author: PRESIDING JUSTICE GREIMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WYDRICK BUFORD, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—3512
    Opinion filed September 16, 1992.

      Rita A. Fry, Public Defender, of Chicago (Michael Davidson and Vicki Rogers, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, David Sta-brawa, and Carrie Weiner, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

Following a jury trial, defendant Wydrick Buford was convicted of murder, attempted murder, and aggravated battery. The trial court sentenced defendant to prison terms of 30 years, 15 years and 5 years, respectively, for each crime, to be served concurrently.

On appeal, defendant raises seven issues as to whether: (1) the peremptory challenges by the prosecutor constitute a Batson violation; (2) defendant was denied a fair trial due to the allegedly improper and prejudicial interjection of race issues; (3) defendant was denied a fair trial due to the testimony about the victim’s future plans and allowing a photograph of the victim before his death to be taken to the jury room; (4) the absence of a voluntary manslaughter instruction was error; (5) defendant's conviction for aggravated battery should be vacated since it arose out of the same act as his attempted murder conviction; (6) defendant was proven guilty of each charge; and (7) defendant’s 30-year sentence is excessive.

For the reasons which follow, we vacate defendant’s conviction for aggravated battery and find no error in the trial court’s rulings on all other issues.

The shooting incident occurred during an argument over a small bag of marijuana on May 8, 1987. The Straman and Flores families lived next door to each other, and defendant was the boyfriend of one of the Flores’ children. On the evening of the incident, several young men were in the Stramans’ backyard, including Marty Glines (the murder victim), Wesley Pucek (the attempted murder victim), and other guests.

Sometime during the evening, Steve Straman obtained a small bag (a “dime” bag valued at $10) of marijuana from Ricardo Flores and brought the bag into the backyard inquiring if anyone wished to purchase some marijuana. Steve gave the bag to Marty and Wesley, who had expressed interest in that regard. Later in the evening, in response to Steve’s inquiry, Marty and Wesley claimed they no longer had the bag and Steve became upset.

About that time, defendant arrived at the Stramans’ house and Steve explained his problem to defendant. Thereafter, in the alley behind the Stramans’ backyard, a confrontation occurred among defendant, Marty, Wesley, Ricardo Flores, and other guests. While the argument continued, defendant took a gun from the garage and fired opp shot wounding Wesley and then a second shot killing Marty.

The testimony of the several occurrence witnesses essentially recounted the same sequence of events.

During the voir dire, the prosecutor peremptorily challenged three black venirewomen and defendant moved for a mistrial, claiming that the prosecutor’s actions constituted a Batson violation. The trial court denied defendant’s motions and found no Batson violations.

Following the trial, defendant was convicted of murder, attempted murder and aggravated battery, and was sentenced to 30 years, 15 years and 5 years, respectively, for each conviction to run concurrently.

On appeal, defendant first asserts that the trial court erred in denying his motions for a mistrial based on alleged Batson violations during jury selection.

Defendant was the only black person involved in this case. The State exercised peremptory challenges to exclude three black women from the jury — Alice Bush, Bernice Talley and Valerie Lewis.

Batson established a three-step analysis to determine whether or not the State used its peremptory challenges to remove venire members on the basis of race. (Batson v. Kentucky (1986), 476 U.S. 79, 97, 90 L. Ed. 2d 69, 88, 106 S. Ct. 1712, 1723.) First, the defendant must establish a prima facie showing of discrimination. Second, if the defendant made the requisite showing, the State has the burden to come forward with a race-neutral explanation for challenging black jurors. Finally, the trial court then “will have the duty to determine if the defendant has established purposeful discrimination.” Batson, 476 U.S. at 98, 90 L. Ed. 2d at 88-89, 106 S. Ct. at 1724.

The three-step analysis articulated in Batson and applied by its progeny establishes a systematic procedure whereby each step is to be considered in order. (E.g., People v. Andrews (1989), 132 Ill. 2d 451, 548 N.E.2d 1025 (only if the defendant establishes a prima facie case of discrimination does the State rebut the defendant’s showing by explaining its contested peremptory challenges).) However, in the present case, a consolidated proceeding, i.e., the simultaneous consideration of the defendant’s proffered prima facie case and the State’s explanations, was employed. Such proceeding, although not improper, hampers our review. (People v. Valentine (1991), 221 Ill. App. 3d 1082, 1086-87, 582 N.E.2d 1338 (“[t]his practice of ‘collapsing’ the Batson steps, as well as trial courts’ failure to make detailed findings of fact to clarify the record when the Batson objection is raised, needlessly adds to the number of costly appeals”); People v. Murff (1991), 214 Ill. App. 3d 1034, 1040, 574 N.E.2d 815 (“we do not approve of the consolidated Batson hearing held below”); People v. Jones (1989), 185 Ill. App. 3d 208, 216, 541 N.E.2d 161 (although the consolidated proceeding was not erroneous, “this is not the recommended procedure as set forth in Batson”).) At oral argument, the parties agreed that the consolidated procedure is not an issue. See Hernandez v. New York (1991), 500 U.S. 352, 359, 114 L. Ed. 2d 395, 405, 111 S. Ct. 1859, 1866 (“departure from the normal course of proceeding need not concern us”).

In Hernandez, as in the present case, the prosecutor defended his use of peremptory strikes without any direct inquiry from the trial court so that the trial court had no occasion to rule clearly and specifically on whether or not a prima facie showing of intentional discrimination had been made by the defendant. Where the trial court has ruled on the ultimate question of intentional discrimination after a prosecutor has offered a race-neutral explanation, the preliminary issue of whether the defendant had made a prima facie showing becomes moot. Hernandez, 500 U.S. at 359, 114 L. Ed. 2d at 405, 111 S. Ct. at 1866; People v. Williams (1992), 230 Ill. App. 3d 761, 595 N.E.2d 1115; People v. Hemphill (1992), 230 Ill. App. 3d 453, 594 N.E.2d 1279; People v. Finley (1991), 222 Ill. App. 3d 571, 580, 584 N.E.2d 276.

Our analysis must now address the second step of a Batson inquiry, i.e., whether or not the State came forward with race-neutral reasons for excluding the venire members. A neutral explanation “means an explanation based on something other than the race of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Hernandez, 500 U.S. at 360, 114 L. Ed. 2d at 406, 111 S. Ct. at 1866.

The trial court’s decision as to whether a prima facie case has been rebutted is a factual question grounded in credibility, and thus, it will not be reversed unless it is against the manifest weight of the evidence. (Williams, 230 Ill. App. 3d 761, 595 N.E.2d 1115, citing People v. Harris, 129 Ill. 2d 123, 544 N.E.2d 357; see also People v. Hope (1992), 147 Ill. 2d 315, 589 N.E.2d 503.) This standard of review was explained by the Court in Hernandez:

“In the typical peremptory challenge inquiry, the decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and credibility lies ‘peculiarly within a trial judge’s province.’ ” Hernandez, 500 U.S. at 365, 114 L. Ed. 2d at 409, 111 S. Ct. at 1869, quoting Wainwright v. Witt (1985), 469 U.S. 412, 428, 83 L. Ed. 2d 841, 854, 105 S. Ct. 844, 854.

Since a single discriminatory act in the selection of a jury is all that is required to demonstrate a violation, we must address each challenged venireperson. Harris, 129 Ill. 2d at 175; People v. Kindelan (1991), 213 Ill. App. 3d 548, 555, 572 N.E.2d 1138.

In the present case, the prosecutor exercised his first contested peremptory challenge to excuse Alice Bush because she gave contradictory statements as to whether or not she could be fair and as to the duties performed by her daughter, who was employed as a computer operator in the juvenile court system. In addition, Ms. Bush said that her discussions with her daughter concerning her daughter’s work at juvenile court would impact on her ability to be fair and expressed concern over the nature of the case, i.e., murder.

Defendant contends that other, nonblack venirepersons who were accepted as jurors had comparable traits and, thus, the prosecutor failed to provide an adequate race-neutral reason for the exclusion of Ms. Bush. We disagree.

Defendant first argues that two jurors, Gladys Morgan and Linda Larson, exhibited equal equivocation regarding jury duties as Ms. Bush, but the record does not support that contention. During voir dire, Ms. Bush contradicted herself as to her ability to be fair. Neither Ms. Morgan nor Ms. Larson hesitated on her ability to be fair and each woman recognized the seriousness of the proceedings. In addition, other characteristics distinguished the two jurors from Ms. Bush, such as their marital status, their feelings toward handguns, and their employment status. Any perceived similarity in their statements concerning jury duty could legitimately be offset or outweighed by the different traits exhibited between Ms. Bush and the two other jurors. (People v. Mack (1989), 128 Ill. 2d 231, 538 N.E.2d 1107.) Moreover, the trial court acknowledged that Ms. Bush’s answers regarding her daughter who works at juvenile court as a computer operator could reasonably give the State apprehension.

Defendant next maintains that five jurors (Linda Larson, Gladys Morgan, David May, Lisa Pellegrino, and Al Mikottis) had ties to the court system or matters concerning juveniles comparable to the contacts of Ms. Bush. We disagree.

When twice asked if her daughter’s employment or her discussions with her daughter “would have any impact upon [Ms. Bush’s] decision in this case, [Ms. Bush’s] ability to be fair,” Ms. Bush twice replied “yes.” In contrast, the five jurors whom defendant compares to Ms. Bush had no secondhand knowledge obtained from a computer operator of the juvenile court system and stated unequivocally that any perceived link to the court system would not impair his or her ability to be fair in the present case.

Ms. Larson was employed by the Illinois State Psychiatric Institute (ISPI) and was responsible for providing recreational activities for adults. When asked if the ISPI is affiliated with the court, Ms. Larson answered “I don’t know.”

Ms. Morgan was employed as an investigator by the Department of Children and Family Services. Her duties were to visit homes to investigate complaints against a child caretaker, i.e., any person responsible for the care of a child.

Mr. May was employed as a guidance counsellor at a high school.

Ms. Pellegrino worked as a bartender. One of her friends was employed by the City of Chicago in its Department of Revenue and was responsible for licensing violations, not street crimes.

Mr. Mikottis, a structural engineer, had a friend who worked as a police officer in the Chicago suburb of Oak Brook.

Based on our review of the record, we conclude that defendant’s attempt to equate or compare the traits of some accepted jurors with Ms. Bush is, at best, tenuous and inconclusive.

The second peremptory challenge by the prosecutor excused Bernice Talley on the grounds that she had acted inappropriately when she “interrupted the questioning by the Judge and started to take a piece of candy at that time.” The interruption, the State maintains, was unwarranted and demonstrated that Ms. Talley was inattentive.

Defendant argues that the trial judge’s clarification of the circumstances undercuts any possible credibility in the State’s proffered explanation for the exclusion of Ms. Talley.

The trial judge, in accepting the prosecutor’s reason as race neutral, stated as follows:

“[Tjhough I did not find it objectionable in that the lady [Ms. Talley] was coughing and needed to receive some mint or cough drop which I told her to certainly do, that was not any disrespect to the Court. The fact the State might attach some significance to that is within their prerogative. But simply based upon the nature of the selection process and use of peremptory challenges at this point I do not feel the State is excluding persons based upon the race.”

The exercise of a peremptory challenge on the basis of an individual’s courtroom conduct or demeanor has been repeatedly approved by courts. (Mack, 128 Ill. 2d at 240 (and cases cited therein); Kindelan, 213 Ill. App. 3d at 557 (and cases cited therein).) A peremptory challenge was held legitimate where the prosecutor stated that he “was not too happy with [the person’s] demeanor and how he answered the questions.” (People v. Talley (1987), 152 Ill. App. 3d 971, 987, 504 N.E.2d 1318.) A venireperson who is inattentive may be peremptorily excused by the prosecutor. People v. Taylor (1988), 171 Ill. App. 3d 261, 269, 524 N.E.2d 1216.

As a reviewing court, we examine a cold record which may convey the conduct of Ms. Talley as unremarkable or inconsequential. However, the record includes a clear statement by the trial judge that, although he did not view Ms. Talley’s conduct as disrespectful, he believed the State was not “excluding persons based upon race.”

The deference accorded a trial judge’s determination is founded on the premise that he, unlike a reviewing court, has the opportunity to observe personally the demeanor of the prospective juror and to evaluate subjectively the sincerity of the prosecutor. Murff, 214 Ill. App. 3d at 1041 (the trial court “was in the best position to judge both that person’s demeanor and the prosecutor’s sincerity”); see also Kindelan, 213 Ill. App. 3d at 557; People v. Baisten (1990), 203 Ill. App. 3d 64, 560 N.E.2d 1060.

Given the acceptance of courtroom conduct as a legitimate basis for a peremptory challenge and the mandate for deferential review in these circumstances, we cannot say that the trial court’s finding was manifestly erroneous. See Taylor, 171 Ill. App. 3d at 269.

The third venirewoman to be excused by the prosecutor was Valerie Lewis, because she was unemployed, single, and had a three-month-old baby. The State asserts that the combination of these three factors indicates that Ms. Lewis was preoccupied and unreliable while defendant contends that the State did not challenge other potential jurors with similar traits.

The record refutes defendant’s contention and reveals that no juror had a combination of these traits. Instead, each selected juror was employed with the exception of the second alternate who, unlike Ms. Lewis, was retired and had no children. Moreover, the State had previously excused a white venireman who, like Ms. Lewis, was unemployed and single.

Although we might question the relevancy of employment status, concern over such status of prospective jurors is legitimate and race neutral. Mack, 128 Ill. 2d at 241 (unemployment or unstable job history); Hemphill, 230 Ill. App. 3d 453, 594 N.E.2d 1279 (unemployment); People v. Melchor (1989), 180 Ill. App. 3d 372, 377, 535 N.E.2d 1082 (unemployment or employment in nonprofessional occupations).

In addition, the marital status of a prospective juror could be found a racially neutral reason. People v. Knott (1991), 224 Ill. App. 3d 236, 250-51, 586 N.E.2d 479, citing United States v. Cartlidge (5th Cir. 1987), 808 F.2d 1064, 1070-71 (reasonable explanation includes prospective juror’s status as single or divorced, in favor of married person).

We find that the reasons proffered by the State for its removal of Ms. Lewis were sufficiently race neutral.

Defendant next asserts that two questions posed by the State during the cross-examination of defense witness Lionel Jean Baptiste improperly interjected issues of racial hostility and thus he was denied his right to a fair trial. Defendant concedes that he did not raise this issue in his post-trial motion but contends that the plain error doctrine should be applied.

The witness, while working as a law clerk for the public defender’s office, had accompanied defense counsel to interview Pucek, the attempted murder victim. During cross-examination, the State asked the witness if the public defender had told him prior to the interview that the case involved a “racial thing between some white kids and the defendant [who] was black.” Following defendant’s objection which was overruled by the trial court, the witness denied the State’s account of his conversation with the public defender.

It is well established that to preserve an issue for review, both a trial objection and a written post-trial motion raising the alleged error are required. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) As admitted by defendant, he failed to raise this issue in his post-trial motion. Accordingly, we find that this issue has been waived.

Review of an issue which has been waived through procedural default “is limited to plain errors or defects in substantial rights which deprive the accused of a substantial means of enjoying a fair and impartial trial or which occur in cases in which the evidence is closely balanced.” (People v. Odle (1988), 128 Ill. 2d 111, 134, 538 N.E.2d 428.) Neither element of the plain error exception to the waiver rule appears in the present case. Even assuming that the prosecutor’s questions injected irrelevant issues of racial tension, the answers by Baptiste clearly dispelled such notion.

In the third issue raised on appeal, defendant contends that he was denied a fair trial based on a reference to the decedent’s future career plans and allowing a photograph of the decedent to be brought into the jury room. We disagree.

During the State’s direct examination of the murder victim’s older brother, the following exchange took place:

“Q. Do you know if Marty had any plans for the future after a summer of lifeguarding?
[Defense counsel]: Objection, Judge.
THE COURT: Sustained.
A. All right, this was to be his last year.
THE COURT: When there is an objection and I sustain the objection, you cannot answer that question.”

Later, the jury also received a curative instruction which stated in part “[y]ou should disregard questions and exhibits which were withdrawn or to which objections were sustained.” Illinois Pattern Jury Instructions, Criminal, No. 1.01 (2d ed. 1981).

We do not believe any prejudice flowed from this exchange. The revelation that there is life after lifeguarding for a 20-year-old young man like decedent could hardly be deemed shocking or inflammatory. Moreover, any potential prejudice is generally cured where there is a prompt objection, sustaining of the objection, and an instruction to disregard the testimony. People v. Bartall (1983), 98 Ill. 2d 294, 317, 456 N.E.2d 59; People v. Brooks (1988), 172 Ill. App. 3d 417, 422, 526 N.E.2d 420.

Similarly we do not believe the decedent’s photograph unfairly aroused the sympathies of the jury when the trial court allowed it to go to the jury during deliberations. The photograph of decedent was taken about one year before his death and is a posed portrait showing his face and chest. Defendant specifically stated that he had no objection to admitting the photograph into evidence but did not think it should go into the jury room.

In his ruling, the trial judge reasoned:

“There had been some discussion about the size of the individuals involved in this altercation, and the photograph will aid the jury in determining if the size of the victim is correct, to make whatever conclusions they wish in regards to that.”

Whether or not an exhibit should be admitted into the jury room is primarily within the discretion of the trial court. (Bartall, 98 Ill. 2d at 318.) Given the circumstances of this case, we cannot say that the trial court abused its discretion in allowing an exhibit which was admitted into evidence without objection to go into the jury room.

Defendant next asserts that he was denied a fair trial because a voluntary manslaughter instruction was not given sua sponte by the trial court. We find defendant’s argument meritless.

The record reveals that defendant never requested a voluntary manslaughter instruction and also declined the trial court’s specific invitation to request such an instruction. The following exchange appears in the record:

“THE COURT: All right. The record should further reflect that the Court inquired of defense, even gave them an opportunity to confer with their client with regards to the giving of the voluntary manslaughter instructions, and it was the defendant’s position that they did not wish those instructions to go to the jury; is that correct?
* * *
[DEFENSE COUNSEL]: Judge, for the record, we discussed this issue about the voluntary instruction, giving or not giving the voluntary manslaughter instruction. He [defendant] agrees with our decision, Judge.
THE COURT: That it should not be given?
[DEFENSE COUNSEL]: Yes.”

The parties bear the burden of preparing and tendering proper jury instructions. (People v. Smith (1978), 71 Ill. 2d 95, 104, 374 N.E.2d 472; People v. Garcia (1988), 169 Ill. App. 3d 618, 621, 523 N.E.2d 992.) Generally a party may not raise on appeal the failure to give an instruction unless it is one that he tendered (Garcia, 169 Ill. App. 3d at 621), but he should certainly not be the beneficiary of that failure where the court indicated a willingness to instruct on this issue. The decision not to tender a voluntary manslaughter instruction was a defense tactic, and the court was not obligated to instruct the jury sua sponte over defendant’s request. Garcia, 169 Ill. App. 3d at 622.

We find that defendant has waived this issue since he not only failed to tender a voluntary manslaughter instruction but also refused to do so when the trial court proposed the instruction.

In the fifth issue on appeal, defendant contends, and the State concedes, that his conviction for aggravated battery should be vacated because it arose out of the same physical act, i.e., the firing of a single shot which wounded Wesley Pucek, as his attempted murder conviction. We agree. Aggravated battery is a lesser included offense of the attempted murder conviction and both offenses were predicated on the single act of shooting Pucek. People v. Washington (1984), 127 Ill. App. 3d 365, 389, 468 N.E.2d 1285.

However, contrary to defendant’s assertion, remandment for re-sentencing is not required where the trial court imposed separate sentences for each conviction and the record, as in the present case, does not indicate that a vacated conviction had any bearing or influence on the remaining convictions for murder or attempt murder. See People v. Geneva (1990), 196 Ill. App. 3d 1017, 1029, 554 N.E.2d 556; People v. Poe (1984), 121 Ill. App. 3d 457, 463, 459 N.E.2d 667; People v. Hines (1982), 105 Ill. App. 3d 35, 38, 433 N.E.2d 1137; People v. Wilson (1981), 93 Ill. App. 3d 395, 397, 417 N.E.2d 146.

Defendant next asserts that he was not proven guilty of each charge beyond a reasonable doubt. Defendant argues that the evidence was contradictory and inconsistent, and that it failed to establish the requisite intent element for the murder of Marty Glines and the attempted murder of Wesley Pucek.

Since we vacate the aggravated battery conviction, we need not consider this charge in defendant’s challenge to the sufficiency of evidence.

It is well established that a criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267.) “ ‘[T]he relevant question 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.’ ” (Emphasis in original.) Collins, 106 Ill. 2d at 261, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

The jury as the trier of fact, not the reviewing court, must assess the credibility of the witnesses, determine the weight to be given their testimony, evaluate the inferences to be drawn from the evidence, and resolve any conflicts in the evidence. (People v. Young (1989), 128 Ill. 2d 1, 51, 538 N.E.2d 461 (and cases cited therein).) Thus, any discrepancies perceived by defendant in the testimony of the witnesses were within the province of the jury to consider and resolve.

The element of intent can be established by the surrounding circumstances, and the intent to take a life may be inferred from the character of the assault, the use of a deadly weapon, and other circumstances. (People v. Manzo (1989), 183 Ill. App. 3d 552, 560, 539 N.E.2d 237.) The very act of firing a gun at a person supports the conclusion that the shooter did so with an intent to kill. Manzo, 183 Ill. App. 3d at 560.

The uncontroverted testimony of the occurrence witnesses and the attempted murder victim revealed that defendant had a gun, aimed and shot Wesley Pucek, and within seconds a subsequent gunshot was fired killing Marty Glines. From our examination of the record in the light most favorable to the prosecution, we conclude that a rational trier of fact must inescapably have found defendant guilty of the murder of Marty Glines and the attempted murder of Wesley Pucek.

Lastly, we reject defendant’s contention that the 30-year sentence imposed for his murder conviction is excessive.

Absent an abuse of discretion, a reviewing court will not disturb a sentence which falls within the statutory limits. People v. Lambrechts (1977), 69 Ill. 2d 544, 372 N.E.2d 641; People v. Abernathy (1989), 189 Ill. App. 3d 292, 315, 545 N.E.2d 201; see also Andrews, 132 Ill. 2d at 464 (an abuse of discretion standard is used to determine whether a sentence is excessive).

In 1987, the statutorily mandated prison term for first degree murder ranged from 20 to 40 years. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—l(a)(l).) Effective January 1, 1988, the maximum prison term for first degree murder was increased to 60 years. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—l(a)(1).) Thus, defendant’s 30-year term clearly falls within the range required by statute. In addition, defendant acknowledges, and the record confirms, that the sentencing judge considered defendant’s youth, lack of gang affiliation, insignificant prior criminal record, and rehabilitative potential. We conclude that the 30-year sentence was not an abuse of the trial court’s discretion.

Affirmed in part; vacated in part.

RIZZI and TULLY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BOWMAN

license: Public Domain

text:
    CURRAN CONTRACTING COMPANY, Plaintiff-Appellee, v. WOODLAND HILLS DEVELOPMENT COMPANY, d/b/a Townhomes of Woodland Hills, et al., Defendants-Appellants.
    Second District
    No. 2—91—0853
    Opinion filed June 5, 1992.
    Modified on denial of rehearing October 23, 1992.

      Eugene A. DiMonte and Riccardo A. DiMonte, both of DiMonte & Lizak, of Park Ridge (G.F. Gallagher, of counsel), for appellant Gus Leakakos.
    David W. McArdle, of Zukowski, Rogers, Flood & McArdle, of Crystal Lake (Dolores A. Duffy, of counsel), for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

In this breach of contract case, defendants, Woodland Hills Development Company (Woodland), Gus Leakakos (Leakakos) and American National Bank & Trust Company of Chicago (American National), appeal from a judgment entered by the circuit court of Lake County in favor of plaintiff, Curran Contracting Company (Curran), in the amount of $107,466.90. Defendants raise three issues on appeal: (1) whether the trial court erred in allowing testimony from a previously undisclosed witness; (2) whether the court erred in allowing extrinsic evidence contrary to the terms of express contracts; and (3) whether plaintiff failed to sustain its burden of proof on its claim for contract extras.

Primarily at issue in this case is work done by Curran in its capacity as a subcontractor for defendants Leakakos and Woodland. Curran is a Delaware corporation authorized to do business in Illinois. Curran supplies labor and materials for the construction of roads, driveways, parking lots and other asphalt paving projects. Leakakos is the principal shareholder of Woodland. Woodland is an Illinois corporation and is primarily engaged in the business of construction and real estate development. Among the development projects undertaken by Woodland was the Townhomes of Woodland Hills Project in Gur-nee, Illinois, in which Woodland was the general contractor. Curran was chosen as the subcontractor to do the paving work on the project. The property in question is owned in trust by American National.

In 1985, Curran entered into a written contract to pave certain roads in what was known as “Phase I” (Phase I) of the Townhomes of Woodland Hills Project. In 1986, Curran entered into an oral contract to pave roads in “Phase III” of the project, and in 1987 it entered into a written contract to pave “Phase II” of the project.

Curran’s second amended complaint, under which this case was tried, included seven counts. Count I was against Leakakos for breach of an oral agreement for Phase III extras. Count II was against Leakakos for breach of the oral contract for Phase III paving. Count III realleged the same allegations as counts I and II against Woodland. Count IV was against Leakakos and Woodland under a quantum meruit theory for patching a damaged Phase III roadway. Count V was against Leakakos for breach of the written Phase II contract. Count VI realleged the same allegations as count V against Woodland. Count VII was against Leakakos and Woodland under a quantum meruit theory for Phase II extras. Curran did not allege any breach of the Phase I contract. Curran subsequently filed a third amended complaint to conform to the proofs submitted at trial. We note that the third amended complaint did not reference the claim for Phase II extras contained in count VII of the second amended complaint. This allegation was not presented to the jury, nor did the jury render a verdict in this regard.

Following trial, the jury returned verdicts in favor of Curran on counts I, II, III, V and VI. The jury found in favor of Leakakos and Woodland on count IV. Curran then elected to have judgment entered on counts I, II and V against Leakakos and not to have judgment entered on counts III and VI against Woodland. The trial court therefore entered judgment in favor of Curran in the amount of $28,742.43 on count I; in the amount of $17,484.59 on count II; and in the amount of $52,280.80 on count V. Pursuant to an agreed order, judgment was also entered for the interest awarded under count V in the amount of $8,959.08, reflecting interest from October 1, 1987, through the date of judgment, March 6, 1991. Defendants appeal from the trial court’s order entering judgment on the jury’s verdicts and also from the order denying defendants’ post-trial motion.

We first consider defendants’ contention that the trial court erred in allowing testimony from a previously undisclosed witness. Specifically, defendants argue that the court erred in allowing the testimony of Bill Curran, the president of Curran Contracting Company. Defendants maintain that whether Bill Curran is classified as an occurrence witness or as an expert witness his testimony should not have been allowed since Curran failed to disclose his identity prior to trial. Cur-ran argues that this witness was not an expert witness and therefore disclosure was not required under Supreme Court Rule 220 (134 Ill. 2d R. 220). Curran also argues that disclosure was not mandated under Rule 213 (134 Ill. 2d R. 213) and that debarment was not required under Rule 219 (134 Ill. 2d R. 219).

We first address whether Bill Curran’s testimony should have been barred under Rule 219. In this regard, defendants argue that, since they propounded interrogatories to plaintiff requesting the identities of those people with knowledge of the facts surrounding this dispute, but plaintiff’s answers thereto did not disclose Bill Curran’s name, the witness’ testimony should not have been allowed. Curran argues that Bill Curran was an occurrence witness, but that disclosure of his identity under Rule 213 was not required because at the time it responded to the interrogatories the identity of Bill Curran, as a person with knowledge of facts contained in the complaint, was not known. Rather, Curran suggests that the witness only obtained this knowledge one month prior to trial when he measured the pavement at the project site.

It is true, as Curran points out, that under Supreme Court Rule 213(e) (134 Ill. 2d R. 213(e)) it was under no obligation or duty to supplement answers to interrogatories that had been answered in good faith and were complete when made. (Magnone v. Chicago & North Western Transportation Co. (1984), 126 Ill. App. 3d 170, 178.) However, Bill Curran did not only testify as to measurements taken by him one month prior to trial. The record indicates that he also reviewed the construction plans from which Curran’s bid was derived. He reviewed all the written contracts entered into on Phases I and II and the engineer’s estimate on Phase III of the project. He also reviewed the total quantities of asphalt billed by Curran to Woodland, as compared to the quantities listed in the contracts. With this in mind, and considering the fact that Bill Curran is the president of Curran Contracting and has been with the company for 35 years, we tend to agree with defendants that it defies common sense to conclude that Bill Curran was not a person with knowledge of facts alleged in the complaint and further that Curran was not aware of his i/ientity at the time the interrogatories were answered. We therefore conclude that Bill Curran was a witness who should have been disclosed under Rule 213. That being the case, we must next determine the proper sanction, if any, for failure to comply with a discovery rule.

Under Rule 219 several factors are usually considered in determining whether the exclusion of a witness is an appropriate sanction for nondisclosure. These factors include: (1) the surprise to the adverse party; (2) the prejudicial effect of the testimony; (3) the nature of the testimony; (4) the diligence of the adverse party; (5) the timely objection to the testimony; and (6) the good faith of the party calling the witness. (Ashford v. Ziemann (1984), 99 Ill. 2d 353, 369; Phelps v. O’Malley (1987), 159 Ill. App. 3d 214, 224.) In our view, consideration of these factors fails to demonstrate an abuse of discretion on the part of the trial judge in this case.

First, while defendants may have been surprised by the person of Bill Curran being called to testify, we do not believe they were surprised by the substance of his testimony. Curran correctly points out that Leakakos admitted at trial that he knew Curran had measured the area it paved on all three phases of the project. In addition, it was Curran’s theory all along that it was required to pave areas beyond those specified in the contracts.

Second, and we believe most importantly, Bill Curran’s testimony was not especially prejudicial. Although defendants argue that the testimonial evidence provided by Bill Curran, that the labor and material provided the project by plaintiff was in excess of what was called for in an early set of engineer’s plans, was not available from any other witnesses, the record belies this assertion. As Curran indicates, much of Bill Curran’s testimony was cumulative. For example, Leaka-kos and Charles Gaumer, a Curran estimator/project representative, both testified that areas outside those listed on the 1984 engineer’s plans were paved by Curran and that all the contracts were based on the 1984 plans which were later changed. Invoices, which provided the measurements of the paved areas, were also introduced into evidence. George Loser, a Curran job foreman, testified as to extra areas in front of townhome garages that were paved, and Leakakos admitted that garages not on the 1984 plans were added during construction.

Third, the nature of Bill Curran’s testimony, although clearly central to Curran’s contract claims, is also, as stated above, cumulative and thus not such that it should automatically have been stricken or barred. The fourth factor is the diligence of the adverse party, and we believe defendants, by requesting the identities of persons having knowledge of the allegations in the complaint, satisfied this requirement. The fifth factor, timely objection, also weighs in defendants’ favor. Defendants objected to Bill Curran’s testimony at trial and addressed the issue in a post-trial motion. Curran’s argument, that defendants in effect waived any objection by failing to depose the witness during the lunch-time recess, as suggested by the trial judge, and by failing to renew their objection after the recess, is not well taken. Both the supreme court and this court have disapproved of the procedure of adjourning trial while a witness is deposed. (Ashford, 99 Ill. 2d at 370; Phelps, 159 Ill. App. 3d at 225-26.) Finally, we do question the good faith of Curran’s claim that the identity of the witness, the president of the company, was not known at the time the interrogatories were answered.

Thus, while several of the above factors weigh in defendants’ favor, the most important factors, including surprise, prejudice and nature of the testimony, weigh in Curran’s favor. Barring a witness from testifying is a drastic sanction and should be exercised sparingly. (Palmer v. Minor (1991), 211 Ill. App. 3d 1083, 1087.) Under the circumstances of this case, we do not believe such a sanction is warranted under Rule 219.

Defendants also argue, however, that Bill Curran was an expert witness whose disclosure was required under Supreme Court Rule 220 (134 Ill. 2d R. 220). Supreme Court Rule 220(a)(1) defines “expert” as follows:

“An expert is a person who, because of education, training or experience, possesses knowledge of a specialized nature beyond that of the average person on a factual matter material to a claim or defense in pending litigation and who may be expected to render an opinion within his expertise at trial. He may be an employee of a party, a party, or an independent contractor.” 134 Ill. 2d R. 220(a)(1).

Rule 220(b)(1) provides that “the identity of an expert who is retained to render an opinion at trial *** must be disclosed” (134 Ill. 2d R. 220(b)(1)) and “ ‘obliges litigants to disclose the identity and opinions only of those witnesses who are engaged for the purpose of giving an expert opinion at trial’ ” (Hill v. Ben Franklin Savings & Loan Association (1988), 177 Ill. App. 3d 51, 57, quoting Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 234).

In Hill, this court stated that “a party to a suit cannot be said to be retained to render an opinion at trial. A party is not engaged for the purpose of giving expert opinion at trial, but rather is a participant in the transaction that is the subject matter of the litigation.” (Hill, 177 Ill. App. 3d at 58.) While defendants correctly point out that a party or an employee of a party may be an expert under the definition of that term in Rule 220(a)(1) (134 Ill. 2d R. 220(a)(1)), that provision, which provides the qualifications of expert witnesses, does not pertain to the disclosure of such witnesses. (Hill, 177 Ill. App. 3d at 58, citing Tzystuck, 124 Ill. 2d at 233-34.) A party or employe of a party is in fact subject, however, to the expert witness discovery provision of Rule 220(c)(4), which gives an opposing party the opportunity to discover a party’s or an employee’s expert opinion. 134 Ill. 2d R. 220(c)(4); Hill, 177 Ill. App. 3d at 58.

Here, defendants’ Rule 220 interrogatories to plaintiff specifically referenced and requested the identities and opinions of any party or employee. As such, plaintiff was obligated to disclose to defendants the identity of Bill Curran prior to trial. In this regard, Rule 220 provides a specific sanction if the identity of an expert is not properly disclosed. The rule states, “[failure to make the disclosure required by this rule or to comply with the discovery contemplated herein will result in disqualification of the expert as a witness.” (134 Ill. 2d R. 220(b)(1).) Since “[t]he only sanction provided for in Rule 220 is disqualification of the expert witness, and the trial court’s discretion is thus severely limited” (Phelps v. O’Malley (1987), 159 Ill. App. 3d 214, 224), we must conclude that the trial court erred in allowing Bill Curran to testify.

That being said, however, we do not believe that the error in permitting Curran to testify requires that defendants be awarded a new trial. Rather, as stated in our discussion regarding sanctions under Rule 219, we believe the record demonstrates that Bill Curran’s testimony was cumulative in nature and thus not such that its inclusion was especially prejudicial to defendants. (Cf. Hatch v. Golden Rule Insurance Co. (1990), 204 Ill. App. 3d 790, 796.) Therefore, since defendants were not thereby prejudiced, we consider any error to have been harmless and conclude that there is insufficient cause for reversal on this point.

Next, we consider defendants’ argument that the trial court erred in allowing parol or extrinsic evidence to contradict the terms of the express contracts. In essence, it is defendants’ position that the contracts at issue in this case are lump-sum fixed-price contracts and that Curran should therefore not have been allowed to introduce evidence contrary to the quantities and prices listed in those contracts. Curran, on the other hand, maintains that the contracts were not lump-sum or fixed-price contracts but rather were unit-price contracts whereby the unit prices of materials were fixed while the quantities of materials, having been derived from engineering estimates, were not.

Thus, though not articulated very clearly by the parties, we believe the primary issue in this regard to be whether the quantity and/ or price terms in the contracts are ambiguous, and if so, what the parties truly intended. The trial court should initially determine, as a matter of law, whether the language of a contract is ambiguous as to the parties’ intent. (Quake Construction, Inc. v. American Airlines, Inc. (1990), 141 Ill. 2d 281, 288.) If no ambiguity exists, the parties’ intent is to be derived by the trial court solely from the writing itself. (Quake Construction, 141 Ill. 2d at 288.) Where, however, the terms of the contract are ambiguous or capable of more than one interpretation, such that the true intent of the parties is in doubt, it becomes necessary to receive extrinsic evidence, and the question of the parties’ intent becomes one of fact for the jury. (141 Ill. 2d at 288-89; TDC Development Corp. v. First Federal Savings & Loan Association (1990), 204 Ill. App. 3d 170, 175.) It has also been stated that the meaning of certain words raises a question of fact for the jury where the words concern estimates or probable amounts. TDC Development, 204 Ill. App. 3d at 178.

Here, although the trial court did not explicitly resolve the initial question of the existence of contractual ambiguity, we believe it is reasonable to infer that the court found such an ambiguity, based on certain instructions which were tendered to the jury. In this regard, we refer to the instructions wherein the court summarized the parties’ positions on the issue of the quantity of materials to be used. The court instructed the jury that it was plaintiff’s position that, pursuant to the contracts, defendants were to pay plaintiff on a unit-price basis. Defendants’ position, while admitting that the parties had agreed on unit-price contracts, was that, relative to the quantities of materials, the parties agreed to the quantities either listed in the contracts or established in a 1986 engineering estimate. While plaintiff acknowledged that the engineering report and the contracts listed certain quantities, it maintained that those quantities were simply estimates to which plaintiff was not bound. Thus, the trial court treated the quantity language as ambiguous, since it presented the parties’ conflicting arguments on that issue, in effect leaving the question of the parties’ intent for the jury to decide.

In any event, we agree that the quantity and price language is ambiguous. The Phase II written contract, while indicating a total price, also provides for unit prices. In addition, the Phase II contract was plaintiff’s proposal which set forth specifications and “estimates” of types and quantities of materials. The Phase III oral contract was to be based on the 1986 engineer’s report. That report was entitled “Engineer’s Opinion Of Cost For Engineering Improvements.” Cur-ran presented testimony that the engineer’s estimate was given to the contractors so they could estimate the yardage on the project. Cur-ran’s expert witness, in explaining unit-price contracts, testified that a contractor is obligated to provide the paving as shown on the plans and as directed by the owner, and that the contractor is to be paid based on the unit prices in the contract. The expert added that, in this case, the quantities listed in the contracts were based on rough engineering estimates and were not binding.

We conclude that the quantity and price terms in the parties’ contracts were capable of more than one interpretation. As such, the true intent of the parties was in doubt, and the trial court did not err in allowing into evidence certain extrinsic evidence which tended to explain those terms. (Quake Construction, 141 Ill. 2d at 288-89.) The question of intent was then presented to the jury which, as is apparent from its verdicts, adopted plaintiff’s interpretation. Defendants also contend that the court erred in allowing Curran to introduce quantum meruit evidence in the face of express contracts. However, since Curran did not recover anything under either of the two counts which pleaded a quantum meruit theory, we need not address this issue further.

Finally, we consider defendants’ contention that Curran failed to sustain its burden of proof on its claim for contract extras. As stated by Curran in its brief, count I of the second amended complaint, which sought payment for Phase III extras, is the only count based specifically on a claim for extras under which Curran recovered. In support of its claims in count I, Curran attached exhibits A and B to the complaint, which were invoices for the extra work allegedly performed during Phase III. At trial, Curran introduced these same invoices as plaintiff’s exhibit Nos. 8 and 9. The invoices totalled $34,576.83.

The elements necessary to prevail on a claim for extras are set forth in the often-cited case of Watson Lumber Co. v. Guennewig (1967), 79 Ill. App. 2d 377. In order for a contractor to recover additional payment from an owner for extra work, he must establish by clear and convincing evidence that: (1) the work was outside the scope of the original contract; (2) the extra work was ordered at the direction of the owner; (3) the owner agreed either expressly or impliedly to pay extra; (4) the extra work was not voluntarily furnished by the contractor; and (5) the extra work was not rendered necessary by any fault of the contractor. (Guennewig, 79 Ill. App. 2d at 389-90.) We conclude that Curran has met its burden of proof on its claim for extras.

Quite relevant to the first three elements set forth in Guennewig is the following testimony of Gus Leakakos in response to questions from Curran’s attorney:

“Q. And the work that Curran agreed to perform along Phase III, Maple Lane, was the same scope of work that was done along Phases I and II, correct? In other words, the stone base, the asphalt on top and the aggregate shoulders?
A. Right.
Q. Do you also agree with me that Curran performed work beyond the scope of these agreements, relating to the undercutting of the poor soil in order to prepare the sub-base for the weight of the asphalt?
A. I think there were a couple of soft spots there, yes.
Q. Those agreements to undercut the bad soil were not part of the three agreements we just talked about, is that correct?
A. No, no.
* * *
Q. *** I’ll show you what I marked as Plaintiff’s Group Exhibit No. 8, for identification. I ask you to review those documents. Have you reviewed them?
A. Yes.
Q. This group exhibit consists of eight separate invoices from Curran to the Townhomes of Woodland Hills, attention you, correct?
A. Correct.
* * *
Q. And each invoice has attached to it a written memorandum of work that was performed by Curran that you authorized and signed, correct?
A. Yes. That was the usual procedure. Your foreman would
give me a ticket to sign before they commence doing the work.
* * *
Q. These particular invoices, Group Exhibit No. 8, those were related to — strike that.
These particular eight invoices and work orders related to work performed by Curran and authorized by you relative to Phase III, that was undercutting work, over and above pavement contracting, is that right?
A. Yes. Those were extras I agreed to.
* * *
MR. McARDLE: Q. I show you what I marked as Plaintiff’s
Group Exhibit No. 9, for identification, and ask you to review these documents as well.
THE WITNESS: A. All right.
Q. Plaintiff’s Group Exhibit No. 9 are five separate invoices from Curran Contracting to you, dated August 26, 1986, correct?
A. Correct.
MR. McARDLE: No. 9, Group. Five separate invoices. Once again, this was for work that was performed by Curran that was over and above the pavement agreement on Phase III relative to undercutting, correct?
THE WITNESS: A. Right.
Q. Attached to each of these invoices are similar memo-randas [sic] authorized by Peter Longson on your behalf authorizing Curran to do the work, right?
A. Right.”

From the above, it is clear to this court that the first element, that the work was outside the scope of the contract, was admitted by Leakakos. The same is true for elements two and three, that the extra work was ordered by the owner and that the owner agreed either expressly or impliedly to pay extra, in that Leakakos stated that he authorized and agreed to the extras referenced in plaintiff’s exhibit Nos. 8 and 9. In addition, Shirley Glasspool, Woodland’s secretary and bookkeeper, answered in the affirmative when asked by defendant’s attorney whether, besides the contract paving work, Woodland “also requested Curran to perform undercutting or extra work on the project,” as represented by plaintiff’s exhibit Nos. 8 and 9. Finally, defendants in their answer to plaintiff’s second amended complaint admitted “that Woodland requested Curran to perform some excavation work to prepare the road surface in Phase III.”

We believe that Curran also established the fourth and fifth elements, that the extras were not furnished voluntarily by the contractor and that the extra work was not rendered necessary by the fault of the contractor. As to the fourth element, Leakakos admitted that the undercutting work was performed due to the existence of poor soil or soft spots. We believe, therefore, that it is reasonable to infer that the work was necessary and was not simply a voluntary act on the part of Curran. As to the fifth element, Curran correctly notes that Charles Gaumer testified to the effect that, prior to performing its Phase III paving contract, Curran tested the sub-base of the roads and found that it was soft in some areas, necessitating the undercutting work.

Based on our review of the record, therefore, we conclude that Curran has proved its claim for Phase III extras by clear and convincing evidence. Defendants also argue that the claim for interest contained in count V of Curran’s complaint was never proved with respect to the date at which the alleged right to such interest could be said to accrue. As to this contention, we note that defendants have failed to adequately brief the issue in violation of Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)). Defendants failed to cite any authority in support of their conclusory argument consisting of but two sentences. Such an argument may be considered waived, and we so consider it. Dillard v. Kean (1989), 183 Ill. App. 3d 28, 31; Coleman v. Windy City Balloon Port, Ltd. (1987), 160 Ill. App. 3d 408, 418.

For all of the foregoing reasons, we affirm the judgment of the circuit court of Lake County.

Affirmed.

McLAREN and NICKELS, JJ., concur.