect unfavorably on the accused are not improper if based upon competent evidence. (People v. Turner (1984), 127 Ill. App. 3d 784, 469 N.E.2d 368.) Improper arguments justify reversal when the statements result in substantial prejudice or serve no purpose other than to inflame the jury. (People v. Terry (1984), 99 Ill. 2d 508, 460 N.E.2d 746.) In order to find that a closing argument constitutes reversible error, we must find that the questionable language, considered in light of all the evidence of guilt, was a material factor in the conviction and that the verdict would have been different had the language not been used. (People v. Smith (1972), 6 Ill. App. 3d 259, 263, 285 N.E.2d 460.) Moreover, a trial court’s determination as to the propriety of a closing argument will be sustained absent a clear abuse of discretion. People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 379 N.E.2d 847.

In People v. Vasquez (1969), 118 Ill. App. 2d 66, 254 N.E.2d 617, the prosecutor, in his opening statement to the jury, referred to the coroner’s conclusion as to manner of death and equated it with murder. Although the remark may have been improper, the court found the statement not sufficiently prejudicial to warrant reversal. The court also noted that the fact the jury did not find the defendant guilty of murder, but only involuntary manslaughter, vitiated the defense argument that the statement was prejudicial. Regarding another argument, the court also failed to find prejudicial error, when considering the argument in light of the “overwhelming evidence of defendant’s guilt” as well as the jury verdict for the lesser included offense of involuntary manslaughter.

Although the testimony of the pathologist and the closing arguments of the State were improper, when considered in light of all the evidence, they are not so prejudicial as to warrant a new trial in this case. The decision of the trial court is hereby affirmed.

Affirmed.

RIZZI and CERDA, JJ., concur.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALBERT KULWIN, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—1102
    Opinion filed April 22, 1992.

      Patrick A. Tuite and John L. Hines, Jr., both of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Inge Fryklund and James Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant Albert Kulwin was convicted of delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(a)(2)), possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(b)(2)) and possession of cannabis (Ill. Rev. Stat. 1985, ch. 56½, par. 704(d)) in a jury trial and sentenced to concurrent terms of six years’, four years’ and two years’ imprisonment. On appeal, defendant contends that (1) the State failed to prove beyond a reasonable doubt that he was not entrapped into possessing and delivering cocaine; (2) the trial court improperly restricted defense counsel’s cross-examination of the undercover agent on matters relating to his relationship and conversations with an informer; (3) the trial court improperly excluded evidence of the informer’s prior drug trafficking conviction and plea negotiation; (4) the prosecutor improperly commented during closing arguments about defense counsel’s failure to call the informer as a witness; and (5) the sentence imposed by the trial court on the cannabis charge should be vacated or reduced. We affirm in part, reverse in part, vacate in part and remand.

Defendant frequented Bumpkin’s Restaurant in Skokie, Illinois. He became friendly with the owner of the restaurant, William Fautsch, who unbeknownst to defendant, was a narcotics trafficker who previously had drug charges pending against him reduced in exchange for his future cooperation as an informant for law enforcement officials. Defendant had incurred debts approximating $20,000 and was unsuccessful in obtaining loans from his family and three financial institutions. Defendant confided to Fautsch about his financial predicament and had asked Fautsch on several occasions if he could borrow money in order to prevent the foreclosure of his home. Fautsch told defendant that he was not in the business of lending money, but suggested to defendant that he could obtain the money he needed by selling cocaine.

Fautsch put defendant in contact with Caeser Velazquez, an undercover officer with the Northeast Metropolitan Enforcement Group, an elite narcotics crime-fighting group comprised of police officers from suburban Cook County police departments. On July 31, 1986, defendant and Velazquez met at the Holiday Mart Plaza in Chicago, Illinois, to discuss the possibility of defendant supplying cocaine to Velazquez. On August 11, 1986, defendant agreed to meet Velazquez at the Bunny Hutch Restaurant in Lincolnwood, Illinois, in order to consummate a drug deal. Defendant picked up four packages of cocaine from Fautsch and drove to the Bunny Hutch Restaurant. In the restaurant parking lot, Velazquez approached defendant’s car and the men had a brief conversation. Defendant then sold Velazquez the cocaine. Immediately thereafter, defendant was arrested and taken into custody. A search of defendant’s automobile recovered 126.6 grams of cocaine, 54.35 grams of marijuana and a vial for inhaling cocaine.

Defendant was convicted of delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(a)(2)), possession with intent to deliver a controlled substance (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(b)(2)) and possession of cannabis (Ill. Rev. Stat. 1985, ch. 56½, par. 704(d)), and was sentenced to concurrent terms of six years’ imprisonment on the delivery charge, four years’ imprisonment on the possession with intent to deliver charge and two years’ imprisonment for possession of cannabis. This appeal followed.

Defendant argues that the State failed to prove beyond a reasonable doubt that he was not entrapped into possessing and delivering cocaine. We agree.

The affirmative defense of entrapment is available to a defendant who is induced by the State to commit a crime which he was not predisposed to commit. Section 7 — 12 of the Criminal Code of 1961 states:

“A person is not guilty of an offense if his conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of such person. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated.” (Ill. Rev. Stat. 1985, ch. 38, par. 7 — 12.)

Thus, in order for the defense of entrapment to be available to a defendant, the idea to commit the crime must not originate with the defendant, government agents must actively encourage the defendant to act, the purpose of the encouragement must be for evidence to prosecute the defendant, and the defendant must not be independently predisposed to commit the crime prior to first being approached by government agents. Ill. Rev. Stat. 1985, ch. 38, par. 7 — 12; Jacobson v. United States (1992), 503 U.S._,_, 118 L. Ed. 2d 174, 184, 112 S. Ct. 1535, 1540; Sorrells v. United States (1932), 287 U.S. 435, 451, 77 L. Ed. 413, 422, 53 S. Ct. 210, 216.

Factors to be considered when determining whether a defendant had the predisposition to commit a crime include: (1) the character or reputation of the defendant; (2) whether the suggested criminal activity was made by the government or its informants; (3) whether the defendant had previously been engaged in criminal activity for profit; (4) whether the defendant expressed reluctance to commit the offense, which was overcome only by repeated persuasion; (5) the nature of the inducement or persuasion applied by the government; (6) the defendant’s ready access to a source or supply of drugs; and (7) the defendant’s previous criminal record. (People v. Perez (1991), 209 Ill. App. 3d 457, 467-68, 568 N.E.2d 250, 256-57.) Once a defendant raises entrapment as an affirmative defense and presents some evidence thereon, the State is required to prove, in addition to each of the statutory elements of an offense, the absence of entrapment beyond a reasonable doubt. Ill. Rev. Stat. 1985, ch. 38, par. 3 — 2; People v. Aguilar (1991), 218 Ill. App. 3d 1, 7, 578 N.E.2d 109, 113.

After viewing the evidence in a light most favorable to the prosecution, we hold as a matter of law that the State failed to prove beyond a reasonable doubt that defendant was predisposed to commit the crimes for which he was convicted. Defendant, by virtue of his financial condition, was particularly susceptible to the State’s inducement. Defendant had incurred debts approximating $20,000, including over $12,000 seriously past due on the mortgage to his home. Defendant asked Fautsch, his supposed friend, if he could borrow money to prevent the foreclosure of his home. Fautsch, knowing of defendant’s financial plight, refused to lend him money, but suggested that defendant deal drugs in order to make “a lot of fast money.” Defendant did not initiate the reference to drugs or dealing in drugs. Fautsch initiated defendant’s contact with Agent Velazquez and eventually supplied the cocaine which defendant was convicted of delivering and possessing. The cocaine which defendant was convicted of possessing and delivering belonged to the government.

The record demonstrates defendant’s continued unwillingness to engage in this criminal activity. He finally acquiesced, however, to the State’s repeated and persistent inducement from both Fautsch and Velazquez to consummate the drug deal. (See People v. Poulos (1990), 196 Ill. App. 3d 653, 554 N.E.2d 448; see also United States v. Reynoso-Ulloa (9th Cir. 1977), 548 F.2d 1329, 1336 (“[T]he most important factor *** is whether the defendant evidenced reluctance to engage in criminal activity which was overcome by repeated Government inducement”).) Defendant had not previously been engaged in criminal activity for profit and had never been convicted of a crime prior to the offense in question. See People v. Boalbey (1986), 143 Ill. App. 3d 362, 493 N.E.2d 369.

Defendant here was coaxed by duplicitous government agents, who persuaded him with full knowledge and awareness of his financial misfortune to engage in a crime which he was not independently predisposed to commit prior to first being approached by Fautsch. While we recognize the necessity for the use of aggressive tactics by law enforcement officials in order to eliminate the drug scourge that is crippling this nation, we must conclude in the present case that the State failed to prove beyond a reasonable doubt that defendant was not entrapped by the State to engage in the illegal activity for which he was convicted. Accordingly, defendant’s convictions for delivery of a controlled substance and possession of a controlled substance with intent to deliver must be reversed.

Defendant next argues that the sentence imposed by the trial court on the cannabis charge should be vacated or reduced. Defendant was convicted by the jury of possession of cannabis. (Ill. Rev. Stat. 1985, ch. 56½, par. 704(d).) The trial court’s order of sentence and commitment, however, reflects a sentence of two years’ imprisonment based on a conviction for possession of cannabis with intent to deliver. Thus, defendant was sentenced for a crime for which he was not convicted.

Under the circumstances, we do not address the remaining arguments made by defendant. Accordingly, the convictions for delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(a)(2)) and possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(b)(2)) are reversed. The conviction for possession of cannabis (Ill. Rev. Stat. 1985, ch. 56½, par. 704(d)) is affirmed. The sentence for possession of cannabis is vacated. The case is remanded for a new sentencing hearing consistent with what is stated herein.

Affirmed in part; reversed in part; vacated in part and remanded.

GREIMAN, P.J., and TULLY, J., concur.

       Justice White heard oral arguments in this case prior to his retirement; Justice Freeman heard oral arguments in this case prior to his election to the Illinois Supreme Court. Justices Greiman and Tully were the designated members of the panel and have read the briefs and listened to the tapes.