author: JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STANLEY ROBINSON, Defendant-Appellee.
    First District (5th Division)
    No. 1—88—2073
    Opinion filed December 7, 1990.
    Rehearing denied January 8, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Pamela Pfrang and Donald S. Honchell, Assistant Public Defenders, of counsel), for appellant.
    John M. O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, David R. Butzen, and Hal Garfinkel, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

Stanley Robinson (Robinson) appeals a conviction and sentence for criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12—13(b)) and attempted robbery (Ill. Rev. Stat. 1985, ch. 38, pars. 8—4 (c)(4), 18—1(b)). Following a bench trial, Robinson was sentenced to 12 years with the Illinois Department of Corrections; a sentence of five years for attempted robbery to run concurrent with a sentence of 12 years for criminal sexual assault.

On appeal Robinson argues: (1) he was not proven guilty beyond a reasonable doubt; (2) he should not have been convicted of attempted robbery because no force was used until after the effort to take money was completed; and (3) a reversal of the robbery conviction requires a resentencing hearing.

For the following reasons, we affirm the decision of the trial court.

The victim testified to the following sequence of events. Early in the morning on September 17, 1987, she left her apartment to visit a couple of friends. As she approached the security door leading to the apartment building, the victim observed two men behind her. The large apartment building where her friend lived had a locked outer door. The two men approached her as she attempted to enter the building. When questioned on direct examination whether the two men said anything to her, the victim stated, “the two guys was [sic] saying something and they started to approach me and so I got scared and juggled the door *** I ran up the steps, and they came behind me.”

The two men followed her up the stairs. They were arguing. The individual accompanying the defendant told the defendant to leave the victim alone, and the defendant responded by saying, “No man, no man.”

The individual, later identified as Robinson, started going through the victim’s jeans saying, “I know you have money. What you doing up here? You have money? You have money.” After searching the victim’s front and back pockets, Robinson began beating her with a striped umbrella and kicking her over the head, neck, and chest. The wooden handle of the umbrella broke off as the defendant delivered blows to the victim’s body. The victim testified that she placed her arms in front of her body as the defendant beat her. The defendant then took out his penis, positioned it towards her face and inserted it in her mouth.

As defendant placed his penis into the victim’s mouth he stated, “I know you can do better than that.” Subsequently, the defendant ordered the victim to pull down her pants, which she did. Shortly thereafter, the defendant pulled the victim to the first-floor landing and continued to force her to perform oral sex. The victim indicated that the lighting conditions of the first-floor landing were “lit up very well” and she was able to “see him very, very well.”

The victim heard the police approach the front of the apartment building. The defendant ran up the stairs while the victim yelled for the police. The police arrived to find the victim exposed. She described her assailant as wearing a striped gray and black shirt with black pants, and that he was “very, very, very dark.” In addition, the victim told the police that her assailant was carrying a striped umbrella with a light-colored, broken wooden handle. After giving the police the description, she was taken to the hospital where she received medical treatment for injuries sustained during the beating. Following the medical treatment, the victim identified Robinson in a police lineup.

Officers Penzine and Pfaller of the Chicago police department both testified. Officer Penzine testified to the following. He received a radio dispatch of a disturbance on Ashland Avenue. As he approached the scene, Officer Pfaller had already arrived on the scene. The two officers proceeded to 6948 North Ashland, where they noticed a woman through the security door. The woman’s pants were pulled down slightly above her ankles. He asked the victim what had happened to her and the victim responded that two black males had attempted to rob her. The victim told him that one of the individuals struck her on the head with an umbrella and forced her to have oral sex with him. After Officer Penzine escorted the victim to the hospital, he returned to the scene of the beating to search for the attacker. Shortly after returning to the scene of the beating, Officer Penzine received a radio dispatch which disclosed the defendant’s alleged location. Officer Penzine drove to the defendant’s apartment, where he met Sergeant Chandler and Officer Pfaller. Officer Penzine knocked on defendant’s door, and a man later identified as Stanley Robinson appeared. The defendant was wearing dark pants and a gray, long-sleeved striped shirt. Upon entering the defendant’s apartment, the officers noticed a striped umbrella with a broken handle standing in the corner.

Officer Pfaller testified that he arrived at defendant’s alleged location just prior to Officer Penzine. The two officers entered the vestibule of the apartment building where they observed the victim run towards them with her pants pulled down slightly above her ankles. The victim described her attacker to Officer Pfaller as a black male, approximately 5 feet 7, 175 pounds, dressed in a gray striped shirt with dark pants. Additionally, Officer Pfaller testified that the lighting conditions of the hallway where the victim was attacked “were good.”

Robinson testified on his own behalf. He denied attacking the victim, but admitted to having contact with her, claiming that she agreed to exchange sexual favors for cocaine. Robinson testified that he finished work at 5 p.m. on September 16, 1987, and went to his apartment for approximately one half hour. He left his apartment to “hang out at a park near Howard Street for a couple of hours.” He then proceeded to Jonquil Street to meet a couple of friends. He consumed alcohol while he was on Jonquil Street. At approximately 8 p.m., he returned home and visited a friend of his located on the first floor of his apartment building. Robinson purchased alcohol for himself and his friend. The two men watched cable television together for several hours. Robinson testified that he left his apartment and went to 6948 Ashland Street, where he purchased a half a gram of cocaine. Robinson was freebaseing the cocaine when he observed the victim enter the apartment.

Robinson testified that the victim approached him and indicated that she would exchange sexual favors for cocaine. He further testified that the victim smoked the cocaine but refused to have sex with him; consequently, when the victim attempted to leave the apartment, “he got kind of steamed and threw the umbrella at her.”

Robinson argues that the victim’s identification of him at the lineup was not sufficiently supported by the evidence. Specifically, Robinson claims that the victim was in a state of excitement and distraction due to a sustained beating, fear and effort to escape, and that her lineup identification was based solely on a vague recollection of commonly worn clothing which only defendant wore in the lineup. The factors to be considered in an identification issue are (1) the opportunity the victim had to view the suspect at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the suspect; (4) the level of certainty demonstrated by the victim at the identification confrontation; and (5) the time elapsed between the crime and the identification. People v. Cohoon (1984), 104 Ill. 2d 295, 472 N.E.2d 403.

Based on these factors and a review of the evidence, one must reject Robinson’s argument that the State’s case against him must fail because of a faulty identification. Robinson alleges that the victim was unable to look up and make observations of the attacker’s personal features. Specifically, he alleges that her ability to observe and identify him was destroyed during the onset and course of the attack by self-protective interests and the trauma and fear of the beating and as a result she saw her attacker’s lower clothing, lower anatomy and glimpsed his beach umbrella. Otherwise, the attacker was anonymous, thus leading the. victim to identify Robinson by his commonly worn clothing. Considering the victim’s observations before and during the beating in well-lit surroundings, we believe her identification was positive and credible.

The victim had the opportunity to observe her assailant prior to the sexual assault when defendant followed her and when the assailant searched her pants prior to the assault. In addition, the place where the assault took place, was well lit. Regarding the length of time of the attack on the second floor, the victim stated, “It seemed like an eternity, but I guess it was about four or five minutes, and then he drug [sic] me down to the first landing.” Further, she stated that it took a couple of minutes for the defendant to drag her down to the first landing. Once on the first landing the victim couldn’t say exactly how long the attack continued, but guessed “it wasn’t a terribly, terribly long time.”

During the assault Robinson told her she could do a better job and hit her on the head with the umbrella later found in his apartment. The victim testified that she described the defendant to the police as very, very, dark, wearing black pants and a gray striped shirt carrying a striped umbrella with a broken, light-colored wood handle. Officer Pfaller testified that the victim described her assailant as a “male black, approximately five foot seven, a hundred and seventy-five pounds, wearing a gray striped shirt, dark pants.” The victim identified Robinson in a lineup within several hours of the assault. Her identification was positive, unequivocal and convincing. The victim testified she immediately picked out the defendant and that she would never forget him. She further stated that from the time she first observed the five persons in the lineup it took her half a second to identify Robinson as the defendant. The victim recalled that in the lineup Robinson still had the exact same clothes on. She later identified Robinson at the trial. These facts certainly meet the criteria of a proper identification.

A single witness’ identification of the accused is sufficient to sustain a conviction if the witness viewed the accused under circumstances permitting a positive identification. (People v. Johnson (1986), 114 Ill. 2d 170, 189, 499 N.E.2d 1355, 1359.) The facts that there may be discrepancies or omissions in an identification do not of themselves produce a reasonable doubt if a positive identification is made. (People v. Harrison (1978), 57 Ill. App. 3d 9, 15, 372 N.E.2d 915, 924.)

“The credibility of an identification does not rest upon the type of facial description or other physical features which the complaining witness is able to relate. (People v. McCall [(1963)], 29 Ill. 2d 292, 295, 194 N.E.2d 222.) It depends rather upon whether the witness had a full and adequate opportunity to observe the defendant. (See People v. Cattlett [(1971)], 48 Ill. 2d 56, 63, 268 N.E.2d 378, and People v. Brown [(1973)], 14 Ill. App. 3d 242, 245, 302 N.E.2d 161.) A mere discrepancy in description, or an omission to note facial or other physical features, is not by itself sufficient to create a reasonable doubt of guilt.” People v. Witherspoon (1975), 33 Ill. App. 3d 12, 19-20, 337 N.E.2d 454, 460.

People v. Sakalas (1980), 85 Ill. App. 3d 59, 69, 405 N.E.2d 1121, 1130.

There is no suggestion in the record that the police lineup during which the victim identified Robinson was suggestive or that the police prompted the victim to identify Robinson. All participants in the lineup were young male blacks, similar in height, weight, color of hair, and body build. Two of the men in the lineup were wearing dark pants. Both of these men had on a white shirt underneath another article of clothing. One was wearing a striped shirt and the other was wearing a dark jacket. Robinson testified that when the police arrived at his apartment he was wearing blue and white shorts and a T-shirt. Nothing in the record suggests that the police coerced Robinson to wear the black pants and gray striped shirt to the police station.

In People v. Therriault (1976), 42 ILl. App. 3d 876, 356 N.E.2d 999, the defendant argued that the lineup from which he was identified was unnecessarily suggestive because the complaining witness had testified that the rapist was wearing a cardigan sweater at the time of the crime and as a result the complaining witness was led to identify him due to the fact that he was the only suspect in the lineup wearing a cardigan sweater. The court held that the fact that the defendant was wearing a cardigan sweater at the lineup was not so suggestive as to give rise to substantial likelihood of irreparable misidentification, especially since complainant had adequate opportunity to observe and identify her assailant on the morning of the rape. (People v. Therriault (1976), 42 Ill. App. 3d 876, 356 N.E.2d 999.) In light of the evidence of the victim’s opportunity to view Robinson during the attack, we do not find that the fact Robinson was wearing a striped shirt at the lineup was unnecessarily suggestive.

Any person who suffered the abuse that the victim in this case did would be excited. Excitement, rather than detract from an identification, could increase the powers to observe. On review the trial court’s judgment will not be set aside unless the proof is so unsatisfactory, improbable, or implausible as to justify a reasonable doubt as to the defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276.) We conclude Robinson’s argument that his identification as the perpetrator of the crime was defective and that the State failed to carry its burden of proof because of a faulty identification lacks either substantive or procedural merit.

Robinson next contends that the use of force in the event occurred after the attempted taking of property and thus the attempted robbery conviction must fail. Defendant alleges that the facts recounted by the victim established the elements of the crime of attempted theft rather than attempted robbery, thus leading to the conclusion that since attempted theft was neither a charged nor an included offense of attempted robbery, no conviction was available. This argument also lacks merit.

Robbery is the taking of “property from the person or presence of another by the use of force or by threatening the imminent use of force.” (Ill. Rev. Stat. 1987, ch. 38, par. 18—1.) If despite force or threat of force to take property, no property is taken, the offense is attempted robbery. (People v. Was (1974), 22 Ill. App. 3d 859, 318 N.E.2d 309.) To sustain a conviction for the offense of attempted robbery, the evidence must show a substantial step toward the taking of property from the person or presence of another by the use of force or the threat of imminent use of force and an intent toward that end. People v. Steptoe (1976), 35 Ill. App. 3d 1075, 343 N.E.2d 1.

However, the force sufficient to sustain the crime of robbery is force administered at any time during the criminal act. (People v. Kennedy (1973), 10 Ill. App. 3d 519, 294 N.E.2d 788; People v. Ortiz (1987), 156 Ill. App. 3d 170, 174, 509 N.E.2d 633.) Where force sufficient to constitute robbery is found from the taking of an article attached to the victim’s person or clothing, it is said that a perpetrator could not have taken the item without use of force to overcome the physical resistance created by the attachment; as distinguished from “the mere physical effort” which must occur whenever any item, not attached to the person or clothing of the owner, is transferred from the owner to the taker. (People v. Taylor (1989), 129 Ill. 2d 80, 84, 541 N.E.2d 677, 679.) The force or threatened force need not transpire before or during the time the property is taken; the force may be used as part of a series of events constituting a single incident. People v. Brown (1966), 76 Ill. App. 2d 362, 222 N.E.2d 227.

In People v. Brooks (1990), 202 Ill. App. 3d 164, 559 N.E.2d 859, the plaintiff was seated on a bus when she felt something like someone had opened her purse. After discovering that her wallet was missing, she turned around and saw her wallet in the hands of the defendant. Plaintiff then demanded the return of her wallet, but the defendant pushed her left shoulder and ran away from the bus. The court held:

“The victim here, after she became aware that defendant had positioned himself behind her and had reached into her purse and had taken her wallet, immediately offered verbal resistance to the taking, to which defendant responded by pushing her shoulder and then exiting the bus. We believe this force, used in a series of events involving a single incident and in response to the victim’s challenge immediately upon the taking and before defendant’s departure, is sufficient to sustain the robbery conviction under Illinois case law.” (Brooks, 202 Ill. App. 3d at 170.)

In the present case the victim testified as follows:

“THE VICTIM: He was going down in my pocket looking for money. All in my jean pockets. I had on blue jeans.
THE PEOPLE: What pockets on your jeans was he going into specifically?
THE VICTIM: My back pocket and my front pockets.
THE PEOPLE: Did he ask you for money before going into your pockets?
THE VICTIM: He said, I know you have money. What’s you doing up here? You have money. You have money.
THE PEOPLE: What happened after he went through your pockets?
THE VICTIM: He started beating me and hitting me and hitting me with this umbrella and kicking me.”

The evidence of defendant searching the victim, striking the victim with an umbrella, .and sexually assaulting the victim after the search was all related to the initial attempt by defendant to gain control of her property. The force used adequately supports the crime of attempted robbery.

In his final point Robinson argues that because the attempted robbery conviction must be overturned, the court must remand this case for new sentencing on the sexual assault charge. Since we have concluded that the conviction of attempted robbery was proper, we must also affirm his sentence for both crimes.

Finally, we note that counsel for defendant uses the victim’s name in his brief. There has been a considerable protest in the bar in Illinois about the use of a victim’s name in briefs on appeal. In an appeal in criminal sex cases, the use of the name of a victim has little, if anything, to do with either the facts of a case or the law and merely tends to continue the hurt of an innocent victim of a brutal sex assault. We urge the public defender to cease the use of the names of the victims in such cases.

For all the above reasons, we affirm Robinson’s conviction and the sentence imposed by the trial judge.

Judgment affirmed.

COCCIA and GORDON, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    LUVERSIA CHERRY, Plaintiff-Appellant, v. SIEMANS MEDICAL SYSTEMS, INC., Defendant-Appellee.
    First District (5th Division)
    No. 1—89—1563
    Opinion filed December 7, 1990.

      Lane & Munday, of Chicago (John J. Perconti, of counsel), for appellant.
    McKenna, Storer, Rowe, White & Farrug, of Chicago (James P. DeNardo, Gregory L. Cochran, and Christine L. Olson, of counsel), for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Plaintiff Luversia Cherry (Cherry) appeals from an order of the circuit court of Cook County, dated October 22, 1987, dismissing her strict liability in tort action against defendant, Siemans Medical Systems (Siemans) and from an order of the court dated May 17, 1989, denying her motion to vacate the dismissal order and reinstate her cause against Siemans. The facts, which are undisputed, are as follows.

On June 5, 1985, Cherry filed a complaint against Siemans and W.C. Heraevs, a/k/a Hanau Manufacturing Company (Heraevs), charging that a “surgical lamp horizontal arm,” designed and manufactured by Heraevs and distributed and installed by Siemans, had broken and fallen on her during a surgical procedure at Provident Hospital on June 9, 1983. Cherry alleged that she incurred injuries when this defectively designed horizontal arm had failed because its brackets and fittings were unable to support the weight of the lamp.

Cherry served Siemans with notice and summons on November 27, 1985. Siemans filed an appearance on February 6, 1986, and an answer on March 11, 1986, in which it admitted to the sale and distribution of the surgical lamp, but denied liability. More than a year later, on April 23, 1987, Siemans filed a motion seeking dismissal from the cause of action pursuant to section 2—621 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2—621), certifying in an attached affidavit that “W.C. Heraevs, a/k/a Hanau Manufacturing Company,” was the manufacturer of the allegedly defective product. Cherry contested this motion, but not on the grounds that Siemans was independently responsible for the defective product in some way. Rather, plaintiff argued that, although she had named Heraevs (the manufacturer) as a party-defendant in her complaint, she had opted not to proceed against Heraevs, a corporation located in the Federal Republic of West Germany, because it appeared that this foreign manufacturer was not amenable to service of process or subject to the jurisdiction of Illinois courts. Plaintiff also contended that Siemans should not be allowed to bring a section 2—621 motion at that time because it was not timely since the statute provided that this type of motion may be brought by a nonmanufacturing defendant “upon answering or otherwise pleading.”

Despite plaintiff’s objections, the trial court granted defendant’s motion and dismissed Siemans from the case in an order dated October 22, 1987. After Siemans’ dismissal, plaintiff, for the first time, attempted to obtain service on Heraevs. Through additional investigation, plaintiff learned that the correct identity of the manufacturer was, in fact, “W.C. Heraeus, Gmbh.” A special international process server was then appointed, and on January 5, 1988, the manufacturer was served with summons and complaint.

On February 3, 1988, the manufacturer (W.C. Heraeus, Gmbh) filed a limited appearance, contesting the jurisdiction of the court. After a hearing held July 12, 1988, the trial court ruled that the manufacturer was not subject to the court’s jurisdiction because it was not “doing business” in the State and dismissed it from the cause of action. Although plaintiff’s counsel was present at the hearing, the dismissal of the foreign manufacturer was not contested by plaintiff and no argument was made suggesting that jurisdiction could be founded upon the commission of a “tortious act” within the jurisdiction.

On August 11, 1988, plaintiff filed a motion asking that the trial court vacate or reconsider its July 12, 1988, order dismissing W.C. Heraeus, raising at this time the trial court’s failure to consider the “tortious act” basis for finding jurisdiction. In a second motion, plaintiff asked that the trial court vacate the October 22, 1987, order dismissing Siemans and reinstate Siemans as a party-defendant.

After several continuances, a hearing was held, at which time it was noted that plaintiff withdrew her motion to reconsider or vacate the order dismissing W.C. Heraeus, Gmbh. The trial court then denied plaintiff’s motion to vacate the order dismissing Siemans and plaintiff then filed this timely appeal, to which the manufacturer is not a party. In the appeal plaintiff raises these two issues: (1) whether the trial court erred by granting Siemans’ motion for dismissal, and (2) whether the trial court erred by denying plaintiff’s motion to vacate the dismissal order and reinstate Siemains.

Plaintiff’s first issue deals with an interpretation of subsections (a) and (b) of section 2 — 621 (Ill. Rev. Stat. 1987, ch. 110, pars. 2—621(a), (b)), which state:

“(a) In any product liability action based in whole or in part on the doctrine of strict liability in tort commenced or maintained against a defendant or defendants other than the manufacturer, that party shall upon answering or otherwise pleading file an affidavit certifying the correct identity of the manufacturer of the product allegedly causing injury, death or damage. The commencement of a product liability action based in whole or in part on the doctrine of strict liability in tort against such defendant or defendants shall toll the applicable statute of limitation and statute of repose relative to the defendant or defendants for purposes of asserting a strict liability in tort cause of action.
(b) Once the plaintiff has filed a complaint against the manufacturer or manufacturers, and the manufacturer or manufacturers have or are required to have answered or otherwise pleaded, the court shall order the dismissal of a strict liability in tort claim against the certifying defendant or defendants, provided the certifying defendant or defendants are not within the categories set forth in subsection (c) of this Section. Due diligence shall be exercised by the certifying defendant or defendants in providing the plaintiff with the correct identity of the manufacturer or manufacturers, and due diligence shall be exercised by the plaintiff in filing an action and obtaining jurisdiction over the manufacturer or manufacturers.”

Initially, plaintiff argues that Siemans’ dismissal from the case was erroneous because it was “premature.” She contends that a literal reading of the statute requires that a nonmanufacturing defendant must remain a party-defendant until such time as the manufacturer has been named, served with process and required to answer or otherwise plead. Consequently, plaintiff claims that the trial court erred by dismissing Siemans on October 22, 1987, when she had not yet effectuated service of process upon the manufacturer. Additionally, plaintiff contends that she was prejudiced by Siemans’ failure to timely certify the identity of the manufacturer and by Siemans’ failure to correctly identify the manufacturer’s name. We find no merit in any of these arguments.

While it is true that the trial court dismissed Siemans prior to the time that plaintiff served process on the manufacturer and, for that reason, the dismissal was premature, we find this fact to be of little consequence. First of all, plaintiff named the manufacturer in the original complaint, which was filed June 5, 1985. The record clearly demonstrates that plaintiff refrained from serving the manufacturer merely because she did not wish to undergo the difficulty or incur the expense of serving a foreign defendant. In fact, even after Siemans certified the identity of the manufacturer in its section 2— 621 motion filed on April 23, 1987, and after a hearing was held on the motion on July 15, 1987, and the motion was granted on October 22, 1987, plaintiff made no attempt to obtain service on the manufacturer until January 5, 1988. Plaintiff’s failure to exercise due diligence in effectuating service on the manufacturer, although known to plaintiff from the onset, enabled the trial court to exercise its discretion in dismissing Siemans, subject to reinstatement, based upon the plaintiff’s representation that the manufacturer would be served immediately.

Secondly, a dismissal pursuant to section 2 — 621 of the Code is a nonfinal order, which may be vacated at any time upon a showing of error. (Kellerman v. Crowe (1987), 119 Ill. 2d 111, 518 N.E.2d 116.) Thus, a dismissal that is granted prematurely need not be deemed error if, ultimately, the defendant would have been entitled to a dismissal. In this case, once plaintiff served the manufacturer and the manufacturer answered or otherwise pleaded, on February 3, 1988, Siemans became entitled to dismissal. For this reason we do not find the October 22, 1987, dismissal to have constituted error.

Furthermore, although it is true that all entities in the distributive chain of an allegedly defective product are subject to liability in a strict liability in tort action (Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 454 N.E.2d 210; Sims v. Teepak, Inc. (1986), 143 Ill. App. 3d 865, 493 N.E.2d 721), this does not necessarily give a plaintiff the right to elect whom he/she will sue. The purpose of section 2—621 of the Code is to provide a “sellers exception” whereby any nonmanufacturing defendant, who has not been shown to have created or contributed to the alleged defect, may defer liability to the ultimate wrongdoer, the manufacturer. (Logan v. West Coast Cycle Supply Co. (1990), 197 Ill. App. 3d 185, 553 N.E.2d 1139; Sims v. Teepak, Inc., 143 Ill. App. 3d at 868.) In this manner the nonmanufacturing defendant may exempt himself from the cause of action at an earlier stage, thereby incurring less expense than if he were required to litigate the matter. We believe that this provision places upon a plaintiff an affirmative duty to file suit and obtain jurisdiction over a manufacturing defendant once the identity is known, especially in instances where the plaintiff does not allege that the nonmanufacturing defendant had any independent responsibility for the allegedly defective product and the only basis for liability is founded upon his role as a member of the distributive chain. (See Logan v. West Coast Cycle Supply Co., 197 Ill. App. 3d at 192-93.) As stated earlier, in this case plaintiff was aware of the manufacturer, named the manufacturer in its original complaint and simply opted not to serve process upon the foreign manufacturer. We do not believe that a plaintiff has this option.

We also find no basis for finding that Siemans’ over one-year delay in filing its section 2 — 621 motion and certifying the identity of the manufacturer in any way prejudiced plaintiff’s position. The statute provides that when a strict liability in tort action is “commenced or maintained against a defendant or defendants other than the manufacturer, that party shall upon answering or otherwise pleading file an affidavit certifying the correct identity of the manufacturer.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 110, par. 2—621(a).) This provision has not been interpreted to mean that a nonmanufacturing defendant must file a section 2—621 motion and affidavit certifying the identity of the manufacturer, if at all, at the time that he answers the complaint. (See Lamkin v. Towner (1990), 138 Ill. 2d 510.) Furthermore, if this interpretation were applied, it would render meaningless the other terms, namely “or otherwise pleads” and “due diligence shall be exercised by the certifying defendant or defendants in providing the plaintiff with the correct identity of the manufacturer or manufacturers.”

Since an additional purpose of the section 2 — 621 provision is to facilitate discovery of the manufacturer where such is not known by the injured party (Sims v. Teepak, Inc., 143 Ill. App. 3d at 868), this court is of the belief that the nonmanufacturing defendant’s duty is to provide the plaintiff with the identity of the manufacturer in a timely fashion and to avoid prejudicing plaintiff’s legal position, if it hopes to seek dismissal from the suit pursuant to the statute. If, however, as in this case, the identity of the manufacturer is already known to the plaintiff and the manufacturer has been named as a party-defendant, the plaintiff has an obligation to pursue the manufacturer, and there seems to be no reason to require the nonmanufacturing defendant to file its section 2—621 motion and affidavit at the time of answering, since there is no danger that the failure to certify will result in plaintiff’s inability to file suit against the manufacturer within the limitations period.

We realize that one purpose of the provision, as stated earlier, is to allow the nonmanufacturing defendant an opportunity to avoid expensive litigation by providing a means whereby he may exempt himself from the suit at an early stage. For this reason, it would be in that party’s best interest to bring the motion at an early stage. However, unless the plaintiff can point to some.actual prejudice attributable to the delay, we find no reason to limit the nonmanufacturing defendant’s ability to take advantage of the benefit that section 2— 621 of the Code affords.

Additionally, we note that a nonmanufacturing defendant may not always be in a position to file a section 2—621 motion immediately, before discovery has been obtained, since it may not be clear at that time whether the plaintiff is alleging that the nonmanufacturing defendant contributed to the alleged defect or was liable on some independent basis. In the present case plaintiff filed its cause of action naming both Siemans and the manufacturer on June 5, 1985, but did not obtain service on Siemans until November 27, 1985. Siemans filed an appearance and notice to produce on February 6, 1986, and at the same time requested an extension of the time in which to answer. On March 11, 1986, although plaintiff had not yet responded to the interrogatories, Siemans filed a general denial. On April 10, 1986, and again on May 27, 1986, Siemans filed additional notices, asking that plaintiff comply with its request for discovery. On June 6, 1986, plaintiff was instructed by order of the court to complete outstanding discovery within 28 days and, when plaintiff failed to abide by the court’s order, Siemans moved for dismissal pursuant to Supreme Court Rule 201(k). (134 Ill. 2d R. 201(k).) After a hearing on this motion, plaintiff was again ordered, on October 2, 1986, to comply with Siemans’ demand for discovery within 28 days. It was only then, on October 9, 1986, that plaintiff finally answered the interrogatories submitted by Siemans. Based upon the fact that much of the delay prior to the filing of Siemans’ section 2—621 motion in April 1987 was attributable to plaintiff, we find that Siemans did not fail to act diligently in filing its section 2—621 motion and affidavit.

Finally, we find that plaintiff has not demonstrated any actual prejudice stemming from the delay in filing or the fact that the incorrect identity of the manufacturer was given in Siemans’ affidavit. Paragraph (b)(2) of section 2 — 621 (Ill. Rev. Stat. 1985, ch. 110, par. 2—621(b)(2)) provides that a dismissal granted to a certifying defendant may be vacated on the basis that the manufacturer’s identity provided to plaintiff by the certifying defendant was incorrect. However, the paragraph also provides that the certifying defendant may again be granted dismissal once the correct identity of the manufacturer has been provided.

In this case plaintiff apparently discovered, through her own investigation, that the manufacturer was “W.C. Heraeus, Gmbh,” rather than “W.C. Heraevs a/k/a Hanau Manufacturing Company.” However, plaintiff never sought vacation of Siemans’ dismissal from the cause of action on the basis that it had attempted to serve the manufacturer and was unable to do so because the incorrect identity was given.

We believe that the statute should be construed liberally to provide a nonmanufacturing defendant, who is without personal fault, with a means to escape expensive litigation and obtain a dismissal at whatever point that the manufacturer becomes known to plaintiff. At that point the plaintiff has an obligation to diligently pursue the manufacturer. Just because a plaintiff was able to discover the identity of the manufacturer without the nonmanufacturing defendant’s assistance does not foreclose that defendant’s ability to obtain a dismissal under section 2—621. As noted earlier, one purpose of the statute is to provide a plaintiff, who is unaware of or unable to discover the identity of the manufacturer, with a means to obtain that information, in addition to the right to hold liable any member in the distributive chain until such information is provided and the manufacturer can be brought before the court.

For this reason we find that although plaintiff could have sought the vacation of the October 1987 dismissal on the grounds that the identity of the manufacturer was incorrectly given, this does not now invalidate the dismissal or make it error. Siemans would have been entitled to dismissal once the correct identity of the manufacturer was made known, and plaintiff can point to no prejudice stemming from the incorrect identity supplied in Siemans’ affidavit. The manufacturer did, ultimately, contest service, but on the basis of a lack of personal jurisdiction, not because plaintiff named the wrong defendant, nor because of the delay between plaintiff’s commencement of the action against them and the time she obtained service of summons. For all these reasons, we find that the trial court’s dismissal of Siemans from the cause of action on October 22, 1987, does not constitute error.

We next consider whether the trial court erred by refusing to vacate the October 22, 1987, dismissal and reinstate Siemans in the cause of action. Plaintiff contends that because the trial court found that the manufacturer was not subject to the jurisdiction of Illinois courts, the trial court was obligated to reinstate Siemans, pursuant to section 2—621(b)(3) of the Code. Ill. Rev. Stat. 1985, ch. 110, par. 2—621(b)(3).

Section 2—621(b)(3) states that an order of dismissal may be vacated and the certifying defendant reinstated “if the plaintiff can show” that “the manufacturer no longer exists, cannot be subject to the jurisdiction of the courts of this State, or, despite due diligence, the manufacturer is not amenable to service of process” (emphasis added). (Ill. Rev. Stat. 1985, ch. 110, par. 2—621(b)(3).) The onus is on the plaintiff to make this showing, which presumably may be rebutted by the certifying defendant.

In this case plaintiff demonstrated that the trial court had found the manufacturer to be outside the jurisdiction of the State’s courts. However, the trial court apparently found that plaintiff had not shown that the manufacturer could not have been made subject to the jurisdiction of the court. As Siemans pointed out to the trial court, plaintiff did not argue in favor of finding jurisdiction at the hearing on the matter and, although a motion was filed seeking a vacation of the order releasing the manufacturer, plaintiff did not pursue that avenue, even though there appeared to be a likelihood of success if that motion had been heard. As stated before, it is clear from the record that plaintiff, throughout this case, has relied on the fact that it had the option to sue any member in the chain of distribution of an allegedly defective product. While we agree that, initially, this is true, the option is no longer available to the plaintiff once the manufacturer has been made a party to the litigation and there is no indication that the nonmanufacturing defendant was independently responsible for the defect.

The October 22, 1987, and May 17, 1989, orders of the circuit court of Cook County are affirmed.

Affirmed.

COCCIA and GORDON, JJ., concur.


text:
    BRIDGETTE M. PERRY, Plaintiff-Appellant and Cross-Appellee, v. CLIFFORD E. STORZBACH et al., Defendants-Appellees and Cross-Appellants.
    First District (5th Division)
    No. 1—89—3230
    Opinion filed December 7, 1990.

      Robert W. Karr & Associates, Ltd., and David A. Novoselsky & Associates, both of Chicago (David A. Novoselsky, of counsel), for appellant.
    Brydges, Riseborough, Morris, Franke & Miller, of Chicago, for appellees.
   JUSTICE MURRAY

delivered the opinion of the court:

Bridgette M. Perry (Perry), plaintiff, appeals from final orders of a trial court in a jury case involving personal injuries. Clifford E. Storzbach (Storzbach) and Hartwig-Hartoglass, Inc. (Hartwig), defendants, have filed a cross-appeal.

The facts are as follows. On September 25, 1984, Perry was driving southbound on. Russell Road in Barrington, Illinois. She had stopped for a red light and was signaling to turn left. Storzbach was also in a southbound vehicle as was Timothy Olsen (Olsen). Olsen was immediately behind Perry, and Storzbach was behind Olsen. The Storzbach vehicle struck the rear of the Olsen vehicle. The Olsen vehicle struck the rear of the Perry vehicle.

Perry filed a suit in negligence in the circuit court of Cook County to recover monetary damages for the injuries she allegedly suffered as a result of the accident. On August 23, 1989, the jury returned a verdict in Perry’s favor. The jury assessed damages in the amount of $35,000 for disabilities resulting from the accident and $0 for pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries.

Thereafter, Perry filed a motion for a new trial. Defendants requested a $2,000 remitittur due to the fact that Olsen had previously paid $2,000 to Perry as a-result of the accident. On November 8, 1989, the trial court denied Perry’s motion for a new trial and ordered that the judgment entered on August 25, 1989, be reduced from $35,000 to $33,000. Neither party questions the trial judge’s deduction.of the remitittur from the $35,000 verdict.

Perry filed a notice of appeal, and Storzbach and Hartwig filed a notice of cross-appeal.

On appeal Perry argues that the jury erred in assessing damages which were irreconcilably inconsistent and against the manifest weight of the evidence and that the trial judge erred by refusing to grant a new trial. Storzbach and Hartwig cross-appeal, arguing that they were entitled to a directed verdict due to Perry’s alleged failure to carry her burden of proof that Storzbach’s and Hartwig’s alleged negligence proximately caused Perry’s injuries.

For the following reasons, we affirm the decision of the trial court.

The September 25, 1984, accident was caused by the defendant’s vehicle running into the rear of a car driven by Olsen, which in turn allegedly ran into the car Perry was driving. Perry’s car was stopped for a red light and was signaling a left turn at the time of the impact.

The jury found for Perry and against Storzbach and Hartwig on the the issue of liability but assessed damages as follows:

The disability resulting from the injury — $35,000

The pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries — $0

Perry asserts that there was simply no basis in the evidence before the jury for the jury to determine the plaintiff suffered disability resulting from the injury but experienced no pain and suffering in the process. Perry’s argument is based on a charged inconsistency in the jury’s verdict. On the one hand the jury found defendants liable, and on the other hand, the jury found that Perry suffered damages in the amount of $35,000.

Perry relies on the many Illinois cases that set forth the principle that normally a jury’s verdict on the issue of damages will not be set aside and a new trial ordered absent a showing that the awarded damages are palpably inadequate (Hinnen v. Burnett (1986), 144 Ill. App. 3d 1038, 495 N.E.2d 141), against the manifest weight of the evidence, or where the jury has clearly disregarded a proven element of damage. Montgomery v. City of Chicago (1985), 134 Ill. App. 3d 499, 502, 481 N.E.2d 50, 53.

Plaintiff’s physician, Dr. Wilt, testified that he treated Perry for headaches, cervical neuralgia and lumbar strain three weeks prior to the accident. These are the same conditions Perry claimed were caused by the accident. Perry denied that she had been treated by Dr. Wilt for backaches and neck problems.

Perry was under the care of Dr. Pedersen, a neurosurgeon from October 1984 through April 1988. Dr. Pedersen testified that in his opinion the patient had a significant cervical strain or tear of the neck muscles with probable L5 radiculopathy, which was possibly secondary to a herniated disc in the back or a severe strain of the sciatic nerve or the left L5 nerve. In Dr. Pedersen’s opinion, Perry’s complaints and findings since September 25, 1984, were directly caused by the trauma that occurred to her in the automobile accident on that date. Although at his deposition Dr. Pedersen testified that he thought “the patient should be able to resume some type of gainful employment at some point in the future,” by the time of the trial two years later Dr. Pedersen had altered his opinion, testifying that “due to the duration of time that these complaints have persisted, I believe they are permanent.” However, Dr. Pedersen also testified that Perry had never told him that she had been to see Dr. Wilt three weeks prior to the accident complaining of severe back pain and difficulty in walking. He further testified that, had he been aware of this information, his opinion might have been different in that he might have said the injury was the result of multiple causes.

Joanne Mensch, Perry’s former neighbor, testified that she had seen Perry raking leaves, pulling weeds, carrying groceries and, on one occasion, dancing. Ray Schnarr, Perry’s ex-husband, testified that since the time of the accident Perry painted a bathroom, performed household chores, went dancing and had driven long distances without difficulty.

Perry testified that she was not driving on a regular basis because she was uncomfortable as a result of the accident. However, at her divorce proceeding one month prior to this testimony, plaintiff testified that the reason she was not driving on a regular basis was due to a loss of vision in her left eye.

Plaintiff relies on the case of Hinnen v. Burnett (1986), 144 Ill. App. 3d 1038, 495 N.E.2d 141, to support her contention that the verdict was irreconcilably inconsistent. In Hinnen the jury found for the plaintiff, awarding an amount for medical expenses, but awarding nothing for pain and suffering. The amount the jury awarded the plaintiff for medical expenses exceeded the amount of medical expenses paid. As a result, the appellate court ordered a new trial, finding that “[i]f the jury believed that plaintiff has no compensable pain and suffering, its award of pain-related expenses was wholly unwarranted and contrary to the manifest weight of the evidence.” Hinnen, 144 Ill. App. 3d at 1046, 495 N.E.2d at 147.

The facts in the present case are similar to those in Griffin v. Rogers (1988), 177 Ill. App. 3d 690, 532 N.E.2d 591. In Griffin, the plaintiff sought recovery for injuries suffered in a minor auto collision. There were a number of inconsistencies between the testimony of the plaintiff, her husband and her physician. In addition, the plaintiff’s physician indicated that all of her complaints could be the result of a preexisting condition. The jury awarded plaintiff $365 as the present cash value of reasonable medical expenses and $110 for lost wages but gave her no award for pain and suffering, disability, or aggravation of a preexisting condition resulting from her injuries. The plaintiff appealed, contending that the award of medical expenses without compensation for pain and suffering was inconsistent. The court distinguished Hinnen, pointing out that the record did not clearly show that the amount awarded for plaintiff’s medical expenses included those for pain medication. The court found that in the face of an uncertain record, it could make no conclusive determination that the jury intended to compensate the plaintiff for the expenses of pain-relieving medicine and accordingly could not find the verdicts inconsistent. The court stated, “It is the function of the jury to determine the credibility of the witnesses and to assess the weight to be accorded their testimony. A court of review will not interfere with the discretion of the jury in its assessment of damages except where they are ‘palpably inadequate or it is clear that a proven element of damages has been ignored.’ ” Griffin v. Rogers (1988), 177 Ill. App. 3d 690, 694-95, 532 N.E.2d 591, 594, quoting Lazzaro v. Garrett (1968), 100 Ill. App. 2d 452, 456, 242 N.E.2d 59, 61.

Similar circumstances were also present in Meyers v. Louthan (1983), 114 Ill. App. 3d 770, 449 N.E.2d 904, where the appellate court held that the trial court abused its discretion in granting the plaintiff a new trial when the jury gave the plaintiff an award for her emergency room bills but nothing for pain and suffering. The medical evidence presented in Meyers was strong to the effect that plaintiff’s preexisting problems in body areas that she claimed were injured by the accident were no more serious after the accident than they were prior to the accident.

Absent some indication that the jury failed to follow some rule of law, considered some erroneous evidence, or an indication in the record that the verdict was the obvious result of passion or prejudice, we cannot upset that verdict. (Rozner v. Chicago Transit Authority (1989), 183 Ill. App. 3d 613, 539 N.E.2d 270.) Perry’s evidence indicated Perry suffered both a disability as a result of the accident and pain and suffering. Yet, Perry offered no evidence of her medical expenses. Conversely, defendants’ evidence indicated that Perry was treated for similar pain and suffering prior to the accident in question. It is obvious that the jury concluded that Perry suffered a disability as a result of the accident for which they assessed damages at $35,000. It is also obvious that the jury concluded that Perry failed to prove that the pain and suffering she experienced or was certain to be experienced was caused by the September 25, 1984, accident. The evidence supports this conclusion of the jury, and we cannot conclude that the verdict is inconsistent, unsupported by the evidence or a result of passion or prejudice. Accordingly, we affirm the decision of the trial court.

On cross-appeal defendants Storzbach and Hartwig claim they were entitled to a directed verdict. They base this claim on the charge that Perry failed to present direct evidence that defendant’s car knocked Olsen’s car into the rear of Perry’s vehicle.

Storzbach and Hartwig confuse the law relating to directed verdicts. They concede that circumstantial evidence indicated that the Storzbach vehicle may have knocked the Olsen vehicle into Perry’s vehicle but indicate that such an inference is not sufficient to support a prima facie case. The cases defendants cite in support of this proposition, Monaghan v. DiPaulo Construction Co. (1986), 140 Ill. App. 3d 921, 489 N.E.2d 409, and McCormick v. Maplehurst Winter Sports, Ltd. (1988), 166 Ill. App. 3d 93, 519 N.E.2d 469, are cases involving motions for summary judgment, not motions for a directed verdict at the close of a plaintiff’s case. In determining whether a motion for summary judgment should be granted, the evidence must be construed strongly against the movant and liberally in favor of the opponent, and the motion should be denied if the facts admit of more than one conclusion or inference, including one unfavorable to the moving party. (Frye v. O’Neill (1988), 166 Ill. App. 3d 963, 520 N.E.2d 1233.) This is the rule whether the movant for summary judgment is the plaintiff or defendant.

Alternatively, “[o]n the defendant’s motion for a directed verdict all reasonable inferences are to be drawn in favor of the plaintiff, and all issues of credibility resolved in her favor.” (Hays v. Country Mutual Insurance Co. (1963), 28 Ill. 2d 601, 605, 192 N.E.2d 855, 858.) Since the Perry case disclosed at least an inference that Storzbach’s vehicle drove Olsen’s car into Perry’s car, the trial court properly denied defendants’ motion for a directed verdict at the close of Perry’s case.

Finally, it is for the jury, in a jury case, not a trial judge or appellate court, to determine the facts of the case, disputed as well as undisputed, and draw from them the reasonable inferences they support. (Kroch’s & Brentano’s, Inc. v. Barber-Colman Co. (1973), 16 Ill. App. 3d 412, 306 N.E.2d 522.) The trial court properly denied the defendants’ motion for a directed verdict.

For all the above reasons, the trial court’s conclusions, the jury verdict and judgment entered thereon are affirmed.

Judgment affirmed.

COCCIA and GORDON, JJ., concur.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. HENRY WILLIAMS, Defendant-Appellee.
    First District (3rd Division)
    No. 1—88—3114
    Opinion filed December 5, 1990.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Bonnie Meyer Sloan, and Eileen Rubin, Assistant State’s Attorneys, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

The People of the State of Illinois appeal from an order of the circuit court which granted defendant Henry Williams’ motion to suppress evidence. The sole issue on appeal is whether collateral estoppel precludes an issue from being litigated in a DUI criminal proceeding (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501), because the issue was decided previously in a statutory summary suspension hearing (Ill. Rev. Stat. 1987, ch. 95½, par. 2—118.1). We reverse and remand.

On October 26, 1987, Chicago police officers Michael Brown and Fred McCad observed defendant slumped over the steering wheel of a stationary automobile. The officers ascertained that there had been an automobile accident and noted that the front end of defendant’s vehicle was damaged. Brown testified that when he approached the vehicle in which defendant was sitting, he detected a strong odor of alcohol emanating from defendant. He also noted that defendant was the only person present in the auto and that the keys were in the ignition. When Brown asked defendant if he was alright, defendant did not respond.

Brown instructed defendant to step out of the car and asked him if he had been drinking. Defendant responded that he had not been drinking. However, Brown noted that defendant’s speech was slurred. After talking with witnesses, Brown concluded that defendant was the driver of the automobile that was involved in the accident and placed him under arrest for driving under the influence of alcohol.

Brown’s report indicated that defendant swayed and swaggered as he walked and that his balance was so poor that he had to be helped into the police car. In addition, Brown testified that based on his personal and professional experience it was his opinion that defendant was under the influence of alcohol at the time of his arrest. At the police station, defendant took a breathalyzer test which indicated that his blood-alcohol level was .10 or above. As a result, defendant’s driving privileges were summarily suspended.

On December 9, 1987, defendant filed a request for a hearing to rescind the statutory summary suspension of his driver’s license. A hearing was held on January 13, 1988. Following the hearing, the trial court held that there was no clear and convincing evidence that the arresting officer had probable cause to believe that defendant was under actual physical control of an automobile while under the influence of alcohol. As a result, the court rescinded the summary suspension of defendant’s driving privileges.

Thereafter, defendant filed a motion to suppress in the DUI criminal proceeding alleging that the issue of probable cause had already been litigated and resolved in his favor in the proceeding to rescind the summary suspension of his driving privileges. Defendant argued, therefore, that the State was precluded by the doctrine of collateral estoppel from offering any evidence in the DUI proceeding that was obtained after and pursuant to the arrest. The trial court agreed and ruled that because the issue of probable cause had been fully litigated between the parties in the statutory summary suspension hearing, collateral estoppel barred relitigation of the issue in the DUI proceeding. This appeal followed.

The appellee has not filed a brief. However, because the record is simple and the claimed error can easily be decided without the aid of an appellee’s brief, we decide the merits of this appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495.

The doctrine of collateral estoppel applies to bar the trial of an issue that has been fairly and completely resolved in a prior proceeding. (People v. Borchers (1977), 67 Ill. 2d 578, 582, 367 N.E.2d 955, 957.) The doctrine applies when a party or someone in privity with a party participates in two separate cases, and in the earlier case some controlling fact or question material to the determination of both cases has been adjudicated against one of the parties in the second case. (See Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 252, 461 N.E.2d 959, 962.) The Illinois Supreme Court recently, however, held that although a particular issue has been decided in a statutory summary suspension hearing it may be litigated again in a DUI criminal proceeding, and the doctrine of collateral estoppel will not bar the issue from being litigated in the DUI criminal proceeding. People v. Moore (1990), 138 Ill. 2d 162, 166.

The court in Moore based its ruling on the unique nature of the statutory summary suspension proceeding. The court found that the legislature created the statutory suspension hearing procedure to provide a prompt determination of whether the State has violated a motorist’s due process rights, and that if summary suspension hearings were given preclusive effect, it would render the legislative purpose meaningless. The practical effect would be that the prosecutor could not rely on the sworn police report at the proceedings but, rather, would be required to have the arresting officer and other witnesses testify in order to avoid the preclusive effect of a finding of no probable cause. The goal of conducting swift hearings for the sole purpose of determining whether a court has sufficient reason to rescind summary suspension of a motorist’s driving privileges would be thwarted. The court in Moore concluded, therefore, that the doctrine of collateral estoppel cannot be used as a bar to litigation of the issue of probable cause in a DUI proceeding following the rescission of a statutory summary suspension.

Since the trial court in the present case precluded the litigation of the issue of probable cause in the DUI criminal proceeding based on an erroneous conclusion that the doctrine of collateral estoppel was a bar, its ruling must be reversed. In fairness to the trial court, we note that the appellate court in Moore agreed with the trial court in the present case, but the supreme court reversed the appellate court in Moore.

Accordingly, the order of the trial court which granted defendant’s motion to dismiss is reversed, and this matter is remanded to the circuit court for proceedings consistent with this opinion.

Reversed and remanded.

CERDA, P.J., and WHITE, J., concur.


author: PRESIDING JUSTICE LaPORTA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ORLANDO ROSA, Defendant-Appellant.
    First District (6th Division)
    No. 1—87—3610
    Opinion filed December 7, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Tina Liebling, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and David S. Meyerson, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Following a jury trial, defendant, Orlando Rosa, was found guilty of one count of attempted murder and of one count of murder (Ill. Rev. Stat. 1985, ch. 38, pars. 8—4, 9—1). The trial court sentenced defendant to concurrent terms of 40 years for the murder conviction and 20 years for attempted murder.

On appeal, defendant contends that (1) he was deprived of his rights to a jury trial and to equal protection by the prosecutor’s exclusion of black jurors through the use of peremptory challenges; (2) his murder conviction must be reversed because the murder and voluntary manslaughter jury instructions erroneously set forth the State’s burden of proof on the issue of self-defense; (3) he was deprived of his right to a fair trial by improper comments made by the prosecutor during closing argument; and (4) his sentences were excessive, an abuse of the trial court’s discretion, and based upon improper factors.

The record reveals that defendant, Orlando Rosa, was charged along with Pedro Rodriguez and Roger Gonzalez -with two counts of murder, three counts of armed violence, one count of attempted murder, and three counts of aggravated battery. The trial court granted motions for severance, and defendant Rosa was tried separately from Rodriguez and Gonzalez. The court granted the State’s motion to nolpros the armed violence and aggravated battery counts. After a jury trial, defendant was found guilty of murder and attempted murder and sentenced to a 40-year term for murder and to a concurrent 20-year term for attempted murder.

During jury selection, 23 members of the venire were questioned, and the trial court excused two venire members for cause. Defense counsel exercised five peremptory challenges, and the prosecution exercised four such challenges. The record does not disclose how many of the 23 veniremen or the 12 seated jurors were black. Prior to the swearing in of the jury, defense counsel objected and moved for a mistrial, asserting that three of the four peremptory challenges exercised by the prosecution were against blacks, denying defendant his right to a jury comprised of a fair cross-section of the community. The trial court denied defendant’s motion for a mistrial.

The evidence adduced at trial established that on August 9, 1985, defendant was a member of the Spanish Gangster Disciples (Disciples), a street gang in Chicago, Illinois. That evening, defendant drove to Hammond, Indiana, with Rodriguez and several other members of the Disciples. In Hammond, the Disciples encountered two carloads of members of the Latin Kings, a rival Chicago street gang. Rodriguez testified that when they were in Hammond, one of the Disciples had been stabbed by a member of the Latin Kings and members of the Disciples wanted to retaliate. Defense counsel’s objections to this evidence were sustained, and the testimony was stricken. Defendant and Rodriguez eventually returned to Disciple territory in Chicago, and later that night defendant and Rodriguez entered a van with Gonzalez and drove with 10 to 20 other Disciple members to an area dominated by Latin Kings. Defendant said that he had a gun at that time.

Defendant, Rodriguez, and Gonzalez separated from the other members of their gang and subsequently walked into an alley between Escanaba and Muskegon streets. Rene Aguinaga, Jaime Aguinaga, and Isidoro Perez, all members of the Latin Kings gang, were in a backyard which was adjacent to the alley in which defendant and the others were walking. The Aguinagas and Perez heard the shouting of rival gang slogans and saw approximately 15 Latin Kings running down the alley. They walked into the alley and subsequently encountered defendant, Rodriguez, and Gonzalez, who were yelling Disciple slogans. As Jaime Aguinaga and Perez turned to run, Gonzalez shot Jaime Aguinaga in the left thigh. Another shot rang out as Jaime Aguinaga fled the scene, and he turned around and saw defendant holding a gun in his hand.

When the police arrived on the scene, they found Perez barely conscious and lying facedown in a yard next to the alley. Perez had a bullet wound in his lower back and identified Gonzalez as the person who shot him. Perez later died as a result of the gunshot wound. Jaime Aguinaga was treated at a hospital for the gunshot wound in his thigh, and when questioned by the police, he identified Gonzalez as the person who shot him.

Later that night, defendant stated that he believed that he had shot a Latin King. Although defendant had a gun with him earlier in the evening, the gun was gone when he awoke in the hospital later that same night after he was knocked unconscious in an unrelated tavern altercation. Defendant was identified in a lineup as one of the people who had been with Gonzalez at the time of the shooting. After his arrest, defendant gave the police an oral statement that was subsequently summarized and reduced to writing. Defendant’s statement described the circumstances of the shooting and was admitted against him at trial.

Chicago police detective George Basile and Assistant State’s Attorney James Andreou testified at trial that they had interviewed defendant, and he had stated that on August 9, 1985, he was with some of his friends in Hammond, Indiana, where they got involved with some Latin Kings. Defendant stated that the Latin Kings had gotten the better of them, and one of the members of the Disciples had been beaten up. Defendant stated further that he decided he wanted to get even with the Latin Kings and that the Disciples were out looking to get the Latin Kings.

During closing argument, the prosecutor referred to evidence that had been excluded, as follows:

“And the reason that Arthur Rodriguez was not able to tell you directly that he and the other guys were going in that van when they went out on the hunt to get themselves a Latin King, because of what happened to their friend in Hammond, is because when I asked him, [defense counsel] jumped out of his seat and objected.”

The trial judge twice overruled defense counsel’s objection to this argument. The prosecutor then continued as follows:

“That’s why Arthur was not able to sit there and tell you in detail why they went out on the hunt, not because he didn’t know it, and he shouldn’t be held at fault, because of [defense counsel’s] objections.”

The trial court’s instructions to the jury included the Illinois Pattern Jury Instructions on murder and voluntary manslaughter. The jury found defendant guilty of murder and attempted murder. Defendant called two witnesses who offered evidence in mitigation at the sentencing hearing. In sentencing defendant to a 40-year term for murder and a concurrent 20-year term for attempted murder, the trial judge stated that he had read and considered the presentence report, had considered the testimony of the witnesses and the statements of counsel relevant to sentencing, and recalled and considered the evidence presented at trial. The judge also made the following comments:

“[T]here is no question by that the lack of a father, a responsible father in the home where children are being raised is a serious matter.
It begins with the stupidity and slutliness of women who give themselves over to unresponsible men who are gone when the children that these great love affairs produce are born or shortly afterwards.
Quit[e] naturally and unfortunately from these unions, children like the defendant are produced, uneducated, practically illiterate, ignorant, not only disrespectful of authority and others, but slovenly, stupid. And having these qualifications, they [quite] naturally are drawn into city street gangs where all of these qualities predominate.
And once they are joined together in a gang, another outstanding feature emerges for which these street gangs are best known, and that’s coward[ice], the most cowardly people ever to soil the streets of this or any other city. * * *
But the fact is that this case, as bad as it is, if not identical, it’s the same as hundreds of other murders and attempted murders committed in this city in the past 20 years. * * *
And the law, of course, is woefully inadequate and miserably failing the citizens, with the result that citizens by the hundreds of thousands who can leave the cities are doing so. And the population of the kind of people who produce street gangs continues to increase.
So the future of the cities, the old industrial cities [ajcross this country is dim, dismal and unfortunate.”

We initially consider defendant’s claim that he was deprived of his rights to a jury trial and to equal protection by the prosecutor’s exclusion of black jurors through the use of peremptory challenges.

To assert an equal protection violation, a defendant must first establish a prima facie case of purposeful discrimination. (Batson v. Kentucky (1986), 476 U.S. 79, 93-94, 90 L. Ed. 2d 69, 85-86, 106 S. Ct. 1712, 1721.) In order to establish a prima facie case of discrimination and to provide for meaningful appellate review, the trial record must disclose the race of the veniremen. People v. McDonald (1988), 125 Ill. 2d 182, 194-195, 530 N.E.2d 1351, 1356; People v. Mitchell (1987), 163 Ill. App. 3d 58, 69, 516 N.E.2d 500, 507; People v. Johnson (1986), 150 Ill. App. 3d 1075, 1085, 502 N.E.2d 304, 311.

In the instant case, 23 members of the venire were questioned, and the trial court excused two venire members for cause. Defense counsel exercised five peremptory challenges, and the prosecution exercised four such challenges. Although defense counsel asserted that three of the four peremptory challenges exercised by the prosecution were against blacks, the record does not disclose how many of the 23 veniremen or the 12 seated jurors were black.

We find that this record is insufficient to establish a prima facie case of discrimination. Because the record does not indicate the race of the prospective or seated jurors, this court cannot determine whether the prosecution employed purposeful discrimination to exclude blacks during jury selection. (McDonald, 125 Ill. 2d at 194-95, 530 N.E.2d at 1356; Mitchell, 163 Ill. App. 3d at 69, 516 N.E.2d at 507; Johnson, 150 Ill. App. 3d at 1085, 502 N.E.2d at 311.) It is the obligation of the party seeking review to make an adequate record at the trial level to preserve the issue for review. (People v. Smith (1969), 42 Ill. 2d 479, 483, 248 N.E.2d 68, 71.) Defendant has failed to meet his burden (Johnson, 150 Ill. App. 3d at 1084, 502 N.E.2d at 310) and is not entitled to a remand to the trial court for a Batson hearing.

We next address defendant’s assertion that he was deprived of his right to a jury drawn from a representative cross-section of the community under the United States and Illinois Constitutions.

The United States and Illinois Supreme Courts have specifically declined to extend the sixth amendment fair-cross-section requirement to petit juries. Holland v. Illinois (1990), 493 U.S. 474, 107 L. Ed. 2d 905, 110 S. Ct. 803; Lockhart v. McCree (1986), 476 U.S. 162, 90 L. Ed. 2d 137, 106 S. Ct. 1758; Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692; People v. Holland (1987), 121 Ill. 2d 136, 158, 520 N.E.2d 270, 279-80; People v. Payne (1983), 99 Ill. 2d 135, 138, 457 N.E.2d 1202, 1203-04, cert. denied (1984), 469 U.S. 1028, 83 L. Ed. 2d 372, 105 S. Ct. 447; People v. Williams (1983), 97 Ill. 2d 252, 278, 454 N.E.2d 220, 232-33, cert. denied (1984), 466 U.S. 981, 80 L. Ed. 2d 836, 104 S. Ct. 2364.

These cases have held that the sixth amendment requires only that a fair cross-section of the community be represented on venires, panels, or lists from which petit jurors are drawn. (See Taylor, 419 U.S. at 526, 42 L. Ed. 2d at 696, 95 S. Ct. at 696.) Thus, although the sixth amendment mandates that the jury pool be selected from a representative cross-section of the community, there is no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population.

Defendant argues that the Illinois Constitution guarantees a right which is broader and more far-reaching than that conferred by the sixth amendment and relies upon People ex rel. Daley v. Joyce (1988), 126 Ill. 2d 209, 533 N.E.2d 873. Although such an argument may be made within the context of the defendant’s ability to waive a jury trial, it cannot reasonably be argued that Joyce guarantees the right to a petit jury reflecting a representative cross-section of the community. The Joyce decision did not consider whether the exclusion of potential jurors on the basis of race violates a defendant’s right to trial by jury under the Illinois Constitution.

While State constitutional provisions may, in certain circumstances, be given broader or more liberal constructions than those given similar Federal provisions, it is not necessary in all cases. (Joyce, 126 Ill. 2d at 225-26, 533 N.E.2d at 880-81 (Clark, J., concurring).) The State Constitution need not be interpreted more broadly in every instance, and where the Federal precedents are persuasive, they may be followed. (Joyce, 126 Ill. 2d at 225-26, 533 N.E.2d at 880 (Clark, J., concurring).) We are persuaded by the decisions in Holland, Taylor, Payne, and Williams which interpret the sixth amendment. Consequently, we find that the Illinois Constitution does not require that petit juries reflect a representative cross-section of the community.

Defendant also contends that his murder conviction should be reversed because the jury instructions on murder and voluntary manslaughter erroneously set forth the State’s burden of proof on the issue of self-defense. In support of this claim, defendant relies upon People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, which held that the giving of the Illinois Pattern Jury Instructions (IPI) on murder and voluntary manslaughter was “grave” error. The jury in the instant case received the IPI instructions on murder and voluntary manslaughter which were subsequently held invalid in Reddick.

Initially, we note that the Illinois Supreme Court recently held that the Reddick decision was not to be applied retroactively. (People v. Flowers (1990), 138 Ill. 2d 218.) This court has held, however, that Flowers, which involved a collateral attack of a conviction, was not controlling in cases which come before the court on direct review. (People v. Riggins (1990), 205 Ill. App. 3d 904, 912.) The case at bar is before us on direct review, and we will consider defendant’s claims in accordance with the Reddick decision.

The error noted by the Reddick court exists where the voluntary manslaughter instruction in conjunction "with the murder instruction fails to inform the jury that the State bears the burden of disproving the mitigating mental state necessary to reduce a murder charge to manslaughter. (Riggins, 205 Ill. App. 3d at 912; People v. Fercsi, (1989), 182 Ill. App. 3d 13, 15, 537 N.E.2d 912, 913.) Such a combination of instructions, if followed by a jury, eliminates the possibility of a defendant being convicted of voluntary manslaughter inasmuch as the only way a mitigating mental state can be proved is by the defendant, rather than by the State. Riggins, 205 Ill. App. 3d at 912; Fercsi, 182 Ill. App. 3d at 15, 537 N.E.2d at 913.

Yet, an erroneous instruction may be harmless if the result of the trial would have been the same had the proper instruction been given. (Riggins, 205 Ill. App. 3d at 912-13; People v. Fierer (1988), 124 Ill. 2d 176, 187, 529 N.E.2d 972, 976.) Consequently, a Reddick error can be harmless where a defendant has failed to present suffi-. cient evidence to justify the giving of an instruction on voluntary manslaughter. See Riggins, 205 Ill. App. 3d at 913; People v. Daniel (1989), 191 Ill. App. 3d 837, 548 N.E.2d 354; People v. Thomas (1989), 185 Ill. App. 3d 1050, 542 N.E.2d 100; People v. Skipper (1988), 177 Ill. App. 3d 684, 533 N.E.2d 44; People v. Carter (1988), 177 Ill. App. 3d 593, 532 N.E.2d 531.

Considering the evidence here in light of the principles set forth above, it appears that the instruction error was harmless. The evidence established that defendant was armed with a gun in the alley and started shooting when he and his accomplices encountered three members of a rival street gang. There was no evidence that these three members of the rival gang were armed or had harmed or threatened defendant. The evidence does not indicate that defendant’s life was in danger or that he acted in self-defense.

The only reference in the record indicating that defendant may have feared for his life was included in defendant’s statement to the police where he stated that while in the alley, he heard someone shout “get them” and heard gunshots. Yet, there is no evidence in the record to indicate who said these words, who fired the gunshots, or that defendant’s reaction was one of fear for his safety. It must be noted that several other members of defendant’s gang were also in the area, which was dominated by the Latin Kings. It is, therefore possible that one of the Disciples had uttered these words and fired the gunshots heard by defendant. There is no evidence in the record establishing that the words and gunshots heard by defendant emanated from the three members of the Latin Kings in the alley.

Considering the totality of the evidence, it does not appear that defendant’s life was in danger or that he acted in self-defense. Consequently, defendant failed to demonstrate the mitigating mental state for voluntary manslaughter which is necessary to shift to the State the burden of disproving this mental state. Thus, any error precipitated by the erroneous instructions was harmless beyond a reasonable doubt. Riggins, 205 Ill. App. 3d at 914; Skipper, 177 Ill. App. 3d 684, 533 N.E.2d 44; People v. Carter, 177 Ill. App. 3d 593, 532 N.E.2d 531.

We next address defendant’s claim that he was deprived of the right to a fair trial by improper comments made by the prosecutor to the jury. Defendant asserts that the trial court erred in allowing the prosecutor to argue that only defense counsel’s objections prevented the jury from hearing evidence of motive.

During closing argument, the prosecutor indicated twice that defense counsel’s objections precluded the jury from hearing testimony that defendant and his companions went out to hunt a Latin King.

Although it is improper for a prosecutor to comment on matters that are not in evidence or have been stricken or excluded during trial (People v. Emerson (1983), 97 Ill. 2d 487, 455 N.E.2d 41) or to indicate to the jury that the defense is responsible for the exclusion of evidence favorable to the State’s case (People v. Lopez (1980), 89 Ill. App. 3d 456, 411 N.E.2d 1071; People v. Hovanec (1976), 40 Ill. App. 3d 15, 351 N.E.2d 402), improper comments are not reversible error unless they constitute a material factor in the defendant’s conviction or result in substantial prejudice to the accused (People v. Terry (1984), 99 Ill. 2d 508, 460 N.E.2d 746; People v. Satchell (1981), 94 Ill. App. 3d 422, 418 N.E.2d 1063; People v. Nodal (1980), 89 Ill. App. 3d 538, 411 N.E.2d 1087).

In the instant case, the evidence established that defendant, armed with a gun, started shooting when he and his accomplices encountered three members of a rival street gang in an alley. There was no evidence that these three members of the rival gang were armed or had harmed or threatened defendant. At trial, a police officer and an assistant State’s Attorney testified that defendant told them on August 9, 1985, he was with some of his friends in Hammond, Indiana, where they got involved with some Latin Kings. Defendant stated that the Latin Kings had gotten the better of them, and one of the members of the Disciples had been beaten up. Defendant stated further that he decided he wanted to get even with the Latin Kings and that the Disciples were out looking to get the Latin Kings.

Based upon this evidence, we find that the prosecutor’s remarks did not result in substantial prejudice or constitute a material factor in defendant’s conviction.

Finally, we consider defendant’s contention that his sentences were excessive, an abuse of discretion, and based upon improper factors. Defendant asserts that the trial court relied on prejudice, failed to consider evidence in mitigation, and failed to sentence defendant as an individual.

In sentencing defendant to a 40-year term for murder and a concurrent 20-year term for attempted murder, the trial judge indicated that he had considered the presentence report, the testimony of the witnesses and the statements of counsel at the sentencing hearing, and the evidence presented at trial. Yet, the judge also referred to “the stupidity and slutliness of women,” stated that people like the defendant were “slovenly” and “stupid,” and referred to the “cowardpce]” of street gang members.

We believe these comments indicate that the sentencing judge did not consider the requisite statutory factors and, therefore, failed to follow the mandate of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005—4—1(a)). Consequently, defendant’s sentences are vacated, and the cause is remanded to the trial court for resentencing.

For the foregoing reasons, defendant’s convictions are affirmed, his sentences are vacated, and the cause is remanded to the trial court for resentencing.

Affirmed in part; vacated in part, and remanded.

McNAMARA and EGAN, JJ., concur.


author: JUSTICE O’CONNOR

text:
    THE COUNTY OF COOK, Plaintiff, v. DONALD KONTOS et al., Defendants and Third-Party Plaintiffs-Appellants (Pagni Industrial Corporation et al., Third-Party Defendants-Appellees).
    First District (1st Division)
    No. 1—89—2521
    Opinion filed December 10, 1990.

      Bradtke & Zimmerman, of Mt. Prospect (John J. Zimmermann, of counsel), for appellants.
    Samelson, Knickerbocker & Payne, of Des Plaines (George B. Knickerbocker, of counsel), for appellee Village of Elk Grove Village.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Donald Kontos, Where Else Lounge, Inc., Lawrence Garlisch and Roselle State Bank, as trustee (defendants), appeal from a court order that denied and dismissed their rule to show cause.

On December 11, 1980, the County of Cook filed suit against the defendants alleging a malfunctioning septic system on the defendants’ property (the subject property). Subsequently, defendants filed a third-party complaint against the Village of Elk Grove (the Village) and other parties, directing the Village to permit the defendants to connect into its sewer system. After negotiations, the trial court entered an agreed order on June 17, 1983, which stated, in pertinent part, that: (1) the Village would annex the subject property to the Village; (2) immediately “upon annexation of the subject property, the Village would create an additional late hour liquor license for pouring (Class AA)” and issue it to the defendants upon recording the plat of annexation “with the understanding that the pouring license would be allowed until 4 a.m. on each day except Saturday and Sunday, upon which Saturday and Sunday of each week the license will allow pouring of liquor until 5 a.m.”; and (3) within one year of the foregoing, the defendants would install or cause to be installed sewer and water lines which would be connected to the Village’s water and sewer systems. Pursuant to the agreed order, the Village annexed the subject property and issued a Class AA liquor license to the defendants.

On June 27, 1989, the Village amended its ordinance which regulates the hours of liquor license establishments. On July 18, 1989, the Village sent the defendants notice regarding the amended liquor license ordinance. The amended ordinance reduced Class AA liquor license operating hours from 4 a.m to 2 a.m. on weekdays, and from 5 a.m. to 3 a.m. on weekends.

After the Village denied defendants’ numerous requests to exempt the defendants from the amended ordinance, which would have given them a right to remain open two hours later than other Class AA license holders, the defendants filed a petition for rule to show cause for the Village’s alleged violation of the agreed order. The defendants sought to hold the Village in contempt of court and enjoin the Village from enforcing the amended ordinance affecting Class AA liquor licenses. Subsequently, the Village filed its response to defendants’ petition. After a hearing on the petition for rule to show cause, the trial court denied defendants’ petition. Defendants appeal.

For the reasons set forth below, we affirm the trial court’s order denying defendants’ petition for rule to show cause.

Defendants argue that the pouring hours specified in the agreed order are binding between the defendants and the Village. The logical conclusion of their argument is that the hours specified in the agreed order should be perpetually binding upon the parties. We disagree. The agreed order contained language setting forth the terms whereby the defendants would annex to the Village, and the Village would give the defendants a Class AA liquor license. The record reflects that the defendants were given a Class AA license that enabled them to operate until 4 a.m on weekdays and until 5 a.m. on weekends. The agreed order, however, did not require the Village to renew the defendants’ license with or without the hours specified in the agreed order, nor did the agreed order guarantee the defendants perpetual and limitless rights to the Class AA license. Moreover, neither the trial court that approved the agreed order nor the Village was empowered to consent to perpetual rights regarding liquor licenses because section 5—2 of the Liquor Control Act of 1934 (Ill. Rev. Stat. 1985, ch. 43, par. 117) provides that such licenses are only valid for a one-year maximum.

Similarly, in Maywood-Proviso State Bank v. City of Oakbrook Terrace (1966), 67 Ill. App. 2d 280, 214 N.E.2d 582, liquor licensee plaintiffs, who were owners of certain real estate, argued that a city ordinance that prohibited the sale of alcoholic beverages after 1 a.m. on weekdays and after 2 a.m. on weekends and legal holidays violated a preannexation agreement entered into between the city and plaintiffs’ predecessors. The Maywood-Proviso plaintiffs contended that the preannexation agreement provided that any liquor license granted to owners of the certain real estate would permit serving of liquor until 3 a.m. on weekdays, and until 4 a.m. on weekends and legal holidays. The Maywood-Proviso court held that the agreement’s provisions regarding perpetual rights to a designated premises’ liquor license were void because the city did not have the power or authority to contract, in effect, for the issuance of a liquor license to a particular location beyond the period of one year when the Liquor Control Act of 1934 (the Act) (Ill. Rev. Stat. 1985, ch. 43, par. 93.9 et seq.) declared that such licenses were valid for a one-year maximum. Maywood-Proviso State Bank, 67 Ill. App. 2d at 288.

Furthermore, we are not persuaded by the defendants’ contention that they have a property right to operate their tavern in accordance with the hours set forth in the agreed order because the renewal of a liquor license is a privilege and may not be construed as a vested right (Ill. Rev. Stat. 1985, ch. 43, par. 119; Two Kats, Inc. v. Village of Chicago Ridge (1986), 147 Ill. App. 3d 440, 444, 497 N.E.2d 1314), and because the Village did not have the power or authority to contract, in effect, for the issuance of a liquor license to a particular location beyond the period of one year (Ill. Rev. Stat. 1985, ch. 43, par. 117; Maywood-Proviso State Bank, 67 Ill. App. 2d at 288). The right to deal in intoxicating liquors is not an inherent or alienable right or a property right or a contract right or a vested right. (Maywood-Proviso, 67 Ill. App. 2d at 290.) “Such license constitutes a personal privilege to pursue a business peculiarly subject to police regulation and control.” Maywood-Proviso, 67 Ill. App. 2d at 290.

It is well settled that the State may delegate to municipalities its power to license, regulate or prohibit traffic in intoxicating liquors. (Two Kats, Inc., 147 Ill. App. 3d at 443, citing Maywood-Proviso State Bank, 67 Ill. App. 2d at 286.) The Act gives the Village the authority to regulate tavern hours. The Act provides, in pertinent part, that “[i]n every city, village or incorporated town, the city council or president and board of trustees *** shall have the power *** to determine the number, kind and classification of licenses, for sale at retail of alcoholic liquor *** and to establish such further regulations and restrictions upon the issuance of and operations under local licenses not inconsistent with law as the public good and convenience may require.” (Ill. Rev. Stat. 1985, ch. 43, par. 110.) The Act further provides that a municipality may “restrict the permissible hours for the sale of alcoholic liquors under such licenses in its political subdivision as the public good and convenience may require.” (Ill. Rev. Stat. 1985, ch. 43, par. 129.) Therefore, under State law the Village was empowered to establish liquor license regulations and restrictions which have any substantial relation to the public health, comfort, safety or welfare because “the business of selling liquor is closely related to certain evils in society.” (Daley v. Berzanskis (1971), 47 Ill. 2d 395, 398, 269 N.E.2d 716, cert. denied (1971), 402 U.S. 999, 29 L. Ed. 2d 166, 91 S. Ct. 2173.) The Village may have reasonably concluded that earlier closing hours for all Class AA liquor licenses would reduce the likelihood of disorderliness, disturbances and drunk driving, thereby affording a greater degree of protection to its residents. Moreover, the legislative judgment regarding what the public welfare requires is not open to judicial dispute so long as that judgment is not exercised in such an arbitrary, oppressive and unreasonable manner as to constitute a deprivation of due process. (Miller v. Illinois Liquor Control Comm’n (1969), 44 Ill. 2d 155, 158, 254 N.E.2d 502.) The Village’s legislation does not deprive the defendants of due process because the defendants did not have a vested right to serve alcoholic beverages in accordance with the hours specified in the agreed order, and because the Village’s legislation applies uniformly to all Class AA licensees.

Accordingly, we find that the Village did not violate the agreed order because a Class AA license was initially granted, which permitted the hours of operation as provided in the agreed order during the initial period in which such license was in effect (and for several renewals thereafter); that the Village did not agree nor was it empowered to agree to perpetual license rights; and that the Village had the authority to amend the ordinance that regulates and restricts liquor licenses for the public’s welfare.

For the reasons set forth above, the trial court’s order is affirmed.

Judgment affirmed.

CAMPBELL and MANNING, JJ., concur.