text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JON JONES, Defendant-Appellee.
    Fifth District
    No. 5 — 88—0140
    Opinion filed August 31, 1989.

      John Clemons, State’s Attorney, of Murphysboro (Kenneth R. Boyle, Stephen E. Norris, and Raymond E Buckley, Jr., all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Finch & Karraker, P.C., of Anna, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

This appeal arises from matters involving three separate informations filed against the defendant Jon Jones. In cause No. 85 — CM— 382, an information was filed on August 23, 1985, charging the defendant with the August 21, 1985, batteries of two individuals. Jon Jones pled guilty to the charges and was placed on supervision for a period of 24 months, said period to terminate on August 23,1987.

In cause No. 87 — CM—10 the State on January 12, 1987, filed an information charging the defendant with the January 11, 1987, offenses of driving under the influence in Carbondale, Illinois, battery and aggravated battery. Trial in the matter was scheduled for April 13, 1987. Motion for continuance was filed by the defendant April 13, 1987. The State filed a similar motion on April 14, 1987, contending that a witness was scheduled for surgery that date. Subsequently on May 7, 1987, the State filed a motion to continue the case beyond the May 11, 1987, trial setting. The State alleged in support of its motion that it recently learned that it would be held to trial in another case, before Judge Howerton, which was set on March 11, 1987, for May 11, 1987, and that it had an out-of-town witness who had been notified in that case. The State’s Attorney further alleged that he was assigned to try both cases and would be unable to try them concurrently.

On Monday, May 11, 1987, Judge Watt advised the parties that Judge Howerton told him that he would allow the State to try the Jon Jones case first. Judge Watt thereupon denied the State’s motion for continuance. The assistant State’s Attorney informed the court that he was not notified that the Jon Jones case was to be tried first; that he was prepared to try the other case today and not the Jones matter; and that he had notified no witnesses in the Jones case for today. Defense counsel asserted that another State’s Attorney could have taken over the case, to which the State’s Attorney replied that none of the other assistants were available. The State opined that it would have to nol-pros the case, whereupon the court advised the State that it would need the court’s concurrence to do that, and the court was not going to consent to a nolle prosequi. The court then denied the State’s motion for continuance. The docket entry of May 11, 1987, reads, “Court dismisses case based on People v. Lawson.” (People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244.) The State did not appeal the court’s order of dismissal.

On August 21, 1987, the State filed a petition to revoke supervision alleging that on January 11, 1987, the defendant committed the offense of driving under the influence while driving in Carbondale, Illinois. Defendant filed a motion to dismiss, claiming that the revocation was precluded by the doctrine of collateral estoppel, where the predicate driving under the influence offense had been dismissed in cause No. 87 — CM—10 and the State did not perfect an appeal therefrom. The trial judge granted the motion to dismiss.

In a third cause, case No. 87 — CF—281, the State filed an information on August 28, 1988, charging the defendant with the January-11, 1987, offenses of aggravated battery and driving under the influence. Defendant filed a motion to dismiss on the ground that' the State was estopped from refiling the charges where it did not appeal from the order of dismissal, which was based on a finding that a continuance would result in a due process violation under People v. Lawson. The trial judge granted the motion to dismiss upon a finding that “the information in this case, and the prosecution sought to be commenced thereby, is barred by virtue of the order dismissing said case No. 87 — CM—10 upon the authority of People v. Lawson.” The State filed its notice of appeal in cause Nos. 85 — CM—382 and 87 — CF—281 on March 8, 1988.

The issues for our review are: (1) in No. 87 — CF—281, whether following dismissal of the original charges upon denial of its motion for continuance, the State was entitled to refile without appealing the dismissal order, and (2) in No. 85 — CM—382, whether assuming the State was precluded from refiling the charges, it could file a petition to revoke supervision in another case, based upon those offenses.

With regard to the first issue, the defendant first raises the argument that the State failed to perfect an appeal of dismissal of the first prosecution (cause No. 87 — CM—10) within the 30-day period permitted by Supreme Court Rule 606 (107 Ill. 2d R. 606). Defendant contends that the State’s failure to perfect an appeal operated to bar review of the dismissal of the first prosecution in this case and operated to bar the refiling of the charges. Defendant argues that dismissal of the first prosecution was appealable by the State pursuant to Supreme Court Rule 604(a)(1). Under that rule the State may appeal, inter alia, from an order suppressing evidence or “from an order or judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in séction 114 — 1 of the Code of Criminal Procedure of 1963.” (107 Ill. 2d R. 604) Section 114 — 1 (Ill. Rev. Stat. 1983, ch. 38, par. 114 — 1) lists grounds on which a charge may be dismissed, but only by way of a pretrial motion.

The dismissal here did not fall within any of the grounds listed in section 114 — 1. The State’s right to appeal is not limited, however, to those orders specifically listed therein. Any order that has the effect of dismissing the charges against the defendant is also appealable by the State. (People v. Dellecarto (1978), 67 Ill. App. 3d 490, 495, 384 N.E.2d 902, 906; see also People v. Boyt (1985), 109 Ill. 2d 403, 411, 488 N.E.2d 264, 268.) In People v. Lawson (1977), 67 Ill. 2d 449, 455, 367 N.E.2d 1244, 1247, our Illinois Supreme Court recognized that Rule 604(a) was not meant to reduce the State’s right of appeal from a dismissal to only the grounds set forth in section 114 — 1 but also to include those instances where the substantive effect would be a dismissal of the charge. It has been held as being consistent with Rule 604(a) that an order dismissing a criminal charge should be treated as appealable unless the trial court has indicated that further proceedings are contemplated. People v. Harris (1979), 68 Ill. App. 3d 12, 15, 385 N.E.2d 789, 792.

Case law indicates that where the trial court gives the State a specific period of time to file an amended charge or orders that the defendant be held on bond pending further proceedings, the intent to dismiss the charge is negated by the court’s contemplation of further proceedings, and thus such an order is not appealable. (People v. Scholin (1975), 62 Ill. 2d 372, 373, 342 N.E.2d 388, 389; People v. Heddins (1977), 66 Ill. 2d 404, 406, 362 N.E.2d 1260, 1261.) The docket entry showing the court’s order of dismissal in cause No. 87 — CM—10 reads, “Court dismisses case based on People v. Lawson.” There is no indication on the face of the order that the court contemplated further proceedings in the matter. Also, review of Lawson, which the court referenced, does not suggest that Lawson was cited for the proposition that further proceedings in the case were anticipated by the judge. From a review of the record, the court’s concern that the State was not prepared for trial in defiance of the judge’s setting of the trial date with notice to the parties in advance of trial was readily apparent. In light of the record and the holding of People v. Lawson, we can only assume Lawson was cited for that opinion’s holding that the trial court has inherent authority to dismiss an indictment in a criminal case where there has been a clear denial of due process. (See Lawson, 67 Ill. 2d at 455, 367 N.E.2d at 1246.) It is clear to this court that the trial court by its order did not contemplate further proceedings in that cause.

Defendant relies on People v. Quintana (1967), 36 Ill. 2d 369, 223 N.E.2d 161, in reasoning that the unappealed dismissal order was res judicata, thus barring the State from refiling the charges against defendant. In that case the defendant Quintana was found guilty of unlawfully selling narcotics. The sale upon which conviction was based was alleged to have occurred September 11, 1963. Defendant was not arrested until September 17, 1964, even though defendant’s testimony indicated he had lived at the same address, worked at the same employment and had not left the city between September 1963 and September 1964. The trial court granted defendant’s motion for immediate discharge on grounds that the prearrest delay of one year so prejudiced defendant in preparing his defense as to violate his constitutional right to a speedy trial and due process. The State did not appeal the court’s order, but instead secured an indictment charging defendant with the same offense. The trial court denied defendant’s motion for discharge. The case proceeded to verdict and judgment. On appeal the trial judge’s denial of defendant’s motion attacking the second prosecution on res judicata grounds was reversed.

Defendant in the instant case attempts to analogize Quintana to the circumstances of the case at bar. Defendant argues that the trial judge in defendant’s case dismissed the cause on constitutional grounds by reference to People v. Lawson. The first dismissal in Quintana similarly was founded on constitutional grounds. Since the court in Quintana held that a redetermination of the correctness of the first ruling was improper, defendant argues that the State herein should be barred from refiling the charges against defendant where a dismissal order based on constitutional grounds was previously granted. Defendant also cites People v. McBride (1983), 114 Ill. App. 3d 75, 448 N.E.2d 551, which adhered to the general rule that the State’s failure to appeal, or abandonment of an appeal, constitutes a bar to further consideration of the propriety of the trial court’s ruling by another judge of that court in a later proceeding.

Defendant’s reliance on Quintana, McBride and similar cases is misguided. The cases cited by defendant involve discharge of the defendant on grounds of constitutional violations of the speedy trial requirement (Quintana, 36 Ill. 2d 369, 223 N.E.2d 161); suppression of a statement on grounds that it was obtained as a proximate result of defendant’s illegal arrest and detention (McBride, 114 Ill. App. 3d 75, 448 N.E.2d 551); and quashing of a search warrant and suppression of evidence (People v. Taylor (1971), 50 Ill. 2d 136, 277 N.E.2d 878). The common thread woven among these cases is that they all emanate from orders grounded in constitutional roots. Granted, the trial court’s ruling in the case at bar stated that it was based on Lawson, which the defendant, and arguably the trial court, presupposed was authority for a dismissal of the case where defendant’s constitutionally protected due process rights had been violated. We must consider, however, whether the trial court had authority to enter an order of dismissal in the first case.

It is clear that the circuit court may dismiss criminal charges before trial only when so authorized by supreme court rule, or statute, or when there has been a clear denial of due process. (People v. Lawson (1977), 67 Ill. 2d 449, 456, 367 N.E.2d 1244, 1246.) In the instant case the State was faced with a precarious situation. Having a felony trial scheduled for the same day as the Jon Jones trial, and having been told by the judge presiding over the felony case that the case set for trial before him would be heard notwithstanding the State’s conflict with the Jon Jones case, the State acted upon what it perceived to be its only alternative: filing a motion to continue the Jones trial. In addition, the State explained that it had not filed the motion to continue sooner because it was thought that settlement negotiations in the felony case had been entered into, when in fact said negotiations proved unfruitful.

Whether to grant or to deny a motion for continuance is within the sound discretion of the trial court, and the diligence shown by the movant is to be considered in weighing the exercise of discretion. (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 4(e); People v. Verstat (1983), 112 Ill. App. 3d 90, 97, 444 N.E.2d 1374, 1380.) The trial court’s decision to grant or deny a continuance will not be disturbed on review absent a showing of a clear abuse of discretion. See People v. Elder (1987), 162 Ill. App. 3d 417, 515 N.E.2d 413.

In the case at bar, the defendant did not claim that the continuance, if granted, would have impeded his statutory or constitutional right to a speedy trial. Defendant argued to the trial judge that he lives, works and attends school in St. Louis, yet he has never failed to be present at court when his appearance was required. Defendant in his brief on appeal cites instances of alleged prosecutorial misconduct regarded as violative of due process, in support of his argument that the court properly dismissed the case. Instances of such misconduct include the: (1) State’s failure to comply with discovery until defendant’s motion to compel was argued; (2) State’s failure to file an amended information prior to the third pretrial conference; (3) State’s failure to file jury instructions at third pretrial conference despite scheduling order; (4) State’s continuance of April 13 trial date due to a witness’ surgery; and (5) State’s filing of additional discovery six days prior to trial date. We are not convinced that these incidents were sufficient to warrant a dismissal of the case under the facts and circumstances as they existed at the time of the request for continuance. Defendant was not in custody, and the charges against him had been instituted no more than four months prior to the trial court’s dismissal of the case.

Circuit courts have the authority to protect the legitimate rights of defendants by enforcing the terms of the speedy trial acts (People v. Rudi (1984), 103 Ill. 2d 216, 222, 469 N.E.2d 580, 583) and invoking the court’s inherent authority to guarantee each defendant a fair trial. (People v. Lawson, 67 Ill. 2d 449, 456, 367 N.E.2d 1244, 1247.) These powers enable the trial court to protect defendants’ rights, maintain respect for its calendar, and satisfy the public’s interest in the fair and efficient prosecution of the criminally accused. People v. Rudi, 103 Ill. 2d at 222, 469 N.E.2d at 583.

Although the prosecution could be faulted for failure to keep more control over its docket, dismissal of the case is an extreme sanction against the public where it has not been shown that the request for continuance was vexatious or that it was the result of the movant’s lack of diligence. (See People v. Rudi, 103 Ill. 2d at 222-23, 469 N.E.2d at 583.) In light of section 114 — 4(e) (Ill. Rev. Stat. 1983, ch. 38, par. 114 — 4(e)), which provides that “[ajll motions for continuance are addressed to the discretion of the trial court and shall be considered in the light of the diligence shown on the part of the movant,” we believe the State's motion for continuance was a reasonable request, that due diligence was shown, and that the motion should have been granted.

Furthermore, it has been held that any time a court denies the State’s motion for continuance there is an attendant finding that there has been a failure to use due diligence in pursuing a prosecution, and if that finding is not expressed, it must be implied. (People v. Taylor (1985), 131 Ill. App. 3d 766, 769, 476 N.E.2d 19, 21.) Section 114 — 4(e) provides in its second paragraph that after a hearing has been held on the State’s diligence, and a lack of diligence is found, the court may not dismiss an indictment or information without granting one more court date upon which the prosecution may proceed, such date to be not less than 14 nor more than 30 days from the date of the court’s finding. Since the prosecution of the case in issue was commenced less than one year prior to the order of dismissal upon the State’s motion for continuance, the court was required to grant one more court date for the State to commence its prosecution, that date to be within the 14- to 30-day time period provided in section 114 — 4(e). (See People v. Taylor, 131 Ill. App. 3d at 768, 476 N.E.2d at 21.) We hold that the trial court erred in not granting the State a continuance.

The next claim of error is the trial judge’s refusal to allow the State’s motion to nol-pros after the court denied the State’s motion for continuance. A motion to nol-pros a charge must be allowed unless it is part of a vexatious or repetitious course of conduct directed against the defendant. (People v. Verstat (1983), 112 Ill. App. 3d 90, 444 N.E.2d 1374.) The authority of the prosecution to nol-pros extends through all phases of the trial procedure. (People v. Davies (1985), 136 Ill. App. 3d 212, 214-15, 483 N.E.2d 435, 437.) While the trial court may have been angered by the State’s motion for continuance, the trial judge acted improperly in refusing to allow the State’s motion to nol-pros, since there was no showing that the prosecution’s actions were capriciously or vexatiously repetitious. People v. Davies, 136 Ill. App. 3d at 215, 483 N.E.2d at 437.

Once a nolle prosequi has been entered, it is well settled that neither double jeopardy nor equitable estoppel will bar future prosecution of an offense nol-prossed before jeopardy attached. (People v. Mooar (1981), 92 Ill. App. 3d 852, 853, 416 N.E.2d 81, 83.) Defendant contends that reinstatement of the charges against him is barred via the doctrine of res judicata. We find, however, authority that a dismissal prior to jeopardy does not support a claim of res judicata. Similarly, the principle of collateral estoppel is not applicable for we do not have a case where jeopardy attached. People v. Jackson (1971), 132 Ill. App. 2d 1059, 1064-65, 271 N.E.2d 673, 677.

Reinstatement of the charges under the new information does not violate the constitutional guarantee that “[n]o person shall *** be twice put in jeopardy for the same offense.” (Ill. Const., 1970, art. I, §10; see also U.S. Const., amend V.) The constitutional prohibition protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; (3) multiple punishments for the same offense. (North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072; People v. Young (1983), 116 Ill. App. 3d 984, 989, 452 N.E.2d 718, 721.) The interests protected by the double jeopardy clause are not threatened in this case.

We next ask, where the trial court abused its discretion in denying the State’s motion for continuance and in refusing to allow the motion to nol-pros, was the State barred from refiling the charges without having appealed the unauthorized orders? We believe that the State’s primary authority, People v. Deems (1980), 81 Ill. 2d 384, 410 N.E.2d 8, and its progeny People v. Rudi (1984), 103 Ill. 2d 216, 469 N.E.2d 580, control this issue.

In People v. Deems the State conceded that the defendant’s charge of receiving stolen property was improper. The State moved to dismiss so that it could bring a new charge for theft. The court likened the State’s motion to a motion for continuance and found that the defendant was entitled to go to trial on the charge if he were prepared to do so. The case was called for trial, and the State did not participate. The court found the defendant not guilty of receiving stolen property. The State then filed a theft charge. On defendant’s motion the court dismissed the charge on double jeopardy grounds. On appeal the supreme court reversed the dismissal, finding that the defendant had not been subjected to jeopardy since the “trial” was a sham. The court found the “trial” was a mere artifice employed by the judge to achieve the result of a dismissal with prejudice for want of prosecution which People v. Thomas (1975), 24 Ill. App. 3d 907, 322 N.E.2d 97, held he lacked authority to order. In People v. Rudi, the supreme court once again found that the “trial” conducted by the trial judge was a sham proceeding. In that case the court of review focused its attention on whether the trial court had properly denied the State’s motion to dismiss the charges.

Here, as in Deems and Rudi, the trial court dismissed the case against the defendant. Defendant in the case on appeal argues that the trial judge, unlike those in Rudi and Deems, did not conduct a sham “trial” or attempt to hide a proper dismissal order behind a judgment of acquittal. Defendant reasons that the trial judge's finding • was based on the record and was clearly in accord with due process, and that since the facts are substantially dissimilar to Rudi and Deems, defendant argues they are inapplicable. We disagree. Although “trials” were conducted in the cases relied on by the prosecution contrary to the situation in our case, the same result was achieved by the trial judge in the case at bar as in those cases. In this case, rather than conduct a sham trial, the trial judge dismissed the case, stating that the dismissal was based on Lawson. Although the trial judge cited Lawson as authority for ordering dismissal, we believe the dismissal was in reality imposed as a sanction on the State, which the judge had no authority to order. People v. Deems, 81 Ill. 2d 384, 410 N.E.2d 8.

The trial judge’s action in the first proceeding was, as indicated herein, improper. We direct the circuit court to vacate the order of dismissal and allow the State’s motion for nolle prosequi. We further direct the trial court to vacate the dismissal orders which are the subject of this appeal, in cause Nos. 85 — CM—382 and 87 — CF—281. Since in view of our ruling the State is permitted to refile the charges in cause No. 87 — CF—281, we need not address the issue raised by the State which was based on the premise that the State was precluded from refiling the charges.

Reversed and remanded.

HARRISON and RARICK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HOWERTON

license: Public Domain

text:
    DANIEL WHEELER, Plaintiff-Appellee, v. ROSELAWN MEMORY GARDENS, Defendant and Third-Party Plaintiff-Appellee (Harry Henkhaus et al., Defendants-Appellants; Daniel Wheeler, d/b/a Wheeler Stone Company, Third-Party Defendant-Appellant).
    Fifth District
    No. 5 — 87—0191
    Opinion filed September 1, 1989.

      Robert G. Raleigh, of Hoagland, Fitzgerald, Smith & Pranaitis, of Alton, for appellants Harry Henkhaus and Verna Henkhaus.
    Stephen W. Thomson, Steven M. Aroesty, and Curtis L. Blood, all of Reed, Armstrong, Gorman, Coffey, Thomson & Gilbert, of Edwardsville, for appellant Daniel Wheeler, d/b/a Wheeler Stone Company.

      Gordon R. Broom and Madelyn J. Lamb, both of Burroughs, Simpson, Hepler & Broom, of Edwardsville, for appellee Roselawn Memory Gardens.
    David W. Dugan, of Law Offices of Gary E. Peel, of Edwardsville, for appellee Daniel Wheeler.
   JUSTICE HOWERTON

delivered the opinion of the court:

Plaintiff, Daniel Wheeler, d/b/a as Wheeler Stone Company, a solely owned, unincorporated proprietorship, contracted to do masonry work at defendant Roselawn’s premises. Wheeler Stone Company erected scaffolding which was put in place by Daniel Wheeler and another employee of Wheeler Stone Company.

As he was moving the scaffolding, plaintiff noticed a board dangerously close to a crossmember and climbed the scaffold to move the board. He tried to push the board, but it fell and plaintiff twisted his back. Plaintiff sued Roselawn in Madison County under two theories: (1) violation of the Structural Work Act (Ill. Rev. Stat. 1983, ch. 48, par. 60 et seq.) and (2) negligence in failing to provide a reasonably safe workplace. Roselawn filed a third-party complaint for contribution and indemnity against Daniel Wheeler, d/b/a Wheeler Stone Company.

While Wheeler v. Roselawn was pending, plaintiff slipped on the steps of his home in Bond County and further injured his back. He sued his landlords, Harry and Velma Henkhaus, claiming they negligently allowed a handrail on the steps to be loose. Plaintiff joined the Henkhauses’ case with the Roselawn case in Madison County.

The circuit court of Madison County denied the Henkhauses’ motion to sever and transfer their case to Bond County. Both cases proceeded to trial.

Plaintiff settled with Roselawn immediately before opening statements. Roselawn tendered to Daniel Wheeler, d/b/a Wheeler Stone Company, the opportunity to participate in the settlement so as to settle Roselawn’s third-party complaint against Wheeler Stone. Wheeler Stone, represented by counsel different from counsel representing plaintiff, Daniel Wheeler, refused to participate. The settlement agreement, therefore, expressly reserved Roselawn’s rights against Daniel Wheeler, d/b/a Wheeler Stone Company.

Wheeler v. Henkhaus proceeded to trial together with Roselawn’s third-party claim against Daniel Wheeler, d/b/a Wheeler Stone Company.

The circuit court entered judgment for Roselawn on its third-party complaint against Daniel Wheeler, d/b/a Wheeler Stone Company, for 95% of the damages paid by Roselawn to plaintiff, Daniel Wheeler.

The jury returned a verdict for plaintiff, Daniel Wheeler, against the Henkhauses, but found plaintiff 80% at fault and reduced his recoverable damages accordingly.

I

Roselawn v. Daniel Wheeler, d/b/a Wheeler Stone Company

Daniel Wheeler, d/b/a Wheeler Stone Company, appeals, claiming that the circuit court erred in refusing to dismiss Roselawn’s third-party complaint for indemnity and contribution.

Ordinarily the dispositive issue in cases wherein plaintiff is a sole proprietorship is whether plaintiff is within the protection of the Structural Work Act. If not, there can be no recovery. If so, no counterclaim for implied indemnity or for contribution is allowed. (Brown v. Village of Shipman (1980), 89 Ill. App. 3d 162, 411 N.E.2d 569.) Whether plaintiff is within the protection of the Act, however, has been waived by the settlement entered between plaintiff and defendant, Roselawn.

Roselawn argues instead that the circuit court properly allowed its third-party claim under the doctrine of “dual capacity” announced in National Oats Co. v. Volkman (1975), 29 Ill. App. 3d 298, 330 N.E.2d 514, because Daniel Wheeler, d/b/a Wheeler Stone Company, has a legal status and economic identity separate from that of Daniel Wheeler, namely: Daniel Wheeler, as plaintiff, sued in the capacity of employee, but defended the third-party complaint as an employer. (See Palier v. New City Iron Works (1967), 81 Ill. App. 2d 1, 225 N.E.2d 67.) We reject Roselawn’s argument.

Daniel Wheeler, d/b/a Wheeler Stone Company, is neither a corporation nor a partnership, but merely a trade name, a name under which Daniel Wheeler does business as a sole proprietor. Wheeler Stone Company has no life of its own and cannot be sued. Plaintiff, Daniel Wheeler, was the real party in interest. (Moskal v. New Era Commercial Association (1923), 228 Ill. App. 278.) Therefore, Rose-lawn’s so-called third-party complaint was, in actuality, a counterclaim against Daniel Wheeler (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 608(a)), which attempted to reduce Roselawn’s damages in whole or in part, either under implied indemnity or under the Contribution Act.

One who is liable under the Structural Work Act cannot shift responsibility to the plaintiff by claiming a right to indemnity or contribution, because the Structural Work Act is a safety statute causing the “sole inquiry [to be] an assessment of the defendant’s culpability and not the plaintiff’s conduct.” (Simmons v. Union Electric Co. (1984), 104 Ill. 2d 444, 459, 473 N.E.2d 946, 953.) Therefore, Roselawn’s claim must fail.

In addition to a Structural Work Act claim, plaintiff also had a negligence claim. Insofar as that claim is concerned, Roselawn has attempted to raise plaintiff’s own negligence as a counterclaim to plaintiff’s negligence claim against it. No such counterclaim will lie. Brown v. Village of Shipman, 89 Ill. App. 3d at 166, 411 N.E.2d at 572.

Once Roselawn settled with plaintiff, no issue between them was left pending. Therefore, judgment for Roselawn against Daniel Wheeler, d/b/a Wheeler Stone Company, was erroneously entered and is vacated.

II

Daniel Wheeler v. Harry and Velma Henkaus

A

Plaintiff filed a motion to dismiss the Henkhaus appeal on grounds that the notice of appeal was filed too late. We deny that motion.

During trial, defendants got leave of court to file an affirmative defense of setoff. Judgment was entered against the Henkhauses on April 21, 1986. On April 25, 1986, they filed their affirmative defense alleging that they were entitled to set off against their liability the amount paid by Roselawn to Daniel Wheeler under the settlement. On September 11, 1986, the circuit court entered an order striking defendants’ third affirmative defense. Post-trial motions were filed by defendants October 11, 1986. On February 13, 1987, the circuit court entered an order denying defendants’ motion for judgment n.o.v., motion for new trial, and post-trial motion. Defendants filed their notice of appeal on March 11,1987.

Plaintiff argues: post-trial motions must be filed within 30 days after the entry of judgment (Ill. Rev. Stat. 1985, ch. 110, par. 2— 1202(c)); the April 21, 1986, order was a final judgment; defendants did not file their notice of appeal until March 11, 1987; therefore, the appeal should be dismissed.

Defendants argue, however, that the April 21, 1986, judgment was not final, because on that date the issue of setoff was still pending.

“It is well settled that a final judgment is one that determines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed with execution of the judgment.” People v. Hanson (1985), 134 Ill. App. 3d 1002, 1005, 481 N.E.2d 733, 734 , citing Relph v. Board of Education (1981), 84 Ill. 2d 436, 420 N.E.2d 147; Village of Niles v. Szczesny (1958), 13 Ill. 2d 45, 147 N.E.2d 371.

The April 21, 1986, judgment in this case was not a final judgment. The issue of setoff remained alive until denied September 11, 1986. Timely post-trial motions kept open the litigation until February 13, 1987, and defendants’ notice of appeal filed on March 11, 1987, therefore, was timely filed.

Plaintiff next contends that the post-trial motion filed October 11, 1986, was a successive post-trial motion condemned under the holding of Sears v. Sears (1981), 85 Ill. 2d 253, 422 N.E.2d 610.

In Sears, the Illinois Supreme Court condemned the practice of filing motions to reconsider denials of post-trial motions and gave warning to practitioners — one post-trial motion is all the law allows, and motions to reconsider rulings on post-trial motion are legal eunuchs, unable to halt the running of the time in which notice of appeal must be filed.

The application of the Sears doctrine to this case necessarily raises the question of whether the affirmative defense of set off, filed after the trial ended, was a post-trial motion.

The distinction between a post-trial motion and other motions is clear. A post-trial motion offers an opportunity to correct errors of law made during the trial. (Larson v. Harris (1966), 77 Ill. App. 2d 430, 433-34, 222 N.E.2d 566, 568, aff’d (1967), 38 Ill. 2d 436, 231 N.E.2d 421; People ex rel. Gustafson v. City of Calumet City (1968), 101 Ill. App. 2d 8, 241 N.E.2d 512.) Other motions seek to affect the trial or its outcome.

In this case, the motion to file the affirmative defense of set-off was filed only after plaintiff’s damages due him from Roselawn were made definite by settlement. The affirmative defense did not offer an opportunity to correct errors of law made during the trial.

Lastly, merely because the motion was filed after trial does not make it a post-trial motion; after all, leave to file was obtained during trial.

Under these circumstances, we find no successive post-trial motions filed by the Henkhauses, and Sears, therefore, does not apply.

B

Defendants Henkhaus assert that the circuit court erred in refusing to sever their case from plaintiff’s case against Roselawn. This assertion fails for two reasons.

Firstly, plaintiff’s complaint alleges that the injuries he received in the Roselawn case were aggravated by the injury on the Henkhauses’ property and that he is unable to determine what percentage of his injuries is attributable to each incident. These allegations cause this case to fall within the holding in Schwartz v. Swan (1965), 63 Ill. App. 2d 148, 211 N.E.2d 122. In Schwartz, the appellate court held that the Civil Practice Act as interpreted in Johnson v. Moon (1954), 3 Ill. 2d 561, 121 N.E.2d 774, authorizes joinder of defendants where the complaint asserts a liability arising out of a series of transactions, unless it can be shown with reasonable certainty to which occurrence plaintiff’s injuries are attributable. In the case at bar, plaintiff crossed the threshold into Schwartz by alleging two incidents, aggravation of an injury received in the first and an inability to attribute his injuries to each incident. Conversely, defendants did not push the case out of the Schwartz doctrine by directing the circuit court to any evidence from which reasonable certainty of attribution could be inferred. Therefore, the circuit court did not abuse its discretion in refusing to sever these cases.

Secondly, and most importantly, the settlement between plaintiff and Roselawn had the same effect as severance. In fact, the jury was told that the only damages they were to determine were those flowing from the Henkhauses’ case. It is difficult to see how a claim of abuse of discretion in refusing to sever can be made under these circumstances, because no harm can be discerned.

C

The Henkhauses next claim that they are entitled to have the amount of the settlement between plaintiff and Roselawn deducted from the judgment against them. They claim entitlement to this setoff because they say plaintiff claimed one indistinguishable injury and is entitled to only one compensation for that injury. They misconstrue this case.

Plaintiff has alleged not one, but two separate injuries, albeit to the same general portion of his anatomy. He, in effect, has said, “I hurt; I was injured twice; I cannot divide the pain or attribute one portion to Roselawn, and this other portion to the Henkhauses.” This is the gist of the joinder: not that he claims one pain, one injury, but that he claims one pain, two injuries. Merely because it might be “difficult *** to establish the exact proportion of injury caused by each occurrence” is no reason “to deprive [him] of the substantial right of a proper evaluation of [his] damages.” (Schwartz, 63 Ill. App. 2d at 158, 211 N.E.2d at 126.) Every day, juries sort out issues at least as complicated. Had both cases gone to verdict, the jury would have attributed to Roselawn the damages caused by it, and to the Henkhauses the damages caused by them. Neither would have been entitled to setoff. When plaintiff settled with Roselawn, attribution of a portion of plaintiff’s injury to Rose-lawn was made by agreement. The amount settled upon is a substitute for what a jury would have forced upon the parties. Therefore, setoff was properly denied.

D

Defendants Henkhaus next claim that plaintiff had assumed the risk of his injury caused by their negligence. We disagree and affirm the circuit court court’s refusal to direct a verdict for them on this issue.

Plaintiff’s negligence claim against the Henkhauses was based on defendants’ failure to maintain a handrail.

Defendants argue these facts establish implied, secondary assumptions of risk: Plaintiff was walking up the steps of the house he had rented from defendants for SVz years; he knew the handrails were loose; as plaintiff walked up the steps, he reached for the doorknob, lost his balance and slipped because his left leg, which he hurt in the Roselawn fall, would not support him; slipping, he reached for the handrail, and just as did his leg, it too betrayed him, because the handrail was loose, rolling outward from his grasp, and he fell to the concrete; notwithstanding plaintiff’s knowledge that the handrails were loose and his knowledge that his injured legs might betray him, plaintiff nevertheless used this entrance rather than another, thereby deliberately encountering a known risk. This, defendants say, is assumption of risk that completely bars recovery.

Implied, secondary assumption of risk refers to assumption of negligently created risks and arises when plaintiff, with full knowledge and appreciation of the risk, voluntarily exposes himself to the risk under circumstances that manifest plaintiff’s willingness to accept the risk. Kionka, Implied Assumption of Risk: Does it Survive Comparative Fault? 1982 S. Ill. U.L.J. 371, 374; Restatement (Second) of Torts §496(c) (1965).

Secondary assumption of risk is functionally similar to contributory negligence. (Duffy v. Midlothian Country Club (1985), 135 Ill. App. 3d 429, 481 N.E.2d 1037. See Kionka, Implied Assumption of Risk: Does it Survive Comparative Fault? 1982 S. Ill. U.L.J. 371.) Both are forms of fault, and the test for both is the reasonableness of the conduct.

Before comparative negligence became law in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, both assumption of risk and contributory negligence were complete bars to plaintiff’s recovery. Alvis held that plaintiff’s contributory negligence would no longer bar recovery, but was to be compared with defendant’s negligence so as to reduce plaintiff’s recoverable damages. Alvis did not address secondary assumption of risk. In consequence, defendants have resorted to using secondary assumption of risk to persuade courts that plaintiff’s recovery can be barred completely, comparative negligence to the contrary notwithstanding. We refuse to embrace that argument. Implied secondary assumption of risk is a form of fault resulting from unreasonable conduct by plaintiff. Fault resulting from unreasonable conduct looks and operates exactly like contributory negligence; it is its functional equivalent. Therefore, implied, secondary assumption of risk should operate as does contributory negligence, and probably should be so labelled. We hold, therefore, that secondary assumption of risk does not operate as a complete bar in negligence cases. Duffy, 135 Ill. App. 3d at 435-36, 481 N.E.2d at 1043.

Although secondary assumption of risk is not a complete bar, the motion for a directed verdict also raises the question as to whether or not the plaintiff was 100% at fault as a matter of law so as to remove the case from the jury’s consideration. To direct a verdict that plaintiff was 100% at fault on these facts would have been reversible. See Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

E

And finally, defendants Henkhaus complain that the circuit court erred in giving two of plaintiff’s instructions.

The first is Illinois Pattern Jury Instruction, Civil, No. 12.04 (2d ed. 1971) (hereinafter IPI Civil 2d) and provides:

“More than one person may be to blame for causing an injury. If you decide that the defendants were negligent and that their negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame.”

Defendants claim it was error to give IPI Civil 2d No. 12.04 because there were two injuries, one from Roselawn, another from defendants, and that this instruction could have misled the jury by causing them to believe that they were responsible for Roselawn’s misconduct and the injury inflicted thereby.

If this instruction had been read to the jury in isolation, defendants would be correct. However, it was not. It was given with other instructions, including one that told the jurors that they were to take the instructions as a whole, not picking out one and disregarding the rest. Among the instructions was an IPI instruction which read:

“If you decide for the Plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damages proved by the evidence to have resulted from negligence of the Defendants:
The nature, extent and duration of the injury.
The aggravation of any pre-existing ailment or condition.
The disability and disfigurement resulting from the injury.
The pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries.
The reasonable expense of necessary medical care, treatment, and services received. The value of earnings and profits lost and the present cash value of the earnings and profits reasonably certain to be lost in the future.
Whether any of these elements of damage have been proved by the evidence is for you to determine.” (Emphasis added.) See IPI Civil 2d Nos. 30.01 through 30.07.

The jury was instructed immediately after closing arguments during which plaintiff’s counsel told them that they were to consider only the injury caused by the Henkhauses and were not to award plaintiff anything caused by Roselawn. Under these circumstances, the instruction would not have led to the recovery from the Henkhauses of damages not attributable to them. Therefore, there was no error.

The second instruction complained of is not a pattern instruction. It reads:

“Plaintiff’s right to recover damages for his injuries and disability is not barred or to be limited by the fact, if you find it to be a fact, that the Plaintiff’s injuries and disability resulted from an aggravation of a pre-existing condition by the occurrence in question, nor by reason of the fact, if you find it to be a fact, that the Plaintiff, because of a pre-existing physical condition, was more susceptible to injury than other persons might have been.”

Defendants argue that this instruction duplicates the elements of damages instruction which lists aggravation of any preexisting ailment or condition as an element of plaintiff’s damages. Balestri v. Terminal Freight Cooperative Association (1979), 76 Ill. 2d 451, 394 N.E.2d 391, cert. denied (1980), 444 U.S. 1018, 62 L. Ed. 2d 648, 100 S. Ct. 671, holds to the contrary, saying that the general elements of the damages instruction alone is inadequate and must be supplemented where the injuries consist of an aggravation of a preexisting condition.

Defendants complain also that the second instruction is argumentative — an implication with which Balestri might be considered pregnant. However, this instruction is not verbatim to the Balestri instruction. Furthermore, we believe that it is free from argument.

Ill

The judgment in Roselawn v. Daniel Wheeler, d/b/a/ Wheeler Stone Company is vacated. The judgment in Daniel Wheeler v. Harry and Velma Henkhaus is affirmed.

Affirmed in part; vacated in part.

HARRISON and GOLDENHERSH, JJ., concur.


author: JUSTICE RARICK

text:
    JOHN PAUL WOMICK, as Adm’r to collect of the Estate of John William Hatley, Plaintiff-Appellant, v. JACKSON COUNTY NURSING HOME, Defendant-Appellee (R.M. Rodriguez, Respondent in Discovery). — DAVID LEE HATLEY, as Adm’r of the Estate of John William Hatley, Decedent, et al., Plaintiffs-Appellants, v. JACKSON COUNTY NURSING HOME, Defendant-Appellee.
    Fifth District
    Nos. 5 — 88—0511, 5 — 88—0512 cons.
    Opinion filed September 5, 1989.

      R. Courtney Hughes, of John Paul Womick & Associates, Chartered, of Carbondale, for appellants.
    Charles E. Schmidt and Rebecca J. O’Neill, both of Mitchell, Brandon & Schmidt, of Carbondale, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Plaintiffs appeal from the orders of the circuit court of Jackson County granting the motions of defendant, Jackson County Nursing Home, to dismiss plaintiffs’ complaints pursuant to Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)).

Plaintiffs’ decedent, John William Hatley, was a resident of Jackson County Nursing Home on August 6, 1984, when he fell and fractured his leg. Decedent died the next day from cardio-respiratory failure allegedly connected with his fall. On August 4, 1986, two days before the running of the statute of limitations on their cause of action for wrongful death against defendant nursing home, plaintiffs filed a complaint in case number 86 — L—92. Defendant was not served with summons until April 24, 1987, almost nine months later. Defendant accordingly filed a motion to dismiss pursuant to Supreme Court Rule 103(b). While this motion was pending, plaintiffs, two months later, filed a motion for voluntary dismissal. The trial court granted plaintiffs’ motion. On April 22, 1988, plaintiffs filed a complaint in case number 88 — L—28 containing the same cause of action as case number 86 — L—92 against defendant. Defendant was served three days later. On May 3, 1988, defendant responded with a motion for involuntary dismissal based on the trial court’s failure to decide its Rule 103(b) motion in case number 86 — L—92 before granting plaintiffs’ voluntary dismissal. The trial .court vacated the voluntary dismissal pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401) and dismissed both case number 86 — L— 92 and number 88 — L—28 with prejudice pursuant to Rule 103(b) based on a finding of plaintiffs’ failure to exercise due diligence in obtaining service upon defendant in case number 86 — L—92. Plaintiffs subsequently filed a motion to supplement the record and to modify the June 8 order which the trial court denied. The trial court accordingly reinstated its June 8, 1988, order dismissing plaintiffs’ complaints with prejudice. Plaintiffs appeal from the trial court’s order dismissing their complaints in case numbers 86 — L—92 and 88— L — 28. These appeals have been consolidated for purposes of opinion.

Plaintiffs argue on appeal the trial court erred in dismissing their complaints with prejudice pursuant to Rule 103(b) in this instance when defendant had actual knowledge of the pending suit within nine days of its being filed. Plaintiffs readily concede they simply failed to execute service on defendant but contend valid legal claims should not be extinguished on technicalities when it is clearly evident defendant had notice of the suit within such a short time of its being filed. Plaintiffs point to a newspaper interview with defendant’s attorney and administrator pertaining to the suit conducted within nine days of the filing date as evidence of defendant’s knowledge and notice of their claim.

We agree with plaintiffs that defendant clearly had actual knowledge of the pending suit against it within a reasonable time to avoid any prejudice or disadvantage to defendant in any way. We also note that defendant, being a municipal entity, would have received notice of plaintiffs’ claim within one year prior to the actual filing date because of the applicability of section 8 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 8 — 102) to the instant situation. Section 8 — 102 (repealed effective November 25, 1986) required the filing of “notice of injury” within one year from the date of the injury or the accrual of a cause of action with the secretary or clerk if a party were about to commence any civil action for damages against a local public entity. It is true that actual notice or knowledge of a pending suit, as well as lack of prejudice, are not always enough to prevent dismissal under Rule 103(b). (See Faust v. Michael Reese Hospital & Medical Center (1978), 61 Ill. App. 3d 233, 238, 377 N.E.2d 1040, 1044; Karpiel v. La Salle National Bank (1970), 119 Ill. App. 2d 157, 161-62, 255 N.E.2d 61, 64.) But, we are equally aware of an overriding consideration that cases should be decided on their merits. (See Galvan v. Morales (1972), 9 Ill. App. 3d 255, 258-59, 292 N.E.2d 36, 38-39. See also Segal v. Sacco (1988), 175 Ill. App. 3d 504, 506, 529 N.E.2d 1038, 1040.) We believe in this instance the trial court failed to properly consider all of the competing factors inherent in ruling on a Rule 103(b) motion, especially in light of our supreme court’s recent holding in Martinez v. Erickson (1989), 127 Ill. 2d 112, 535 N.E.2d 853. Under Martinez, a trial court must also consider a plaintiff’s diligence in obtaining service after refiling on a voluntary dismissal in light of the entire history of a case. (127 Ill. 2d at 121-22, 535 N.E.2d at 858. See also O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 283, 492 N.E.2d 1322, 1327.) Here, defendant was served within three days of refiling. The trial court simply cannot disregard such obvious diligence on the part of plaintiffs the second time around. (Martinez, 127 Ill. 2d at 122, 535 N.E.2d at 858.) Because the trial court failed to consider the totality of the circumstances present here, we must remand plaintiffs’ causes for further proceedings consistent with this opinion. 127 Ill. 2d at 122, 535 N.E.2d at 858.

For the aforementioned reasons, we reverse the orders of the circuit court of Jackson County granting defendant’s motions to dismiss case numbers 86 — L—92 and 88 — L— 28 and remand for further proceedings consistent with this opinion.

Reversed and remanded.

WELCH, P.J., and GOLDENHERSH, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SYLVESTER ACOFF, Defendant-Appellant.
    Fifth District
    No. 5 — 88—0208
    Opinion filed September 6, 1989.

      Daniel M. Kirwan and John T. Hildebrand, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Raymond E Buckley, Jr., all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court;

Sylvester Acoff was charged in the circuit court of St. Clair County with the offense of residential burglary. He was found guilty by a jury and sentenced to five years in prison.

Prior to trial, Acoff filed a motion to suppress evidence alleging that the seizure of various items was made without a warrant or his consent. At the hearing on this motion, East St. Louis Detective Ronald Matthews testified that on September 30, 1987, he was investigating the burglary of the home of Irene Mathis. Matthews questioned Acoff s codefendant, Matthew Williams, who told Matthews that he and Acoff had burglarized Mathis’ home, and directed Matthews to an apartment in the Gomper Homes housing project. Matthews proceeded to the apartment, where he was met at the door by Acoff’s girlfriend, Georgia Green. Ms. Green stated that Acoff did not live there but was present and directed Matthews to an upstairs bedroom. Upon confronting Acoff, Acoff denied being involved in the burglary, but admitted having some of the stolen property and directed Matthews to the closet where the items were located. Upon searching several bags in the closet, Matthews found several items matching the description of the stolen property. He then placed Acoff under arrest. Matthews also read his police report while on the witness stand. The report appeared to contradict his other testimony in that it stated, in part, that after the detective informed defendant of the statements of Matthew Williams and Irene Mathis, defendant was taken into custody and “at this time” defendant directed Matthews to the closet where Mathis’ property was located. Matthews further testified that when he entered the bedroom the case was “still in the investigation phase” and had defendant not wanted to speak to him, defendant could have left. Defendant was not given his Miranda warnings until he was taken to the police station.

Acoff testified that he was coming down the steps when Matthews entered the residence and told him he had to “go downtown for a burglary.” Acoff went back upstairs to put on his shoes, and Matthews followed him into his bedroom and started searching. Upon finding a bag containing clothes, Matthews asked if the bags contained “Irene’s stuff.” Mr. Acoff responded, “If it is, get it,” whereupon Officer Matthews took the items to Ms. Mathis for identification. Defendant also testified that he did not believe that he was under arrest and that he could have walked away and told Matthews to “go on about his business.”

In denying Acoff’s motion to suppress, the trial court specifically found that Acoff had said, “I wasn’t involved in the burglary but I helped get rid of some things, and here they are, and you can take them.” At trial, Acoff denied involvement in the burglary. Williams testified that he had signed a statement that he and Acoff had committed the burglary and had taken the stolen property to the apartment where Acoff was staying, but denied the truth of the statement, testifying instead that Acoff had not participated in the burglary. Matthews testified that after informing Acoff of Williams’ confession, Acoff directed him to the closet which contained the stolen property and he then took Acoff into custody.

On appeal, Acoff argues that the items seized by Detective Matthews were the fruits of an illegal interrogation and were therefore wrongfully admitted into evidence. The State responds that Acoff waived this argument by not including it in his written motion to suppress, which was based on the lack of warrant or consent to search, maintaining that a motion to suppress illegally obtained evidence shall be in writing and state facts showing wherein the search and seizure were unlawful. (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 12(b).) Acoff contends that, prior to trial, he made an oral motion arguing that the evidence should be suppressed because it had been seized in violation of his fifth amendment privilege against self-incrimination, to which the State did not object. By failing to object, Acoff argues, the State waived any objection to his failure to include this in his written motion to suppress. We find it unnecessary to address this argument as we conclude no fifth amendment violation took place.

Acoff maintains that his statements to Detective Matthews were made after he was taken into custody and without benefit of Miranda warnings. He argues that the arrest took place when Matthews first confronted him with Williams’ statements, and that even if the arrest did not take place until Matthews orally informed him that he was being taken into custody, his statements still were made without benefit of required Miranda warnings.

Miranda warnings are required whenever a person in custody is subjected to either express questioning or its functional equivalent. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.) The critical inquiry in determining whether Miranda warnings are required is whether the suspect is “in custody” or has otherwise been deprived of his freedom of action in any significant way. (People v. Finklea (1983), 119 Ill. App. 3d 448, 456 N.E.2d 680.) Questioning alone does not require Miranda warnings, even where the person being questioned is one whom the police suspect. (People v. Bradford (1981), 97 Ill. App. 3d 998, 423 N.E.2d 1179; People v. Clark (1980), 84 Ill. App. 3d 637, 405 N.E.2d 1192.) The test to determine whether a person is “in custody” is whether, given an objective evaluation of the totality of the surrounding circumstances, with no single factor controlling, a reasonable innocent person would conclude that he is not free to leave, or was expressly or implicitly bound to remain in the presence of the police. (People v. Holveck (1988), 171 Ill. App. 3d 38, 524 N.E.2d 1073; Finklea, 119 Ill. App. 3d at 453, 456 N.E.2d at 682; People v. Savory (1982), 105 Ill. App. 3d 1023, 435 N.E.2d 226; People v. Dixon (1981), 102 Ill. App. 3d 426, 430 N.E.2d 547; People v. Leamons (1984), 127 Ill. App. 3d 1056, 469 N.E.2d 1137.) Factors to be considered in determining whether a statement was made in a custodial setting include the location and duration of the interrogation, the time of day the interrogation took place, the familiarity of the surroundings, the presence or absence of relatives, the number of police officers, whether the person got to the place of interrogation on his own, in response to police request or command, whether he voluntarily assisted the police in the interrogation, and any indicia of formal arrest such as physical restraint of liberty, display of weapons, or show of force. People v. Fischetti (1970), 47 Ill. 2d 92, 264 N.E.2d 191; People v. Smith (1986), 150 Ill. App. 3d 524, 501 N.E.2d 1010; People v. Finklea (1983), 119 Ill. App. 3d 448, 452, 456 N.E.2d 680, 682; People v. Sanders (1981), 103 Ill. App. 3d 700, 431 N.E.2d 1145.

In the present case, Acoff argues that he was in custody from the time Matthews “intruded” into the bedroom and confronted him with Williams’ confession. Under those circumstances, he maintains, a reasonable innocent man would believe that he was not free to leave. We do not agree. First, Matthews did not “intrude,” but was allowed in by Ms. Green, who directed Matthews to the bedroom. It was approximately 11:30 a.m., Matthews was not accompanied by any other officers, and took no action that could be construed as a restraint of Acoff’s liberty. The only thing Officer Matthews did prior to orally informing Acoff that he was being placed under arrest was to inform Acoff of Williams’ confession implicating him in the burglary. Also, we note that Acoff himself testified that he did not believe himself to be under arrest until Matthews orally informed him that he was being taken into custody. We find that under the circumstances, a reasonable innocent person would not have considered himself to be under arrest when Matthews first entered into the room and confronted Acoff. We conclude that Acoff was not placed under arrest until he was so advised by Officer Matthews and that his statements made prior to that time were admissible.

We next address Acoff’s argument that, according to Matthews’ police report, Matthews placed him under arrest immediately after informing him of Williams’ confession and prior to his making any statements. Matthews testified, however, that he placed Acoff under arrest after Acoff denied involvement in the burglary and admitted having some of the stolen property. In denying Acoff’s motion to suppress, it is apparent that the trial court concluded that Officer Matthews’ oral testimony was accurate and that Acoff was not placed in custody until after making the incriminating statements. Findings of fact may not be reversed by a reviewing court unless they are clearly against the manifest weight of the evidence. To reverse the trial court’s finding in this case and hold that the police report, rather than Matthews’ testimony, was the more accurate statement of events would be nothing more than substituting our judgment for that of the trial court, which is not our proper function. People v. Guyon (1983), 117 Ill. App. 3d 522, 453 N.E.2d 849.

In any event, regardless of whether Acoff’s statements were made before or after Acoff was taken into custody, they were not made in response to any type of interrogation or questioning. The record indicates that Matthews merely informed Acoff of Williams’ incriminating confession, whereupon Acoff voluntarily told Matthews that he had some of the stolen property and where it was located. Voluntary statements made without benefit of Miranda warnings are nonetheless admissible. People v. Baer (1974), 19 Ill. App. 3d 346, 311 N.E.2d 418.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

WELCH, P.J., and GOLDENHERSH, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STARR L. CARD, Defendant-Appellant.
    Fifth District
    No. 5 — 87—0328
    Opinion filed September 6, 1989.

      Daniel M. Kirwan and Edwin J. Anderson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Paul H. Hillis, Jr., State’s Attorney, of Salem (Kenneth R. Boyle, Stephen E. Norris, and Matthew E. Franklin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Starr Card and his wife Lila Card were charged in the circuit court of Marion County with two counts of unlawful possession of manufacturers identification plates (counts I and II), two counts of failure to maintain records (counts III and IV), and one count of unlawful use of weapons (count V). Starr Card alone was also charged with two counts of theft over $300 (counts VI and VIII), and one count of unlawful possession of open titles (count VII). At their initial appearance, the Cards were informed of the charges against them and of their right to counsel. Upon requesting a public defender, Starr Card was given an affidavit of assets and liabilities which he began filling out. Card then requested and received a brief recess. Upon returning, the prosecutor announced that a negotiated plea would be entered. Pursuant to the plea agreement, Card pleaded guilty to all charges except counts IV and V, which were dismissed. He received five-year concurrent sentences on counts I, II, VII and VIII, five-year sentences on counts III and VI, concurrent to each other but consecutive to the other four sentences. All charges against Lila Card were dismissed.

Card thereafter filed a motion for appointment of counsel and a motion to withdraw his guilty pleas. Counsel was appointed and an amended motion to withdraw was filed. At the hearing on the motion, Card testified that he had agreed to plead guilty after speaking with the prosecutor for “three or four” minutes. Also during the hearing, it was brought to the court’s attention that Card had received a five-year sentence for the charge of unlawful possession of open titles, which was a Class 4 felony with a maximum sentence of three years. The court found that Card had knowingly and voluntarily waived his right to counsel and that, while the five-year sentence imposed as to count VII was unauthorized, that alone was not sufficient to allow Card to withdraw his guilty pleas because five-year sentences had been properly imposed on the other counts.

On appeal, Card argues that his guilty pleas were not knowingly and voluntarily entered because he was denied his sixth amendment right to counsel. Card maintains that the assistant State’s Attorney negotiated the pro se guilty pleas from him at his initial appearance after he had asserted his right to counsel.

The sixth amendment right to counsel attaches when judicial proceedings are initiated against the defendant. (United States v. Gouveia (1984), 467 U.S. 180, 81 L. Ed. 2d 146, 104 S. Ct. 2292; Kirby v. Illinois (1972), 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877.) The right to counsel extends to all stages of prosecution, both formal and informal. (United States v. Wade (1967), 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926.) Plea negotiations are part of the prosecutorial process, and the defendant has the right to the presence of counsel unless such right has been waived. See Santobello v. New York (1971), 404 U.S. 257, 262, 30 L. Ed. 2d 427, 433, 92 S. Ct. 495, 499.

Once a suspect requests an attorney, no further interrogation may take place unless the suspect initiates further communication and knowingly and intelligently waives his right to counsel. (Smith v. Illinois (1984), 469 U.S. 91, 83 L. Ed. 2d 488, 105 S. Ct. 490; Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, reh’g denied (1981), 452 U.S. 973, 69 L. Ed. 2d 984, 101 S. Ct. 3128.) The application of the Edwards “bright-line” rule, which dealt with the fifth amendment right to counsel, was extended to the sixth amendment right to counsel in Michigan v. Jackson (1986), 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404.

While the “bright-line” rule set forth in Edwards and extended in Jackson deals with the elicitation and use of incriminating statements, we believe it is equally applicable to plea negotiations. The purpose of the sixth amendment is to protect the unaided lay person at critical confrontations with the prosecutorial forces of organized society. (Gouveia, 467 U.S. at 189, 81 L. Ed. 2d at 155, 104 S. Ct. at 2298.) The request for counsel is a significant event under either a fifth or sixth amendment analysis. (Jackson, 475 U.S. at 636, 89 L. Ed. 2d at 642, 106 S. Ct. at 1411; Edwards, 451 U.S. at 485, 68 L. Ed. 2d at 386, 101 S. Ct. at 1885.) Edwards and Jackson are grounded upon this concept and provide for additional safeguards when the accused requests counsel. We believe that the need for such additional safeguards is certainly no less compelling in the case of plea negotiations. A plea of guilty is far more than an incriminating statement or even a confession, “it is [the] conviction; nothing remains but to give judgment and determine punishment.” (Boykin v. Alabama (1969), 395 U.S. 238, 242, 23 L. Ed. 2d 274, 279, 89 S. Ct. 1709, 1711.) We conclude, therefore, that, having requested counsel, Card could waive his right to counsel only if he initiated the plea bargaining.

From a review of the arraignment transcript it is clear that it was Card who requested the recess. Upon returning, the assistant State’s Attorney indicated that a negotiated disposition had been reached. The court asked Card if he wished to withdraw his request for a public defender, to which he replied yes. The court then proceeded to admonish Card pursuant to Supreme Court Rule 402 (107 Ill. 2d R. 402) before accepting Card’s guilty pleas. The trial court repeatedly asked Card if his pleas were voluntary and if he wished to waive counsel, and gave Card numerous opportunities to withdraw his pleas and have counsel appointed. Each time Card indicated that he wished to waive counsel and any further process, and plead guilty to the charges. At Card’s subsequent hearing on his motion to withdraw his guilty pleas, Card indicated that he had requested a recess in order to talk to the assistant State’s Attorney about a negotiated plea, and that the idea of pleading guilty first occurred to him at the arraignment hearing when he was confronted with the charges against him. Our examination of the record leads us to the conclusion that it was Card, a mentally alert 53-year-old person with extensive prior experience in the criminal justice system, who initiated the plea negotiations and, in so doing, waived his sixth amendment right to counsel. Clearly, Card had the right to represent himself. (Faretta v. California (1975), 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525.) He chose to do so by initiating plea negotiations with the prosecutor. Having made this election, he cannot now be heard to complain. We therefore conclude that Card’s pleas of guilty were knowingly and voluntarily made without circumvention of his sixth amendment rights.

Card also argues that he was improperly sentenced to five years on the charge of unlawful possession of open titles, a Class 4 felony conviction for which three years is the maximum sentence. The State concedes this issue; therefore, we have no need to discuss it further and order the sentence on this charge reduced to three years.

The judgment of the circuit court of Marion County is affirmed as modified.

Affirmed as modified.

WELCH, P.J., and GOLDENHERSH, J., concur.


text:
    JOHN BRENCICK, Plaintiff-Appellee, v. LYNN SPENCER, Defendant-Appellant.
    Fifth District
    No. 5 — 88—0217
    Opinion filed September 6, 1989.
    James C. Ochs, of Harlan & Harlan, of St. Louis, Missouri, for appellant.
    Richard Shaikewitz, of Wiseman, Shaikewitz, McGivern, Wahl, Flavin & Hesi, P.C., of Alton, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

On October 23, 1985, John Brencick filed a complaint in the circuit court of Madison County against Lynn Spencer seeking to recover damages resulting from an automobile collision. The complaint alleged that on September 24, 1984, while stopped behind a car which was waiting to turn left, Brencick’s car was struck from behind by Spencer’s car and knocked into the car in front of it. The complaint further alleged that as a result of the accident, Brencick suffered permanent injury, and sought damages for personal injury, property damage, and lost wages.

Brencick testified at trial that following the accident he began experiencing pain in the lower left portion of his neck. He subsequently sought medical treatment at the emergency room of a local hospital, and later from several doctors, including a chiropractor and eventually a neurosurgeon. Brencick further testified that since the accident he had been unable to play soccer or swim, that he experienced pain several times a day, and that the pain had affected his ability to drive and had caused him difficulty in sleeping.

The evidentiary deposition of Dr. Arbha Vongsvivut, the neurosurgeon who treated Brencick, was admitted into evidence. Dr. Vongsvivut stated that Brencick had first come to him on September 10, 1985, complaining of headaches and neck pains. Dr. Vongsvivut’s examination revealed tenderness in the posterior cervical area and limited neck movement. Dr. Vongsvivut prescribed pain medication and had an electromyogram (EMG) performed, which revealed C-6 cervical radiculopathy. Brencick continued to experience pain, and Dr. Vongsvivut had a myelogram and CAT scan performed. The results of both tests were negative as to the existence of a herniated disc. Brencick continued to see Dr. Vongsvivut complaining of headaches and neck pains. Dr. Vongsvivut’s final diagnosis was cervical spine strain and cervical radiculopathy. Dr. Vongsvivut also stated in his deposition that Brencick’s injury was the cause of his pain, that he would continue to experience pain in the future, and that as a result of this pain Brencick would be disabled, possibly permanently.

At the defendant’s request, Brencick was examined by Dr. Ralph Graff, whose evidentiary deposition was also admitted into evidence. Dr. Graff’s examination revealed tenderness in the left trapezius which he diagnosed as resulting from a residual soft tissue injury, and he described his findings as “permanent.” He also stated that he found no evidence of cervical radiculopathy and that such was incompatible with his findings.

Various medical bills totaling $3,339.54, including a $452 chiropractor’s bill, were admitted into evidence. Brencick testified that all of the bills had been paid.

At the conclusion of the nonjury trial, the trial court entered judgment for Brencick in the amount of $45,650. The trial court found that (1) liability was clear; (2) the property damage to Brencick’s vehicle, as stipulated by the parties, was $1,650; (3) Dr. Vongsvivut’s testimony clearly demonstrated that Brencick’s injury was directly related to the accident; (4) Dr. Graff found permanent injury to the trapezius area; (5) Brencick suffered pain in the base of his neck on the left side which prevented him from participating in soccer and swimming; (6) Brencick incurred medical bills in excess of $3,000; and (7) there was insufficient proof of economic deprivation to show wage loss.

Spencer filed a post-trial motion requesting the court to set aside the verdict or, in the alternative, to grant her a new trial. After hearing arguments, the trial court denied the motion.

On appeal, Spencer argues that the trial court abused its discretion in failing to reduce its award for damages. She contends that a trial court may reduce a jury award if the trial court believes that the award was against the manifest weight of the evidence, and that there is nothing to prohibit a trial court in a nonjury case from doing the same. The trial court’s award of $44,000 for personal injury was, she maintains, against the manifest weight of the evidence where approximately $1,300 of the $3,379.54 in medical bills was for diagnostic testing which produced negative results. She also makes some vague reference to Brencick’s lack of credibility which we believe is directed to the trial court’s finding that it was not persuaded by plaintiff that he had suffered any wage loss.

The essence of Spencer’s argument is that the trial court’s decision was against the manifest weight of the evidence. A judgment may be found to be against the manifest weight of the evidence only where the opposite conclusion is apparent or where findings appear to be unreasonable, arbitrary, or not based on the evidence. (Duffek v. Vanderhei (1980), 81 Ill. App. 3d 1078, 401 N.E.2d 1145.) Further, in a nonjury case, the judgment of the trial court will be upheld if there is any evidence to support it. Brown v. Zimmerman (1960), 18 Ill. 2d 94, 163 N.E.2d 518; Briggs v. Gaddis (1985), 133 Ill. App. 3d 704, 479 N.E.2d 350; Jaffe Commercial Finance Co. v. Harris (1983), 119 Ill. App. 3d 136, 456 N.E.2d 224.

In the present case, there was ample evidence to support the trial court’s findings of permanent injury, and future pain and need for medication. The EMG indicated C-6 cervical radiculopathy, both Dr. Vongsvivut and Dr. Graff stated in their depositions that Brencick, a 33-year-old man with a life expectancy of 45 more years, suffered and would continue to suffer, from pain in his lower neck area, and that the condition was permanent. Contrary to Spencer’s assertion, the CAT scan and myelogram did not demonstrate the absence of any injury, but only that there was no herniated disc. Although Dr. Graff disagreed with Dr. Vongsvivut’s ultimate diagnosis, he too con-eluded that Brencick had suffered permanent injury. As to Spencer’s obscure reference to the issue of Brencick’s credibility, our examination of the record leads us to conclude that the trial court’s refusal to award lost wages does not reflect any lack of faith in Brencick’s testimony with respect to his injury. To reverse the trial court in this case would be nothing more than to substitute our judgment for the trial court’s as to the proper amount of damages, which is not our proper function. Schroeder v. Meier-Templeton Associates, Inc. (1984), 130 Ill. App. 3d 554, 474 N.E.2d 744; Gibson v. State Farm Mutual Automobile Insurance Co. (1984), 125 Ill. App. 3d 142, 465 N.E.2d 689.

Spencer also argues that there was no evidence or testimony as to the causal connection between Brencick’s injury and the chiropractor’s bill. The record does not support this contention. Brencick was asked which doctors he saw and he named Dr. Diesker, the chiropractor. He also testified as to the treatment he received from Dr. Diesker. We find Brencick’s testimony sufficient to demonstrate the causal connection between Brencick’s injury and Dr. Diesker’s bill.

The judgment of the circuit court of Madison County is affirmed.

Affirmed.

LEWIS and HOWERTON, JJ., concur.